Unsteady Ground

The leaked draft decision in Dobbs v. Jackson Women’s Health Organization will shift the ground underneath millions of American women. Except in the highly unlikely event that one or two of the Justices publicly changes their mind, we will all wake up one day this summer and experience a fundamental right being pulled out from under our feet. We will feel powerless, lied to, vulnerable, and angry at just how fragile our rights can be.

I know this because I’m not just an American woman but also an American Indian, and Native people have known for a long time that in this country, rights—whether to remain, to pray, to vote, or even to live—are impermanent and fickle things, subject to revision by those in power. The United States Constitution is not a self-enforcing idealistic guardian of rights. It never has been. It is, simply, a document that sets the basic rules for how we order the government we then trust to respect and protect our rights. And governments can fail us—they can make and then break their promises.

The Dobbs decision will be devastating for Native women, who have already been living with little access to abortion. A total of 2.6 million Native people rely on healthcare facilities run by the Indian Health Service (IHS), an agency of the Department of Health and Human Services, or on tribally run facilities that use federal dollars that were previously allocated to IHS. As a result, the 1976 Hyde Amendment, which prohibits federal funds from being spent on abortions except to save the life of a woman or in a reported case of rape or incest, devastated abortion access for Native women just three years after Roe. Federal guidance on Hyde Amendment compliance for IHS is also unclear, so few facilities offer abortion care at all.

Native women, particularly those who live on reservations in rural parts of the United States, must drive long distances to visit clinics and rely on funds organized by non-profit advocacy groups, such as Indigenous Women Rising, to cover the cost of the procedure, since so many lack insurance and rely entirely on IHS for healthcare. These infrastructures are already stretched thin. The would-be Dobbs decision threatens to make matters still worse, since so many Native reservations are located within the boundaries of midwestern, southwestern, and plains states that are likely to ban abortion if Roe is overturned, and next door to states that will follow suit—making it exceedingly difficult for women to get to a state that offers abortion care and likely to overwhelm demand in those states.

In the wake of Dobbs, some people have asked me whether these same reservations in Texas, South Dakota, or Arizona might become pro-choice bastions, or even safe havens for the rest of America, since Native voters lean Democrat and tribal lands are well known to be—in some cases—exempt from state laws. It is up to each tribe to decide what they will do, but I doubt it. Politically speaking, many tribes are divided on abortion. For example, Cecilia Fire Thunder—the first woman elected president of the Oglala Sioux Tribe—was impeached after she tried to open a Planned Parenthood clinic on her reservation in South Dakota.

Legally speaking, too, it is unlikely that tribal sovereignty can shield non-Indian women or providers from state law, since the Supreme Court has so severely limited its reach beyond the conduct of tribal citizens. In cases such as Oliphant v. Suquamish, Montana v. United States, and even just last term in United States v. Cooley, the Court’s logic has been that it is undemocratic to subject non-Indians to tribal laws or governments if they cannot vote in tribal elections. The unelected members of the Supreme Court have, in other words, made law that will take away the choice of non-Indian women twice over. Even if they tried to “vote with their feet” by entering tribal lands seeking out more favorable laws—as they could by entering a neighboring state in which they similarly did not democratically participate—the paternalism that permeates federal Indian law doctrine would take that choice away from these women too, for their own protection.

I am a law professor, and the day after the draft opinion leaked, someone chalked in the center of our law campus: “If you care: vote!” I agree. But voting will not be enough. Shifting those who are in power will not change the institutional arrangements that allowed this to happen or keep it from happening again to our daughters and granddaughters. If we wake up one day this summer and feel that the Constitution has failed to deliver a system of government that serves us, protects our rights, or reflects our country, we should consider nothing less than reforming our Constitution, rewriting it, or even remaking it, just as we’ve done before. The Constitution, after all, was our second attempt after the Articles of Confederation failed.

This decision will amplify concerns about minority rule in the United States. One clear response will be a push to better protect our rights from this minority, or one in the future, by amending the text of constitutional rights. But it is also vital to consider reforms to the antidemocratic structures that made this decision possible. The Supreme Court itself could be reformed by, for instance, imposing term limits or equally distributing appointments across presidential terms. Political gerrymandering could be outlawed, and House and Senate seats reallocated to better reflect the realities of today’s American population. The electoral college could be replaced by more representative models such as a national popular vote or reformed to utilize rank choice voting.

We could even look to Indian tribes for inspiration. The reemergence of tribal governments in the United States over the last fifty years has been nothing short of a renaissance of resilience. Many tribes had been pressured to adopt constitutions that did not reflect their communities. And so they began reforming and rewriting them. Citizen Potawatomi Nation, for example, addressed a voter turnout problem by completely redrawing and reweighting its legislative districts. By contrast, Eastern Band of Cherokee Indians decided to keep the same geographic districts and number of representatives each year, but reapportion the number of votes each representative casts based on population changes.

Constitutional reform, whether through amendments or larger revisions, is a difficult project. It required tribes to reckon with their governments’ current failings and hold constitutional conventions: the people of the Cherokee Nation collectively recommit or revise their Constitution every few decades.

Above all, reform required that tribes show the humility to recognize the need for change and the resolve to try to bring it about. None of us should settle for a government that can so easily take something as precious as our rights out from under us. We need a stronger foundation to plan our lives and families on.