In the majority opinion of Dobbs v. Jackson Women’s Health, the Supreme Court relied upon social and historical mores in the 18th and 19th century to interpret the US Constitution. Because Roe v. Wade, they argued, relied upon the 14th amendment from 1868, why not rely on the social standards of that era? White Christian male social standards, when women couldn’t vote. The same standards that described Native Americans as “merciless Indian savages” in the Declaration of Independence.

The Court’s attack on women

In their thinking, the Constitution, while conferring a right to have a gun, confers no right to “privacy”, by which they mean basic personal autonomy to make life decisions regarding sex, marriage, or your own body.

To quote the Supreme Court’s approach, “The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition.” They did not let the nation’s diverse and multi-cultural history slow it down; they focused exclusively on the dominant white male society of the 1800s.

Using astounding Orwellian political-speak, the Court went on, “In interpreting what is meant by ‘liberty,’ the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy.” Apparently there’s a difference between the 14th amendment and the Court. And the Court doesn’t think that bodily autonomy is one of the liberties that Americans should enjoy, even if it can be found in the 14th amendment.

First, they subject the interpretation of the Constitution to life centuries ago, then they limit that history to a Eurocentric perspective. This is both erasure of other peoples’ histories and white supremacy – the notion that the US is exclusively for white Christian Europeans (in the 1800s). Swept under the rug are Jewish, Asian, Native and any other traditions that accept abortion, though this nation is filled with these peoples too. Perhaps if the Court considered other cultural traditions, or if they just focused on common sense inalienable rights to bodily autonomy, their list of liberties for us would have been longer.

The Court now threatens to plunge the US into a kind of theocratic totalitarian regime reminiscent of the fictional Republic of Gilead in Margaret Atwood’s dystopian novel, The Handmaid‘s Tale. 

The Court’s attack on Native sovereignty

For a few days after the Dobbs ruling, there were questions as to whether abortion could still be available in red states on Native reservations. Native legal experts explained that, indeed, access to abortion could be available on reservations, but subject to these restrictions (all functions of US attacks on Native sovereignty):  

1. Because of the Hyde Amendment in 1980, no federal funds, including the Indian Health Service or its facilities, could be used.
2. Because of Public Law 280 (PL 280) in 1953, certain states had the right to apply state laws to sovereign Native land. These states include the red states of Nebraska and Alaska, and possibly Arizona, Florida, Idaho, Iowa, Montana, North Dakota, South Dakota, and Utah, depending on how they categorize abortion.
3. The patient would probably have to be a tribal member.

All this meant that, really, tribes could only offer abortion care to their own people on their own land using their own funds. At present, no such services exist. Native women on reservations have essentially been living in a post-Roe world forever, forced to travel hundreds of miles for abortion services. 

Five days after the Dobbs ruling, the Supreme Court added to the list of obstacles:

4. The care providers have to be tribal members as well.

In Oklahoma v Castro-Huerta, the Court dramatically peeled back native sovereignty, basically extending PL 280 to every state, allowing states to come in and apply their laws on Native trust lands, at least to non-native perpetrators. The Court allowed tribal governments “concurrent” jurisdiction, meaning that a tribe may prosecute a non-Native person (say, a sexual predator) on Native land. But the ruling also means that a state may now reach into a reservation and prosecute someone for an act that is illegal in the state but perfectly legal on the reservation (say, a doctor providing an abortion, or a non-Native member of a business selling fireworks). Thus, the Supreme Court essentially usurped the role of Congress and also plugged an important loophole in their abortion ruling. 

Native traditions

Ironically, the very people that the Founding Fathers deemed merciless savages respected women and gave them tremendous political power. Since the 1400s the Haudenosaunee (aka Iroquois) constitution established an elaborate balance of power among the Seneca, Cayuga, Onondaga, Oneida, and Mohawk, and between men and women. Men held positions of leadership, but only women could vote. Much of this balance continues to this day. The white suffragist women in the US were cognizant of the enormous gap between the authority of and respect for Native women in Native societies, and their own plight in the colonies, where they were essentially reduced to property of their husbands.  

Throughout much of the US, many tribes gave women the right to offer clemency and pardon captives. The mythical story of Pocahontas sparing John Smith from execution comes from this. (In reality, she was only ten years old at the time. Smith was actually spared because he promised to be a vassal of the Chief Powhatan Wahunsenaca.)

Most tribes were matrilineal, frustrating British fur trader’s who married Native women in the 1700s. They typically moved into Native towns where, they reported, “the women Rules the Rostt and weres the brichess.” Abusive husbands were run out of town by their wives’ relatives.

European traditions

Traditional Native societies respect women, give them political authority, and traditionally allowed for abortion. Since the Middle Ages, European men have deemed their own women the inferior gender, mindless property of men. Women in the US were not allowed their own credit cards until 1970. When it came to Black or Native women, European men had them bred like cattle, sterilized, or their children taken from them and sold or adopted out to white families. All the Native women depicted in murals in the Capitol Rotunda are either captive or threatened with rape. As recently as the 1970s, a quarter of Native women were sterilized, many without consent, and a third of Native children were removed from their homes and sent to live with white families, perpetuating the breakup of families and forced child labor and re-education camps known as boarding schools. At least in their suffering, Indian Reservations mirrored the Republic of Gilead.

This subjugation of women, be they white or Native, is the Eurocentric legacy that Justice Alito considers “traditional and historic,” and thus in his mind the only appropriate context for interpreting the 14^th amendment, for deciding which rights hidden therein we may enjoy.

To employ the sarcastic tradition of Native humor, the only merciless savages here are those in black robes stripping the people of basic human rights, bodily autonomy, and sovereignty.