The ACLU has filed a lawsuit today claiming pregnant women on the Cheyenne River Sioux Reservation, in South Dakota, are being pressured into undergoing labor inductions, without proper information or support.
Despite the reservation being the fourth largest in the state, there is no obstetric care available on the reservation itself. It means that pregnant and laboring women must travel ninety miles to the nearest Indian Health Services contract hospital – St. Mary’s Healthcare Center.
The ACLU filed a Freedom of Information Act (FOIA) lawsuit today against Indian Health Services (IHS) to uncover information that pregnant women are being compelled to take medication to induce labor, as well as to find out what’s happened to plans to build a birthing unit on the Cheyenne River Sioux Reservation, with federal stimulus funds.
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The Senate Committee on Indian Affairs has launched an investigation into the quality of care provided by IHS after finding cases of “mismanagement, malfeasance…as well as potentially criminal behavior” on the part of IHS, in South Dakota. They are calling for “urgent reform.”
Because most of the American Indian women living on the reservation are dependent upon IHS for their healthcare, pregnant women feel they have no choice but to submit to healthcare providers who tell them they must be induced on a particular day – despite the absence of any real discussion of options, risks of or benefits to induction.
Compounding the situation, because the nearest accessible IHS provider is so far away, some women are forced to pick up and leave without any prior notice – leaving family or advocates who may have been able to be with them during labor, behind.
“It is bad enough that these women are denied basic healthcare services on their own reservation,” said Robert Doody, staff attorney with the ACLU of South Dakota. “They should not also feel bullied into being induced at a time that is convenient for their doctor, and sacrifice the right to decide how to give birth.”
This piece, the second installment, was cross-posted from Indian Country Today with permission as part of a joint series about the missing and murdered Native women in the United States and Canada. You can read the other pieces in the series here.
Although Trudi Lee was only 7 when her big sister went missing back in 1971, she wept when she talked about that traumatic event 45 years later. “Sometimes I would catch our mom crying alone,” Lee said. “She would never tell me why, but I knew it was over Janice.”
Janice was 15 when she went missing near the Yakama reservation in Washington. Although her parents reported her missing to tribal law enforcement, there was never any news of the lively, pretty girl. “Mom died in 2001 without ever knowing what happened,” Lee said. “We still think of Janice and would at least like to put her to rest in the family burial plot.”
“It happens all the time in Indian country,” said Carmen O’Leary, coordinator of the Native Women’s Society of the Great Plains in South Dakota, a coalition of Native programs that provide services to women who experience violence. “When Native women go missing, they are very likely to be dead.”
Indeed, on some reservations, Native women are murdered at more than ten times the national average, according to U.S. Associate Attorney General Thomas Perrelli, who presented that gruesome statistic while addressing the Committee on Indian Affairs on Violence Against Women in 2011.
Unlike Canada, where Indigenous leaders and advocates have pressured the government to begin to confirm the numbers of missing and murdered Indigenous women, the United States has done little to address the issue.
Although the Violence Against Women Act (VAWA) and the Tribal Law and Order Act (TLOA) have helped bring attention to this high rate of violence and have begun to address gaps in law enforcement for tribes and federal authorities, there is no comprehensive data collection system regarding the number of missing and murdered women in Indian country.
Under VAWA 2005, a national study authorized by Congress found that between 1979 and 1992 homicide was the third leading cause of death among Native women ages 15 to 34, and that 75 percent were killed by family members or acquaintances.
And that horrific toll might actually be higher. “The number of missing Native women was not addressed in the study,” noted Jacqueline Agtuca, lawyer and policy consultant for the National Indigenous Women’s Resource Center. “Currently, we do not have adequate information on the numbers of missing Native women in the U.S.”
The high rates of sexual violence against Native women are inextricably tied to the likelihood of them going missing; violence, disappearance, and murder are closely interconnected. “Tribal leaders, police officers, and prosecutors tell us of an all-too-familiar pattern of escalating violence that goes unaddressed, with beating after beating, each more severe than the last, ultimately leading to death or severe physical injury,” Perrelli said in his 2011 speech.
According to advocates like O’Leary, there is little hard data about missing and murdered women, only anecdotes that tell of the pain, loss, and anger of loved ones. “Missing and murdered Native women are a non-story in this country. You really don’t hear about them unless you happen to know the family. Officially, these cases seem to get brushed under the rug. No one wants to talk about them,” she said.
Indeed, law enforcement officials questioned for this article seemed reluctant to discuss the issue.
According to NamUS, the National Missing and Unidentified Persons System, there are approximately 40,000 unidentified human remains either in the offices of the nation’s medical examiners and coroners or that were buried or cremated before being identified. NamUs, operated by the U.S. Department of Justice (DOJ), is a national repository and resource center for missing persons and unidentified decedent records. It offers a free online search system.
Troy Eid, former U.S. attorney for the State of Colorado, notes that protocols for taking missing person’s reports and sharing with other agencies vary widely among tribal law enforcement. “Some offices may simply write down the information or may not record it at all,” Eid said.
Eid served on the Indian Law and Order Commission created under TLOA. After two years of field research, he and fellow commissioner released the report, A Roadmap for Making Native America Safer, in 2013. The report describes law enforcement jurisdiction in Indian country as “an indefensible morass of complex, conflicting and illogical commands,” and blames the U.S. government for creating the situation.
Of the 12 tribal law enforcement agencies contacted for this article about procedures for taking missing person’s reports, just three responded: The Navajo Nation of Arizona, New Mexico, and Utah; the Barona Band of Mission Indians in California; and Red Lake Band of Chippewa in Minnesota. All reported that they have designated protocols for taking reports as well as computer terminals that can access the National Crime Information Center (NCIC) database.
As far as tribal law enforcement working with other agencies, federal and local, Eid noted that those relationships also vary widely: “The relationships swing from good to almost nothing, and even to outright hostility.”
To help address such issues under the direction of the 2010 TLOA, the DOJ announced the launch of the initial phase of the Tribal Access Program for National Crime Information in 2015, in which tribes would be able to both report and access crime information in the federal NCIC database. Ten tribes were selected to participate in the pilot program and were to receive NCIC terminals. DOJ officials did not respond to questions about the number of tribes that currently have access to the NCIC terminals nor to questions regarding funding for future tribal access.
Although the Tulalip Tribe is among the ten participating in the project, it has yet to receive a NCIC terminal despite offering to pay for it, according to tribal attorney Michelle Demmert. “We need full access now to this database. I doubt that any other municipality or state would need to work so hard to justify meeting the needs of the community,” she said.
Native peoples are not the only ones who are underserved by America’s approach to helping to find and identify missing persons. Reveal, a project with the Center for Investigative Reporting, published an extensive investigation in 2015, “Left for Dead: How America Fails the Missing and Unidentified,” which lays out how U.S. authorities mishandle these reports. According to the article, the FBI refused to provide access to its data on unidentified remains despite requests from Reveal under the Freedom of Information Act.
Clearly, missing persons and unidentified remains are not a top priority for law enforcement. But for Native women, whose numbers may be greater and whose loss may go unreported, the issue reflects a wider systemic failure of the United States to meet its trust agreement with tribal nations.
“There is so much fear and distrust of law enforcement among our people that they are often reluctant to report loved ones as missing or to report sexual assault,” noted O’Leary.
This fear adds to the lack of accurate data not only about missing and murdered women but also about those who have been raped. Contacting law enforcement can bring unwanted scrutiny to women who are victims of violent crime.
As an example of that, O’Leary pointed to the 2015 abduction of Edith Chavez from Minnesota, in which Chavez suspects she was drugged and taken to Williston, North Dakota. She managed to escape and reported the incident to Williston police who refused to take her statement and instead checked her record. The result? They detained and charged her for an unpaid traffic ticket from 2011.
According to the Guardian, the Williston police department did not respond to requests for comment but instead issued a press release claiming Chavez had smelled of alcohol and had been to a casino. Police later dropped charges against Chavez.
“Native women are not often seen as worthy victims. We have to first prove our innocence, that we weren’t drunk or out partying,“ said O’Leary.
No matter how much the anti-choice movement dissembles, there is only one reality: The laws and policies pushed by the movement and the politicians it supports punish women both explicitly and implicitly.
In 2014, Jennifer Whalen, a nursing home aide, was sentenced to between 12 and 18 months in jail. Her crime? Trying to obtain medication abortion pills for her teenage daughter, who was facing an unwanted pregnancy. Whalen, who was charged with “performing an illegal abortion,” bought the pills online because the nearest clinic from her home was 75 miles away, and because Pennsylvania has a 24-hour mandated waiting period requiring patients to make two visits to a clinic to obtain an abortion. Without health insurance, and facing loss of income from time off, the costs—of two round-trips to the clinic, a possible overnight stay in Harrisburg, and the procedure itself—became insurmountable. Out of desperation, Whalen turned to the Internet.
Whalen was arrested for a simple reason: Her daughter was pregnant and did not want to be.
Earlier this week, GOP presidential candidate Donald Trump asserted that women who have abortions should face “some form of punishment.” He since “walked it back,” political parlance for being too honest or saying the wrong thing at the wrong time. In response to his initial statement, however, the GOP and leaders of anti-choice groups collectively fell all over themselves criticizing Trump for what they declared to be a position outside the “mainstream” of their movement. Their outcry was political theater at its most insidious: Anti-choice leaders know that their real intentions—to ban abortion and punish women who have them—is a deeply unpopular opinion. So they feign concern for women by talking about “safety,” and “caring,” and “life.” No matter how much they dissemble, however, there is only one reality: The laws and policies pushed by the anti-choice movement and the politicians it supports already punish women both explicitly and implicitly, including by sending them to prison.
The anti-choice movement seeks to punish women through a web of entrapment that, spun just a little bit at a time, harms women in ways that are less noticeable to the rest of us because they don’t make headlines until women start ending up in jail.
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First, anti-choice legislators pass laws to mandate medically unnecessary waiting periods, driving up the costs of abortion care and insulting the intelligence of women who don’t need to be told to wait to figure out how to deal with their own realities. Then, they pass laws to require clinics to mimic ambulatory surgical centers, though abortion is among the safest procedures a person can obtain and there is no reason not to do them in a clinic. This forces many clinics to close because providers can’t recoup the costs of medically unnecessary building renovations, and in turn it leaves women in large swaths of a state without access to care. Then, having cut off many avenues to legal safe abortion care, lawmakers pass laws to make medication abortion inaccessible, again on medically unnecessary grounds. They also pass laws mandating that only doctors can perform abortions, even though nurses and nurse practitioners are perfectly capable of being trained to perform early abortions safely and effectively, as well as to administer medication abortion. Finally, they pass laws making self-induced abortion a crime. Put these together and the anti-choice movement has made a safe, legal abortion virtually impossible to obtain. So when, in desperation, women go to any length to end an unintended pregnancy, legislators punish them further by making them criminals and putting them into jail.
It should not be surprising then that in many states, including Georgia, Louisiana, Mississippi, Texas, and Utah, where a raft of laws similar to those mentioned above have been passed, women are taking matters into their own hands and paying the price of anti-choice laws. For example, a recent study estimated that in Texas, where abortion access has been severely limited as a result of the omnibus legislation known as HB 2,between 100,000 and 240,000 women have attempted to self-induce. Many of these women, already vulnerable because they are poor or undocumented or are made subject to racial profiling, are policed every day at medical centers and at border crossings where they go to seek medication to terminate a pregnancy. Medication that, by the way, taken correctly is completely safe and could be used for self-induction were it legal.
Women who attempt to self-induce abortion are now routinely charged with crimes. In Georgia, Kenlissia Jones was arrested in 2015 for allegedly using misoprostol to self-induce her abortion. Jones was originally facing two charges: “malice murder” and “possession of a dangerous drug” (i.e. the misoprostol). The murder charge against Jones was dropped, but she still faces punishment for the drug charge. That same year in Arkansas a nurse, Karen Collins, was arrested and faced the charge of “performing an unlicensed abortion” (a class D felony in her state) for allegedly providing a drug to a woman that would allow her to terminate her pregnancy. And in Tennessee, Anna Yocca was charged with attempted murder for a failed self-induced abortion attempt with a coat hanger. Prosecutors later dropped the attempted murder charge but said they would still pursue criminal charges against Yocca, likely for aggravated assault.
These cases are the product of anti-choice laws promoted relentlessly by Americans United for Life, the Susan B. Anthony List, the National Right to Life Committee, the Family Research Council, and others. The fact that the use of these laws to harass, frighten, indict, and imprison women is never protested by anti-choice groups tells you everything you need to know about the movement’s intentions. Punishment.
Moreover, those who seek to outlaw abortion are forever finding new and creative ways to punish women. Feticide laws, for example, were ostensibly created to allow for the prosecution of third-party actors who were violent toward pregnant women and, in turn, harmed a fetus. According to the National Conference of State Legislatures, 38 states now have feticide or “fetal homicide” laws on the books, and in 23 of these states, these laws can be applied at any stage of pregnancy. While these laws were not originally created with the intent of criminalizing pregnant women for actions they took during their own pregnancy, they are now widely used to do just that. “Pro-life” prosecutors are arresting and indicting women under such laws when they deem that either an action or lack of action by a pregnant woman causes harm to a fetus or leads to pregnancy loss. In fact, these are de facto fetal “personhood” laws of the kind promoted by anti-choice organizations such as Susan B. Anthony List.
There is Bei Bei Shuai, who was charged with murder and attempted feticide for attempting suicide while pregnant. Shuai sat in jail for 435 days until she was released on bail (where she remained under surveillance by an electronic ankle monitor). In August 2013, nearly two and a half years after her prosecution began, she accepted a plea deal to the misdemeanor charge of “criminal recklessness.”
There is Purvi Patel, who was charged with neglect of a dependent and feticide after having a pregnancy loss that the state deemed was a self-induced abortion. She is currently serving a 41-year sentence while her case is on appeal. In three states—Wisconsin, Minnesota, and South Dakota—laws on the books allow for the involuntary civil commitment of pregnant women for “not following doctors’ orders.” Recent cases in which these laws were applied include those of Alicia Beltran and Tamara Loertscher in Wisconsin. As ProPublica has noted in “How States Handle Drug Use During Pregnancy,” hundreds and potentially thousands of women in three states—Alabama, South Carolina, and Tennessee—have faced criminal prosecution under “chemical endangerment laws” that allow for the criminal prosecution of drug use during pregnancy. The anti-choice movement has pushed for and supported these laws.
This is not punishment?
And then consider AJ, a woman on whose case we reported earlier this week. AJ’s teenage daughter became pregnant. Her teacher somehow insinuated herself into the daughter’s decision-making process. Unbenownst to her mother, the teacher called another person, a stranger to this teen, who took her to a so-called crisis pregnancy center, at which the young woman was pressured under threat of “hell and damnation” to sign a document stating she did not want an abortion. These anti-choicers sent the document, containing a raft of personal information including address and social security number, to clinics and police stations in the surrounding area. When AJ’s daughter later decided, after confiding in her mother, that she did in fact want to terminate the pregnancy, they went to a clinic in Memphis, Tennessee. There, AJ found herself threatened with arrest for feticide for “coercing” her daughter to have an abortion. While there was no substance to this charge, the whole episode frightened a teen and her mom and further delayed her abortion. There are several layers of “punishment” here, including frightening a young woman with lies, tricking her into signing a bogus legal document, seeking to get her to delay the abortion until it was too late, and then threatening to arrest her mother.
There are innumerable other ways in which the anti-choice movement is actively punishing women, by, for example, supporting monitoring and harassment of women outside clinics and hospitals, making immigrant women fear arrest, and denying women access to abortion for severe fetal and developmental anomalies while slashing state funding of support for children who are severely disabled.
I could go on. The fact that these laws and policies are passed and employed throughout the country, that they infantalize, criminalize, and otherwise treat women as children without agency is part of an overall agenda aimed at punishing women and is becoming deeply entrenched in the U.S. legal system as a direct result of the advocacy of anti-choice groups.
The anti-choice movement is built on lies. And those lies continue to be perpetuated both by its leaders, and by a media unable, unwilling, or too self-absorbed and preoccuppied with access to politicians to actually understand and report on what is happening throughout the country.