Ius et Iustitium is happy to present this guest post by JS.
It is easy to imagine a perplexed reader trying to figure out what John Finnis and Ed Whelan have to do with Indian tribes, but a recent Note, Tribes Can Prohibit Abortions In Indian Country, in the Harvard Law Review makes the connection clear. The Note advances the perhaps surprising thesis that the 574 federally recognized tribes in the United States can prohibit abortions from being obtained or performed by Indians on their reservations. The argument has four key ideas.
First—and this might surprise those unfamiliar with federal Indian law—the Constitution does not apply to Indian tribal governments. The Note traces this rule to its roots in Worcester v. Georgia and the first clear articulation of it in Talton v. Mayes, where the Court concluded that the laws of the Cherokee Nation are “not operated upon by the Fifth Amendment.” In recent years, the Court has reaffirmed the rule that the Constitution generally and the Bill of Rights specifically does not operate upon Indian tribal governments, in such cases as Oliphant v. Suquamish Indian Tribe and the 2016 United States v. Bryant decision.
The second idea flows directly from the first. If the Constitution itself does not apply to Indian tribal governments, then the supposed constitutional right in Roe v. Wade certainly does not apply to them.
The third proposition is that a 1968 statute called the Indian Civil Rights Act (ICRA) does not limit tribal governments from banning abortions. The ICRA will probably be unfamiliar to many readers, so a short explainer is necessary. The act was passed in 1968 in response to the fact that the Constitution did not apply to Indian tribal governments. It looks a lot like the Bill of Rights with some omissions; it contains both more complicated limits on criminal matters and also equal protection and due process clauses. The Note spends several pages arguing, essentially, that the equal protection and due process provisions of the ICRA cannot be read to incorporate “substantive due process.” It further points out that if it was read to incorporate some substantive due process, it does not incorporate the decision in Roe, which was decided nearly five years after the ICRA became law. A logical response might be that later constitutional interpretations are dynamically incorporated into the ICRA. But, as the Note points out, a standard textualist would read the statute’s words for their meaning at the time of enactment, and it also goes beyond standard textualist methodologies. It shows that both special canons of interpretation that apply to Indian law and the legislative history counsel against dynamic incorporation and that courts do not currently dynamically incorporate subsequent Due Process and Equal Protection interpretations into the ICRA.
Even if a court were to diverge from this interpretation of the ICRA, the fourth idea moots the point. The Note points out that the ICRA only provides for relief in federal court through habeas corpus. What that means is that even if ICRA does limit a tribal government’s ability to ban abortions, then the tribe will still have essentially everything short of criminal incarceration at their disposal to ban abortions (think fines, civil regulations, etc.).
How does this relate to the recent debate? As many of the readers know, there has been a public argument between those who think we ought to accept, on originalist grounds, that the Fourteenth Amendment prohibits abortion — a view exemplified by Josh Craddock’s earlier piece and the more recent one by Professor Finnis — and those who believe the more conventional originalist position that the Fourteenth Amendment properly interpreted returns the abortion question to democratic choice in the states, exemplified by Ed Whelan’s first response. Those who advocate for abortion to be held unconstitutional posit that returning the question to the democratic choice of the states would mean that the immoral practice of abortion would continue in the United States.
Indian tribes are relevant to this dispute because according to the Note, there are 574 governments in this country that already have the status that those in the Whelan camp would like to return the states to by overruling Roe. But there remains a problem. None of the 574 tribal governments have banned abortion and there is no obvious effort by conservatives to convince them to do so.
Perhaps the lack of an effort to convince tribal governments to abolish abortion can be chalked up to ignorance of Indian law. But the point is that those in Whelan’s camp currently have the opportunity to prove to the skeptics, like Professor Adrian Vermeule, that returning this question to the democratic choice of the states is a viable path to abolishing abortion by conducting a successful campaign to convince Indian tribes to abolish abortion. In fact, such a campaign seems like an area which all of the parties to this dispute should be able to look past their differences and in good conscience cooperate with each other towards a goal they all desire.
But, if it is not ignorance, then perhaps the lack of such an all-out campaign to abolish abortion in the places in America which it can currently be abolished shows that, unless we are willing to accept that we live in a country that now and forever will calmly accept the permissive killing of innocent children in the womb, we should strive to abolish abortion through the Fourteenth Amendment.
JS
