WASHINGTON — As the Indian Health Service (IHS) waits on a federal bureaucracy that has slow-walked the confirmation of a permanent director, current agency officials and Biden administration leaders at the U.S. Department of Health and Human Services (HHS) are taking progressive steps to get around anti-abortion components of the recent Dobbs decision by the U.S. Supreme Court and its impacts on tribal citizens.

Whether the agency is doing enough to promote its efforts so that American Indians and Alaska Natives — especially in states where abortion is banned or soon to be banned — are fully aware and whether its moves will hold up to legal scrutiny are both open questions.

The IHS is responsible for providing healthcare for 2.7 million tribal citizens nationwide.

Some people believe that because the agency receives federal funding, it does not perform abortions due to the 1976 Hyde Amendment, which limited the use of federal funding for most abortions, except for when the life of the mother is in danger.

But that isn’t completely true. The agency noted in 1996 that the agency itself decided to ban most abortions in 1982 on its own via regulation — 6 years after the Hyde Amendment went into effect. Agency leaders decided to do so “because IHS funds are appropriated through the Department of Interior and Related Agencies Appropriation and do not contain the Hyde Amendment language,” according to a 1996 agency memo.

In effect, the IHS regulations were updated in 1982 — almost a decade after Roe — under the Reagan administration to make the agency's performance of abortions consistent with other HHS agencies that were subject to the limitation found in separate HHS appropriations language.

But IHS didn’t technically have to make this decision, since it had a different funding stream than most other HHS funding, although legislative battles would have likely ensued had it not.

Then came the HHS appropriation acts for fiscal years 1994, 1995, and 1996 (as well as language within the Indian Health Care Improvement Act) — and they expanded the Hyde Amendment and the circumstances under which federal funds may be used for abortion services as follows, according to the 1996 IHS memo:

None of the funds appropriated under this act shall be expended for any abortion except when it is made known to the federal entity or official to which funds are appropriated under this act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest.

IHS found itself in a situation in 1996 whereby the agency's own 1982 regulations were holding it back from performing abortions involving incest and rape that were legal under current HHS appropriations language, and leaders at that time wanted to make a change.

They decided to make their internal regulatory language consistent with the legislative funding language, such that:

IHS is authorized to expend funds consistent with the current HHS appropriations language. Thus, IHS appropriations may be used to pay for or otherwise provide for an abortion when it is necessary to save the life of the mother or when the pregnancy is the result of an act of rape or incest.

One interesting component of the above history is that any Indians who were denied medically-necessary abortions at IHS from 1976 - 1982 were denied for no real legal reason, as the Hyde Amendment seemingly did not apply at IHS at that time due to its funding mechanism, and the 1973 Roe v. Wade Supreme Court ruling should have been the superseding principle. And any Indians who were denied IHS abortions between 1976 - 1996 due to rape and/or incest situations were likewise possibly wrongly denied because nothing was codified in IHS regulations on those fronts.

As a result of the Supreme Court’s Dobbs decision of June 24, IHS officials and federal lawyers have been closely examining the regulations of 1982 and 1996. Their intention has been to clarify whether IHS facilities operating in states that choose to completely outlaw any abortions as a result of Dobbs would be prevented from doing any abortions at all.

IHS updated its policies on June 30 — just days after the Dobbs ruling, which overturned Roe v. Wade — in a way that makes clear that federal law supersedes state law when it comes to IHS.

One finding, according to a June 30 policy guidance memo issued by the agency, is:

Given the authority that Congress vested in the HHS and the IHS, the position of the IHS is that states cannot take actions that are preempted by federal law, including but not limited to: 1.) compelling IHS federal staff to take any action inconsistent with the scope of their official duties; 2.) prohibiting the use of IHS funds for authorized Purchased/Referred Care (PRC) services; 3.) prohibiting IHS patients from accessing authorized services; and 4.) compelling access to IHS records.

Further:

It is the IHS’s policy to ensure that its employees are carrying out services consistent with Congressional intent and to the maximum degree of flexibility allowed by federal law.

The following guidelines should be used to determine those circumstances where it would be authorized for IHS appropriations to be expended for abortions. The IHS funds may be used to pay for or otherwise provide for abortions if:

1. A physician has found and certifies as part of the medical record that "on the basis of my professional judgment the pregnant person suffers from a physical disorder, injury, or illness that would place that patient in danger of death unless an abortion is performed;" or;

2. A physician has certified as part of the medical record that the pregnancy is the result of an act of rape or incest.

Because the majority of medical procedures during pregnancy, including abortions, are provided to IHS beneficiaries by non-IHS providers, federal funds may be authorized to pay such providers to perform medical procedures, including abortions, as described above. Authorization of such federal funds must be made pursuant to the IHS PRC regulations at 42 C.F.R. 136.21, et. seq.

Nothing in this policy prohibits IHS from providing accommodations to providers who maintain a sincerely held religious objection to abortion.

As a result of the new policy, Indigenous Wire followed up with IHS on the following questions, to which an IHS spokesperson provided answers as follows:

Question: Are IHS facilities in states that choose to eliminate abortions still able to offer them?

Answer: IHS follows federal law. At this time, IHS funding may continue using funds for -- or otherwise provide for -- an abortion when the pregnant person suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place them in danger of death unless an abortion is performed, or when the pregnancy is the result of an act of rape or incest.

Question: How many abortions does IHS provide annually?

Answer: Abortion is a low volume procedure at the IHS.

“At IHS federal facilities, we will follow federal law,” a spokesperson added. “The physical, mental health and spiritual well-being of our patients is a priority of the Indian Health Service. This includes access to safe and comprehensive reproductive health care services. Federal law allows funding for abortion in limited circumstances, and we will work to ensure this access to care for our patients.”

IHS has not responded to requests for input on how the agency is working to get its updated policy information out to Indigenous citizens.

There are currently no references to IHS, tribal citizens, or the above policy clarifications on the website HHS created in response to Dobbs.