U.S. Justice Dept. to defend Indian Health Service workers who perform abortions
IHS medical professionals receive promise of federal legal protection in states where abortion may be banned.
WASHINGTON — Medical professionals who work for the Indian Health Service (IHS) are receiving assurances from the U.S. Department of Justice (DOJ) that they will be defended if they perform abortion services in states where abortion is or may become illegal as a result of the U.S. Supreme Court’s June Dobbs decision.
Senior Biden administration officials have reportedly shared those promises with tribal leaders and Indigenous health advocates in recent days who have been gathered in D.C. this week for the 50th anniversary of the National Indian Health Board advocacy organization.
The new policy comes on the heels of statements from the DOJ made widely public last week that it would provide similar legal protections to U.S. Department of Veterans Affairs medical workers. Per the Washington Post:
The Justice Department said Thursday that it will provide legal defense if necessary to Veterans Affairs medical workers who perform abortions to save a patient’s life, protect the mother’s health or in instances when the pregnancy is a result of rape or incest — even if performed in a state where the procedure is illegal in those circumstances.
In an internal government opinion, Justice Department lawyers said that a recently adopted Department of Veterans Affairs policy permitting employees to provide abortion services to veterans and their eligible relatives is legally sound and can continue. The Veterans Affairs agency started offering abortions at its federal facilities earlier this month in the wake of a June Supreme Court decision that overturned Roe v. Wade, upending the right to terminate a pregnancy that had been enshrined in federal law for nearly 50 years.
States that have banned or will soon ban abortions under Dobbs have threatened to sue any and all federal workers who perform medically necessary abortions in such states.
But the opinion from the Justice Department’s Office of Legal Counsel that affects the VA also pertains to IHS facilities, according to Biden administration officials. They say it’s effectively a sweeping government-wide legal directive that protects IHS workers as well.
The policy and its support for IHS medical professionals has yet to be tested in a real court of law.
When asked about the policy, an IHS spokesperson told Indigenous Wire that the agency continues to follow federal — not state — law.
“At this time, IHS funding may continue using funds for — or otherwise provide for --an abortion at an IHS federal facility 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,” the spokesperson said.
IHS to date has not provided specific details on DOJ legal guarantees to the IHS regarding this policy change.
Abortions at IHS facilities have traditionally been relatively rare due to federal funding constraints under the so-called Hyde Amendment, but they do happen in cases where the lives of Native mothers are in danger, or where other medical risks are involved.
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