Post-Roe, North Dakota puts resources into alternatives to abortion

North Dakota this year adopted one of the strictest abortion bans in the country, with narrow exceptions for rape and incest victims in the first six weeks of pregnancy and to save the life of the mother.

Although abortions-rights advocates haven’t given up the fight, abortion opponents are moving ahead with the restrictions and placing a heavier emphasis on supporting new mothers through legislation and services, such as maternity homes for pregnant women and teens.

Post-Roe, North Dakota puts resources into alternatives to abortion
Molly Richards, 17, hugs her son, Bernard. Richards lives at the Saint Gianna & Pietro Molla Maternity Home, which provides services to pregnant people. (Photo courtesy of Molly Richards)

One of those teens is Molly Richards, who was just 13 years old when she learned she was pregnant.

She remembers feeling both “excited and oblivious” when she got the results at a clinic on the Pine Ridge Reservation in South Dakota, where she grew up. The community is home to the Oglala Sioux Tribe, of which Richards, now 17, is a citizen.

“It was a very happy time for me,” she recalled.

Then the reality of carrying and raising a child began to sink in. But Richards didn’t view abortion as an option.

“Abortion was not on my mind. That was a big no-no for me.”

Seeking resources, Richards and her family connected with Mary Pat Jahner, director of Saint Gianna & Pietro Molla Maternity Home in the small, unincorporated community of Warsaw.

The picturesque brick home – four stories tall and trimmed with ornate gold crosses – is an institution within the North Dakota anti-abortion movement.

Originally a convent for nuns and a boarding school, the home now serves young pregnant women – most from nearby Native American reservations. In addition to food and shelter, the facility provides counseling services, help completing high school, clothing, job training and parenting classes to mothers.

The facility houses two to four residents at a time. Richards was four months into her pregnancy when she arrived at the home.

“Our main purpose is just to provide a choice for moms who …might need a place to stay or might need a family,” Jahner said. “Most of the moms don’t have a safe place to be, they might be living couch to couch. They’re not living on the street per se, but they might not have their own place to call home.”

Saint Gianna & Pietro Molla Maternity Home, seen here on July 6, 2023, is an institution within the North Dakota anti-abortion movement. Located in Warsaw, the facility was originally a convent for nuns and a boarding school. It now serves young pregnant women. (Trilce Estrada Olvera, News21)

With abortions essentially unavailable in the state, where religion is deeply ingrained and diverse, efforts to support mothers and their children have taken on new prominence.

After the U.S. Supreme Court overturned Roe v. Wade in 2022 and returned abortion decisions to the states, researchers predicted the number of births would increase, as would the need to support pregnant people, young mothers and their children.

An analysis by the Johns Hopkins Bloomberg School of Public Health estimates that nearly 9,800 additional live births occurred in Texas from April 2022 through December 2022 after a six-week abortion ban took effect in that state in fall 2021.

The federal Congressional Budget Office has said it anticipates an increase in births because of the end of Roe but that contraceptive use and other abortion methods, such as medication abortion, will largely offset that increase.

Kathy Hirsh-Pasek, a psychology professor at Temple University and senior fellow at the Brookings Institution, doesn’t think the United States is prepared for an influx of births – and that policies nationwide aren’t doing enough.

“We are right now not a family friendly country. We may be pro-life, but we’re not pro-family. And if you’re going to make decisions that put more babies into the market, we need to support those babies,” she said. “I don’t care if you’re pro-Roe or anti-Roe, support children. They’re your future.”

Supporting pregnant people through legislation

State Sen. Sean Cleary, R-Bismarck, has been at the forefront of pushing for additional help for mothers and babies amid North Dakota’s abortion ban.

Sen. Sean Cleary, R-Bismarck, talks in the North Dakota Capitol in Bismarck on July 10, 2023. He pushed for legislation supporting mothers and children. “This topic was definitely top of mind for a lot of folks with the Dobbs decision.” But, he said, “These are all ideas that I would have supported either way.” (Morgan Fischer, News21)
North Dakota this year adopted one of the strictest abortion bans in the country, with narrow exceptions for rape and incest victims in the first six weeks of pregnancy and to save the life of the mother. (Morgan Fischer, News21)

“There was an understanding that women are navigating a very difficult time in their lives, that the state could be doing more to support them and empower them,” Cleary said. “We wanted to be a state that was known for supporting families and supporting mothers.”

Gov. Doug Burgum, a Republican, signed bills this year to eliminate taxes on diapers; expand Medicaid and Temporary Assistance for Needy Families benefits for pregnant individuals; and provide additional funding to the state’s “alternatives-to-abortion” program, which gives funds to child-placement agencies, anti-abortion counseling centers and maternity homes – including Gianna & Pietro.

Cleary co-sponsored the diaper tax and Medicaid bills, as well as failed efforts to create a paid family leave program, a tax credit for child care expenses and a program to increase pay for child care workers.

The 31-year-old said being a father helped him see the need for this type of legislation. He has a toddler and another child on the way.

“Families can’t afford to send their kids to child care, and the workers can’t afford to work there,” he said.

Abortion-rights activists doubt the effectiveness of the few measures that made it through the Legislature.

“None of them are actually adequate to address fully supporting a pregnant person bringing a child into the world and raising a child to adulthood,” said Cody Schuler, advocacy manager for the American Civil Liberties Union of North Dakota.

“If you’re going to have a near-total ban on abortion and you’re going to force people to carry pregnancy to term, you have to do more than give a tax break for diapers.”

Katie Christensen, North Dakota state director for Planned Parenthood, emphasized the problematic funding of the alternatives-to-abortion program.

Katie Christensen is the North Dakota state director of external affairs for Planned Parenthood North Central States. Though Planned Parenthood does not provide abortions in North Dakota, it is part of an abortion-rights coalition in the state. (Trilce Estrada Olvera, News21)

Christensen has criticized the program for providing $1 million in state funds to mostly religious ministries with little to no government oversight. State funding for so-called “crisis pregnancy centers,” which aim to dissuade people from getting abortions, is especially concerning to abortion-rights advocates.

There are at least seven such centers in the state, according to the Crisis Pregnancy Center Map, which provides nationwide tracking of these facilities and is maintained by University of Georgia professors.

“We’re putting thousands of public dollars into programming that aims to seek out people who want abortions and try to persuade them away from that,” Christensen said. “They’re still allowed to promote their religion while using these dollars.”

Despite this criticism, Sen. Tim Mathern, D-Fargo, one of only four Democrats in the 47-member state Senate, co-sponsored the alternatives-to-abortion funding bill, claiming that it “sort of became a litmus test between pro-choice and pro-life people.”

Although he supports abortion access, Mathern backed the bill in an attempt to change the tide of Democrats in North Dakota being seen as “the anti-religion and anti-God people and the people who kill babies.”

However, if concerns over these “crisis pregnancy centers” are legitimate, Mathern said, their practices should be evaluated and “the state’s attorney should be investigating.”

‘Small government’ approach to helping mothers

North Dakota’s Legislature meets for 80 days during odd-numbered years only. Legislators, who don’t have staff, work at their desks on the floor of the Senate or House. This model can mean less government funding for programs, something Republican state Sen. Janne Myrdal supports.

Myrdal represents far northeastern North Dakota, where the Gianna & Pietro home is located. She sponsored the state’s strict new abortion ban and co-sponsored the bill that beefed up funding to the state’s alternatives-to-abortion program. She warns that such funding comes with some strings attached.

“If you ask for that much support, then the government’s going to come on top of it and go, ‘We’re going to regulate you,’” Myrdal said. “You can’t pray for people, you can’t hug people, you can’t share Jesus with people who come in, because the government can’t do that.”

Gianna & Pietro, which is a nonprofit organization, receives the majority of its funding – about $500,000 to $600,000 each year – from individual donors, but it also has received funds from the state’s alternatives-to-abortion program.

In this year’s bill, about $100,000 was earmarked for the home; Jahner said the money will go toward updating vehicles and other needs.

In the nearly two decades of the home’s operation, more than 300 people have lived there, and over 100 children have been born as part of the program.

During a recent visit, three women who were either pregnant or young mothers, including Richards, lived at the home. Staff members stay on site, too, to provide support and help.

Jahner, her daughter, whom she adopted from a former resident, and several other children of former residents live on the property, as well, in a two-story home behind Gianna & Pietro.

Molly Richards, 17, feeds Brooklyn, another resident’s baby, on July 5, 2023, at Saint Gianna & Pietro Molla Maternity Home in Warsaw, North Dakota. Richards and other mothers living at the home help care for the children. Richards is in the process of having her own son, Bernard, adopted by a family in southern Minnesota because, “I wanted something more and better for my son,” she said. (Morgan Fischer, News21)

Richards’ initial stay in 2019 only lasted a month. Feeling homesick, she returned to South Dakota to give birth. But after struggling to parent on her own and dropping out of school, Richards returned to Gianna & Pietro over a year and a half ago, with her son, Bernard, in tow.

Richards is now in the process of having her son adopted by a family in southern Minnesota, because, she said, “I wanted something more and better for my son.”

There is a clear religious aspect to Gianna & Pietro. Residents must attend Sunday Mass, take part in nightly prayer and participate in grace before meals. A stained glass chapel is located on the first floor of the home, and delicate religious paintings are scattered throughout. Across the street sits a steepled red brick church where residents may also attend Mass.

The Rev. Joseph Christensen holds Mass inside the Gianna & Pietro maternity home’s chapel on July 6, 2023, in Warsaw, North Dakota. Christensen holds Mass every day for the mothers and staff. (Trilce Estrada Olvera, News21)

Although residents are not required to be Catholic or religious to live at the home, a question about religious preference is included on the admission application form and participation in religious activities is required.

“I didn’t become religious until I actually came here, so my family isn’t religious,” Richards said. “I was baptized (Catholic) a year and a half ago.”

Schuler, of the ACLU, and other abortion-rights advocates worry such religious requirements could lead to “coercing individuals into religion” with the help of government funding.

“When it comes to a maternity home, it’s being operated as a religious ministry. I don’t think state dollars should be paying for that,” Schuler said. “But at the same time, I know that there are individuals who are religious who might be looking for what that center might provide.”

Expansion of reproductive care in Minnesota

With limited capacity in homes like Gianna & Pietro, abortion care across the Red River in neighboring Minnesota remains essential, abortion-rights advocates say.

“The amount of pregnant people who are having their abortions today across the river would fill up those homes fivefold today – unless they’re going to open up huge apartment complexes to house all of these pregnant people,” said Destini Spaeth, board chair of the North Dakota Women in Need Abortion Access Fund.

Abortion is legal in Minnesota up to fetal viability, which is 24 to 26 weeks, and exceptions are granted to save the life or protect the health of the mother. Surrounded by states that have completely banned abortion or are in court fighting to prevent access, Minnesota has become a key state for abortion access in the Upper Midwest.

For nearly 25 years, Red River Women’s Clinic operated in Fargo and was the only abortion clinic in the state for two decades. Every Wednesday, when the clinic was open, protesters gathered with graphic signs outside the front door.

Then last year, after word of the Supreme Court’s likely end to Roe was leaked, its operators began looking for a new location. Last August, they reopened less than 3 miles away – across the river in Moorhead, Minnesota.

Each Wednesday, the clinic provides 25 to 30 abortions up to the 16-week mark of pregnancy. After that time, patients are referred elsewhere for a multiday procedure that the independent clinic lacks capacity for.

Since the move, the clinic has seen its patient load increase 10% to 15%, said Tammi Kromenaker, the facility’s director. And with fewer overall restrictions on abortion care in Minnesota, Kromenaker said she believes access has actually increased for women in North Dakota.

But the fear her patients feel has also gone up, she said.

“Every week, mostly patients from North Dakota will say: ‘Is it even legal for me to come here? Will I get legally prosecuted for this health care?’

Kromenaker continues to fight for abortion rights back across the river in North Dakota. Her clinic is one of the plaintiffs in a lawsuit over the state’s near-total abortion ban.

“We didn’t want to give up on North Dakota. We didn’t want to leave,” she said. “But our hand was forced.”

News21 reporters Trilce Estrada Olvera and Cassidey Kavathas contributed to this story. 

This report is part of “America After Roe,” an examination of the impact of the reversal of Roe v. Wade on health care, culture, policy and people, produced by Carnegie-Knight News21. For more stories, visit

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Despite Supreme Court ruling, ICWA challenges remain

The nation’s highest court recently upheld the Indian Child Welfare Act in a major case over the law’s constitutionality, a decision hailed by many as a victory for Indigenous children and their families.

But while the 7-2 majority decision in the Brackeen v. Haaland case firmly rejected key arguments against the law known as ICWA, state-level challenges have been moving through lower courts across the country, with varying degrees of success.

Cases in Nebraska, Alaska, Iowa, Montana and Oklahoma center on different legal issues than those decided by the U.S. Supreme Court last month. Plaintiffs in Brackeen v. Haaland — a group of states along with white adoptive parents seeking custody of Native children — argued unsuccessfully that ICWA was unconstitutional because it exceeds the “plenary powers” of Congress to pass legislation governing tribal affairs, “commandeers” states to follow federal law and violates equal protection guarantees.

Yet while the Supreme Court upheld ICWA’s constitutionality for now, legal experts who are both supporters and critics of the 45-year-old federal law say the Brackeen case doesn’t rule out future challenges to tribal sovereignty.

What’s more, justices declined to delve into the equal protection arguments in the case, stating only that the plaintiffs “lack standing” on that issue because the adoptions of Indigenous children they sought had been finalized. Some court watchers say that leaves open the possibility of future lawsuits on equal protection issues.

The 1978 law in question seeks to repair damage caused by centuries of forced attendance at Indian boarding schools and coercive adoptions into white, Christian homes. That legacy has endured in Indian Country, where the rate of foster care removals remains far higher than in other racial and ethnic communities.

Under ICWA, state child welfare agencies must determine whether a child facing foster care, adoption or guardianship is a member of a Native American tribe. If they are an enrolled member or have a parent who is enrolled and are eligible for tribal membership, the case takes a different pathway than for other children. Tribes must be offered the opportunity to take jurisdiction from the state court; tribal members and Indigenous foster parents and kin must be prioritized for placements; and social service agencies must make “active” rather than “reasonable” efforts to help parents accused of maltreatment reunite with their children.

Kate Fort, director of the Indian Law Clinic at Michigan State University College of Law, outlined the most common reasons for an ICWA appeal in the March edition of the Juvenile and Family Court Journal.

She wrote that between 2017 and 2022, more than 40 percent of all such cases were remanded — sent back to lower courts — or reversed. Plaintiffs in 87 percent of the ICWA-based appeals were biological parents of an Indigenous child. About half the cases were appealed based on parents’ belief that the court improperly determined ICWA’s application to their child’s case.

“These data indicate that agencies and courts are still struggling with the first step in an ICWA case — whether they have an ICWA case at all,” Fort wrote in the paper.

Two ICWA-related cases were decided by the Alaska Supreme Court in July 2022.

They involved the federal law’s provision requiring that a “qualified expert witness” testify about the Indigenous child’s tribe, customs and traditions before their parent’s rights can be terminated. Those challenges did not prevail.

Recent disputes over ICWA in state courts center on tribal jurisdiction, the definition of a Native child, and termination of parental rights, among other issues. The following is a summary of some recent cases:


Tribal court jurisdiction in child welfare cases lost ground in an April ruling in Oklahoma. In the decision — involving a child identified as S.J.W. — the state Supreme Court gave lower courts increased ability to grant custody of Native children living on a reservation that is not their own.

S.J.W.’s parents argued that “the Chickasaw tribal court has exclusive jurisdiction regardless of the fact that S.J.W. is a nonmember Indian child,” according to court documents. The state maintained it had shared jurisdiction on cases involving ICWA.

Critics call the ruling involving a Muscogee child living on Chickasaw Nation’s reservation deeply flawed.

The state Supreme Court “misunderstands tribal sovereignty,” the Choctaw Nation’s senior executive officer of legal and compliance Brian Danker told a National Public Radio affiliate. “This ruling could impact a tribe’s ability to protect tribal citizens’ social, cultural and familial connections as it attempts to chip away at the foundations of tribal sovereignty in the state of Oklahoma.”

Fort described the Oklahoma ICWA case as unique, and a “truly unfortunate opinion with absurdly weak analysis.” Fort said tribes’ ability to retain jurisdiction over child welfare cases remains an ongoing fight in multiple states.

Iowa and Nebraska

In another suit filed this past April by the Red Lake Band of Chippewa Indians, the Supreme Court in Nebraska denied the tribe’s request to intervene, because it had previously been determined the child in question did not meet the criteria of an “Indian child.” The child’s mother was eligible for tribal enrollment, but was not yet enrolled.

The tribe argued the spirit of ICWA should apply to the case, but the state of Nebraska opposed that position, and was victorious in court. Ultimately, the state’s highest court ruled that ICWA’s specific requirements to determine a child’s eligibility for its protections should be strictly applied.

In April 2022, the Iowa Supreme Court upheld a juvenile court’s ruling that denied a child ICWA protections, affirming a prior decision to terminate the rights of the child’s parent. The juvenile court found the state’s “reasonable efforts” to avoid out-of-home placement — instead of the “active efforts” required for tribal members under ICWA — were adequate because the child was deemed to be non-Native.


ICWA was affirmed in a Montana case decided by the state Supreme Court in January, a ruling that underscored how the federal law applies to guardianships and third-party custody proceedings, in addition to adoption and foster care cases.

The child’s mother, an enrolled member of the Native Village of Kotzebue Tribe in Alaska, provided the court with verification that her three children were eligible for ICWA protections. She asked the courts to remove her children from the Montana home of their paternal grandparents — who had full custodial rights — and restore her custody. The case was sent back to lower courts for further proceedings to determine if the children should be returned to their mother.


Nearly two weeks after the Brackeen decision in mid-June, the U.S. Supreme Court denied review of a recent Minnesota case making a related equal protection argument — that ICWA discriminates against non-Native foster and adoptive parents.

In March 2022, Hennepin County was sued by two Indigenous foster parents who were unsuccessful in the adoption of the Indigenous child they were fostering. Instead, the child’s tribe, Red Lake Band of Chippewa, took over the proceedings and granted custody to the child’s maternal grandmother. The foster parents were considered “nonmembers” in the ICWA case, because one is enrolled in the Bois Forte Band of Chippewa and the other is a White Earth Nation descendant.

The plaintiffs in the case — who, under ICWA, lost priority in their adoption efforts in favor of the child’s relative despite having adopted the child’s siblings — were represented by Minnetonka attorney Mark Fiddler, a member of the Turtle Mountain Band of Chippewa Indians. He also represented the white adoptive couples seeking to overturn ICWA in Brackeen v. Haaland. The conservative Goldwater Institute filed amicus briefs in both cases, challenging ICWA’s constitutionality.

In an email, Fiddler said that while the institute attacked ICWA as unconstitutional, the plaintiffs did not. “Rather, they argued ICWA could and should be interpreted to be constitutional by not forcing nonmembers into a jurisdiction foreign to them,” he said.

“Petitioners were improperly subjected to the personal and subject matter jurisdiction of a state foreign to them, one where they have no right to vote,” plaintiffs stated in Denise Halvorson v. Hennepin County Children’s Services Department case documents. As a result, the lower court violated “their due process rights to fundamental fairness and equal protection.”

But the petition to the U.S. Supreme Court was denied on June 26.

Fiddler said despite the high court upholding ICWA in Brackeen and its denial of the Hennepin County case, establishing standing in an equal protection case against ICWA “would be easy,” and he fully expects continued challenges to the law on this issue and others.

“Any foster or adoptive parent would have the right to move to strike down ICWA in state court, so long as he or she was jeopardized by it somehow,” Fiddler stated shortly after the Brackeen decision.

The Imprint is a non-profit, non-partisan news publication dedicated to reporting on child welfare.

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What Thursday’s Supreme Court order means for the future of the Mountain Valley Pipeline — and for West Virginia

Lawyers were nearly half-way through their arguments in a federal courthouse Thursday in Richmond, Va. when one of the presiding judges informed the court that the Supreme Court had issued an order allowing construction to resume on the Mountain Valley Pipeline. 

The brief, unsigned order added another layer of complexity to the already-complicated case, leaving the future of a $6.6 billion controversial natural gas pipeline, endangered species and a national forest hanging in the balance. 

Here’s where things stand.  

How the Supreme Court got involved

The 4th Circuit issued two stays — temporary holds — on the project earlier this month after environmental groups filed motions requesting the pipeline’s construction to stop. The groups argued that, without a stay, the pipeline’s construction would cause “irreparable harm” while the current legal challenges worked their way through the courts. 

Lawyers for the pipeline responded by filing an emergency petition with the Supreme Court to get the holds removed and the two pending cases dismissed, citing the need for quick action in order to meet the project’s winter deadline.

They got some of what they wanted: the high court, in an unsigned order Thursday, threw out the stays, which means construction can resume on the last section needed to finish the 303-mile natural gas pipeline: a controversial 3.5-mile section that snakes through the fragile terrain of the Jefferson National Forest. But the Supreme Court didn’t weigh in on the pending cases, leaving the 4th Circuit to decide whether to move forward with the lawsuits.

The role of the 4th Circuit Court

The Supreme Court’s decision came down right as pipeline lawyers, environmental lawyers and judges were all gathered in the federal courthouse in Richmond, Va., to hear arguments on a motion to dismiss the current legal challenges against the pipeline. 

Those lawsuits, all filed by environmental groups, argue the pipeline’s plan doesn’t follow federal environmental law. One challenge stems from the U.S. Forest Service’s move in May to amend its land management plan: as proposed, the project violated several standards of the national forest’s original plan. Attorneys for the Wilderness Society petitioned the 4th Circuit Court to review the amended Land and Resource Management Plan, arguing that it violates several environmental laws, including the National Environmental Policy Act and the National Forest Management Act. 

The lawsuit also argued that the permit granted to the pipeline by the Bureau of Land Management violated the National Environmental Policy Act.

The other pending lawsuit, filed by a coalition of environmental groups, including the Sierra Club and Appalachian Voices, challenged the U.S. Fish and Wildlife Service’s 2023 report that concluded endangered species wouldn’t be jeopardized by the pipeline. 

Thursday’s arguments revolved around a motion to dismiss the environmental groups’ cases. Backers of the pipeline argue that the 4th Circuit Court no longer has jurisdiction over the legal challenges, after Congress passed a debt ceiling bill that included a provision to fast track the remaining approvals needed to complete the pipeline and stripped the court’s power to review permits given to the project by federal departments. 

The provision also gave the D.C. Circuit Court of Appeals sole judiciary authority over any legal challenges against the pipeline. 

While the pipeline says the 4th Circuit Court no longer has authority, the environmental groups disagree. As the news of the Supreme Court decision allowing pipeline construction to resume came down on Thursday, it was right as Kym Meyer of the Southern Environmental Law Center was arguing that Congress didn’t have the constitutional authority to reassign authority over the pipeline.

“You can’t use jurisdiction stripping, as Congress has intended to here, as a means to an end,” she said. Instead, the groups are arguing that Congress overstepped and violated the separation of powers doctrine, which is meant to prevent a governmental branch from having too much authority. 

Now, the court has to determine whether Congress overstepped its constitutional authority and if it even has jurisdiction to rule on the constitutionality of the pipeline provision enacted by Congress. 

The fate of the Mountain Valley Pipeline

Ultimately, the future of the pipeline is still uncertain. Its completion can’t be guaranteed as it still waits for the 4th Circuit Court to decide whether to dismiss the pending two cases challenging the project. 

If the court decides to dismiss the cases, the environmental groups could potentially pursue legal recourse through the D.C. Circuit Court, which was the court Congress granted jurisdiction through the debt ceiling bill. But if the court decides not to dismiss the lawsuits, the environmental groups could try to halt construction again as their cases continue to work through the court. 

For now, what comes next will be determined by how the 4th Circuit Court rules over the motion to dismiss the cases. Until then, construction on the pipeline can continue.

What Thursday’s Supreme Court order means for the future of the Mountain Valley Pipeline — and for West Virginia appeared first on Mountain State Spotlight, West Virginia’s civic newsroom.

Supreme Court rejects Navajo Nation’s water rights trust claim

The U.S. Supreme Court said the United States is not required “to take affirmative steps to secure water for the Tribe” because that provision is not explicitly stated in the Navajo Treaty of 1868, according to its ruling in a 5-4 vote in Arizona v. Navajo Nation, released Thursday.

The case was the third and final federal Indian law case this term.

Thursday’s decision reverses a ruling by the U.S. Court of Appeals for the 9th Circuit. The tribe cannot proceed with a claim against the Department of the Interior to “develop a plan to meet the Navajo Nation’s water needs and manage the main stream of the Colorado River in the Lower Basin.”

The court also ruled that the tribe cannot present a cognizable claim of breach of trust.

Justice Brett Kavanaugh wrote the opinion and was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett.

“And it is not the Judiciary’s role to rewrite and update this 155-year-old treaty,” Kavanaugh wrote. “Rather, Congress and the President may enact—and often have enacted—laws to assist the citizens of the western United States, including the Navajos, with their water needs.

Kavanaugh went on to write that the United States has no similar duty with respect to land on the reservation and it would be “anomalous to conclude that the United States must take affirmative steps to secure water.”

“For example, under the treaty, the United States has no duty to farm the land, mine the minerals, or harvest the timber on the reservation—or, for that matter, to build roads and bridges on the reservation,” Kavanaugh writes. “Just as there is no such duty with respect to the land, there likewise is no such duty with respect to the water.”

The Navajo Nation argued that securing water rights to the Colorado River for the tribe fell under the federal government’s trust obligations that were being unfulfilled.

Critics immediately reacted to the decision saying it is a virtual theft of water from the Navajo Nation.

Navajo Nation President Buu Nygren and Speaker of the 25th Navajo Nation Council Crystalyne Curley shared their disappointment in the decision in a joint press release.

As president, Nygren said it is his job to protect the people, land and future and that he remains “undeterred in obtaining quantified water rights for the Navajo Nation in Arizona.”

“The only way to do that is with secure, quantified water rights to the Lower Basin of the Colorado River,” Nygren said in the statement. “I am confident that we will be able to achieve a settlement promptly and ensure the health and safety of my people.”

“Today’s ruling will not deter the Navajo Nation from securing the water that our ancestors sacrificed and fought for — our right to life and the livelihood of future generations,” Curley added.

As he has done in the past, Justice Neil Gorsuch laid out the history of the tribe and the surrounding circumstances that led to this point in his dissenting opinion. He writes that it is known that the United States holds some of the tribe’s water rights in trust and the government owes the Navajo Nation “a duty to manage the water it holds for the Tribe in a legally responsible manner.”

In his concluding paragraphs, Gorsuch writes that the tribe has tried nearly everything and poses the question, “Where do the Navajo go from here?”

“The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another. To this day, the United States has never denied that the Navajo may have water rights in the mainstream of the Colorado River (and perhaps elsewhere) that it holds in trust for the Tribe,” Gorsuch writes. “Instead, the government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first.”

Derrick Beetso, Navajo, is an attorney and director of Indian Gaming and Self-Governance at Arizona State University Sandra Day O’Connor College of Law. He also is a board member of IndiJ Public Media, the non-profit that owns ICT.

He said the opinion acknowledges that the tribe does have water rights, although they are unquantified.

“The tribe itself is pretty much in the same position they were in before this litigation and in some respects has to go back to the drawing board to figure out how they can get the administration to move forward on assessing their water needs,” Beetso told ICT.

He added that the Supreme Court is just one branch of the government and the Navajo Nation may switch focus to the Biden Administration and Congress in the future.

“The administration can do all the things that the tribe’s asking them to do without a court telling them to do it,” he said. “And so I think the Navajo Nation can shift gears and put a lot of pressure on the Biden administration and see what can get done under this administration.”

Native American Rights Fund executive director John Echohawk, Pawnee, said in a joining statement with the National Congress of American Indians that the decision condones a lack of accountability by the U.S. government.

“Despite today’s ruling, Tribal Nations will continue to assert their water rights and NARF remains committed to that fight,” Echohawk said.

Fawn Sharp, Quinault, called the decision a setback but added tribes and Native organizations will continue to fight for and defend tribal sovereignty and the preservation of Indigenous ways of life.

“Water is necessary for all life, and when our ancestors negotiated agreements with the United States to secure our lands and our protection, water was understood and still is understood to be inseparable from the land and from our peoples,” Sharp said in the statement. “Today, the Supreme Court has once again assisted in the United States’ centuries-long attempts to try to get out of the promises they have made to Tribal Nations by stating that treaties only secure access to water, but do not require the United States to take any steps to protect or provide that water to our people.”

The court ruled in mid-June on the other two federal Indian law cases. The high court affirmed the Indian Child Welfare Act in a major win that was celebrated across Indian Country. The same day the ICWA opinion was released, the court also ruled on Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.

In that ruling, the court stated that tribes cannot use sovereign immunity in Bankruptcy Court.

The court still has a number of cases to rule on before taking a summer break. The justices will return for the next term starting in October.

The opinion on Arizona v. Navajo Nation can be read here.

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After the fall of Roe, physicians confronted their toughest year working in reproductive health care

A group of abortion providers in white coats stand in a line at a rally held around Gov. Roy Cooper's veto of SB20.

By Rachel Crumpler

After graduating from a medical school in the Northeast, Caledonia Buckheit came south to Duke University Hospital to complete her obstetrics and gynecology residency. She finished up last June and found work in North Carolina — ready to provide comprehensive reproductive health care to patients, including abortion.

Just weeks after finishing, the Supreme Court overturned Roe v. Wade. The June 24 decision in Dobbs v. Jackson Women’s Health Organization eliminated the constitutional right to abortion that had existed for nearly half a century.

“Controlling women’s bodies has always been a topic but I didn’t really think it would get to this,” Buckheit said.

Suddenly, working in reproductive health care got a lot more complicated. 

The Dobbs decision handed the authority to regulate abortion back to states and their elected officials, ushering in a seismic change in access to the procedure nationwide. Lawmakers in dozens of states — including North Carolina — pursued greater restrictions.

On top of the challenges that come with entering a new profession, Buckheit — like everyone else working in reproductive health care — has spent the past year navigating a shifting legal landscape and all the questions and unknowns that come with continuing to provide care.

It’s a dynamic that will continue to be part of the job for the foreseeable future as North Carolina’s new restrictions limiting most abortions after 12 weeks take effect July 1 and access to the abortion pill mifepristone is being contested in court.

“It’s just been really disheartening, feeling like my patients have less autonomy,” said Buckheit, a general OB-GYN working at a private practice in the Triangle.

  • a white woman stands behind a podium. She's flanked by a group of other white women.
  • shows a woman in a white coat standing at a podium speaking about abortion
  • Hundreds of people with signs in Raleigh at a rally for abortion rights
  • A woman speaks to protestors in Raleigh during a rally for abortion rights
  • Shows a Black man in a suit standing with a microphone among a group of desks as he debates a recently introduced abortion ban.
  • A large group of abortion rights advocates at a rally held in support of the governor's veto of SB20
  • A white man at a podium holding a stamp with doctors lined behind him
  • shows people holding up signs that say, "Abortion is health care," "Vote Pro-Life" and other slogans
  • shows abortion supporters sitting in rows, hands in the air as you can see the chamber of the House of Representatives below
  • Shows a woman in a pink dress standing framed in a doorway that has flags on either side of it and a formal portrait within.
  • Shows a formal chamber with a group of people standing up, holding up signs reading, "Politicians make crappy doctors"
  • two teenage girls stand holding pro-choice signs in opposition to new abortion restrictions passed by the General Assembly

Adjusting practice

Even for those who have been practicing for years, like OB-GYN Amy Bryant, it’s unquestionable that the past year has been the most challenging and exhausting time to be in the reproductive health care field.

Since the fall of Roe, the legal landscape has been continuously shifting. Abortion providers across the nation and in North Carolina have had to adjust their practices to stay within the bounds of the law.

“When I think back to the early days after the Dobbs decision after Roe v. Wade was overturned, I just really think about the chaos and the uncertainty and the difficulties that we confronted, like, almost instantaneously with this new law of the land,” Bryant said. “It was truly just kind of scary.” 

Beverly Gray, another long-time OB-GYN who works with many high-risk and complicated pregnancies, said she was startled by how quickly some neighboring states took action to cut access to abortion. For months, North Carolina — and its 14 abortion clinics located in nine counties — became a critical abortion access point in the Southeast, providing care to an increased number of out-of-state patients.

A timeline showing significant dates of increased abortion restrictions in North Carolina
Over the past year, the legal landscape for abortion access has changed in North Carolina. Credit: Rachel Crumpler/NC Health News

In August, North Carolina physicians had to adjust their practices for the first time following the Dobbs decision when a federal judge reinstated North Carolina’s 20-week abortion ban, citing the disappearance of constitutional protections on the procedure. The ruling cut the window of time pregnant people had for seeking abortions in the state from fetal viability, which typically falls between 24 and 26 weeks of pregnancy. 

The loss of those weeks was palpable for abortion providers like Gray who had to turn patients beyond 20 weeks away — patients she could previously care for. In her practice, she said those patients mainly consisted of people who received a diagnosis of severe birth defects. 

Then it was a waiting game. Republican state lawmakers expressed their intentions to pursue greater restrictions on abortion shortly after Roe was overturned, but no one knew the speed at which they would move or what if any restrictions would entail. 

The uncertainty spanned many months.

“We didn’t know when the law might change and how we were going to respond if somebody was already scheduled and ready to go and they’d come from eight hours away,” Bryant said. “We didn’t know if we would still be able to care for them or not. That was just not a good way to practice medicine.” 

Ultimately, North Carolina lawmakers brushed aside medical providers’ pleas against adding more restrictions this past May. They passed a ban on the procedure after 12 weeks with exceptions for rape, incest, fetal problems and risk to the mother in May, and overrode a subsequent veto from Gov. Roy Cooper.

Next month, once again, a change in law will necessitate people who work in reproductive health care to alter their practices to conform to new constraints on their work.

Even a month after Senate Bill 20 was passed and the veto overridden, there are still more changes, as just this past week, the state Senate added an amendment to a separate bill that clarifies some of the timing of restrictions.

Gray said it’s not normal for physicians to have to significantly rethink how they practice, especially so many times over the span of one year. She emphasized that practice changes are being dictated by an arbitrary change in law, not as a result of improved medical guidelines.

“It’s completely disruptive to our practice, to our lives, to our day-to-day,” Gray said.

‘Exhausting on so many levels’

In addition to Gray maintaining a busy schedule providing patient care, the year has been full of trips to the legislature to voice opposition to increased abortion restrictions, conversations with lawyers to understand new rules, internal meetings to adjust practices to be legally compliant and media interviews explaining what changes mean to the public.

She’s even filed a federal lawsuit along with Planned Parenthood South Atlantic challenging several provisions of the new state law banning most abortions after 12 weeks, arguing they are unclear or unconstitutional.

It’s a heavy load to carry — added stresses and tasks that Gray said most other physicians don’t have to experience.

“It’s really just exhausting on so many levels because I’m doing all that and at the same time still providing care, still doing all the other work that’s required as a physician and now it’s just all these extra layers,” Gray said. 

When Gray decided to go to medical school, she never thought her role as an OB-GYN would involve so much advocacy and parsing new laws, but that’s what it’s turned into in the post-Dobbs period.  

Bryant agrees that the role has changed significantly over the past year.

“I have spent so much time poring over the legal issues related to my work,” she said. “It is not what I would like to be doing. 

“I think that pregnancy is just far too complicated to be legislated. And when nonmedical professionals start to try to legislate it, it becomes even more complicated to really understand the nuance — to be able to address the nuances in the individual situations that arise when a person becomes pregnant. This is not in any way what I expected my life to become.” 

Buckheit, the new OB-GYN, didn’t expect lawmakers would be dictating how she can do her job, either. And she believes they may have written the law differently if they interacted with pregnant patients on a daily basis.

“I truly feel that if lawmakers spent a week at Planned Parenthood or spent a week in a high-risk OB-GYN office, they would have a really different take,” Buckheit said. “There’s so much complexity and nuance to what we see and what patients and families are going through.”

For example, she’s had to read the state-mandated counseling script 72 hours before an abortion to patients whose babies have serious fetal anomalies.

“It’s like, adoption is an option, parenting is an option,” Buckheit said. “I’m saying this to someone whose baby doesn’t have a brain. It’s just so cruel.” 

The work, particularly in an environment of tightening restrictions, also takes an emotional toll.

“Living in this world now where basic health protections are no longer in place is very difficult,” Bryant said. “Obviously, for patients and also for providers who experience a whole lot of moral distress, knowing that you can care for someone yet not be able to because lawyers, legislators, the courts are telling you that you can’t. It’s a really uncomfortable and distressing place to be.”

Gray and Bryant can’t help but think about the patients they’ve cared for recently and consider whether the same options will be available after July 1.

It’s a devastating reality, Gray said, to know she still has the same skills to help patients in an array of situations but her hands will soon be tied by new rules where she will have to turn some people away she could previously care for.

“I think every single patient that we’re able to care for is meaningful and important, and we’re able to help change the trajectory of people’s lives,” Gray said. “I worry about all of those people that didn’t make the exceptions [to the new rules], but still have really important things that are happening in their lives and the lack of compassion for the people that didn’t make these arbitrary exceptions. It’s heartbreaking.”

Despite the more burdensome and taxing legal landscape, those providing reproductive health care remain committed to providing as much access as possible. The patients are the motivation.

“I feel this immense responsibility to get it right and to still be able to provide care for people,” Gray said. “There’s a huge stress and responsibility.”

Tell us your story about abortion access

NC Health News will be continuing to cover the effects of increased abortion restrictions in the months ahead and the best way for us to do that is with your help — hearing concrete examples of how you are navigating the new law. Have you been affected by new abortion restrictions as a medical professional or a patient? NC Health News is interested in hearing your experience.

All responses are confidential.

Providing your email will help us get back to you. We won’t share your information with anyone other than our reporters.

Tell your story here. All answers are confidential.

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Supreme Court: Tribal sovereign immunity doesn’t extend to bankruptcy court

The U.S. Supreme Court ruled Thursday morning that tribes are like any other state or government and cannot use sovereign immunity in Bankruptcy Court.

The ruling derails an argument made by the Lac du Flambeau Band of Lake Superior Chippewa Indians, which tried to extend the reach of tribal sovereign immunity in bankruptcy proceedings.

“The Code unequivocally abrogates the sovereign immunity of all governments, categorically. Tribes are indisputably governments. Therefore, unmistakably abrogates their sovereign immunity too,” Justice Ketanji Brown Jackson said in the opinion of the court.

Sovereign immunity is a legal doctrine that basically means a government cannot be sued unless it wants to.

Last year, the Supreme Court reviewed Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, which was to determine if tribal governments fall under the bankruptcy code’s definition of governments that possess the power of sovereign immunity.

“I know the other side saying, ‘Well, Mike, now tribes are aligned with all the municipalities.’ But it doesn’t say that,” said Mike Andrews, former staff director and chief council for the Senate Indian Affairs Committee. “Just as Justice (Neil) Gorsuch said they moved tribes into foreign governments and quite frankly, we’re not. We’re tribal governments and we were here before the United States. So, (it’s) a little disingenuous, to be perfectly honest.”

Andrews added this ruling is a slippery slope and could bring forward more cases to the Supreme Court that shouldn’t be decided by the courts.

“I thought that the Supreme Court stepped in as the legislature,” he said to ICT. “You often hear about justices legislating from the bench.”

Andrews was disappointed in the ruling because the Supreme Court should have sent this issue to Congress to decide.

“Let’s be clear, it’s not like the court’s going to go out and do a consultation. No, they’re not,” Andrews said.

One form or another of the Bankruptcy Act has existed since 1800. There have been five different Bankruptcy Acts passed since its first iteration. There have been over 40 amendments made to the act.

“There’s been 46, 47 amendments to the Bankruptcy Act and not one person decided, ‘Oh, we should add tribes.’ Maybe there’s a reason for that,” Andrews said. “I think that’s up to tribes through the legislative process, not the judicial process to make those determinations. Part of me feels this was a departure in that decision today. I think it was, quite frankly, an infringement on tribal sovereignty. It was watered down today.”

History of the case

After a borrower declares bankruptcy, all creditors, including governments, are not allowed to attempt any debt collection.

The Lac du Flambeau Band of Lake Superior Chippewa Indians owns a payday loan company called Lendgreen. In July 2019, the company lended $1,100 to Brian Coughlin who declared bankruptcy before the loan was repaid.

Despite bankruptcy code, Lendgreen continued to try to collect the debt. In 2019, Coughlin sued Lendgreen and the tribe in Bankruptcy Court to force them to comply with bankruptcy code. He also sued for emotional distress and attorney fees.

The tribe argued they can’t be sued because the bankruptcy code doesn’t explicitly say tribal governments. Instead stating “other foreign or domestic government.” The tribe argued it is neither a foreign or domestic government. So, the bankruptcy code should not apply in this case. Therefore, the tribe can use sovereign immunity in Bankruptcy Court.

This argument leaned on tribal governments’ unique status in the United States.

The Bankruptcy Court agreed with the tribe.

In May 2022, the case went before the First Circuit Court of Appeals, which concluded that tribes cannot use sovereign immunity in Bankruptcy Court.

This has been upheld by the Supreme Court in an 8-1 decision by the justices. The sole dissenting opinion came from Neil Gorsuch, the only justice with extensive knowledge and experience with federal Indian law.

Judge Neil Gorsuch delivers brief remarks after being nominated by President Trump to the Supreme Court in January 2017.

Justice Neil Gorsuch dissents

Gorsuch essentially argued that tribal governments should not be included in the language of “other foreign or domestic government,” saying tribes should be explicitly named in laws to avoid these generalizations.

“Respectfully, I do not think the language here does the trick. The phrase “other foreign or domestic government” could mean what the Court suggests: every government, everywhere,” Gorusch wrote in his dissenting opinion. “But it could also mean what it says: every “other foreign . . . government”; every “other . . . domestic government.” And properly understood, Tribes are neither of those things.”

Gorsuch added these language interpretations should be handled by Congress not the Supreme court.

“All this explains the now-familiar clear-statement rule that this Court has endorsed on countless occasions,” he wrote. “If Congress wishes to abrogate tribal immunity, its “decision must be clear.” And the Legislature must “unequivocally express” its decision in the text of a statute.”

He asserted that tribes are neither foreign or domestic nations, so they shouldn’t fall under that definition.

“Read in context, the term ‘domestic dependent nations’ is really a term of art meant to capture Tribes’ ‘hybrid position’ between ‘foreign and domestic states,’” Gorsuch said.

Later in his opinion he added, “And their unique character makes their brand of sovereign immunity ‘not congruent’ with the immunity other sovereigns enjoy.”

Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin is two of three federal Indian law cases in Supreme Court hands. The decision for Haaland v. Brackeen, an Indian Child Welfare Act case, was also released Thursday. Arizona v. Navajo Nation is the third case to be decided. The high court has 23 more cases to decide on by the end of the month. 

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The finances of the justices of the Wisconsin Supreme Court – a look at their mandatory filings.

Elected officials in Wisconsin must submit reports on their finances to the state. Here are the filings from the state’s Supreme Court justices.

Clockwise from left, Justice Ann Walsh Bradley, Justice Rebecca Bradley, Justice Jill Karofsky, Justice Rebecca Dallet, Justice-Elect Janet Protasiewicz, who will join the court on Aug. 1, Chief Justice Annette Ziegler, and Justice Brian Hagedorn.

A justice on the Wisconsin Supreme Court will earn an annual salary of about $185,000 in 2023, more than any other elected official in Wisconsin state government, including the governor, who earns an annual salary of about $166,000.

Justice Ann Walsh Bradley

Justice Bradley, one of the left-wing justices on the new liberal majority, was elected to the Wisconsin Supreme Court in 1995. She was re-elected in 2005 and 2015. Her seat is the next to face re-election when her term expires in 2025.

The former Marathon County judge lives in Wausau.

Click here to see her statement of economic interest.

Justice Rebecca Grassl Bradley

Justice Rebecca Grassl Bradley joined the court in 2015 when she was appointed by Republican Gov. Scott Walker. She won a 10-year term on the court in 2016.

One of three consistently right-wing justices on the court, she will now be in the minority for the first time after the election of Justice-elect Janet Protasiewicz.

The former state Court of Appeals judge and Milwaukee County Circuit Court judge is from Milwaukee.

Click here to see her statement of economic interest.

Justice Rebecca Frank Dallet

Justice Rebecca Dallet was elected to the court in 2018.

The left-wing justice was previously a Milwaukee County Circuit Court judge.

Her term on the Wisconsin Supreme Court expires in 2018.

Click here to see her statement of economic interest.

Justice Brian Hagedorn

Justice Brian Hagedorn was elected to the court in 2019. He had been a judge on the state’s Court of Appeals.

The right-leaning justice has angered Republicans by occasionally siding with the court’s left-wing justices on some issues.

Click here to see his statement of economic interest.

Justice Jill Karofsky

Justice Jill Karofsky was elected to the Wisconsin Supreme Court in 2020.

The left-wing justice previously served as a Dane County Circuit Court judge.

Click here to see her statement of economic interest.

Justice-elect Janet Protasiewicz

After winning the open seat in the April election, Milwaukee County Judge Janet Protasiewicz will take her spot on the court on Aug. 1. The left-wing justice’s election swings the court dramatically from the right-leaning to the left.

Click here to see her statement of economic interest.

Chief Justice Annette Ziegler

Chief Justice Annette Kingsland Ziegler was elected to the Wisconsin Supreme Court in 2007 and re-elected in 2017.

The right-wing justice was chosen by a majority of the court to serve as chief justice in 2021, though the new left-wing court majority can and likely will choose their own chief justice at some point.

Click here to see her statement of economic interest.

The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.

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The finances of the justices of the Wisconsin Supreme Court – a look at their mandatory filings. was first posted on May 10, 2023 at 8:00 am.