Restoring Women's Rights: Abortion Clinics on Tribal Lands

Women's healthcare clinics on tribal lands is a low-cost long-term solution to get around state-based restrictions on abortion.

Years ago, I ran a blue ocean strategy session with tribal leaders about how to innovate and expand their businesses. Casinos were becoming “red ocean” - each offering essentially the same products and services competing largely on expensive amenities and cost. The outcome of our work: build “medical tourism” on tribal land next to the casinos. Unfortunately, despite initial enthusiasm, we lost momentum. But that project could and should be brought back for women’s healthcare clinics, including abortion, in a post-Roe world.

Some background: Native Americans were pushed into increasingly smaller areas throughout what is now the United States. Tribes are sovereign. They are a separate country with treaties guaranteeing them wide latitude to run their business, on their reservations, as they see fit. Tribes may opt into state or federal laws but that is, for the most part, optional: neither states nor the federal government has the right to make rules for the tribes anymore than they have the right to, say, make rules governing France. Granted, the US has a habit even today of continuing to steal their land but rarely succeeds in stealing their legal sovereignty.

Over time, tribes realized that state and federal laws that restrict gambling do not apply to them and opened casinos to raise needed revenue. Ever more tribes opened ever more casinos, featuring ever more games and competing much like any other Las Vegas-style casino might operate. States didn’t like it but there was nothing they could do: tribes are sovereign and need not heed state-based restrictions on gambling.

However, over time competition heated up and, eventually, they realized building ever-larger casinos with ever better odds — red ocean competition — wasn’t all that sustainable. That’s how I ended up with an invite to discuss blue ocean strategy with the tribes, a strategic framework of differentiation and low cost.

Using the tools and framework — especially the six-path exploration and buyer utility map — we realized elective healthcare might be a great add-on to the casinos. There were already roads, water, redundant electricity, security, and a legal framework. Furthermore, healthcare clinics aren’t all that different than the hotels most casinos had attached.

Medical tourism, often for cosmetic surgery or dental care, was thriving then and continues to thrive today. People go all over the world for high-quality care at lower costs unencumbered by American malpractice laws and vastly higher drug prices. There’s no reason, we realized, tribes couldn’t offer the same services on reservations next to the casinos.

Besides the extra visitors and potential revenue, tribes would also benefit from healthcare facilities and workers on the reservations, a bonus since our work discovered they often struggle to deliver high-quality care. Medical tourism on tribal lands seemed like a win/win idea.

Unfortunately, Newton’s Laws of Motion intervened. Paraphrasing: the larger an object is the greater force is required to move it. This was a large project that needed a hero, or multiple heroes: a lot of money, and some interested doctors. It was a good idea but never came together.

However, that may have changed last Friday, June 24, 2022, when the Supreme Court struck down Roe v. Wade, the case that ensured women the right to abortion and forbid states from infringing that right. By the end of the day, several states banned abortion and many more are likely to do so. Women’s health clinics that offer abortion are being shuttered across the United States.

Much like the states cannot prohibit gambling on tribal lands, they also cannot prohibit abortion. The Supreme Court gave states the power to regulate or ban abortion but treaties ban those same states from regulating abortion clinics on tribal lands.

Returning to the original insight: casinos already offer much of the infrastructure necessary to build healthcare clinics. Better yet, besides land, water, electricity and the like, casinos also already have sophisticated security well trained to spot and handle cranks. Tribal lands are not public: protests near women’s healthcare clinics designed to harass and humiliate can be banned — the nearest protestors can go is the edge of the reservation, far away from the clinics.

Women’s healthcare clinics on tribal lands (assuming, obviously, the tribes are open to the idea) is a no-brainer. It is a low-cost, long-term sustainable solution to offer women’s healthcare, including abortion, in every state no matter what state legislatures believe. Those treaties are “the supreme law of the land” resting on solid Constitutional bedrock. Even the most radical court would not try to unwind that and risk a modern-day Indian War dividing and humiliating the United States.

Legal remedies besides something like this are probably pointless. Change the law to legalize abortion nationally? We all know that is extremely unlikely (the inverse is more likely, a national ban that also wouldn’t apply to the tribes). Add more seats to the Supreme Court to get them to restore the rights? Maybe … but, again, that’d be a far-fetched solution that might be no more sustainable than the status quo as anti-abortion activists fill the seats. Clinics on tribal lands, assuming the support of the tribes, are a genuine solution, not a wishful band-aid.

Tribal clinics could ensure high-quality low-cost women’s healthcare services throughout the US unencumbered by the winds of American politics. With the cooperation of the tribes and, no doubt, donations that would flow in, these clinics could be quickly built and operational. The idea should be advanced before countless girls and women are forced to carry unwanted babies often wrecking the lives and risking the health of both. Hopefully, this time, it’ll find a hero or two.