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In 1993, President Clinton modified the military policy on providing abortions at military medical
facilities. Under the change directed by the President, military medical facilities were allowed to
perform abortions if paid for entirely with non-Department of Defense (DOD) funds (i.e.,
privately funded). Although arguably consistent with statutory language barring the use of
Defense Department funds, the President’s policy overturned a former interpretation of existing
law barring the availability of these services. On December 1, 1995, H.R. 2126, the FY1996
DOD appropriations act, became law (P.L. 104-61). Included in this law was language barring the
use of funds to administer any policy that permits the performance of abortions at any DOD
facility except where the life of the mother would be endangered if the fetus were carried to term
or where the pregnancy resulted from an act of rape or incest. Language was also included in the
FY1996 DOD Authorization Act (P.L. 104-106, February 10, 1996) prohibiting the use of DOD
facilities in the performance of abortions. These served to reverse the President’s 1993 policy
change. Recent attempts to change or modify these laws have failed.
Over the last three decades, the availability of abortion services at military medical facilities has
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been subjected to numerous changes and interpretations. Within the last 15 years, Congress has
considered numerous amendments to effectuate such changes. Although Congress, in 1992,
passed one such amendment to make abortions available at overseas installation, it was vetoed.
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The changes ordered by the President did not necessarily have the effect of greatly increasing
access to abortion services. Abortions are generally not performed at military medical facilities in
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the continental United States. In addition, few have been performed at these facilities abroad for a
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number of reasons. First, the U.S. military follows the prevailing laws and rules of foreign
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countries regarding abortion. Second, the military has had a difficult time finding health care
professionals in uniform willing to perform the procedure.
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With the enactment of P.L. 104-61 and P.L. 104-106, these questions became moot, because now,
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neither DOD funds nor facilities may be used to administer any policy that provides for abortions
at any DOD facility, except where the life of the mother may be endangered if the fetus were
carried to term. Privately-funded abortions at military facilities are permitted when the pregnancy
was the result of an act of rape or incest.
There has been little legislative activity affecting the military on this issue. The last major effort
occurred with an amendment to the House version of the FY2007 National Defense Authorization
Act would allow DOD facilities outside the U.S. to perform privately-funded abortions. This
language was rejected by the conference committee.
This report will be updated as warranted.
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Purpose ............................................................................................................................................ 1
Issue................................................................................................................................................. 1
Background ..................................................................................................................................... 2
“Plan B” and RU-486 ...................................................................................................................... 9
“Parental Notification” ...................................................................................................................11
Legislative Action Since 1995....................................................................................................... 12
Legislative Action ................................................................................................................... 17
Problematic Comparisons to Foreign Military Policies .......................................................... 19
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Appendix. ...................................................................................................................................... 18
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Author Contact Information ............................................................................................................ 1
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The purpose of this report is to describe and discuss the provisions for providing abortion services
to military personnel, their dependents and other military health care beneficiaries at military
medical facilities. The report describes the history of these provisions, with particular emphasis
on legislative actions. Finally, this report discusses a number of proposals to modify the law as
well as other related legislative and administrative actions.
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Shortly after his inauguration on January 20, 1993, President Clinton issued a memorandum on
abortions at military hospitals. This memorandum directed a change in policy so that abortions
could be performed at military medical facilities provided that the procedure was privately
funded. This memo stated that:
Section 1093 of title 10 of the United States Code prohibits the use of Department of
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Defense (“DOD”) funds to perform abortions except where the life of a women would be
endangered if the fetus were carried to term. By memorandum of December 21, 1987, and
June 21, 1988, DOD has gone beyond what I am informed are the requirements of the statute
and has banned all abortions at U.S. military facilities, even where the procedure is privately
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funded. The ban is unwarranted. Accordingly, I hereby direct that you reverse the ban
immediately and permit abortion services to be provided, if paid for entirely with non-DOD
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funds and in accordance with other relevant DOD policies and procedures.1
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The issue at hand was how the language in Title 10 of the United States Code and the President’s
memo were to be interpreted. As the President’s memorandum made obvious, this language has
been subject to varying interpretations that allowed or denied abortion services. Specifically,
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section 1093 states:
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Funds available to the Department of Defense may not be used to perform abortions except
where the life of the mother would be endangered if the fetus were carried to term.2
Although the President’s interpretation of the language was arguably consistent with the letter of
the law, critics contend that it countermanded the spirit of the statute and is overly broad. In other
words, it is argued that the intent of this language was to prevent the DOD from providing
abortion services. Proponents of the Clinton change argued that Congress allowed for exactly this
type of interpretation. Proponents note that this interpretation was particularly important for
1 President William J. Clinton, Memorandum for the Secretary of Defense, Memorandum on Abortions in Military
Hospitals, January 22, 1993; filed with the Office of the Federal Register, 11:50 a.m., January 27, 1993; cited in Public
Papers of the Presidents of the United States, William J. Clinton, 1993, Washington, D.C., Government Printing Office,
1994: 11.
2 10 U.S.C. Sec. 1093, added P.L. 98-525, Sec. 1401(e)(5), October 19, 1984, 98 Stat. 2617. It should be noted that the
Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), a medical program for military
dependents, certain retirees and their dependents who are unable to receive care at a military medical facility, will
provide coverage for abortions only when the mother’s life is in danger. “The attending physician must certify in
writing that the abortion was performed because a life-endangering condition existed, and must provide medical
documentation to the CHAMPUS claims processor in order for CHAMPUS to share the cost of the procedure.” See
U.S. Department of Defense, OCHAMPUS, CHAMPUS Handbook, October 1994: 42.
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eligible beneficiaries who are deployed overseas in areas where affordable and sanitary abortion
services may not be available in the local economy.
Following the election of the 104th Congress, Democrats were replaced by Republicans as
committee leaders. Representative Robert K. Dornan, the then-new Republican Chairman of the
Military Personnel and Compensation Subcommittee (House National Security Committee),
noted that one of his priorities “[was] barring abortions at overseas military hospitals, even if the
patients pay for them.”3 On December 1, 1995, P.L. 104-61 was enacted. According to this law:
Sec. 8119. None of the funds made available in this Act may be used to administer any
policy that permits the performance of abortions at medical treatment or other facilities of the
Department of Defense.
Sec. 8119A. The provision of Section 8119 shall not apply where the life of the mother
would be endangered if the fetus were carried to term, or the pregnancy is the result of an act
of rape or incest.
On February 10, 1996, P.L. 104-106 was enacted. This law further limited that availability of
abortion services:
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Sec. 738(b). RESTRICTION ON THE USE OF FACILITIES—No medical treatment
facility or other facility of the Department of Defense may be used to perform an abortion
except where the life of the mother would be endangered if the fetus were carried to term or
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in a case in which the pregnancy is the result of an act of rape or incest.4
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Since then, efforts to modify the law pertaining to abortions have become a routine part of the
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legislative process.
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There appears to be no evidence of a formal service policy on abortions prior to 1970. Sources
familiar with the issue at that time note that the availability of abortion services at military
medical facilities varied by service, location, physician, and “command milieu.” Each of the
services approached the issue differently. The Air Force tended to be somewhat more liberal,
while the Army and the Navy tended to be somewhat more conservative. Each facility also tended
to follow the laws and regulations of the state within which it was located. Individual physicians
ultimately had a say regarding whether or not they personally would provide such services.
Finally, the commanders of various medical facilities may have had some effect on how and
under what circumstances abortion services may have been provided. Commanders often lead by
example without explicitly stating their own opinions, policies, or giving direct orders.
Subordinates are acutely aware of their commander’s approach to issues and often will integrate
this approach into their own practice. In other words, a policy may exist without one ever being
officially stated. Although formal policy may not exist, physicians also follow professional
guidelines, as they interpret them, by practicing “good medicine.” Thus, the decision to provide
an abortion may have been based on a host of medical indications particular to any given case.
3 Maze, Rick, “Representative Dornan: ‘Pay gap one of top concerns,’” Army Times, January 16, 1995: 3.
4 U.S. Congress, Conference Committee, National Defense Authorization Act for Fiscal Year 1996, H.Rept. 104-450,
S. 1124, 104th Cong., 2nd Sess., January 22, 1996: 206-207.
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Generally, it appears that military physicians performed relatively few abortions at military
medical facilities in this era.
In certain situations, such as in Vietnam (1961-1975), military medical facilities generally did not
provide abortion services. Instead, medical evacuations to other countries that had available
procedures (Japan, for example) provided access to abortion services.
In 1970, the office responsible for health affairs at DOD reportedly issued “orders that military
hospitals perform abortions when it is medically necessary or when the mental health of the
mother is threatened.”5 The rules, however, did not require military personnel to perform
abortions. These rules were less restrictive than the abortion laws in a number of states. One year
later, then-President Richard M. Nixon directed that military policy concerning abortions at
military bases in the United States “be made to correspond with the laws of the States where the
bases are located.”6
Following the 1973 Supreme Court case of Roe v. Wade,7 the Department of Defense funded
abortions for any women eligible for DOD health care, subject to certain limitations: first, two
physicians were required to find that the abortion was “medically indicated” or required for
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“reasons of mental health”; second, the funding for these services could not be in conflict with the
law of the state in which the abortion is carried out.8 Since states had differing rules regarding
abortion, it was possible for women to be treated differently depending on the location of the
facility. Nevertheless, there remains anecdotal evidence of variations in accessibility similar to
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those that existed before Roe v. Wade.
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In 1975, concerns were raised over inconsistencies between state statutes and the Roe decision.
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Military medical personnel were instructed to follow the Constitutional guidance provided in Roe
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in certain instances, even though the state statutes had not been successfully challenged in court.9
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From August 31, 1976, to August 31, 1977, approximately 26,000 abortions were performed in
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military hospitals or in the CHAMPUS program.10
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In 1978, an amendment to the Department of Defense appropriations bill offered by
Representative Robert Dornan prohibited the use of Defense Department funds for abortions with
certain exceptions. This amendment, as enacted, stated that:
5 Wolffe, Jim, “Abortion ban may be lifted soon stateside,” Air Force Times, April 12, 1993: 23.
6 Statement about Policy on Abortions at Military Base Hospitals in the United States, April 3, 1971, Public Papers of
the Presidents of the United States, Richard Nixon, 1971, Washington: GPO,1972) p. 500. Since CHAMPUS (the point
of service contract health care for non-active duty beneficiaries—now known as TRICARE Standard) relied, then as
now, on local health care providers, these individuals were already subject to State laws and regulations pertaining to
abortion.
7 Roe v. Wade, 410 U.S. 113 (1973). The Court held that the Constitution protects a woman’s decision whether or not to
terminate pregnancy and that a State may not unduly burden the exercise of that fundamental right by regulations that
prohibit or substantially limit access to the means of effectuating that decision.
8 Ayres, B. Drummond, Jr., New York Times, August 10, 1978: 79 (microfilm).
9 U.S. Department of Defense, Assistant Secretary of Defense (Health and Environment), James R. Cowen,
Memorandum for the Assistant Secretaries of the Military Departments (M&RA), Abortion Policy, September 17,
1975.
10 U.S. Department of Defense, Directorate for Defense Information, Press Division, 9 August, 1978.
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None of the funds appropriated by this Act shall be used to perform abortions except where
the life of the mother would be endangered if the fetus were carried to term; or except for
such medical procedures necessary for the victims of rape or incest, when such rape or incest
has been reported promptly to a law enforcement agency or public health service; or except
in those instances where severe and long-lasting physical health damage to the mother would
result if the pregnancy were carried to term when so determined by two physicians. Nor are
payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or
for medical procedures necessary for the termination of an ectopic pregnancy.11
In 1979, similar language was enacted in the FY1980 DOD appropriations act. The 1979
language did not contain any restrictions with regard to the “severe and long-lasting physical
health damage to the mother that would result if the pregnancy were carried to term when so
determined by two physicians.” In other words, a determination that carrying the pregnancy to
term would affect the physical health of a woman was not a basis for providing abortions under
this language.12
This language did not prevent all abortions at military hospitals. Military hospitals overseas
reportedly performed approximately 1,300 abortions in FY1979. These abortions were privately
paid for. Defense officials allowed these procedures under the rationale that at certain overseas (or
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isolated U.S.) stations, safe and reliable civilian facilities were not always available.13
In 1980, the language included in the FY1981 DOD appropriations act was again modified as
follows:
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None of the funds appropriated by this Act shall be used to perform abortions except where
the life of the mother would be endangered if the fetus were carried to term; or except for
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such medical procedures necessary for the victim of rape or incest, when such rape has
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within seventy-two hours been reported to a law enforcement agency or public health
service; nor are payments prohibited for drugs or devices to prevent implantation of the
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fertilized ovum, or for medical procedures necessary for the termination of an ectopic
pregnancy: Provided, however, That the several States are and shall remain free not to fund
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abortions to the extent that they in their sole discretion deem appropriate.14
Under this language, the reporting requirement for incest was removed. Also, victims of rape
were required to report the incident within 72 hours.15 In addition, language was added
encouraging the states to exercise their authority with regard to funding abortions.
The language was shortened considerably in 1981. Many of the exceptions to the prohibition of
funding were removed. This language stated that:
11 P.L. 95-457, Section 863, October 13, 1978, 92 Stat. 1254. In anticipation of this change, the Office of the Assistant
Secretary of Defense (Public Affairs) published a News Release (September 29, 1978) functionally implementing this
language effective September 30, 1978. This change also affected funding for CHAMPUS claims.
12 P.L. 96-154, Section 762, December 21, 1979, 93 Stat. 1162.
13 Smith, Paul, “1300 FY79 O’seas Abortions Revealed,” Army Times, December 8, 1980: 2.
14 P.L. 96-527, Section 760, December 15, 1980, 94 Stat. 3091.
15 Previous language required that such a report should be made “promptly.” DOD interpreted this to mean within 48
hours. It was also expected that victims of incest would report the incident(s) to appropriate authorities, however, the
lack of a time restriction meant that a report could be delayed indefinitely. (See “DOD Issues New Rules On Abortion,”
Army Times, March 9, 1981: 15.)
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None of the funds provided by this Act shall be used to perform abortions except where the
life of the mother would be endangered if the fetus were carried to term.16
Identical language was included in the following two years’ appropriations acts.17 Finally, in
1984, Congress codified this language in Title 10, United States Code (see quoted text at the top
of page 1).18
In 1988, DOD modified its rules to require a physician’s statement for abortion claims made via
CHAMPUS. This change was instituted to assure that all claims for abortions performed in the
private sector and covered by CHAMPUS were for life-threatening situations. “CHAMPUS
officials said life-threatening conditions include leukemia, breast cancer and other malignancies,
kidney failure, congestive heart failure, severe heart disease, uncontrolled diabetes and several
other conditions.”19
On June 21, 1988, Dr. William Mayer, then-Assistant Secretary of Defense (Health Affairs),
issued a memorandum barring abortions in military medical facilities overseas. Although Dr.
Mayer recognized that privately paid abortions did not violate the letter of the law, he issued the
memorandum to avoid the appearance of “insensitivity to the spirit” of the law.20
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In 1990, an attempt to overturn this restriction failed. An amendment (to the DOD authorization
act) to allow abortions at military medical facilities overseas was withdrawn when the Senate fell
two votes short of the number needed to invoke cloture (58-41).21 The House of Representatives
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rejected a similar amendment.
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On May 22, 1991, the House of Representatives reversed itself and passed (220-208) an
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amendment to the DOD authorization act that would have reinstated the pre-paid overseas policy.
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Proponents argued that the language would be merely a return to the policy as it existed prior to
Dr. Mayer’s memo of 1988. Opponents countered that, as drafted, the amendment offered by
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Representative AuCoin would go beyond the then-prevailing policy by allowing abortions for any
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reason and at any time during the pregnancy.22 The measure was rejected once again when the
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Senate fell two votes short of the 60 votes needed to invoke cloture (58-40).23
The battle over this language intensified. Proponents stated that military women or dependents
overseas were forced into dangerous or life-threatening situations in countries where safe, legal,
or affordable abortions could not be provided. Opponents argued that no woman was denied
military transportation to receive access to an abortion in another country.
16 P.L. 97-114, Section 757, December 29, 1981, 95 Stat. 1588.
17 P.L. 97-377, Section 755, December 21, 1982, 96 Stat. 1860; P.L. 98-212, Section 751, December 8, 1983, 97 Stat.
1447.
18 10 U.S.C. 1093, P.L. 98-525, sec 1401(e)(5), October 19, 1984, 98 Stat. 2617. Note this change occurred via an
authorization act and not as a part of the appropriations process (Omnibus Defense Authorization Act, 1985).
19 Kimble, Vesta, “Doctor’s Statement Needed for Abortion Claims,” Navy Times, March 14, 1988: 24.
20 “Abortion Is Restricted At Military Hospitals,” New York Times, July 19, 1988: A11. “The abortion issue in military
hospitals has a symbolic and political importance that dwarfs the actual numbers of people involved. Military hospitals
overseas performed only six abortions in the last year they were permitted [1987].” Willis, Grant, “Clinton Ends Ban
on Military Abortions,” Air Force Times, February 1, 1993: 4.
21 Congressional Record, August 3, 1990: S11813-S11824.
22 Congressional Record, May 22, 1991: H3394 et seq.
23 Nelson, Soraya, “Overseas Abortion Amendment Fails,” Army Times December 1991: 16.
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Again in 1992, Representative AuCoin introduced language to overturn the restrictions on
abortions at overseas military facilities. This amendment was passed (216-193).24 On September
18, 1992, the Senate rejected (36-55) an effort to strike language overturning the restrictions on
overseas abortions. Despite these votes, it was expected that President George H. W. Bush would
veto any defense legislation reinstating the former policy. This expected veto was cited as the
reason for the language being dropped by the conferees.25 By unanimous consent, the Senate
agreed to substitute the language pertaining to overseas abortions into S. 3144 after striking all
after the enacting clause.26 S. 3144 was simultaneously passed by unanimous consent. The House
subsequently passed the measure (220-186) on October 3, 1992.27
Arguably, the Senate and House agreed to remove this language from the DOD authorization act
in anticipation of a presidential veto. By removing the language and passing it as a free-standing
bill, the authorization act was not jeopardized. Since this was not presented in the authorization
act, it remains unknown whether President Bush would have exercised his veto authority over the
entire bill. Nevertheless, President Bush did pocket-veto S. 3144 on October 31, 1992 (after the
congressional adjournment). No attempt was made to override this veto.28
As a result of President Clinton’s 1993 memorandum (see page 1), then-Secretary of Defense Les
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Aspin directed the Secretaries of the Military Departments to reinstate the pre-1988 policy
concerning the availability of abortions overseas. On May 9, 1994, the Assistant Secretary of
Defense (Health Affairs), Dr. Stephen C. Joseph, released a memorandum29 seeking to unify and
make consistent DOD policy. This policy had five parts that 1) provided access to abortion
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services for service women and eligible dependents overseas, 2) required the valid consent of a
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parent or other designated person in the case of a minor who was “not mature enough and well
enough informed to give valid consent,” 3) relieved those medical practitioners directly involved
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from performing abortions if they objected, 4) respected host nation laws regarding abortion, and,
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5) directed the Military Health Services System to provide other means of access if providing pre-
paid abortion services at a facility was not feasible. Such alternate means could include
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supplementing staff with contract personnel, referrals, travel, etc. The cost of an abortion had
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been reported to be about $500.30
In practice, the policy instituted by President Clinton’s 1993 action may not have had the effects
the President had expected. Although abortion access had been liberalized in terms of overall
policy, liberalization had not necessarily occurred in terms of actual access.
24 Congressional Record, June 4, 1992: H4150-H4156.
25 Dewar, Helen, “Bush’s Veto Power Stalled the Abortion-Rights Push in Congress,” Washington Post, November 30,
1991: A6.
26 Both House and Senate versions of the FY1993 Defense Authorization Act contained provisions that would “entitle
military personnel and their dependents to reproductive health care services in a medical facility of the uniformed
services outside the United States on a reimbursement basis.... The conferees agree to exclude this provision. The
Senate has passed a bill (S. 3144) that contains this provision. The House intends to pass this bill and send it to the
President as soon as possible.” U.S. Congress, House Conference Committee, National Defense Authorization Act for
Fiscal Year 1993, H.Rept. 102-966, H.R. 5006, 102d Cong., 2nd Sess., October 1, 1992: 716.
27 See H.Res. 589, Congressional Record, October 2, 1992: H10803-H10804, and Congressional Record, October 3,
1992: H10966-H10975.
28 Congressional Quarterly, December 19, 1992: 3926.
29 U.S. Department of Defense, Assistant Secretary of Defense (Health Affairs), Memorandum, Implementation of
Policy Regarding Pre-Paid Abortions in Military Treatment Facilities, May 9, 1994: 2p.
30 Nelson, Soraya S., “Pentagon Pens Rules on Abortion,” Army Times, May 23, 1994: 10.
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In the six years preceding the 1988 ban, military hospitals overseas had performed an
average of 30 abortions annually. Last spring, though, when the military medical officials
surveyed 44 Army, Navy and Air Force obstetricians and gynecologists stationed in Europe,
they found that all but one doctor adamantly refused to perform the procedure.
That one holdout, too, quickly switched positions.... No military medical personnel willing to
perform abortions have stepped forward in the Pentagon’s sprawling Pacific theater of
operations, either.31
A number of reasons have been advanced to explain this general unwillingness by health care
personnel in uniform to perform these procedures. First, fewer medical schools require or provide
training in these techniques than was the case in the years immediately following the Roe v. Wade
decision.32 Second, it is widely thought that, the military in general, and military physicians in
particular, tend to be more conservative on social issues than many population cohorts. Even if
training were made available it is unlikely that many would volunteer. Third, the social order on
military posts tends to be very close-knit and hierarchical. A subordinate may choose not to
“ruffle the feathers” of a superior over such a contentious issue. Thus, the social norms
established by superiors in the military environment are likely to translate into action or inaction
by subordinates. This conventional wisdom gains credibility given the enormous amount of
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leverage superiors in the military have over the careers of subordinates. (Although this is true in
the civilian context, it apparently exists to a lesser degree, especially in professional fields such as
medicine in which civilians are generally unwilling to formally judge or second-guess
professional colleagues.) Fourth, the medical team must consist of volunteers. Any member of a
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medical team needed to perform an abortion can essentially “veto” it. Fifth, since military
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physicians are paid a salary, and not on the basis of procedures performed, there is no economic
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incentive to provide abortions. Finally, rules exist requiring the services to respect the prevailing
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laws in each country. Thus, the restrictions of a particular country may limit the access to pre-paid
abortions at military facilities (see Appendix).33
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Given these factors and considerations, it was reported that 27 abortions were performed at
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military hospitals worldwide in 199334 and 10 in 1994. All of the 1994 abortions were reported to
be “life of the mother” cases; i.e., none were “pre-paid.” According to data provided by DOD,
two abortions were performed at military treatment facilities worldwide in FY1999. For fiscal
years 2000, 2001, 2002, 2003, and 2004, the respective number of therapeutic abortions reported
was 1, 5, 3, 4, and 3. For fiscal years 2005, 2006 and 2007, the numbers of therapeutic abortion
reported were 4, 5 and 5, respectively. Over these 8 years, DOD has performed an average of 3.75
therapeutic abortions per year.
31 Morrison, David C., “An Order That Didn’t Take,” National Journal, April 16, 1994: 900.
32 According to the Alan Guttmacher Institute, from 1976 to 1991, the proportion of residency programs that did not
offer abortion training rose from 7.5 to 31%. In 1976, 26% of the residency programs required abortion training. By
1991, only 12% required such training. The Accreditation Council for Graduate Medical Education has directed
obstetrical residents should be taught how to perform abortions, unless they have a moral or religious objection. This
change in policy is scheduled to become effective on January 1, 1996. Abortion mandated for OB training, Washington
Times, February 15, 1995: A12. On March 19, 1996, the Senate passed the Coats amendment (no. 3513): “to amend the
Public Health Service Act to prohibit governmental discrimination in the training and licensing of health professionals
on the basis of the refusal to undergo or provide training in the performance of induced abortions,” by a vote of 63 yeas
and 37 nays. Congressional Record, March 19, 1996, S2262-S2266, S2268-S2276, S2280.
33 “Most countries where American military personnel are stationed restrict or outlaw them [abortions] altogether.”
Nelson, Soraya S., “Limits Remain on Abortions at Overseas Hospitals,” Navy Times, February 22, 1993: 11.
34 Nelson, Soraya S., “Military Abortions Overseas: Still Rare,” Army Times, September 5, 1994: 18.
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Responding to the lack of medical personnel willing to perform abortions, the Army’s 7th Medical
Command (Europe) sought in 1993 to hire a civilian physician whose duties would include
providing abortion services.35 This move would have been consistent with the President’s memo
stating that “[i]n circumstances in which it is not feasible to provide pre-paid abortion services in
a particular military facility, the [Military Health Services System] shall develop other means to
assure access.” Such an affirmative step would have provided access where none was available
before. However, such a step could have been viewed as encouraging abortion and threatened to
provoke protests both within the uniformed services and in the international community.36 To
date, reports of protests have not been found.
Another consideration along similar lines is to expand the use of foreign physicians, as suggested
by the Defense Advisory Committee for Women in the Services (DACOWITS). This may be
effective in certain situations, but not all, since DOD is still required to observe local laws.
Countries such as Spain, South Korea, and Panama outlaw or sharply restrict abortions.37
Following German unification, in 1993, a German court issued an injunction against a law that
would have unified abortion policies in the east and west. The Bundestag, lower house of the
German parliament, struggled to write new laws. During this void, the performance of abortions
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or restrictions on abortion services at military facilities in Germany, although not illegal, may
have been inflammatory to certain German sensitivities.38 On August 21, 1995, German President
Roman Herzog signed into law a measure passed by the Bundestag (on June 29) and approved by
the Bundesrat, upper house, (on July 14). Under this law, abortions are illegal (except in cases of
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rape or “medical necessity”), but a woman who seeks an abortion during the first 12 weeks of
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pregnancy will not be subject to criminal prosecution provided she attends a compulsory
counseling session reviewing her options.39
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Contracting with foreign physicians poses its own problems. Countries that lack professional
medical personnel trained to U.S. standards (the very reason argued for providing these services
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in the first place) are less likely to have physicians with a skill level that would be commendable
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for contracting.
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In certain cases, contracting may be an option, but it raises other considerations. If the patient was
to pay the cost of the abortion, does such a cost include a pro-rated amount based on contracting,
training, travel, and other costs required to provide these services? Inclusion of these in such a
cost calculation could well make the price of these services prohibitive. Conversely, using
Defense Department funds to make available “pre-paid” abortions (i.e., through contracting,
travel, etc.) could be viewed as in conflict with 10 U.S.C. 1093.
35 Scholar, Steve, “Army Seeking Civilian Doctor Willing To Do abortions at Military Hospitals,” Stars and Stripes
(European), April 28, 1993: 1.
36 “A Pentagon Decision To Send Doctors Overseas To Perform Abortions in Military Hospitals Could Spark Protest
from Pro-Life Groups in Germany, Pro-Life GIs say,” Pro-Life Protests, American Legion, July 1994: 10.
37 “Women in the services,” Fast Track, Army Times, July 4, 1994: 20.
38 “Women’s groups, opposition politicians from the west, and easterners across the political spectrum expressed
outrage at the court’s decision. Many observers felt the decision exposed the deep east-west social divide.” CRS Issue
Brief IB91018, German-American Relations in the New Europe, by Karen E. Donfried, January 27, 1994, p. 6 (out-of-
print; available from the author at 7-8033).
39 The Week in Germany, January 30, 1998.
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According to a DOD Information Paper, in August 1994, “a policy on hiring non-military
physicians to perform abortions was issued with specific reference to treatment facilities in
Germany. DoD respects host nation laws regarding abortion.”40
Furthermore, it was unlikely that abortion services would become more available if the military
reduced the number of physicians as part of DOD downsizing of the force structure. One
drawdown proposal suggests that DOD could reduce the number of physicians in uniform by as
much as 50%.41 Under the Administration’s long-term defense spending plans, 5,600 civilian
medical personnel will be cut from the Army over the next six years. The Navy and Air Force,
together, are expected to be reduced by less than 2,000. These reductions “amount to the
equivalent of shutting three of the Army’s eight medical centers, experts say.”42 The reduction of
civilian professionals in the U.S. military may require DOD to rotate uniformed physicians back
to the U.S. from overseas, further reducing the number of physicians overseas. Such a reduction
would likely serve to reduce the availability of abortion services overseas.
On May 29, 2002, a federal judge ruled that the military must pay for a 1994 abortion of an
anencephalic fetus.43 Later, in August 2002, a second federal court ruled likewise in a separate
case involving another anencephalic fetus.44 Both cases were reversed on appeal.45
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In February 2002, the DOD Pharmacy and Therapeutics (P&T) Executive Council recommended
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adding levonorgestrel, aka “Plan B,” to the Basic Core Formulary,46 subject to further review.
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Plan B is described as an emergency contraceptive used to prevent pregnancy following a known
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or suspected contraceptive failure (e.g. broken condom) or when a pregnancy may result because
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no contraception was used (e.g. rape). It is noted that it will not terminate an “established
pregnancy.” In other words, it is not RU-486, a known abortifacient, which chemically induces an
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abortion. RU-486 is subject to restrictions under 10 U.S.C. § 1093.47
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40 Memorandum for Assistant Secretary of Defense (Health Affairs), Information Paper on abortion policy for Dr.
Hambre’s confirmation hearing, July 1997.
41 “In June [1994], a Pentagon study found that only about half of the current number of military doctors are needed for
any foreseeable military operation.” Jowers, Karen, “50% Cut Is Planned in Military Doctors,” Air Force Times,
January 23, 1995: 28.
42 Nelson, Soraya S., “Medicare Users May Lose Hospital Access,” Navy Times, September 5, 1994: 26.
43 Britell v. United States, 204 F.Supp.2d 182, May 29, 2002.
44 Ostrom, Carol M., “Judge: Navy Must Cover Women’s Abortion,” Seattle Times, August 13, 2002. The 9th Circuit
Court of Appeals, without comment, denied a last minute appeal in this case. “Court Rejects Effort to Stop Navy
Funding of Abortion,” Baltimore Sun, August 18, 2002.
45 Britell v. United States, 372 F.3d 1370, June 24, 2004, and Doe v. USA, et al., civil docket for case #: 2:02-cv-01657-
TSZ, August 18, 2005.
46 The Basic Core Formulary or BCF refers to those pharmaceuticals that DOD makes available at DOD pharmacies.
47 Legislation was offered in the 109th Congress (S. 511, Senator DeMint, March 3, 2005 and H.R. 1079, Rep. Bartlett)
“To provide that the approved application under the Federal Food, Drug, and Cosmetic Act for the drug commonly
known as RU-486 is deemed to have been withdrawn, to provide for the review by the Comptroller General of the
United States of the process by which the Food and Drug Administration approved such drug, and for other purposes.”
Both bills were referred to Committees and have received no further action.
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According to a DOD Information Paper, Plan B could possibly “prevent a pregnancy by
interfering with ovulation, sperm transport through cervical mucus and fallopian tubes, release of
pituitary gonadotropins, corpus luteum functions, fertilization, embryo transport and
implantation.”48 [emphasis added] The possibility of preventing a fertilized egg from implanting
leads to the argument, for those who maintain that life begins at conception, that Plan B
represents a potential form of abortion in certain cases. In May 2002, the P&T Executive Council
Meeting released the following:
At the February 2002 DOD Pharmacy & Therapeutics (P&T) Executive Council meeting,
the Council recommended the addition of levonorgestrel 0.75 mg (Plan B) to the Basic Core
Formulary (BCF), subject to the review of the Director, TRICARE Management Activity
(TMA) and/or the Assistance Secretary of Defense for Health Affairs (ASD(HA)). On 28
March 2002, the Executive Director of TMA signed an Action Memo approving the
recommendation. On April 3, 2002 the co-chair of the DOD P&T Committee informed the
Council members and pharmacy consultants of the decision, and re-informed the Council on
7 May 2002. On 8 May 2002 the Executive Council was reconvened briefly to announce that
the Council co-chairs had been informed that the ASD(HA) also wanted to review the
Council’s recommendation and that the Executive Director of TMA had rescinded his earlier
approval. Therefore, Plan B has NOT been approved for addition to the BCF at this time, and
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the ASD(HA) is reviewing the Council’s recommendation. [Military Treatment Facilities]
MTFs are required to include all BCF drugs on their local formularies. As a result of Plan
B’s removal from the BCF, each MTF’s P&T committee must now re-evaluate whether this
product is within the scope of practice at the MTF and whether the MTF wants to continue to
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have Plan B on its formulary.49
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In May 2005, a proposed amendment to make Plan B available on all military bases died in the
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House Rules Committee (as part of its consideration of the FY2005 National Defense
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Authorization Act).50 This is not to say that Plan B is not available at certain military bases or to
military health care beneficiaries. On September 7, 2005, it was reported that certain military
bases do have Plan B on hand and have offered it, usually in cases of sexual assault, but also in
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cases where other contraceptives failed or unprotected sex was involved. Further, military
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physicians may prescribe the medication allowing the beneficiary to have the prescription filled at
civilian pharmacies.51
Although tangentially relevant to DOD policy, Plan B has been the subject of controversy within
the Food and Drug Administration (FDA):
FDA Commissioner Lester Crawford on August 26 [2005] said the agency is indefinitely
deferring Barr Laboratories’ application for nonprescription sales of its emergency
contraceptive Plan B and opening a 60-day public comment period on the application
sparking charges that the decision was motivated by politics rather than science, ... FDA in
May 2004 issued a “not approvable” letter in response to Barr’s original application to allow
Plan B – which can prevent pregnancy if taken within 72 hours of sexual intercourse – to be
sold without a doctor’s prescription and in January delayed a ruling on Barr’s revised
48 Col. Daniel Remund, Co-chair, DOD Pharmacy & Therapeutics Committee, Information Paper, April 11, 2002.
49 Department of Defense, Pharmaeconomic Center, Minutes of the DOD Pharmacy & Therapeutics Executive Council
Meeting, May 7, 2002, pp. 2-3.
50 The proposal was similar to language contained in H.R. 2635, Rep. Michael H. Michaud, May 25, 2005.
51 Montgomery, Nancy, Army Hospitals in Europe Offering ‘Morning-After’ Pill, Stars and Stripes (European edition),
June 8, 2005.
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application, which would allow EC to be sold without a doctor’s prescription only to women
ages 17 and older. During a confirmation hearing in March, Crawford told the Senate
committee that FDA would approve the application “within weeks.”52
On August 24, 2006, the FDA approved over-the-counter sales of Plan B to women 18 years old
and older.53 Nearly three months later, Plan B began appearing in drug stores.54
Although this latter controversy is not directly related to the Department of Defense, it appears
that the decision made by the FDA was taken into consideration by DOD officials with regard to
emergency contraceptives.
According to the DOD Pharmacoeconomic Center, Plan B is not on the Basic Core Formulary,
but Military Treatment Facilities may have it as part of their formulary.55
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“Parental notification” is concerned with those instances in which an abortion is sought at a
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military facility by or on behalf of a military dependent who is a minor and/or incapable of
making such a decision.
According to DOD:
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Assuming that an abortion is authorized [under statute], consent must be obtained before any
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surgical procedure is performed. The requirement to obtain consent is required in military
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treatment facilities (MTFs), because the standard of care for medical practice in MTFs within
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the United States is governed by the Federal Tort Claims Act (FTCA). The standard of care
for obtaining consent under FTCA is that the provider will follow state law governing the
circumstances under which a minor may consent for medical treatment. In overseas facilities,
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consent by minors for abortions is governed by [DOD] Health Affairs Policy dated May 9,
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1994, as amended by [DOD] Health Affairs Policy 96-030, dated February 13, 1996. Those
policies state that the host nation laws or legal requirements will apply. In the absence of
such host nation laws or legal requirements, valid consent for minors may be obtained in
either of two methods. First, the consent of at least one parent or guardian is provided.
Second, the commanding officer of the medical treatment facility (or if the commanding
officer is not a physician, a senior physician designated by the commanding officer) makes a
judgment, upon the recommendation of the attending physician, that the minor is mature
enough and well enough informed to give valid consent, or, if she is not sufficiently mature
and informed, that the desired abortion would be in her best interest.56
52 “FDA: Indefinitely Defers Decision on Emergency Contraceptive; Plan B,” National Journal Group, Inc., September
6, 2005
53 Harris, Gardiner, F.D.A. Approves Broader Access t Next-Day Pill, New York Times, August 25, 2006: 1.
54 Payne, January W., “For Plan B, A Broader Reach,” Washington Post, November 21, 2006: F1.
55 DOD, MTF Formulary Management For Contraceptives (Updated 26 Jan 07).
56 Letter from Speight, Cynthia, CIV, OASD(HA)TMA to Richard Best, CRS, May 28, 2003.
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The House version of the FY1996 Defense Authorization Act contained a section that would
terminate the policy of allowing the performance of abortions on a pre-paid basis, at military
facilities. Under this language:
This section would amend Section 1093 of Title 10, United States Code, to include
restricting the Department of Defense from using medical treatment facilities or other DOD
facilities, as well as DOD funds, to perform abortions unless necessary to save the life of the
mother.57
The Senate report contained no similar provisions.
As a result of numerous political differences between the House and the Senate language, as well
as Administration opposition on a number of issues raising the specter of a veto, the authorization
act stalled in conference. Legislators sought to have language included in the FY1996 DOD
appropriations act that would prohibit abortions at overseas military facilities. The Appropriations
Conference Committee originally included the following language:
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Sec. 8119. None of the funds made available in this Act may be used to administer any
policy that permits the performance of abortions at medical treatment or other facilities of the
Department of Defense, except when it is made known to the federal official having
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authority to obligate or expend such funds that the life of the mother would be endangered if
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the fetus were carried to term: Provided, That the provisions of this section shall enter into
force if specifically authorized in the National Defense Authorization Act for Fiscal Year
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1996.
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Thus, the nature of this language only allowed it to take effect, when and if the authorization
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language was enacted into law. As noted, at the time, the authorization bill was stalled in
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conference and faced a possible veto. The failure of the authorization bill to be passed would
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negate any language concerning abortions in the appropriations bill.
On September 29, 1995, pro-life legislators in the House and a large number of Democrats
(opposed to the bill on policy and other spending considerations) joined ranks and rejected the
conference version of the FY1996 DOD appropriations act (151-267), thereby returning the bill to
the House-Senate conference.58 On November 16, 1995, the conferees agreed to a compromise
that included the following language:
Sec. 8119. None of the funds made available in this Act may be used to administer any
policy that permits the performance of abortions at medical treatment or other facilities of the
Department of Defense.
Sec. 8119A. The provision of Section 8119 shall not apply where the life of the mother
would be endangered if the fetus were carried to term, or the pregnancy is the result of an act
of rape or incest.
57 U.S. Congress, House Committee on National Security, National Defense Authorization Act for Fiscal Year 1996,
H.Rept. 104-131, H.R. 1530, 104th Cong., 1st Sess., June 1, 1995: 237.
58 Maze, Rick, and William Matthew, “Defense Spending Bill Slapped Back by Unlikely Union in Congress,” Army
Times, October 9, 1995: 25.
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On December 1, 1995, the appropriations act, with the above two sections, became law.59
On December 15, 1995, the House passed the FY1996 Authorization Act (containing the
language cited on page 12). The bill was approved by the Senate on December 19, 1995. On
December 28, 1995, the President vetoed the authorization act, and in a letter to Congress, he
stated:
H.R. 1530 [FY1996 Defense Authorization Act] also contains ... provisions that would unfairly
affect certain service members.... I remain very concerned about provisions that would restrict
service women and female dependents of military personnel from obtaining privately funded
abortions in military facilities overseas, except in the cases of rape, incest, or danger to the life of
the mother. In many countries, these U.S. facilities provide the only accessible, safe source for
these medical services. Accordingly, I urge Congress to repeal a similar provision that became
law in the “Department of Defense appropriations act, 1996.”60
On January 3, 1996, the House of Representatives failed to override the veto with a vote of 240-
156. Two days later, the House amended S. 1124 by striking “all after the enacting clause of S.
1124 and insert[ing] in lieu thereof the text of H.R. 1530 [the vetoed language] as reported by the
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committee of conference on December 13, 1995, contained in [H.Rept. 104-406].”61 Under
unanimous consent, the language was taken from the Speaker’s table, as amended, and sent to
conference. On January 22, conference report H.Rept. 104-450 was filed. On January 24, 1996,
the House agreed to the conference report (287-129). Two day later, the Senate agreed to the
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conference report (56-34). Provisions barring the use of DOD facilities to perform abortions,
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except in cases of rape, incest or where the life of the mother would be endangered if the fetus
were carried to term or in a case in which the pregnancy, were included in this language (see
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quoted text on page 2). On February 10, 1996, President Clinton signed the FY1996 Defense
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Authorization Act into law.62
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Although the prohibition against using funding in the appropriations act would have lapsed at the
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end of the fiscal year, the change made via the authorization act modifies Title 10 United States
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Code. As such, this change will not lapse at the end of the fiscal year. Thus, this language will
stay in effect unless and until Congress (with the President’s signature) specifically acts to amend,
modify, strengthen or repeal these provisions.
On May 14, 1996, an amendment was offered to the House version of the FY1997 National
Defense Authorization Act to overturn the prohibition on military facilities performing abortions
and allow such abortions to be performed at these medical facilities so long as federal funds are
not used (i.e., patient-paid abortions). The amendment was defeat by a vote of 192 ayes and 225
noes.63 Slightly more than one month later, the Senate passed an identical amendment to its
version of the FY1997 National Defense Authorization Act by a voice vote.64 Ultimately, the
Senate conferees receded and the Senate amendment was dropped.
59 P.L. 104-61, 109 Stat. 636, December 1, 1995.
60 Veto message from the President of the United States (H. Doc. No. 104-155), cited in the Congressional Record,
January 3, 1996: H12.
61 Congressional Record, January 5, 1996: H302.
62 P.L. 104-106, 110 Stat. 186, February 10, 1996.
63 Congressional Record, May 14,1996, H5013-H5022.
64 Congressional Record, June 19, 1996, S6460-S6469.
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Efforts to amend these provisions have continued. On June 19, 1997, Representative Jane Harman
offered an amendment to the FY1998 DOD Authorization Act that would purportedly
[restore the] policy affording access to certain health care procedures for female members of
the armed forces and dependents at Department of Defense facilities.
The amendment was rejected (196-224).65
In 1998, the House National Security Committee rejected another attempt to allow for privately
funded abortions at these facilities.66 On June 25, 1998, the Senate rejected a similar provision
(44-49).67
During consideration of the FY2000 National Defense Authorization Act, the House Personnel
Subcommittee accepted an amendment by Representative Loretta Sanchez to reverse the
restrictions on privately funded abortions being performed at overseas military medical facilities.
Another amendment, by Representative Kuykendall, would have allowed Defense Department
funding of abortions in cases of rape or incest. Upon consideration by the House Armed Services
Committee, the Sanchez amendment was dropped and the Kuykendall amendment was further
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amended by Representative Buyer. As amended, the Kuykendall amendment would allow
Defense Department funding of abortions in cases of forcible rape or incest provided that the rape
or incest had been reported to a law enforcement agency. [Italics represent the Buyer changes.]
Later efforts to reinstate the Sanchez language allowing for abortions at overseas military
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facilities when personal funds are used were rejected by both the House and the Senate.
Ultimately, the Kuykendall amendment, as amended, was also deleted during conference
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consideration of the FY2000 National Defense Authorization Act, thereby leaving the law
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unchanged.68
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Although not specifically related to the above discussion of the military abortion issue, other
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language has been proposed that would have had an effect on the consideration of the abortion
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issue. H.R. 243669 included, in part, language modifying Title 10, United States Code. According
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to this language, any conduct violating certain provisions of the Uniform Code of Military
Justice, by a person subject to the Uniform Code of Military Justice, that causes death or bodily
injury to a fetus who is in utero at the time the conduct takes place, would be guilty of a criminal
offense. For example, if during an assault on a pregnant women, the fetus were injured, such an
injury would constitute a separate offense. Exceptions were included in cases of abortions,
medical treatment of the woman, or conduct of the woman with regard to her fetus. On September
30, 1999, the House passed this language (254-172). The next day, it was received and read in the
Senate. On February 23, 2000, the Senate Committee on Judiciary held hearings on a Senate
companion bill, S. 1673. No further action was then taken by the Senate, and the legislation failed
to become law. (Similar language was considered in 2004; see “Unborn Victims of Violence Act
2004,” below.)
65 Congressional Record, June 19, 1997, H4056-H4069.
66 CQ Weekly, Other Policy Issues, May 9, 1998: 1240.
67 Congressional Record, June 25, 1998, S7060-S7076.
68 Maze, Rick, “Abortion Provision Dropped from Defense Bill,” Times, August 16, 1999: 11.
69 H.R. 2436, Representative Linsey Graham, July 1, 1999.
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Proponents note that such language would recognize the victimization of the child while in utero
and afford appropriate criminal sanctions to perpetrators of violent acts. Critics view the inclusion
of such language as a means of defining a fetus as a victim and thereby acknowledging or
creating a separate human existence. These critics are concerned that such language would
arguably recognize the fetus as separate person in the eyes of the law thereby complicating the
abortion debate.70
In consideration of the FY2001 National Defense Authorization Act (H.R. 4205), the House
Armed Services Committee “voted to retain its ban on abortions at military hospitals unless the
mother’s life is at risk. The 31-20 vote came May 10, 2000, on an amendment that would have
allowed abortions at overseas hospitals if patients rather than the government paid for them. The
29-26 vote came on a failed try to allow military hospitals to perform abortions in cases of rape or
incest.”71 Eight days later, a floor amendment was offered that would strike subsections a and b of
10 USC § 1093, effectively removing any restriction to providing abortions under this title. The
amendment was defeated (221-195).72
On June 20, 2000, the Senate tabled (50-49) an amendment to the FY2001 National Defense
Authorization Act, S. 2549, that would strike Section b of 10 USC § 1093. The amendment would
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have lifted the ban on the use of military facilities in performing abortions. Although proponents
noted that the amendment “would lift restrictions on privately funded abortions at military
facilities overseas,” as written, the amendment would affect such facilities in the United States as
well.73
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On September 25, 2001, Representative Loretta Sanchez offered an amendment to the National
Defense Authorization Act for FY2002. This amendment would have limited the restriction on the
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use of DOD facilities for performing abortions at those facilities “in the United States.” In other
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words, this language would remove the restriction of providing privately funded abortion services
at DOD facilities overseas. The amendment was rejected (199-217).74
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During debate on the Bob Stump FY2003 National Defense Authorization Act, the Senate (52-40)
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passed an amendment that would remove the restriction on the use of military facilities.75 The
House had earlier rejected a similar measure (215-202).76 In a letter to Senator Carl Levin, then-
Chairman of the Armed Services Committee, Secretary of Defense Donald H. Rumsfeld wrote:
The Senate bill removes the current statutory prohibition on access to abortion services at
Department of Defense (DoD) medical facilities. The President’s senior advisors would
recommend that the President veto the bill if it changes current law.77
The Senate amendment was dropped by the conference committee.78
70 For additional information on the legal aspects of the abortion issue, see CRS Report RL33467, Abortion: Legislative
Response, by Jon O. Shimabukuro and Karen J. Lewis.
71 FastTrack, Times, May 29, 2000: 6.
72 Congressional Record, May 18, 2000: H3347-H3350, H3371.
73 Congressional Record, June 20, 2000: S5406-S5421, S5425.
74 Congressional Record, September 25, 2001: H6022-25, H6032-33.
75 Congressional Record, June 21, 2002: S5882.
76 Congressional Record, May 9, 2002: H2380.
77 Letter from Secretary of Defense Donald H. Rumsfeld to the Honorable Carl Levin, September 24, 2002.
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On April 1, 2004, President Bush signed H.R. 1997, “Unborn Victims of Violence Act of 2004
(Laci and Conner’s Law)” into law.79 Although intended to protect fetuses, this legislation
contains a provision that would not permit the prosecution “of any person for conduct relating to
an abortion” in which consent was legally obtained or implied.
Amendments to the FY2004 National Defense Authorization Act to modify the law were also
offered. In the House, an amendment that would have limited the restriction on DOD facilities to
the United States was rejected (201-227).80
Likewise the Senate rejected (48-51) an amendment that would have repealed the restriction on
using DOD facilities, in general.81
However, the Senate agreed, subject to certain limitations, to consider legislation, S. 1104,82 “to
provide for parental involvement in abortions of dependent children of the Armed Forces.” The
legislation was placed on the Legislative Calendar83 but failed to be called to the floor.
Consideration of the Ronald W. Reagan FY2005 National Defense Authorization Act included a
number of amendments regarding abortion services. In the House of Representatives,
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Representative Susan A. Davis introduced an amendment that would allow military personnel and
their dependents to use their own funds to obtain abortion services at overseas military hospitals.
This amendment was defeated (202-221).84
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In the Senate, an amendment offered by Senator Barbara Boxer, would allow DOD funding of
abortions in cases of rape or incest. This amendment, along with 25 other amendments, was
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passed en bloc by unanimous consent.85 On October 8, 2004, the Conference Report for this
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legislation noted that the “Boxer amendment” had been dropped.86
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Two other Senate amendments to the Ronald W. Reagan FY2005 National Defense Authorization
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Act (H.R. 4200) were submitted. The first, S.Amdt. 3406 (Senators Frist and Brownback), would
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“provide for parental involvement in the performance of abortions for dependent children of
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members of the Armed Forces.” The second, S.Amdt. 3407 (Senators Frist and Brownback),
would require the notification of authorities regarding the identity of perpetrators, where possible,
in cases of rape or incest when abortions are sought at military facilities. Neither S.Amdt.
3406nor S.Amdt. 3407was called up.
(...continued)
78 Congressional Record, November 12, 2002: H8462.
79 P.L. 108-212; 1185 Stat. 568; April 1, 2004.
80 Congressional Record, May 22, 2003: H4571.
81 Congressional Record, May 22, 2003: S6911.
82 Senator Brownback, May 22, 2003.
83 Congressional Record, May 22, 2003: D576. See also, “Congress Votes to Keep the Abortion Ban on Bases,”
Washington Post, May 23, 2003: A7.
84 Congressional Record, May 19, 2004: H3358.
85 Congressional Record, June 22, 2004: S7152.
86 Congressional Record, October 8, 2004: H9549.
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In conclusion, under current law, 10 U.S.C. § 1093, Performance of Abortions: Restrictions
(a) Restriction on Use of Funds.—Funds available to the Department of Defense may not be
used to perform abortions except where the life of the mother would be endangered if the
fetus were carried to term.
(b) Restriction on Use of Facilities.—No medical treatment facility or other facility of the
Department of Defense may be used to perform an abortion except where the life of the
mother would be endangered if the fetus were carried to term or in a case in which the
pregnancy is the result of an act of rape or incest.
On May 25, 2005, the House of Representatives considered an amendment (offered by
Representative Susan Davis) to the National Defense Authorization Act for Fiscal Year 2006
(H.R. 1815). The amendment would allow overseas military facilities to provide privately funded
abortions for women who are in the miliary or are military dependents. This amendment was
rejected (194-233).87
On July 25, 2005, Senator Lautenberg filed an amendment in the Senate that would ‘restore the
previous policy regarding restrictions on the use of medical treatment facilities or other
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Department of Defense facilities.’ This amendment would strike section 1093(b) of title 10 U.S.C.
(and remove the title language “Restriction on Use of Funds.–” from section 1093(a)). No further
action has been taken on this amendment.88
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On May 10, 2006, the House of Representatives considered an amendment (offered by
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Representative Robert E. Andrews) to the John Warner FY2007 National Defense Authorization
Act that would allow overseas military facilities to provide privately funded abortions for women
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who are in the miliary or are military dependents. This amendment was rejected (191-237).
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87 Congressional Record, May 25, 2005: H4009-H4013, H4017.
88 Congressional Record, July 25, 2005, S8845.
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According to Department of Defense and individual command officials (as reported to the Army
Times, September 5, 1994: 18; source: Defense Department and individual command officials),
the availability of abortion services (prior to the restrictions enacted on December 1, 1995) at
military facilities overseas could vary depending on location.
GERMANY
• National policy: See discussion on page 8 above.
• Local U.S. military policy: Under German law, abortions are illegal except in
cases of rape or medical necessity. Abortions carried out during the first twelve
weeks of pregnancy are not considered a prosecutable offense provided the
woman has certification attesting to receiving state approved counseling to
review her options. The military does not allow abortions at its facilities.
• Since the U.S. ban was lifted: Estimates of how many American service women
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or family members received abortions from German providers in 1993 are as
high as 1,500, although German officials say there is no way to confirm this
number.
ITALY
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• National policy: Abortions are permitted. They must be performed by a licensed
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• Local U.S. military policy: Abortion services comparable to those in the United
States are available from Italian providers in the Naples and Sigonella areas.
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Service women and family members who desire abortions are referred to pre-
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identified licensed local providers. Abortions are not performed at military
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hospitals.
• Since the U.S. ban was lifted: One elective abortion was reportedly provided in
Sigonella at an Italian facility.
JAPAN
• National policy: Abortion is legal and fairly unrestricted, but more expensive
than in the United States.
• Local U.S. military policy: Given that abortions are readily available in the
Japanese community, women seeking abortion from Navy hospitals here are
referred to family-service counselors for referrals to Japanese doctors.
• Since the U.S. ban was lifted: Few, if any, abortions were performed at military
hospitals, Navy officials said. The number of abortions by civilian doctors is
unknown.
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KOREA
• National policy: Abortion is illegal except to save the life of the mother.
• Local U.S. military policy: The U.S. military’s rules for Korea could not be
learned from military officials, but because of the local law, abortions would not
be available at U.S. hospitals.
• Since the U.S. ban was lifted: Service members or family members continue to
have to travel outside of Korea to obtain an abortion.
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Abortion policies of foreign militaries vary. These variations depend on the country’s general
policy regarding abortion. For instance, abortion policies are affected by religion (Vatican, Israel,
and Islamic nations, for example), population control policies (China) and other cultural factors
(nationalized health care policies, such as are found in Great Britain), and issues pertaining to the
structure of the military—the presence of women in uniform (many Islamic countries do not have
women in uniform, making the issue moot). Some countries do not have a military (Costa Rica
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for instance does not have a military per se but rather a paramilitary style security force). In
addition, internal legal restrictions or rulings, such as court rulings on abortion (see
GERMANY), affect the country’s policy. Finally, very few countries maintain a level of overseas
deployments that make direct comparisons relevant. For these reasons, comparisons to foreign
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nations in terms of their abortion policy in general, and their policy regarding military abortions
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at overseas military medical facilities are difficult to justify and of questionable utility.
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David F. Burrelli
Specialist in Military Manpower Policy
dburrelli@crs.loc.gov, 7-8033
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