INSIGHTi

FY2023 NDAA: Military Abortion Policies
June 27, 2022
Background
The June 24, 2022, Supreme Court decision on Dobbs v. Jackson Women’s Health, which allows states to
restrict abortion access, has raised questions from Members of Congress about the ability of military
personnel and their family members to access abortion services when assigned to military installations in
such jurisdictions. In most cases, while military servicemembers can submit assignment preferences,
Department of Defense (DOD) policy dictates that the primary consideration for assigning
servicemembers is “current qualifications and the ability to fill a valid requirement.” Senior officials may
approve exceptions to this policy in certain instances (e.g., personal or family hardships).
Under Title 10, Section 1093 of the United States Code (U.S.C.), DOD is prohibited from using funds or
facilities for an abortion, unless the pregnancy resulted from rape or incest, or “the life of the mother
would be endangered if the fetus were carried to term.” This provision was first enacted in 1984. Prior to
adding the statutory restriction, Congress had included provisions in annual defense appropriations bills
that restricted funding for military abortions, starting with appropriations for FY1979 (P.L. 95-457, §863).
Such abortion funding restrictions in appropriations bills are often referred to as Hyde-type amendments
after their original sponsor, Representative Henry J. Hyde. Federal regulations and TRICARE policies
also prohibit abortion counseling, referral, preparation, and follow-up care for noncovered abortions, and
these services are not available in military treatment facilities. Servicemembers who are seeking a
noncovered abortion with a civilian provider typically pay out of pocket for all expenses associated with
the procedure, including any required travel.
In addition, servicemembers who are requesting leave for any reason will typically need to submit the
request to their commanding officer or supervisor for approval. Servicemember leave is authorized under
Chapter 40 of Title 10, United States Code; however, there is not a leave category in law specifically for
abortion or other specific medical procedures. Some observers have questioned whether, absent a specific
authority, a commanding officer could deny a servicemember’s request for leave to seek an abortion.
Recent changes to Army and Air Force policies would limit a commander’s ability to deny leave under
these circumstances. These policies encourage servicemembers to seek follow-up care by a military
medical professional to establish any convalescent leave or physical duty limitations.
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Legislative Activity in the 117th Congress
As part of the annual defense authorization and appropriation cycle, Congress may consider legislation
related to abortion access for military servicemembers and their families. Identical provisions (H.R. 7945
and S. 4354) have been introduced in the House and Senate that would repeal restrictions on DOD’s
ability to fund and perform abortions under 10 U.S.C. §1093. The House and Senate Committees on
Armed Services did not include similar language in markup of their versions of the National Defense
Authorization Act for Fiscal Year 2023 (FY2023 NDAA).
The House Committee on Appropriations Subcommittee on Defense reported its version of the
Department of Defense Appropriations Act, 2023 on June 13, 2022. This bill included a provision (§8145)
that would prohibit appropriated funds from being used to deny leave for servicemembers and DOD
civilians who are seeking an abortion. It would also cover leave requests for those individuals who are
assisting a “spouse, partner, or significant other” in obtaining an abortion. While military law recognizes a
servicemember’s spouse as a “dependent” for the purposes of benefits and protections, it does not include
in this definition a “partner” or “significant other.”
Considerations for Congress
According to TRICARE annual reporting, the Military Healthcare System serves approximately 1.62
million women of reproductive age (15-45), including servicemembers, retirees, and their dependents.
Some observers have argued that existing statutory restrictions on DOD abortion services create hardships
for this population due to out-of-pocket costs associated with noncovered abortions, career impacts
related to unwanted pregnancies, or other health and privacy concerns related to the procedure and
postprocedure care. Additionally, some Members of Congress contend that Dobbs will exacerbate these
barriers for servicewomen living in states with laws that restrict abortion access (e.g., costs of out-of-state
travel). Other observers have argued that this decision may also harm recruitment and retention of
military women due to the possibility of being involuntarily assigned to such states. According to CRS
analysis of DOD data, as of June 27, 2022, there were approximately 45,000 active-duty women and
39,000 reserve component women stationed in states with so-called trigger laws designed to ban abortion
now that the Supreme Court has overturned Roe v. Wade. Some Members of Congress and antiabortion
groups oppose all public funding of abortions, contending that taxpayers should not have to contribute to
a procedure to which they have a moral objection.
Congress may consider codifying existing and proposed authorities for military personnel leave and
assignment policies as they relate to noncovered abortion services. Defining such policies in statute could
standardize implementation across the military departments and provide continuity across presidential
administrations. On the other hand, it could also lead to less flexibility for the Secretaries concerned to
tailor policies that best fit service culture and operational needs. Congress might also explore the extent of
commanders’ discretionary authority to approve leave associated with pregnancy termination, and
mechanisms to appropriately balance servicemember privacy concerns with unit readiness.
Other considerations may include the extent to which servicemembers, their families, and military
medical personnel are protected from legal liability for seeking or providing abortion services in
jurisdictions with abortion restrictions, particularly where state laws may be more restrictive than military
laws (e.g., prohibiting abortions in the case of rape or incest).
For more on TRICARE coverage of abortion and reproductive health services, see CRS Report R46785,
Federal Support for Reproductive Health Services: Frequently Asked Questions, coordinated by Elayne J.
Heisler.

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Congressional Research Service
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Author Information

Kristy N. Kamarck
Hibbah Kaileh
Specialist in Military Manpower
Research Assistant


Bryce H. P. Mendez

Analyst in Defense Health Care Policy




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