INSIGHTi

FY2023 NDAA: Military Abortion Policies
Updated July 29, 2022
Background
The June 24, 2022, Supreme Court decision on Dobbs v. Jackson Women’s Health, which overturns Roe v.
Wade and allows states to restrict abortion access, has raised questions from some 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 to perform 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.” Abortions that do not meet these criteria
are considered noncovered abortions. This provision was first enacted in 1984. Prior to adding the
statutory restriction, Congress had included provisions in annual defense appropriations bills restricting
funding for the military to perform 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
and their family members 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 request leave for any reason typically need to submit a request to their
commanding officer or supervisor for approval. Chapter 40 of Title 10, United States Code authorizes
servicemember leave generally. While this chapter does not include specific authority for abortion-related
leave or sick leave, it does authorize convalescent leave in connection with the birth of a child. Some
observers have questioned whether, absent specific statutory authority, a commanding officer could deny
a servicemember’s request for leave to seek an abortion.
On June 28, 2022, DOD issued a memorandum stating that the Dobbs decision “does not prohibit the
Department from continuing to perform covered abortions” and that “Department policy authorizes active
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duty Service members to travel as necessary to receive abortion care—either as Government-funded,
official travel for covered abortion, or at the Service member’s own expense on regular leave for all other
cases.”
Selected Legislative Activity in the 117th Congress
As part of the annual defense authorization and appropriation cycle, Congress may consider legislation
related to covered abortions 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. Versions of the National Defense
Authorization Act for Fiscal Year 2023 passed by the House (H.R. 7900) and reported by the Senate
Committee on Armed Services, or SASC (S. 4543), did not include similar repeal language.
The House Committee on Appropriations reported its version of the Department of Defense
Appropriations Act, 2023 (H.R. 8236) on June 24, 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 U.S. Code 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.”
While the SASC-reported bill does not include a reference to abortion, it does include two provisions
related to servicemember convalescent leave and assignment policies. Section 623 would provide an
explicit statutory authority for convalescent leave following the recommendation of a medical or
behavioral health provider. Section 525 would prohibit consideration of a servicemember’s “agreement or
disagreement” with state laws when determining duty assignments for that individual. Both of these
provisions could be more broadly applicable to situations unrelated to abortion.
Considerations for Congress
Members of Congress have continued to debate military abortion policies in the wake of the Dobbs
decision. Some observers have argued that existing statutory restrictions on DOD abortion services create
hardships for many servicemembers, particularly women of reproductive age and their families, due to
out-of-pocket costs associated with noncovered abortions, career impacts related to unwanted
pregnancies, or other health and privacy concerns related to abortion and post-abortion care. The U.S.
Military Healthcare System serves approximately 1.62 million women of reproductive age (15-45),
including servicemembers, retirees, and their dependents. The Department of Defense (DOD) reports that
unintended pregnancies are 50% higher for active-duty women than their civilian counterparts.
Additionally, some Members of Congress contend that Dobbs will exacerbate these barriers (e.g., costs of
out-of-state travel) for servicewomen living in states with laws that restrict abortion access. Other
observers have argued that the decision may 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.
Other considerations for Congress 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

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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.

Author Information

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


Bryce H. P. Mendez

Analyst in Defense Health Care Policy




Disclaimer
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to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
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