Abortion Services and Military Medical Facilities

Order Code 95-387 F
Abortion Services and
Military Medical Facilities
Updated July 10, 2008
David F. Burrelli
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division

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Abortion Services and
Military Medical Facilities
Summary
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 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.
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 the continental United States. In addition, few have
been performed at these facilities abroad for a number of reasons. First, the U.S.
military follows the prevailing laws and rules of foreign countries regarding abortion.
Second, the military has had a difficult time finding health care professionals in
uniform willing to perform the procedure.
With the enactment of P.L. 104-61 and P.L. 104-106, these questions became
moot, because now, 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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Contents
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
“Plan B” and RU-486 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
“Parental Notification” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Legislative Action Since 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Legislative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Problematic Comparisons to Foreign Military Policies . . . . . . . . . . . . . . . . 22

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Abortion Services and
Military Medical Facilities
Purpose
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.
Issue
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 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 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 funds and in accordance with other relevant DOD policies and
procedures.1
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, section 1093 states:
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.

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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 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:
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 in a case in which the pregnancy is the result of
an act of rape or incest.4
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.
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
(continued...)

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Since then, efforts to modify the law pertaining to abortions have become a
routine part of the legislative process.
Background
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. 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
4 (...continued)
Year 1996, H.Rept. 104-450, S. 1124, 104th Cong., 2nd Sess., January 22, 1996: 206-207.
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
(continued...)

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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 “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 those that existed before Roe v. Wade.
In 1975, concerns were raised over inconsistencies between state statutes and
the Roe decision. Military medical personnel were instructed to follow the
Constitutional guidance provided in Roe in certain instances, even though the state
statutes had not been successfully challenged in court.9
From August 31, 1976, to August 31, 1977, approximately 26,000 abortions
were performed in military hospitals or in the CHAMPUS program.10
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:
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
6 (...continued)
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.
11 P.L. 95-457, Section 863, October 13, 1978, 92 Stat. 1254. In anticipation of this change,
(continued...)

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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 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:
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 victim of rape
or incest, when such rape has 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 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 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 (...continued)
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 2).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
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 rejected a similar amendment.
On May 22, 1991, the House of Representatives reversed itself and passed (220-
208) an amendment to the DOD authorization act that would have reinstated the pre-
paid overseas policy. 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 Representative AuCoin would go beyond
the then-prevailing policy by allowing abortions for any reason and at any time
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.

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during the pregnancy.22 The measure was rejected once again when the 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.
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 Aspin directed the Secretaries of the Military Departments
22 Congressional Record, May 22, 1991: H3394 et seq.
23 Nelson, Soraya, “Overseas Abortion Amendment Fails,” Army Times December 1991: 16.
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.

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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 services for service
women and eligible dependents overseas, 2) required the valid consent of a 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 from performing abortions if they objected, 4) respected host nation
laws regarding abortion, and, 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 supplementing staff with contract
personnel, referrals, travel, etc. The cost of an abortion had 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.
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
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.
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
(continued...)

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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 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 medical team needed to perform an abortion can essentially “veto” it.
Fifth, since military physicians are paid a salary, and not on the basis of procedures
performed, there is no economic incentive to provide abortions. Finally, rules exist
requiring the services to respect the prevailing 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
Given these factors and considerations, it was reported that 27 abortions were
performed at 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.
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
32 (...continued)
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.
35 Scholar, Steve, “Army Seeking Civilian Doctor Willing To Do abortions at Military
Hospitals,” Stars and Stripes (European), April 28, 1993: 1.

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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 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 rape or “medical necessity”), but a woman who seeks an
abortion during the first 12 weeks of pregnancy will not be subject to criminal
prosecution provided she attends a compulsory counseling session reviewing her
options.39
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 in the first place) are less likely to have physicians with a
skill level that would be commendable for contracting.
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.
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
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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CRS-11
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
“Plan B” and RU-486
In February 2002, the DOD Pharmacy and Therapeutics (P&T) Executive
Council recommended adding levonorgestrel, aka “Plan B,” to the Basic Core
Formulary,46 subject to further review. Plan B is described as an emergency
contraceptive used to prevent pregnancy following a known or suspected
contraceptive failure (e.g. broken condom) or when a pregnancy may result because
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,
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.

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CRS-12
which chemically induces an abortion. RU-486 is subject to restrictions under 10
U.S.C. § 1093.47
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 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 have Plan B on its formulary.49
In May 2005, a proposed amendment to make Plan B available on all military
bases died in the House Rules Committee (as part of its consideration of the FY2005
National Defense 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 cases where other
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.
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.

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CRS-13
contraceptives failed or unprotected sex was involved. Further, military 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
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
“Parental Notification”
“Parental notification” is concerned with those instances in which an abortion
is sought at a military facility by or on behalf of a military dependent who is a minor
and/or incapable of making such a decision.
51 Montgomery, Nancy, Army Hospitals in Europe Offering ‘Morning-After’ Pill, Stars and
Stripes (European edition), June 8, 2005.
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).

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CRS-14
According to DOD:
Assuming that an abortion is authorized [under statute], consent must be obtained
before any surgical procedure is performed. The requirement to obtain consent
is required in military treatment facilities (MTFs), because the standard of care
for medical practice in MTFs within 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,
consent by minors for abortions is governed by [DOD] Health Affairs Policy
dated May 9, 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
Legislative Action Since 1995
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:
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
56 Letter from Speight, Cynthia, CIV, OASD(HA)TMA to Richard Best, CRS, May 28,
2003.
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.

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CRS-15
treatment or other facilities of the Department of Defense, except when it is made
known to the federal official having authority to obligate or expend such funds
that the life of the mother would be endangered if 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 1996.
Thus, the nature of this language only allowed it to take effect, when and if the
authorization language was enacted into law. As noted, at the time, the authorization
bill was stalled in conference and faced a possible veto. The failure of the
authorization bill to be passed would 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.
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 13). 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
58 Maze, Rick, and William Matthew, “Defense Spending Bill Slapped Back by Unlikely
Union in Congress,” Army Times, October 9, 1995: 25.
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
(continued...)

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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 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
conference report (56-34). Provisions barring the use of DOD facilities to perform
abortions, 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 quoted text at the bottom of page 2). On February 10,
1996, President Clinton signed the FY1996 Defense Authorization Act into law.62
Although the prohibition against using funding in the appropriations act would
have lapsed at the end of the fiscal year, the change made via the authorization act
modifies Title 10 United States 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.
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
60 (...continued)
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.
65 Congressional Record, June 19, 1997, H4056-H4069.

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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
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 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 consideration of the
FY2000 National Defense Authorization Act, thereby leaving the law unchanged.68
Although not specifically related to the above discussion of the military abortion
issue, other language has been proposed that would have had an effect on the
consideration of the abortion issue. H.R. 243669 included, in part, language
modifying Title 10, United States Code. According 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 Victim of Violence Act 2004,” below.)
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.
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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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 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
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 use of DOD facilities for performing abortions at those
facilities “in the United States.” In other words, this language would remove the
restriction of providing privately funded abortion services at DOD facilities overseas.
The amendment was rejected (199-217).74
During debate on the Bob Stump FY2003 National Defense Authorization Act,
the Senate (52-40) 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
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.

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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
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, 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
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 passed en bloc by unanimous consent.85 On October 8,
77 Letter from Secretary of Defense Donald H. Rumsfeld to the Honorable Carl Levin,
September 24, 2002.
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.

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2004, the Conference Report for this legislation noted that the “Boxer amendment”
had been dropped.86
Two other Senate amendments to the Ronald W. Reagan FY2005 National
Defense Authorization Act (H.R. 4200) were submitted. The first, S.A. 3406
(Senators Frist and Brownback), would “provide for parental involvement in the
performance of abortions for dependent children of members of the Armed Forces.”
The second, S.A. 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.A.
3406 nor S.A. 3407 was called up.
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 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
Legislative Action
On May 10, 2006, the House of Representatives considered an amendment
(offered by 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 who are in the miliary or are military
dependents. This amendment was rejected (191-237).
86 Congressional Record, October 8, 2004: H9549.
87 Congressional Record, May 25, 2005: H4009-H4013, H4017.
88 Congressional Record, July 25, 2005, S8845.

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Appendix
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 10 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 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
! National policy: Abortions are permitted. They must be performed
by a licensed gynecologist.
! 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. Service women and family members
who desire abortions are referred to pre-identified licensed local
providers. Abortions are not performed at military 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

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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.
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.
Problematic Comparisons to Foreign Military Policies
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 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 nations in terms of their abortion policy in
general, and their policy regarding military abortions at overseas military medical
facilities are difficult to justify and of questionable utility.

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