FY2023 NDAA: Military Abortion Policies

FY2023 NDAA: Military Abortion Policies

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INSIGHTi

FY2023 NDAA: Military Abortion Policies
Updated March 21, 2023
Background
The June 24, 2022, Supreme Court decision in Dobbs v. Jackson Women’s Health, which overturned Roe
v. Wade and allowed states to further restrict abortion access, raised questions from some Members of
Congress about military personnel and family member access to abortion services when assigned to
installations in such jurisdictions. While servicemembers can generally submit assignment preferences,
Department of Defense (DOD) policy dictates that the primary assignment consideration is “current
qualifications and the ability to fill a valid requirement.” Commanders may approve exceptions in certain
instances (e.g., personal hardships).
Title 10, Section 1093 of the United States Code (U.S.C.), prohibits DOD 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.” On June 28, 2022, DOD issued a memorandum stating that
the Dobbs decision “does not prohibit the Department from continuing to perform covered abortions.”
DOD reports that since 2016 it performed fewer than 100 covered abortions in military medical facilities.
Abortions that do not meet these criteria are considered noncovered abortions. Federal regulations and
TRICARE policies also prohibit abortion counseling, referral, preparation, and follow-up care for
noncovered abortions. These services are not available in military treatment facilities.
The Military Health System serves about 1.62 million women of reproductive age (15-45), including
servicemembers, retirees, and their dependents. DOD reports that unintended pregnancies are 50% higher
for active-duty women than their civilian counterparts. As of July 31, 2022, about 46,000 active-duty
women and 75,000 reserve component women were assigned to states with laws that ban or restrict
abortion beyond a certain gestational age (Figure 1).
Congressional Research Service
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Figure 1. Share of Female Military Population by State and Abortion Laws

Source: CRS analysis of Defense Manpower Data Center data. CRS Law Librarian Laura Deal provided analysis of state
laws.
Recent DOD Actions
Servicemembers and their family members who seek a noncovered abortion typically pay out of pocket
for all expenses associated with the procedure, including any related travel. On October 3, 2022, the
Department of Justice’s Office of Legal Counsel concluded that DOD “can lawfully expend funds to pay
for service members and their dependents to travel to obtain abortions that DOD itself cannot perform.”
In an October 20, 2022 memorandum, Secretary of Defense Lloyd Austin directed that travel and
transportation expenses (authorized under Title 37 of the U.S.C.) may be used to “facilitate official travel
to access non-covered reproductive health care that is unavailable within the local area of a
servicemember’s permanent duty station.”

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The Secretary of Defense’s October memorandum directed a uniform DOD policy allowing for
administrative leave of absence for servicemembers seeking noncovered reproductive health care. Chapter
40 of Title 10, U.S.C. authorizes servicemember leave generally. DOD released updated policies for
travel, leave, and command notification on February 16, 2023.
Selected Legislative Activity
As part of its deliberations on defense policy and funding for fiscal year 2023, Congress considered
legislation related to abortion policies for military servicemembers and their families. Identical bills (H.R.
7945 and S. 4354) introduced in the House and Senate would have repealed abortion restrictions 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.
Section 8145 of the House Committee on Appropriations-reported FY2023 Department of Defense
Appropriations Act (H.R. 8236) would have prohibited funds from being used to deny leave for
servicemembers and DOD civilians who seek an abortion, and would have covered leave requests for
those assisting a “spouse, partner, or significant other” in obtaining an abortion.
The SASC-reported defense authorization bill (S. 4543) did not reference abortion; however, it included
provisions related to leave and assignment policies. Section 623 would have provided authority for
convalescent leave following the recommendation of a medical or behavioral health provider. Section 525
would have prohibited consideration of a servicemember’s “agreement or disagreement” with state laws
when determining duty assignments. Both of these provisions could have applied more broadly to
situations unrelated to abortion. A Senate-proposed amendment (SA 6477) to the bill would have
prohibited appropriated funds from being used to carry out the Secretary of Defense’s October 20, 2022
memorandum relating to ensuring access to reproductive health care. There were no related provisions
adopted in the enacted legislation.
Considerations for Congress
Some Members of Congress continue to debate military abortion policies in the wake of the Dobbs
decision. Some observers argue that restrictions on DOD abortion services create hardships for
servicemembers and their families, particularly women of reproductive age, 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. Additionally, some Members contend that
Dobbs will exacerbate these barriers for servicewomen living in states with restrictive abortion laws, and
may harm recruitment and retention of women due to the possibility of involuntarily assignments to such
jurisdictions.
Some Members and antiabortion groups oppose all public funding of abortions as well as use of defense
funds for transportation and other expenses associated with accessing the procedure, contending that
taxpayers should not fund such procedures and that funds should be directed toward other defense
priorities.
Another consideration may be the extent to which servicemembers, their families, and military medical
personnel would be 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. The Secretary of Defense’s October 2022 memorandum directs development of a program to
support DOD health care providers who may face civil or criminal penalties for “appropriately
performing their official duties.”

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Congress might also consider the potential impact of state abortion laws on DOD’s ability to recruit
federal civilians and contractors in these jurisdictions and the extent to which travel accommodations, if
any, might be authorized for these employees.

Author Information

Kristy N. Kamarck
Bryce H. P. Mendez
Specialist in Military Manpower
Analyst in Defense Health Care Policy

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