It’s a new kind of forever war for the Pentagon, one that will likely see its battles play out in the courtroom and at the ballot box, with deeply emotional implications for female troops and ripple effects that could stretch throughout American society.
Far from providing certainty, the Defense Department’s controversial decision to fund out-of-state travel for female service members seeking abortions — announced just after the Supreme Court reversed Roe v. Wade last summer — has instead sparked a host of new high-stakes questions and could create the most personal of political footballs.
Analysts say that looming challenges to the policy — which look likely as conservative abortion opponents eye courtroom remedies in a post-Roe landscape — would break new legal ground and could potentially lead to important precedents.
But the more immediate fights could come in America’s political arena. Without affirmation from federal courts, the policies adopted by the Pentagon and the Veterans Administration could easily be reversed by a future Republican president — and that reversal could then be undone by the next Democratic-led Defense Department.
Such a back-and-forth would be reminiscent of the on-again, off-again “Mexico City Policy,” which prohibits non-governmental agencies from promoting abortions as a condition of receiving any U.S. family planning funding. That policy was reinstated by the Biden administration after being rescinded by former President Donald Trump, the latest in a series of partisan tit-for-tat moves over the past 40 years since its inception under Ronald Reagan.
President Biden’s Justice Department argues that the Pentagon’s new abortion policy, which will offer time off, travel reimbursements and other aid to female troops who must leave their state to get a legal abortion elsewhere, is on solid legal footing. Supporters note that many large U.S. bases are in the South and other conservative parts of the country where state legislatures have rushed to impose or reinstate abortion curbs.
Defense Secretary Lloyd Austin signaled his plans just days after the Supreme Court ruling, saying,” I am committed to taking care of our people and ensuring the readiness and resilience of our force. The department is examining this decision closely and evaluating our policies to ensure we continue to provide seamless access to reproductive health care as permitted by federal law.”
A memo providing travel funds and increasing privacy rights for active-duty troops who must travel out of the state where they are based for an abortion or other reproductive services was issued in October.
Critics say the policy is exploiting a loophole in the Hyde Amendment, which prohibits the use of federal funds for abortions, along with other statutes that block the Pentagon from performing abortions, unless the pregnancy is the result of rape or incest, or if the mother’s life is in jeopardy.
With questions swirling, the ensuing legal debate would break new ground, legal scholars say.
“Any challenges to the policy would be new territory,” said Francesca Laguardia, associate professor of justice studies at Montclair State University.
Ms. Laguardia said that there are other instances in which some federal funding may help facilitate abortions, such as the transport of an inmate at a federal prison to get an abortion offsite. She and others argue that makes clear that the Hyde Amendment doesn’t create a blanket ban on all federal funding that enables abortions.
But the Defense Department policy has sparked a fierce backlash from conservatives who argue it’s clear the intent of the amendment — and other statutes — is to limit the taxpayer-funded facilitation of abortions, including any financial aid or travel reimbursements. Ms. Laguardia said that’s exactly why Congress should address the issue through legislation, or else the military could face confusion or a prolonged legal battle.
“It is impossible to say with certainty that the issue will not be settled in court. This should not be settled in court. The result should be a legislative battle,” she said. “If the executive branch has misinterpreted Congress’s intent, Congress can clarify its intent by clarifying the statute. Congress has done that before on exactly these issues. That said, courts over the last ten years have ventured into many areas where nobody thought they should or could go, so it is impossible to say for certain.”
Uncharted territory
In the October memo, Mr. Austin directed the Pentagon to craft new policies offering “administrative absences” and travel and transportation reimbursement for pregnant service members who have to travel out of state for reproductive health care services, including abortions. He argued that abortion restrictions could create hardships for some female troops who may have to take time off of work and spend money out of pocket for reproductive health care.
“In my judgment, such effects qualify as unusual, extraordinary, hardship or emergency circumstances for service members and their dependents and will interfere with our ability to recruit, retain and maintain the readiness of a highly qualified force,” he said in the memo.
The Justice Department stood behind the policy, with Assistant Attorney General Christopher H. Schroeder writing in the October memo that the Pentagon “may lawfully expend funds for this purpose under its express statutory authorities” without violating federal law.
The stakes of the policy could be far-reaching. The U.S. Military Health System serves about 1.6 million women of reproductive age, from 15 to 45, according to recent Congressional Research Service data. About 46,000 active-duty women and 75,000 female reservists are stationed in states with laws that ban or restrict abortions, CRS said in a report released last month.
The legal fallout from last year’s Supreme Court decision has stretched across the military community, including to the Veterans Administration.
Last week, Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska joined with most Democrats to block a bill that would have overturned an administration policy that allows the Veterans Administration to perform taxpayer-funded abortions.
The resolution had been unlikely to become law, because it lacked the votes to override a threatened veto by President Biden, but it still underscored the white-hot political and social debates around abortion in America.
The fight on Capitol Hill
The reaction from Republicans on Capitol Hill to the Pentagon’s abortion policy has been swift and fierce. Last month, a group of Republican senators proposed new legislation that would amend the Pentagon’s travel policies to eliminate the “loophole” that allows the funding of out-of-state abortion travel.
“The Pentagon should not be mobilized against the unborn,” Sen. Joni Ernst, Iowa Republican, said in a statement. “The Department of Defense exists to defend life, not destroy it. [The Defense Department’s] policy is not just unlawful, it’s immoral. Congress has been clear; the Hyde Amendment protects taxpayers from being forced to fund abortions. I will continue to ensure the unborn and your tax dollars are protected.”
Other Republicans have taken more drastic actions. Sen. Tommy Tuberville, Alabama Republican, has placed a hold on nearly 160 Pentagon nominees and top-rank promotions until the department rescinds its abortion policy.
The move has drawn an outcry from Democrats and Pentagon leadership. But it does not prevent any individual nominee from being confirmed, though it does require that each individual receive a floor vote, rather than allowing batches of nominees to move forward at once through a simple voice vote.
Mr. Tuberville has vowed to keep the hold in place “until hell freezes over” — perhaps the clearest example of the lengths to which Republicans will go to undo the Pentagon’s abortion stance.
He’s also pushed back on the argument that his hold is hurting military readiness.
“First of all, I’m not blocking anyone from being confirmed. Every single one of these nominees can receive a vote if [Senate Majority Leader Charles Schumer] wants it,” Sen. Tuberville said on the Senate floor recently. “If Democrats are so worried about these nominations, let’s vote. If we’re not going to vote on taxpayer-funded abortion, then let’s vote on these nominees. Voting is our job. It’s not too much to ask of the United States Senate to do its job — to vote.”
— Dave Boyer contributed to this report
• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.