A new forever war: the Pentagon’s post-Roe abortion stance ignites political, legal fights

It’s a new kind of forever war for the Pentagon as battles play out in the courtroom and at the ballot box, with deeply emotional implications for female troops and ripple effects throughout American society.

Far from providing certainty, the Defense Department’s decision to fund out-of-state travel for female service members to obtain abortions has instead raised high-stakes questions and could create the most personal of political footballs.

Analysts say the looming challenges to the policy will break the legal ground.

The more immediate fights could be in the political arena. Without affirmation from federal courts, the policies adopted by the Pentagon and the Department of Veterans Affairs could easily be reversed by a future Republican president — and the next Democratic-led Defense Department could then undo that reversal.

Such back-and-forth would be reminiscent of the on-again, off-again Mexico City policy, which prohibits nongovernmental organizations from promoting abortions as a condition of receiving any US family planning funding. The Biden administration has accepted that policy. President Trump reinstated it in a series of partisan tit-for-tat moves since its inception under President Reagan.

The Justice Department says the Pentagon is on a solid legal footing to offer time off, travel reimbursement and other aid to female troops who, because of state laws, must seek legal abortions elsewhere. Supporters note that many large US bases are in the South and other conservative parts of the country where state legislatures have rushed to impose or reinstate abortion curbs.

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Defense Secretary Lloyd Austin signaled his plans just days after the Supreme Court ruling in June. “I am committed to taking care of our people and ensuring the readiness and resilience of our forces. 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.”

An October memo announced financial assistance and increased privacy rights for active-duty troops traveling out of state for abortions or other reproductive services.

Critics say the policy exploits a loophole in the Hyde Amendment, which prohibits the use of federal funds for abortions, along with other statutes that block the military’s facilitation of abortions unless the pregnancy is the result of rape or incest or if the mother’s life is in jeopardy.

“Any challenges to the policy would be new territory,” said Francesca Laguardia, associate professor of justice studies at Montclair State University in New Jersey.

Ms. Laguardia said federal funding might help facilitate abortions in other instances, such as the transport of a federal prison inmate. She said the Hyde Amendment doesn’t create a blanket ban on federal funding that enables abortions.

Conservatives say it’s clear that the amendment and other statutes intend to limit taxpayer-funded facilitation of abortions, including financial aid and travel reimbursement. Ms. Laguardia said the military could face prolonged legal battles unless Congress addresses confusion through legislation.

“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’ 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 10 years have ventured into many areas where nobody thought they should or could go, so it is impossible to say for certain.”

Uncharted territories

In the October memo, Mr. Austin directed the Pentagon to craft policies offering “administrative absences” and travel and transportation reimbursement for out-of-state reproductive health care services, including abortions. He said abortion restrictions could create hardships for female troops who must take time off work and spend out-of-pocket for reproductive health care.

“In my judgment, such effects qualify as unusual, extraordinary, difficult 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,” the memo said.

The Justice Department stood behind the policy. Assistant Attorney General Christopher H. Schroeder wrote in the October memo that the Pentagon “may legally expend funds for this purpose under its express statutory authorities” without violating federal law.

The policy’s stakes could be far-reaching. The Military Health System serves about 1.6 million women of reproductive age, from 15 to 45, according to a report last month from the Congressional Research Service. About 46,000 active-duty women and 75,000 female reservists are stationed in states with laws that ban or restrict abortions.

The legal fallout from the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has stretched across the military community, including the Department of Veterans Affairs.

Sens. Susan M. Collins, Maine Republican, and Lisa Murkowski, Alaska Republican, joined most Democrats to block a bill that would have overturned an administration policy allowing the VA to perform taxpayer-funded abortions.

The resolution lacked the votes to override a threatened veto by President Biden, but it was underscored by heated political and social debates over abortion in America.

The fight on Capitol Hill

Congressional Republicans’ reaction to the Pentagon’s abortion policy has been swift and fierce. Last month, a group of Republican senators proposed legislation to eliminate the “loophole” that allows the Pentagon to fund 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.”

Mon. 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 provoked an outcry from Democrats and Pentagon leaders, but it has not prevented the confirmation of any nominee. It does require a floor vote for each individual rather than simple voice votes for batches of nominees.

Mr. Tuberville has vowed to keep the hold in place “until hell freezes over.”

He also rejected the argument that his hold was 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 E. Schumer] wants it,” Mr. Tuberville said on the Senate floor. “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 the United States Senate to do its job — to vote.”

• Dave Boyer contributed to this story.

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