The Supreme Court’s decision Friday to overturn constitutional protection for abortion will limit or outlaw the procedure in several states with large military populations, including Texas, Oklahoma and Louisiana, curtailing access for U.S. service members and possibly placing them at risk for arrest and prosecution.
The ruling to overturn Roe v. Wade, known as Dobbs v. Jackson Women’s Health Organization, immediately activated “trigger laws” in 13 states, all of which have military installations of various sizes.
In Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming, abortion has either been immediately banned or will be within 30 days of the state government affirming the Dobbs ruling.
“This decision makes military service, for many, harder than it already is,” said Rachel VanLandingham, a retired Air Force judge advocate general and professor at Southwestern Law School. “Women in uniform now have to fear not just the enemy in combat; they have to fear where they will be stationed in the U.S., given that access to abortion is or will be quite soon not just severely limited, but criminalized in many states with a large military presence.”
According to data from the Department of Defense, these 13 states are home to more than 240,000 service members. Texas, which is home to more than 35,000 airmen and Space Force Guardians, as well as almost 72,000 soldiers, is the single largest location for those branches.
Shortly after the ruling, Defense Secretary Lloyd Austin issued a statement saying he is “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,” he added. Female service members and dependents of U.S. troops seeking an abortion have long been required to get one through civilian clinics, usually at their own expense, since military physicians and DoD civilian providers are prohibited by law from performing the procedure. Tricare, the military health program, covers the cost of an abortion only in cases where the life of the mother is at risk or the pregnancy was the result of rape or incest.
Now, in at least 26 states, new restrictions on abortions will make it more challenging for service members or military family members to get the procedure, adding a financial burden and exposing them to legal problems, military law experts say.
VanLandingham noted that many enlisted service members and their families lack the financial means to travel out of state and often have little say in their choice of duty stations.
“I think there is going to be a reverberating effect. It’s something that needs attention, and it needs care,” she said.
Sean Timmons, a managing partner at the Texas-based law firm Tully Rinckey, said that, in addition to needing to go elsewhere for the procedure, access could be limited to prescriptions such as Plan B in some states with abortion bans.
“[Troops and spouses] may even have difficulty getting access to prescription medications because at some installations, such as Fort Hood, Texas has dual enforcement authority. … The state could try to enforce, under current lease agreements, a ban on prescriptions. It’s gonna be a mess resolving this,” Timmons said.
It’s not known exactly how many female service members seek abortion each year. Women make up roughly 20% of the active-duty U.S. military, 95% of whom are in their prime childbearing years.
When asked May 23 by Military.com for the data on the number of abortions provided under Tricare in the last five years, the Defense Health Agency promised to provide the numbers by the end of the month, but hadn’t as of publication.
Data on the number of unintended pregnancies among U.S. service members is limited: Analysis of a self-reported survey in 2011 determined that 7% of active-duty women reported having an unintended pregnancy compared with 4.5% in the general U.S. population.
The analysis, conducted by Ibis Reproductive Health, determined there were roughly 13,860 unintended pregnancies in the military every year — an estimate researchers say is likely lower than the actual figure when accounting for underreporting of abortion.
The new ruling also could affect service members’ promotion potential if they require special
accommodations for leave, must seek permission from commanders or ask that they be stationed only in areas that support their reproductive decisions.
“Hopefully, they can avoid being stationed in places where they don’t feel like they are stuck, but it may limit their career because certain assignments are only available in certain spots,” Timmons said.
“Women in uniform already have to fear sexual assault by their fellow service members and a command culture that too often doesn’t support them. Now, they have to go to that same command chain and ask for leave to travel out of state to seek an abortion,” VanLandingham said.
A law known as the Hyde Amendment prohibits military medical facilities from performing abortion and also limits Tricare from covering the cost of abortions. Congress might lift the federal restriction as a workaround to state law, although Timmons said that states with dual jurisdiction over bases would have the option to enforce state laws.
“It’s a complicated soup that is going to result in litigation,” he said.
Democrats have introduced bills in both the House and the Senate that would allow the Defense Department to perform and pay for abortions in any situation.
But efforts to include such a measure in the annual defense policy bill — typically the main legislative vehicle for any Pentagon policy changes — appear to have stalled, even though Democrats narrowly control both chambers of Congress.
Sen. Kirsten Gillibrand, D-N.Y., had been expected to offer the abortion bill as an amendment to the National Defense Authorization Act, or NDAA, when the Senate Armed Services Committee met behind closed doors last week.
But she told Military.com the day after the markup that, while senators debated her amendment, she withdrew it without having it voted on because she “did not believe it would be successful.” The committee is split evenly between Democrats and Republicans, and tie votes fail, meaning even if every Democrat supported the amendment, it likely would not have passed.
Meanwhile, the House Armed Services Committee’s consideration of its version of the NDAA this week proceeded without any direct debate about abortion rights for service members, though Republicans railed against abortion during debate over an amendment related to Tricare’s coverage of contraception.
On Thursday, Rep. Jackie Speier, D-Calif., told reporters she hadn’t decided whether to bring up the abortion amendment when the NDAA comes to the House floor, but highlighted the difficult political math she’d face if she did. Typically, the NDAA needs Republican votes to pass, since progressive Democrats oppose the hundreds of billions in Pentagon funding the NDAA supports.
Speier also highlighted how even the contraception debate ignited GOP ire.
“We were doing something very straightforward, basically saying the dependents of service members should not be treated like second-class citizens of this country and should be able to get contraception without a copay, but Tricare charges a copay. And they got off on emergency contraception, calling it an abortifacient,” Speier said, describing objection to some forms of contraception by Republican lawmakers who equate them with abortion. “So people aren’t rational on this issue.”
Separately, the House Appropriations Committee has included in its initial version of the fiscal 2023 defense spending bill a provision that seeks to ensure commanders grant leave to service members seeking abortions or supporting a spouse getting an abortion. The committee has not explained how such a law would be enforced or whether there would need to be documentation that a woman is seeking an abortion, which could potentially be used against them in state prosecutions.
Republican efforts to strip that provision from the spending bill this week failed. But with legislation needing 60 votes to advance in the Senate and Democrats holding only 50 seats, it’s not expected to stay in the final spending bill signed into law.
VanLandingham said, however, that she hopes congressional intervention is not needed.
“I would hope the DoD wouldn’t need Congress,” she said. “You do see a few of the services working on their leave policies. This shouldn’t be a service to service issue. It should be DoD-wide.”
Military.com reached out to the individual branches with questions about continued access to abortion for impacted service members, like the ability to take leave to travel for the procedure. Those inquiries were not returned by publication or were directed to Austin’s office.
In one of the most direct responses to the anticipated crackdown on reproductive rights, Sergeant Major of the Army Michael Grinston told lawmakers that his service is developing a policy in response.
“We are drafting policies to ensure we take care of our soldiers in an appropriate way,” Grinston, the service’s top enlisted leader, said on Capitol Hill in May. “There are drafts if it were to be overturned, but that would be a decision for the secretary of the Army to decide the policy.”
The Army drafted a policy tweak that would allow soldiers to request a so-called “compassionate reassignment” to a new installation if they feel they are being discriminated against by local laws based on their gender, sexual orientation or pregnancy. It’s unclear whether that is the policy Grinston was referencing.
That policy would need to be approved by Army Secretary Christine Wormuth, but has yet to be approved.
Congressional Democrats were planning on introducing an amendment to codify the Army’s proposed rule into law for the entire Defense Department into the NDAA, which sets policy and funding priorities for the Pentagon. But that amendment was shelved at the last minute. It’s unclear why Democrats dropped the effort.
Military.com has previously reported that the Air Force, Marine Corps and Navy say they have policies in place — originally developed with victims or witnesses of abuse and sexual violence in mind — that allow service members to request transfers if the laws in their state make them feel unsafe or discriminated against, although given the slow pace of most transfers it’s unlikely that those mechanisms would serve to provide access to abortion.
“State law is not an articulated factor in the assignment process, however a service member can request a ‘safety transfer,'” the Navy said in an emailed statement.
The Defense Health Agency is moving to broaden service members’ and military dependents access to contraception — a move that would reduce the need for beneficiaries to seek abortions.
The Women and Infant Clinical Community, a Defense Health Agency initiative aimed at improving the health and medical outcomes of servicewomen and Tricare beneficiaries, is seeking to ensure that contraception clinics are available at all military hospitals, offering long-acting contraception and short-term birth control on a walk-in, no appointment needed basis.
Studies have shown that long-acting contraceptives such as intrauterine devices and implants are 20 times more effective at preventing unintended pregnancy than pills or barrier methods.
In 2020, the number of abortions in the U.S. increased, reversing a 30-year downward trend. There were 930,160 abortions performed in the U.S. in 2020, up 8% from 862,320 in 2017, according to the Guttmacher Institute.
The Washington, D.C., National Guard had not received a request from the Defense Department to deploy troops ahead of what will likely be a weekend of protests at the Supreme Court. The Guard is frequently deployed in D.C. for large protests to secure key buildings and assist law enforcement with traffic flow.
As of the announcement of the decision, the following states have implemented abortion bans or near-bans:
Arkansas: Abortions banned except to save the life of a pregnant woman in a medical emergency; no exceptions for rape or incest
Louisiana: Abortions banned except to save the mother, if pregancy causes harm to a needed organ or if an infant is expected to die immediately after birth
Kentucky: Abortions banned except to protect life of the mother or preserve a necessary organ
Mississippi: Abortions banned after 15 weeks, except to preserve the life of a mother or in cases where the fetus is ruled unviable
Missouri: Banned except in cases of medical emergency
North Dakota: Ban would go into effect in 30 days following state government certification; exceptions include to save the life of the mother or cases of rape or incest
Oklahoma: All abortions banned from moment of conception except to save the life of the mother or if pregnancy was the result of a rape or incest reported to law enforcement
South Dakota: Abortions banned except to preserve the life of a mother
Tennessee: Ban after six weeks’ gestation could go into effect in 30 days
Utah: Ban on abortions after state certifies ruling, with exceptions for rape, incest, fetal abnormalities or to preserve life of the mother
Wyoming: Ban to go into effect in 30 days; exceptions include risk of maternal death, rape and incest.
