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INSIGHTi
FY2023 NDAA: Military Abortion Policies
Updated November 9, 2022
Background
The June 24, 2022, Supreme Court decision on Dobbs v. Jackson Women’s Health, which overturned Roe
v. Wade and al owed states to restrict abortion access, raised questions from some Members of Congress
about military personnel and family member access to abortion services when assigned to instal ations in
such jurisdictions. While servicemembers can general y submit assignment preferences, Department of
Defense (DOD) policy dictates that the primary assignment consideration is “current qualifications and
the ability to fil 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 U.S. Military Healthcare System serves about 1.62 mil ion 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 certain gestational age (Figure 1).
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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 typical y pay out of pocket
for al expenses associated with the procedure, including any required travel. On October 3, 2022, DOD’s
General 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, memo,
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.”
The October memo also directs a uniform DOD policy al owing for administrative leave of absence for
servicemembers seeking noncovered reproductive health care. Chapter 40 of Title 10, U.S.C. authorizes
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servicemember leave general y. While this chapter does not include specific authority for abortion-related
leave or sick leave, it does authorize convalescent leave in connection with the birth of a child.
Servicemembers who request leave typical y must submit a request to their commanding officer for
approval. Some observers have questioned whether, absent specific statutory authority, a commanding
officer could deny a servicemember’s request for leave to seek an abortion. The October memo directs
consistent guidance on servicemember privacy and for commanders “to display objectivity and discretion
when addressing reproductive health care matters and underscores their duty to enforce existing policies
against discrimination and retaliation in the context of reproductive health care choices.”
Selected Legislative Activity
As part of the annual defense authorization and appropriation cycle, Congress may consider legislation
related to abortion policies for military servicemembers and their families. Identical bil s (H.R. 7945 and
S. 4354) introduced in the House and Senate would repeal 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 prohibit funds from being used to deny leave for servicemembers
and DOD civilians who seek an abortion. It would also cover leave requests for those assisting a “spouse,
partner, or significant other” in obtaining an abortion.
The SASC-reported bil does not reference abortion; however, it includes provisions related to leave and
assignment policies. Section 623 would provide authority for convalescent leave following the
recommendation of a medical or behavioral health provider. Section 525 would prohibit consideration of
a servicemember’s “agreement or disagreement” with state laws when determining duty assignments.
Both of these provisions could apply more broadly to situations unrelated to abortion.
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. Additional y, some Members contend that
Dobbs wil 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 al public funding of abortions as wel 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 October 2022 memo 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
Hibbah Kaileh
Specialist in Military Manpower
Research Assistant
Bryce H. P. Mendez
Acting Section Research Manager
Disclaimer
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