An estimated 80,000 female, active duty service members are stationed in states where their access to abortion has been restricted by state laws enacted since the overturn of Roe v. Wade in June. To give back some of that access, the Pentagon has decided to provide leave and reimburse travel costs for troops who have to go out of state to terminate a pregnancy.
This move is one of a handful of policies the Defense Department unveiled in a memo signed Thursday by Defense Secretary Lloyd Austin, including privacy protections for service members seeking reproductive health care and assurances for military health care providers in situations where states might retaliate against them for performing abortions under federal law.
“I am committed to the Department taking all appropriate action, within its authority and consistent with applicable federal law, as soon as possible to ensure that our service members and their families can access reproductive health care and our health care providers can operate effectively,” Austin wrote.
Military health providers and insurance are governed by two federal restrictions: Federal money cannot be used to pay for abortions ― except in the case of rape, incest or threat to the mother’s life ― and abortions outside those parameters cannot be performed by military providers, preventing service members from paying out-of-pocket for procedures done by on-base doctors.
The services already provide nonchargeable leave, which doesn’t come out of vacation time, to troops who have to travel for abortions allowed under federal regulations if they aren’t able to obtain services through their on-base doctor or in a local, private clinic.
This scenario has become more and more likely, as not every military treatment facility has a doctor who performs abortions, and states like Ohio, Oklahoma and Alabama have no exceptions in their abortion statutes for rape or incest.
So if a service member or dependent sought an abortion in one of these cases, but they’re assigned to an installation without services and the procedure is banned for them in that state, they would be able to have the entire cost of the trip and the procedure covered by military health insurance.
This new policy would expand the leave and travel reimbursement to all abortions, requiring a service member to pay only for the procedure itself.
Even further, the policy would extend to multiple reproductive services, including troops who might need to go out of state to access in vitro fertilization treatment.
This heads off a post-Roe concern of some providers that the decision could prohibit one of the core steps of IVF: Destruction of unused embryos, or destruction of embryos found to have genetic abnormalities and thus are not implanted.
Many U.S. states now prohibit women from terminating a pregnancy where a condition is found that is incompatible with life, and there are fears that those laws could be applied to lab-grown embryos with the same conditions.
The new Pentagon policies, which are still in development, also seek to protect the privacy of service members and their reproductive health care decisions, as well as the careers of DoD health care providers.
New guidance would allow pregnant troops to delay notifying their commanders of a pregnancy until 20 weeks’ gestation, versus the two weeks after testing positive that they have now. The new guidance would also prevent military health care providers from disclosing a patient’s reproductive health care information to commanders, and require commanders to “display objectivity and discretion” in enforcing “existing policies against discrimination and retaliation in the context of reproductive health care choices.”
This last bit is somewhat subjective, as is the caveat for the aforementioned privacy policies: There is an exception for cases where there is an occupational safety requirement, an acute condition interfering with duty or “risk of harm to the mission.”
The first two are pretty straightforward: Because of concerns to the mother’s health and the safety of a wanted pregnancy, pregnant troops are not allowed to deploy, for example. As another example, high-risk pregnant pilots are not allowed to fly training missions.
“Risk of harm to mission” is a vague parameter, subject to a provider’s discretion, but a defense official told Military Times that the official guidance will try to pinpoint when that exception is appropriate.
“Yes, we felt that it was important to be clear on that,” he said. “And so we’re developing policies, just like we’ve done recently with behavioral health, on sort of the left and right boundaries, if you will.”
The official did not provide any examples of what might be considered a risk to mission.
DoD has also pledged to advocate for military health care providers who might face state sanctions despite states not having jurisdiction over military treatment facilities, including referring any criminal action to the Justice Department for free representation.
For example, a military doctor with an Ohio medical license could have that license threatened by Ohio’s medical board for providing abortions to rape survivors ― where that kind of abortion is illegal ― regardless of whether they performed the abortion in Ohio, because DoD providers are allowed to be licensed in any state, even if it’s not the one where they’re stationed.
Austin’s memo orders DoD to develop a program that will cover fees for doctors to become licensed in another state, to prevent those cases.
Similarly, if a service member in Texas finds out her fetus has Edwards syndrome, which will result in miscarriage or certain infant death, she cannot obtain an abortion at a military treatment facility, nor in the state of Texas.
If her military doctor connects her to resources outside the state, that doctor is in danger of being sued under Texas civil law.
“Department of Defense health care providers should not be held personally liable for performing their official duties and should not have to face criminal or civil liability or risk losing their license for doing so,” Austin wrote.
The memo also calls for better education on birth control options for service members. A Rand Corp. study released in September found that more than half of service members who had an unintended pregnancy in the previous year were not using any birth control at all, and another quarter of them weren’t using their birth control properly.
“The actions outlined in this memorandum will be executed as soon as possible,” Austin’s memo reads. “All actions will be completed no later than the end of this calendar year, to the maximum extent possible.”
Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members.