Authority of the Department of Defense to Use Appropriations for Travel by Service Members and Dependents to Obtain Abortions

(Slip Opinion)

Authority of the Department of Defense to Use

Appropriations for Travel by Service Members and

Dependents to Obtain Abortions

The Department of Defense may lawfully expend funds to pay for service members and

their dependents to travel to obtain abortions that DoD cannot itself perform due to

statutory restrictions. DoD may lawfully expend funds to pay for such travel pursuant

to both its express statutory authorities and, independently, the necessary expense doc-

trine.

October 3, 2022

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

DEPARTMENT OF DEFENSE

You have asked whether the Department of Defense (“DoD”) may law-

fully expend funds to pay for service members and their dependents to

travel to obtain abortions that DoD itself cannot perform due to statutory

restrictions. We conclude that DoD may lawfully expend funds for this

purpose under its express statutory authorities and, independently, under

the necessary expense doctrine.

I.

By statute, “[f]unds available to the Department of Defense may not be

used to perform abortions except where the life of the mother would be

endangered if the fetus were carried to term or in a case in which the

pregnancy is the result of an act of rape or incest,” 10 U.S.C. § 1093(a),

and “[n]o medical treatment facility or other facility of the Department of

Defense may be used to perform an abortion except where the life of the

mother would be endangered if the fetus were carried to term or in a case

in which the pregnancy is the result of an act of rape or incest,” id.

§ 1093(b). By its express terms, 10 U.S.C. § 1093(a) applies only to funds

used to “perform abortions.” As we have previously concluded in as-

sessing identical language restricting the Peace Corps’ use of its appropri-

ations, the plain text is dispositive here. See Peace Corps Employment

Policies for Pregnant Volunteers, 5 Op. O.L.C. 350, 357 (1981). This

language “does not prohibit the use of funds to pay expenses, such as a

per diem or travel expenses, that are incidental to the abortion.” Id.

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46 Op. O.L.C. __ (Oct. 3, 2022)

This conclusion is confirmed by section 1093’s legislative history.

When Congress originally enacted the provision in 1984, it prohibited

DoD only from using funds “to perform abortions except where the life of

the mother would be endangered if the fetus were carried to term.” Pub. L.

No. 98-525, § 1401(e)(5), 98 Stat. 2492, 2617–18 (1984). DoD subse-

quently adopted a policy of prohibiting non-covered abortions from being

performed at any DoD facility even when privately funded—a policy that

President Clinton then directed DoD to reverse, stating that it went “be-

yond . . . the requirements of the statute.” Memorandum on Abortions in

Military Hospitals, 1 Pub. Papers of Pres. William J. Clinton 11, 11

(Jan. 22, 1993). In 1996, Congress responded to President Clinton’s

directive by amending 10 U.S.C. § 1093 to make clear that, in addition to

the prohibition on using funds to “perform abortions,” “[n]o medical

treatment facility or other facility of the Department of Defense may be

used to perform an abortion except where the life of the mother would be

endangered if the fetus were carried to term or in a case in which the

pregnancy is the result of an act of rape or incest.” 10 U.S.C. § 1093(b). It

is notable that the amendment was targeted narrowly to address the spe-

cific issue of DoD’s use of its medical treatment facilities, rather than

reaching the same result via a broader prohibition on expenditures indi-

rectly related to the provision of abortions.

The limited scope of the 1996 amendment is especially significant be-

cause when Congress has wanted to restrict abortion-related expenditures

beyond those for the procedure itself, Congress has done so. For example,

in 1988—prior to amending 10 U.S.C. § 1093—Congress had attached a

restriction to Department of Justice (“DOJ”) funds prohibiting the use of

those funds “to require any person to perform, or facilitate in any way the

performance of, any abortion.” Pub. L. No. 100-459, tit. II, § 206, 102

Stat. 2186, 2201 (1988) (emphasis added); see also, e.g., Consolidated

Appropriations Act, 2022, Pub. L. No. 117-103, div. E, § 726(d), 136 Stat.

49, 131 (“CAA 2022”) (referring to funding for “abortion or abortion-

related services” (emphasis added)). This DOJ restriction is also in the

current appropriation. See CAA 2022, div. B, § 203. That Congress chose

not to include such capacious language in the 1996 amendment confirms

that it did not intend for the prohibition to sweep so widely.

Other DOJ appropriation restrictions provide further evidence that

Congress did not intend DoD’s prohibition on the use of funds to perform

abortions to reach ancillary expenses, such as travel costs. In addition to

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Use of Department of Defense Appropriations for Travel to Obtain Abortions

the provision noted above, section 202 of the current appropriation con-

tains a general prohibition against using the appropriated funds “to pay for

an abortion.” Id., div. B, § 202. Section 204 then contains a clarification

that the prohibition on requiring any person to perform or facilitate an

abortion does not “remove the obligation of the Director of the Bureau of

Prisons to provide escort services necessary for a female inmate” to obtain

an abortion “outside the Federal facility.” Id., div. B, § 204. Importantly,

this language in section 204 does not also create an exception to the

general funding restriction in section 202, but rather only clarifies that

nothing in section 203 “remove[s] the obligation” of the agency to pro-

vide transportation services. Id. Section 204 therefore is premised on an

understanding that section 202’s general prohibition on “pay[ing] for an

abortion” does not affect the agency’s ability to provide such escort

services, showing that when Congress prohibits funds from being used “to

pay for an abortion,” it does not intend that prohibition to reach transpor-

tation expenses.

Comparing 10 U.S.C. § 1093 to the text and history of the longstanding

funding restriction known as the Hyde Amendment is similarly instruc-

tive. The Hyde Amendment restricts expenditures by the Departments of

Labor, Health and Human Services, and Education by providing that no

covered funds “shall be expended for any abortion” or “for health benefits

coverage that includes coverage of abortion,” except “if the pregnancy is

the result of an act of rape or incest; or . . . in the case where a woman

suffers from a physical disorder, physical injury, or physical illness,

including a life-endangering physical condition caused by or arising from

the pregnancy itself that would, as certified by a physician, place the

woman in danger of death unless an abortion is performed.” CAA 2022,

div. H, §§ 506–507. In previous advice, we concluded that the Hyde

Amendment would not bar the use of appropriated funds to provide trans-

portation for women seeking abortions. See Memorandum for Samuel

Bagenstos, General Counsel, Department of Health and Human Services,

from Christopher H. Schroeder, Assistant Attorney General, Office of

Legal Counsel, Re: Application of the Hyde Amendment to the Provision

of Transportation for Women Seeking Abortions (Sept. 27, 2022). In

reaching that conclusion, we noted, among other considerations, that

earlier versions of the Hyde Amendment only applied to funds “for any

abortion,” and that in 1997 Congress added language to reach funds “for

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46 Op. O.L.C. __ (Oct. 3, 2022)

health benefits coverage that includes coverage of abortion.” 1 Depart-

ments of Labor, Health and Human Services, and Education, and Related

Agencies Appropriations Act, 1998, Pub. L. No. 105-78, § 509(a)–(b),

111 Stat. 1467, 1516 (1997); see Application of the Hyde Amendment to

Federal Student-Aid Programs, 45 Op. O.L.C. __, at *3 (Jan. 16, 2021);

H.R. Rep. No. 105-390, at 119 (1997) (Conf. Rep.); see also 143 Cong.

Rec. 17,448 (1997) (statement of Sen. Ashcroft). In the context of health

insurance, the funds are paid to reimburse the provider or the insured for,

and thus effectively pay for, the abortion procedure itself. As a result,

payment for health insurance that covers abortions is more closely con-

nected to the actual provision of abortion than transportation to and from

the procedure. Thus, the fact that Congress revised the Hyde Amendment

to specify that it applies to payments for health benefits coverage supports

the view that the prohibition on expending funds “for any abortion” is

limited to the direct provision of abortions and would not apply to trans-

portation. 2 More generally, the amendment suggests that when Congress

has wanted to clearly encompass certain expenditures beyond the direct

provision of the procedure, Congress has amended abortion-related fund-

ing restrictions to do so.

For these reasons, 10 U.S.C. § 1093 does not prohibit the use of funds

for expenses that are indirect or ancillary to the performance of abortion.

We therefore conclude that 10 U.S.C. § 1093 does not bar DoD from

using appropriated funds to pay for service members and their dependents

to travel to obtain abortions that DoD cannot fund directly.

1 Although the various appropriation restrictions use somewhat different language,

compare 10 U.S.C. § 1093(a) (prohibiting “perform[ing] abortions”) with CAA 2022,

div. H, § 506(a) (prohibiting “expend[ing]” funds “for any abortion”) and id., div. B,

§ 202 (prohibiting “pay[ing] for an abortion”), we have concluded that in this context the

differences in phrasing do not reflect differences in substance. See Application of the

Hyde Amendment to the Provision of Transportation for Women Seeking Abortions at *3.

2 To be sure, some of the legislative history suggests that this amendment simply

“clarif [ied]” what the Hyde Amendment already prohibited. 143 Cong. Rec. 18,493

(1997) (statement of Rep. Hyde). Regardless, the debate—and Congress’s subsequent

action—indicate that the prohibition on funds being “expended for any abortion” did not

sweep beyond the direct provision of abortions to an extent that would reach transporta-

tion for abortion.

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Use of Department of Defense Appropriations for Travel to Obtain Abortions

II.

The Constitution mandates that “[n]o Money shall be drawn from the

Treasury, but in Consequence of Appropriations made by Law.” U.S.

Const. art. I, § 9, cl. 7. The Purpose Act, reflecting this constitutional

principle, provides that “[a]ppropriations shall be applied only to the

objects for which the appropriations were made except as otherwise

provided by law.” 31 U.S.C. § 1301(a). Consistent with the Purpose Act,

the Supreme Court has long recognized that “[t]he established rule” is that

“the expenditure of public funds is proper only when authorized by Con-

gress, not that public funds may be expended unless prohibited by Con-

gress.” United States v. MacCollom, 426 U.S. 317, 321 (1976).

Accordingly, in the absence of a statute prohibiting the expenditures

DoD is contemplating, the availability of the proposed expenditures

depends on whether authority exists for DoD to expend its appropriations

for this purpose. You have concluded that DoD has authority for the

contemplated expenditures under both express statutory authorities and

the necessary expense doctrine. We agree.

A.

You have concluded that “the Secretary of Defense has broad statutory

authority to pay for the travel and transportation expenses of Service

members and other authorized travelers.” Memorandum from Department

of Defense, Re: Legal Availability of DoD Appropriations to Pay Trans-

portation Costs to Obtain Abortions Outside the Scope of 10 U.S.C.

§ 1093 at 3 (Aug. 22, 2022) (“DoD Memo”). You have noted three

sources of statutory authority that you believe permit the Secretary of

Defense to authorize the contemplated expenditures: 37 U.S.C. § 452(a),

37 U.S.C. § 452(b)(11), and 37 U.S.C. § 453(d). We agree that these

provisions confer express authority for such expenditures.

1.

By its express terms, 37 U.S.C. § 452(a) provides broad authority for

the Secretary to provide “actual and necessary expenses of travel and

transportation, for, or in connection with,” any “travel as authorized or

ordered by the administering Secretary,” id. § 451(b)(1), with no enumer-

ated limitations.

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46 Op. O.L.C. __ (Oct. 3, 2022)

The broad scope of 37 U.S.C. § 452(a)’s grant of authority to the Secre-

tary to provide travel expenses is confirmed by a list of examples of

covered travel expenses in 37 U.S.C. § 452(b)(1)–(20). This list is explic-

itly illustrative, not exclusive. See id. § 452(b) (noting that “[t]he authori-

ty under subsection (a) includes travel under or in connection with, but

not limited to, the following circumstances”). Of particular note, 37 U.S.C.

§§ 452(b)(18) and 452(b)(19) authorize expenses for travel by dependent

children of a service member to the continental United States to attend

school if the service member is assigned to a permanent duty location

outside the continental United States. These provisions demonstrate that,

consistent with the broad terms of the statutory definition, Congress

understood “official travel” to include travel for purely personal purposes

necessitated by the fact that service members and their families “generally

do not choose where they and their families will be stationed,” but are

assigned to locations “based on the needs of the Military Service and the

ability of Service members to meet those requirements.” DoD Memo at 7.

Relevant legislative history further confirms that Congress intended the

delegation of authority to the Secretary in 37 U.S.C. § 452(a) to be con-

strued broadly. One of the purposes of the travel and transportation au-

thorities for the uniformed services, including both 37 U.S.C. §§ 452 and

453, was to provide the Secretary with flexibility to authorize travel

expenses in the face of changing needs. See National Defense Authoriza-

tion Act for Fiscal Year 2012, Pub. L. No. 112-81, § 631(a), 125 Stat.

1298, 1452 (2011).

As such, both the text of 37 U.S.C. § 452 and its purpose indicate that

37 U.S.C. § 452(a) provides the Secretary with broad authority to provide

payment for expenses in connection with authorized travel. Should the

Secretary authorize travel for service members and their dependents to

obtain abortions, 37 U.S.C. § 452(a) would expressly permit the provision

of travel expenses.

2.

In addition, 37 U.S.C. § 452(b)(11) provides that the authority under

37 U.S.C. § 452(a) specifically “includes travel under or in connection

with[] . . . [u]nusual, extraordinary, hardship, or emergency circumstanc-

es.” A separate statute, 37 U.S.C. § 453(d), similarly provides that author-

ized travelers, including both service members and their dependents, see

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Use of Department of Defense Appropriations for Travel to Obtain Abortions

id. § 451(a)(2), “may be provided travel and transportation allowances

under this section for unusual, extraordinary, hardship, or emergency

circumstances, including circumstances warranting evacuation from a

permanent duty assignment location,” id. § 453(d). 3 Neither provision

specifies what constitutes “[u]nusual, extraordinary, hardship, or emer-

gency circumstances.” Id. § 452(b)(11); see also id. § 453(d).

Consistent with your representations, discussed further below, that be-

ing stationed in a location without access to abortion “may impose signif-

icant costs on a Service member’s physical and mental health and well-

being,” DoD Memo at 7, you have concluded that “the Secretary of De-

fense or an authorized delegate could reasonably determine that Service

members who are required to serve in an area without access to essential

reproductive health care face unusual, extraordinary, hardship, or emer-

gency circumstances,” id. at 4 (quotation marks and alteration omitted)

(citing 37 U.S.C. § 453(d) and 37 U.S.C. § 452(b)(11)). We agree.

There is precedent for the armed forces recognizing that service mem-

bers and their families may experience hardship circumstances by virtue

of being stationed in locations without access to specialized reproductive

health care. A current Army policy provides several accommodations for

service members when they or their spouses “are undergoing fertility

treatment,” including potential eligibility for compassionate reassignment

to installations where fertility treatment is available. Christine E.

Wormuth, Secretary of the Army, Army Directive 2022-06 (Parenthood,

Pregnancy, and Postpartum) at 7–8 (Apr. 19, 2022) (“Army Directive

2022-06 ”). The policy also allows service members to remain in the same

geographic location for up to 365 days from the date of the first fertility

appointment, with an additional 365-day extension from the date the

service member is granted a fertility profile for assisted reproductive

technology procedures. Id. The policy references a DoD Instruction

providing that “[m]ilitary personnel assignment decisions will not be

3 You have explained that 37 U.S.C. §§ 452(b)(11) and 453(d) differ in that funding

authorized under 37 U.S.C. § 452 would typically apply across all the uniformed services

and be implemented through an amendment to the Joint Travel Regulations in consulta-

tion with the Secretaries of Homeland Security, Commerce, and Health and Human

Services, see 37 U.S.C. § 464, while 37 U.S.C. § 453(d) authorizes the Secretaries of

Defense, Homeland Security, Commerce, and Health and Human Services to provide

supplemental travel and transportation allowances for their respective uniformed services,

see id. § 453; DoD Memo at 3–4.

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46 Op. O.L.C. __ (Oct. 3, 2022)

influenced by the . . . health of a Service member’s family member,”

except “[w]hen necessary to,” among other things, “relieve the personal

hardship of a Service member or family member because a family mem-

ber needs access to specialized medical treatment.” DoD Instruction

1315.18, Procedures for Military Personnel Assignments para. 3.b.1

(Oct. 28, 2015). In like vein, here DoD would be determining that service

members and their families may experience hardship circumstances by

virtue of being stationed in locations without access to specialized repro-

ductive health care. The two contexts are especially similar because DoD

does not provide or pay for either type of health care. See 32 C.F.R.

§ 199.4(e)(2) (excluding from DoD’s medical insurance program payment

for non-covered abortions); id. § 199.4(e)(3)(i)(B)(3) (excluding many

assisted reproductive technologies, including artificial insemination and in

vitro fertilization).

In light of the above, we conclude that the Secretary or an authorized

delegate, taking into account all relevant considerations, could reasonably

determine that requiring service members and their families to live in a

location without access to abortion creates an unusual, extraordinary,

hardship, or emergency circumstance. If the Secretary or an authorized

delegate should make such a determination, 37 U.S.C. § 452(b)(11) and

37 U.S.C. § 453(d) would expressly authorize the provision of travel

expenses for a service member or dependent to obtain that care.

B.

Apart from relying on express statutory authority, an agency may ex-

pend funds from a general appropriation under the necessary expense

doctrine. The necessary expense doctrine permits an agency to expend

funds from a general appropriation “‘[i]f the agency believes that [an]

expenditure bears a logical relationship to the objectives of the general

appropriation, and will make a direct contribution to the agency’s mis-

sion,’” where no “specific provision limits the amount that may be ex-

pended on a particular object or activity within [the] general appropria-

tion.” Use of General Agency Appropriations to Purchase Employee

Business Cards, 21 Op. O.L.C. 150, 153–54, 156 (1997) (“Employee

Business Cards”) (quoting Indemnification of Department of Justice

Employees, 10 Op. O.L.C. 6, 8 (1986)). Agencies “have considerable

discretion in determining whether expenditures further the agency’s

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Use of Department of Defense Appropriations for Travel to Obtain Abortions

authorized purposes and therefore constitute proper use of general or

lump-sum appropriations.” Id. at 153; see Lincoln v. Vigil, 508 U.S. 182,

192 (1993). It is for “[t]he agency itself ” to “‘make the required determi-

nation,’ since [the agency] is ‘in the best position to determine whether’

an expenditure of funds is necessary to carry out the agency’s mission

effectively.” Religious Seasonal Decorations in Federal Government

Buildings, 45 Op. O.L.C. __, at *6 (Jan. 15, 2021) (quoting State and

Local Deputation of Federal Law Enforcement Officers During Stafford

Act Deployments, 36 Op. O.L.C. 77, 90 (2012)).

You have explained that the contemplated expenditure for travel ex-

penses to help service members and their dependents access non-covered

abortions “would rely on an operation and maintenance (O&M) appro-

priation, which is available for ‘expenses, not otherwise provided for,

necessary for the operation and maintenance’ of the Department, ‘as

authorized by law.’” DoD Memo at 4 (quoting CAA 2022, div. C). “This

appropriation is a general or lump-sum appropriation ‘covering a wide

range of activities without specifying precisely the objects to which the

appropriation may be applied.’” Id. (quoting Funding for the Critical

Technologies Institute, 16 Op. O.L.C. 77, 80 (1992)). You have concluded

that “the necessary expense doctrine permits DoD to use its . . . appropriations

to pay for Service members and dependents to travel to obtain non-

covered abortions if a responsible senior official determines that the

expenditures would make a direct contribution to the objectives of achiev-

ing and maintaining a ready force and/or recruiting and retaining a highly

qualified force.” Id. at 10. We agree.

DoD plainly has an interest in the readiness of its force, which it de-

fines as the “ability of military forces to fight and meet the demands of

assigned missions.” Id. at 6 (quoting Office of the Chairman of the Joint

Chiefs of Staff, DOD Dictionary of Military and Associated Terms at 179

(May 2022)). You have identified both individual medical readiness and

morale as aspects of force readiness that could be furthered by the con-

templated expenditure.

DoD defines medical readiness as “[a] Service member’s medical, den-

tal, and mental/behavioral health status necessary to perform their as-

signed missions.” DoD Instruction 6025.19, Individual Medical Readiness

Program at 24 (July 13, 2022) (“DoDI 6025.19, Individual Medical

Readiness Program”). You have identified several reasons why “[f]unding

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46 Op. O.L.C. __ (Oct. 3, 2022)

a Service member’s transportation to and from a non-covered abortion

procedure could contribute meaningfully to readiness, such that the ex-

penditure helps accomplish ‘broader [DoD] objectives’ covered by the

O&M appropriations.” DoD Memo at 7.

First, as the Under Secretary of Defense for Personnel and Readiness

and the Acting Assistant Secretary of Defense for Health Affairs recently

testified before the House Armed Services Subcommittee on Personnel,

“[r]egardless of whether and where abortion is legal, and under what

circumstances, we know from established research that individuals will

continue to seek” abortion care, including within “the Military Communi-

ty.” Women’s Reproductive Health Issues: Hearing Before the Subcomm.

on Personnel of the H. Armed Services Comm. at 4 (July 29, 2022)

(statement of Gilbert R. Cisneros, Under Secretary of Defense for Person-

nel and Readiness, and Seileen Mullen, Acting Assistant Secretary of

Defense for Health Affairs) (“Cisneros Testimony”). To obtain a non-

covered abortion, service members or their family members who are

stationed in states without local access from licensed providers would

need to travel to another jurisdiction where the procedure is available,

despite potentially burdensome or prohibitive costs of travel and lodging.

See id. “Such expenses would add financial burden and stress to what is

already likely to be a challenging situation,” DoD Memo at 7, which could

further exacerbate negative impacts on service members’ physical and

mental health.

Moreover, service members who are unable to afford the added expense

“might instead obtain abortions from unlicensed local providers or even

resort to self-help, which could put Service members’ health at risk and

expose them to potential liability or jeopardy under state law.” Id. Others

“may be forced to carry unwanted pregnancies to term, ‘transform[ing]

what, when freely undertaken, is a wonder into what, when forced, may

be a nightmare.’” Id. (alteration in original) (quoting Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228, 2318 (2022) (Breyer, Sotomayor,

and Kagan, JJ., dissenting)). That would also render service members

temporarily non-deployable. See DoDI 6025.19, Individual Medical

Readiness Program at para. 3.1.a.3 (classifying pregnancy and post-

partum as “deployment-limiting medical condition[s]” that render service

members “[n]ot [m]edically [r]eady” to deploy). All these circumstances

“may impose significant costs on a Service member’s physical and mental

health and well-being,” DoD Memo at 7, which could negatively impact

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Use of Department of Defense Appropriations for Travel to Obtain Abortions

their ability “to perform their assigned missions,” DoDI 6025.19, Individ-

ual Medical Readiness Program at 24.

To be sure, many women who reside in states enforcing newly stringent

abortion restrictions after the Supreme Court’s decision in Dobbs will

face similar obstacles in accessing abortions. Service members, however,

have far less ability than civilians to choose the state where they and their

families live. Service members must go where the Department of Defense

stations them. See DoD Memo at 7 (“Service members generally do not

choose where they and their families will be stationed.”). As a result, it is

possible that the “costs on a Service member’s physical and mental health

and well-being . . . could be exacerbated in some cases by a Service

member’s perception that military service has limited her reproductive

health care options and that the military is unable or unwilling to support

her.” Id. Where DoD stations a service member in an area with no or

limited access to reproductive health care options, the service member

may well view DoD itself as the major obstacle to the service member’s

or their family member’s ability to receive care. Cf. Harris v. McRae,

448 U.S. 297, 315 (1980) (distinguishing between obstacles that a woman

generally faces in accessing abortion and obstacles that the government

itself places in her path). Such a perception may be further exacerbated by

the fact that DoD does, in other contexts, offer accommodations to miti-

gate burdens on health care access caused by service members’ assign-

ment locations. See DoD Instruction 1315.19, The Exceptional Family

Member Program (EFMP) para. 1.2 (Apr. 19, 2017) (authorizing accom-

modations for service members whose families include a member with

special needs, including by establishing protocol “to ensure their family

members’ special needs are considered during the assignment process”

and by allowing for possible stabilization of assignment location “for a

minimum of 4 years”); Army Directive 2022-06 at 7–8 (establishing

accommodations within the Army for service members undergoing fertili-

ty treatment, as discussed above). This perception may affect not only

service members’ individual medical readiness, but also morale, which is

an independent component of force readiness. See DoD Instruction

1015.10, Military Morale, Welfare, and Recreation (MWR) Programs

para. 4 (July 6, 2009) (noting that morale, recreation, and welfare pro-

grams are intended to “maintain individual, family, and mission readiness

during peacetime and in time of declared war and other contingencies”).

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46 Op. O.L.C. __ (Oct. 3, 2022)

For the above reasons, and in light of the discretion accorded to agen-

cies to determine whether expenditures further the agency’s authorized

purposes, see Employee Business Cards, 21 Op. O.L.C. at 153, we agree

that a DoD senior official could reasonably conclude that “paying for

Service members to travel to obtain non-covered abortions would directly

contribute to the objective of achieving and maintaining a ready force” by

contributing to service members’ physical and mental health and morale,

DoD Memo at 7.

In addition, you noted that DoD’s interest in military recruitment and

retention could provide an alternative, independent ground for the con-

templated expenditures from DoD’s O&M appropriation. You have repre-

sented that “DoD also has an important interest in recruiting and main-

taining the most qualified Service members.” DoD Memo at 8. The Under

Secretary of Defense for Personnel and Readiness and the Acting Assis-

tant Secretary of Defense for Health Affairs recently testified that “wom-

en . . . volunteer at lower rates than men,” and that “some potential re-

cruits [could] feel deterred from joining the military for fear of being

stationed at an installation or base” in states that severely restrict their

options for reproductive health care. Cisneros Testimony at 3. Moreover,

existing service members who are presently “living and working in states

with the full range of reproductive health care available to them” may be

“deter[red] . . . from remaining in . . . military service” because of the

possibility of “being required to move to a state that severely restrict

access to reproductive health care” and the attendant threat to their “pri-

vacy and health care choices.” Id. You noted that DoD’s interest in fund-

ing travel to pay for non-covered abortions would be especially strong if

private sector employers adopt such policies, given that it may put DoD

“at a distinct competitive disadvantage” if it cannot offer accommodations

similar to those in the private sector, particularly given that service mem-

bers, unlike civilians, “have little control” over where they live. DoD

Memo at 8.

For these reasons, we agree with your conclusion that DoD would have

discretion under the necessary expense doctrine to pay for travel for

service members and dependents to obtain non-covered abortions if DoD

were to “determine [that] . . . paying for Service members to travel to

obtain non-covered abortions would directly contribute to the objective of

recruiting and retaining a highly qualified force.” Id.

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Use of Department of Defense Appropriations for Travel to Obtain Abortions

* * * * *

We therefore conclude that, pursuant to both express statutory authori-

ties and the necessary expense doctrine, DoD can lawfully expend funds

to pay for service members and their dependents to travel to obtain abor-

tions that DoD itself cannot perform.

CHRISTOPHER H. SCHROEDER

Assistant Attorney General

Office of Legal Counsel

13