Amicus Curiae Brief — Food and Drug Administration, et al., Petitioners v. Alliance for Hippocratic Medicine, et al.
Supreme Court briefJan 30, 2024
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Nos. 23-235, 23-236
In the Supreme Court of the United States
U.S. FOOD AND DRUG ADMINISTRATION, ET AL.,
Petitioners,
v.
ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,
Respondents.
DANCO LABORATORIES, L.L.C.,
Petitioner,
v.
ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.,
Respondents.
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF OF FORMER MILITARY OFFICIALS,
CIVILIAN NATIONAL SECURITY LEADERS, AND
VET VOICE FOUNDATION AS AMICI CURIAE IN
SUPPORT OF PETITIONERS
SUSANNE SACHSMAN GROOMS
CARMEN IGUINA GONZÁLEZ
Counsel of Record
KATE EPSTEIN
KELSEY FRASER
KAPLAN HECKER & FINK LLP
1050 K Street NW|Suite 1040
Washington, DC 20001
(212) 763-0883
ciguinagonzalez@kaplanhecker.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ............................... 1
INTRODUCTION & SUMMARY OF
ARGUMENT ............................................................... 5
ARGUMENT ............................................................... 7
I.
MILITARY READINESS IS THREATENED,
AND WOMEN ARE KEY TO ADDRESSING
THE THREAT ...................................................... 8
A. Readiness is an Essential Element of National Security................................................ 8
B. Readiness is Threatened by a Recruiting
Crisis ............................................................ 10
C. Recruiting and Retaining Women is Necessary to Maintain Readiness ..................... 12
II. ENSURING ACCESS TO ABORTION CARE
IS ESSENTIAL TO READINESS ..................... 15
A. Access to Reproductive Healthcare—Including Abortion Care—is Essential To
Readiness ..................................................... 15
B. DOD and the VA Have Tried to Make
Abortion Care Accessible ............................. 19
C. There Are Limits on the Military’s Ability
to Make Abortion Care Accessible, and Alternative Options Are Limited Post-Dobbs
...................................................................... 21
ii
D. Access to Mifepristone Alleviates Some of
the Challenges of Accessing Abortion
Care, Mitigating Restrictions’ Effects on
Readiness ..................................................... 26
E. Upholding the Decision Below Threatens
an Important Pathway to Safe Abortion
Care .............................................................. 28
F. Upholding the Decision Below is Against
the Public Interest ....................................... 29
CONCLUSION ......................................................... 31
iii
TABLE OF AUTHORITIES
CASES
All. for Hippocratic Med. v. Food & Drug Admin.,
78 F.4th 210 (5th Cir. 2023) .................................. 29
Dobbs v. Jackson Women's Health Org.,
597 U.S. 215 (2022) ........................ 16, 21, 22, 23, 30
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................ 7, 30
STATUTES
10 U.S.C. § 1093 ........................................................ 22
REGULATIONS
Reproductive Health Services, 87 Fed. Reg. 55287
(Sept. 9, 2022) (to be codified at 38 C.F.R. 17)...... 21
Women’s Armed Services Integration Act of 1948 ... 13
OTHER AUTHORITIES
L. Austin Letter to J. Reed, July 18, 2023,
briefing_on_noncovered_reproductive_healthcare_policies.pdf. ...... 5
Eleanor Bimla Schwarz et al., Induced Abortion
among Women Veterans: Data from the ECUUN
Study, 97 Contraception 41 (2018), https:// www.
ncbi.nlm.nih.gov/pmc/artcles/PMC5732058/pdf/nih
ms915509.pdf ......................................................... 26
Lisa S. Callegari, MD, MPH, and Sonya Borrero, MD,
MS, Abortion Care for Veterans—A Historic Step
Forward, JAMA Health Forum (Nov. 1, 2022),
https:// jamanetwork.com/journals/jama-healthforum/fullarticle/2798138. ..................................... 25
iv
Gilbert R. Cisneros, Jr., Under Secretary of Defense,
Administrative Absence for Non-Covered
Reproductive Health Care (Feb. 16, 2023), https://
media.defense.gov/2023/Feb/16/2003163307/-1/1/1/MEMORANDUM-ADMINISTRATIVEABSENCE-FOR-NON-COVEREDREPRODUCTIVE-HEALTH-CARE.PDF ....... 20, 27
Cong. Rsch. Serv., The Fundamentals of Military
Readiness (Oct. 2, 2020),
https://sgp.fas.org/crs/natsec/R46559.pdf.. .............. 8
Martin E. Dempsey and Leon E. Panetta, Memorandum: Elimination of the 1994 Direct Ground
Combat Definition and Assignment Rule (Jan. 24,
2013),
https://dod.defense.gov/Portals/1/Documents/WISR
JointMemo.pdf. ...................................................... 13
Department of Defense Fact Sheet: Sequestration’s
Impact to Regaining Readiness,
https://dod.defense.gov/Portals/1/Documents/pubs/
DoD_Readiness_Fact_Sheet_FINAL.pdf .............. 11
Eric Edelman et al., Providing for the Common Defense: The Assessment and Recommendations of the
National Defense Strategy Commission (Nov. 13,
2018),
https://www.usip.org/publications/2018/11/providin
g-common-defense. ......................................... 8, 9, 10
v
Jim Garamone, Chiefs Discuss Military Recruiting
Challenges at Committee Hearing, DOD News
(Dec. 7, 2023),
https://www.defense.gov/News/NewsStories/Article/Article/3610846/chiefs-discussmilitary-recruiting-challenges-at-committeehearing/ .................................................................. 10
Jim Garamone, DOD Unveils Women, Peace, Security
Strategy, DOD News (June 11, 2020),
https://www.defense.gov/News/NewsStories/Article/Article/2217438/dod-unveils-womenpeace-security-strategy/. ........................................ 13
Jim Garamone, Vice Chiefs Talk Recruiting Shortfalls, Readiness Issues, DOD News (Apr. 20, 2023),
https://www.defense.gov/News/NewsStories/Article/article/3369472/vice-chiefs-talkrecruiting-shortfalls-readiness-issues/ .................. 10
Karen Grindlay et al, Abortion Knowledge and Experiences Among U.S. Servicewomen: A Qualitative
Study, 49 Perspectives on Sexual and Reproductive
Health 191, (Dec. 11, 2017),
https://onlinelibrary.wiley.com/doi/10.1363/psrh.12
044. ......................................................................... 29
Hearing: Military Personnel on Reproductive Health
and Readiness Before the House Armed Services
Committee Readiness Subcommittee, 117th Cong.
(July 29, 2022) ........................................................ 16
vi
Alex Horton and Rachel Roubein, Abortion ruling
will worsen military personnel crisis, Pentagon
says, Wash. Post (July 29, 2022, 5:17 p.m.),
https://www.washingtonpost.com/nationalsecurity/2022/07/29/military-abortion-recruiting/.
................................................................................ 16
Trevor Hunnicutt, Restrictive abortion laws hurting
US military, White House says, Reuters (July 17,
2023, 6:23 p.m.),
https://www.reuters.com/world/us/restrictiveabortion-laws-hurting-morale-retention-usmilitary-w-house-2023-07-17/.......................... 16, 17
Kyleanne M. Hunter et al., How the Dobbs Decision
Could Affect U.S. National Security, RAND Corp.
(Sept. 2022),
https://www.rand.org/pubs/perspectives/PEA22271.html ......................................................... 12, 13, 23
Interactive Map: US Abortion Policies and Access After Roe, Guttmacher Institute (Jan. 24, 2024),
https://states.guttmacher.org/policies/. ........... 22, 23
JCS, Joint Publication 1, Doctrine for the Armed
Forces of the United States, incorporating change 1,
July 12, 2017,
https://www.jcs.mil/Portals/36/Documents/Doctrine
/pubs/jp1_ch1. pdf?ver=2019-02-11-174350-967 ..... 8
Laura J. Junor, Inst. For Nat’l Strategic Stud., Nat’l
Def. Univ., Managing Military Readiness (Feb.
2017),
https://inss.ndu.edu/Portals/68/Documents/stratper
spective/inss/Strategic-Perspectives23.pdf?ver=2017-02-07-160518-893 .................. 9, 10
vii
Ben Kesling, The Military Recruiting Crisis: Even
Veterans Don’t Want Their Families to Join, Wall
St. J. (June 30, 2023, 12:01 a.m.),
https://www.wsj.com/articles/military-recruitingcrisis-veterans-dont-want-their-children-to-join510e1a25. ............................................. 11, 12, 18, 19
Methodology and Sources, Guttmacher Institute,
https://states.guttmacher.org/policies/methodology.
html ........................................................................ 22
Leon Panetta et al., Bipartisan Pol’y Ctr., The Building Blocks of a Ready Military: People, Funding,
Tempo (Jan. 2017),
https://bipartisanpolicy.org/download/?file=/wpcontent/uploads/2019/03/BPC-Defense-MilitaryReadiness.pdf. .......................................................... 9
Jeffrey R. Register, Director, Defense Human Resources Activity, Military Advisory Panel Item 8622(R), Paragraph 033013 ‘Travel for Non-Covered
Reproductive Health Care Services’” (Feb. 16,
2023),
https://media.defense.gov/2023/Feb/16/2003163300/
-1/-1/1/MEMORANDUM-TRAVEL-FOR-NONCOVERED-REPRODUCTIVE-HEALTH-CARESERVICES.PDF ............................................... 20, 27
Secretary of Defense, Ensuring Access to
Reproductive Health Care (Oct. 20, 2022),
https://www.health.mil/ReferenceCenter/Policies/2022/10/20/Ensuring-Access-toReproductive-Health-Care......................... 19, 20, 23
viii
Jonathan G. Shaw et al., Post-traumatic Stress
Disorder and Antepartum Complications: a Novel
Risk Factor for Gestational Diabetes and
Preeclampsia, 31 Pediatric & Perinatal
Epidemiology (2017),
https://doi.org/10.1111/ppe.12349.................... 25, 26
Statement of Diana Maurer, Director, Defense Capabilities and Management, Testimony Before the
Subcommittee on Readiness and Management
Support, Committee on Armed Services, U.S.
Senate: Military Readiness: Improvement in Some
Areas, but Sustainment and Other Challenges
Persist, U.S. Gov’t Accountability Off. (May 2,
2023)., https://www.gao.gov/assets/gao-23106673.pdf. ............................................................. 11
Statement of Dr. Jacqueline Lamme, Hearing: Military Personnel on Reproductive Health and
Readiness Before the House Armed Services
Committee Readiness Subcommittee, 117th Cong.
(July 29, 2022),
https://docs.house.gov/meetings/AS/AS02/20220729
/115074/HHRG-117-AS02-Wstate-LammeJ20220729.pdf .......................................................... 18
Stephania Taladrid, In the Post-Roe Era, Letting
Pregnant Patients Get Sicker—By Design, New
Yorker (May 6, 2023),
https://www.newyorker.com/news/dispatch/in-thepost-roe-era-letting-pregnant-patients-get-sickerby-design. ............................................................... 18
ix
Testimony of Sharon Arana, Active-Duty Servicemember, Hearing: Military Personnel on
Reproductive Health and Readiness Before the
House Armed Services Committee Readiness
Subcommittee, 117th Cong. (July 29, 2022).... 17, 25
Testimony of Theresa Mozzillo, Active-Duty Servicemember, Hearing: Military Personnel on
Reproductive Health and Readiness Before the
House Armed Services Committee Readiness
Subcommittee, 117th Cong. (July 29, 2022).... 17, 25
U.S. Dep’t of Defense, 2022 Demographics Profile of
the Military Community (2022),
https://download.militaryonesource.mil/12038/MOS
/Reports/2022-demographics-report.pdf ................ 14
U.S. Dep’t of Defense, Defense Department Report
Shows Decline in Armed Forces Population While
Percentage of Military Women Rises Slightly (Nov.
6, 2023),
https://www.defense.gov/News/Releases/Release/Ar
ticle/3580676/defense-department-report-showsdecline-in-armed-forces-population-whilepercen/#:~:text=Over%20the%20same%20period%2
C%20the,reserve%20has%20risen%20by%204.4%2
5 .............................................................................. 14
U.S. Gov’t Accountability Off., Female Active-Duty
Personnel: Guidance and Plans Needed for Recruitment and Retention Efforts (May 2020),
https://www.gao.gov/assets/gao-20-61.pdf. .... 12, 14
x
Tom Vanden Brook, Just 10 years ago, women were
banned from combat. Now, they’re on the front
lines, climbing the ranks., USA Today (Apr. 18,
2023, 11:02 a.m.),
https://www.usatoday.com/story/news/politics/2023/
04/16/women-in-combat-militaryprogress/11548931002/. ......................................... 14
David Vergun, DOD Addresses Recruiting Shortfall
Challenges, DOD News (Dec. 13, 2023),
https://www.defense.gov/News/NewsStories/Article/Article/3616786/dod-addressesrecruiting-shortfall-challenges/. ...................... 10, 11
Douglas Yeung et al., Recruiting Policies and Practices for Women in the Military: Views from the Field,
RAND Corp. (2017),
https://www.rand.org/pubs/research_reports/RR153
8.html. .............................................................. 13, 14
Women Veterans Health Care: Abortion Services, U.S.
Dep’t of Veterans Affairs,
https://www.womenshealth.va.gov/topics/abortionservices.asp ............................................................ 21
1
INTEREST OF AMICI CURIAE 1
Amici are United States military veterans, a nonprofit organization that represents their interests, and
civilian national security leaders. They are former
high-ranking officials with knowledge about military
recruitment, readiness, medical care, and personnel.
They submit this brief to present, based on their professional and personal experiences, a unique perspective on how restricting access to mifepristone would
negatively impact military readiness and national security.
The Honorable Louis Caldera is the Former
Secretary of the Army and the Former Director of the
White House Military Office. He graduated from the
U.S. Military Academy and began his military career
as an Army officer. In his time as Secretary of the
Army, he implemented changes to develop a more versatile and deployable force and led a reversal of recruiting shortfalls.
The Honorable Ray Mabus is the Former Secretary of the Navy, and the longest serving leader of the
Navy and Marine Corps since World War I. He is also
the Former Governor of Mississippi and the Former
Ambassador to Saudi Arabia. As Secretary of the
Navy, he revolutionized the Navy and Marine Corps,
opening all jobs to women, aggressively moving to alternative energy as a warfighting measure, building
1 No counsel for a party authored this brief in whole or in part,
and no party or counsel for a party made a monetary contribution
intended to fund its preparation or submission. No person other
than amicus or its counsel made a monetary contribution to the
preparation or submission of this brief.
2
more than twice as many ships during his term than
in the preceding eight years, and developing the Gulf
Coast Restoration Plan after the Deepwater Horizon
oil spill.
The Honorable Deborah James is the Former
Secretary of the Air Force and the Former Assistant
Secretary of Defense for Reserve Affairs. As Secretary
of the Air Force, she led efforts to increase percentages
of women and diverse candidates in applicant pools, to
open more Air Force roles to women, and to extend the
Post-Pregnancy Deployment Deferment from six to
twelve months.
Lieutenant General (Ret) Claudia Kennedy is
the First Female 3-Star General in the Army and the
Former Chairwoman of the Defense Advisory Committee on Women in the Services. First commissioned in
1969, Lieutenant General Kennedy served for 31 years
in a variety of assignments including commanding a
Recruiting Battalion and Military Intelligence Brigade, and as Deputy Chief of Staff for Intelligence of
the Army. In her role as Chair of Defense Department
Advisory Committee on Women in the Services, she
provided recommendations to the Secretary of Defense
on how best to serve women in the military.
Major General (Ret) Tammy Smith is the Former Deputy Commanding General for Sustainment,
Eighth U.S. Army, Korea, and the Former Special Assistant to the Assistant Secretary of the Army - Manpower and Reserve Affairs. In the latter role, and
throughout her career, General Smith handled personnel policy, including readiness and family issues.
3
Major General (Ret) Paul Eaton is the Former
Commanding General, Army Infantry Center and
School. He gave 33 years of service to the military, including as the Commanding General of the command
charged with reestablishing Iraqi Security Forces
from 2003-2004.
Rear Admiral (LH) (Ret) Michael S. Baker,
M.D., F.A.C.S. is a semi-retired general and trauma
surgeon who served in the Medical Corps, U.S. Navy.
In his role as a Navy officer, he held roles in operational medicine, combat deployments, medical intelligence, and strategic planning.
Brigadier General (Ret) Robin B. Umberg is
the former Chief, Health Care Professionals, 3rd Medical Command in the U.S. Army, Nurse Corps. She
served in a variety of staff and command assignments
during the course of her 36 years of service, including
in roles that had responsibility for battlefield readiness, training, and career management for more than
27,000 medical personnel.
Brigadier General (Ret) Steven M. Anderson
is the Former Director, Operations and Logistics
Readiness for the U.S. Army. In that role, he led a staff
responsible for all Army logistics readiness reporting
and ran the Army’s Logistics Operations Center.
Sergeant Major (Ret) Marshall Williams is the
Former Acting Assistant Secretary & Principal Deputy Secretary of the Army for Manpower and Reserve
Affairs. In that role, which he held from 2018 to 2021,
he developed and implemented recruitment and retention strategies to increase readiness levels and
4
streamlined recruitment methods, cutting $2 billion in
costs and increasing talent recruitment 8% year over
year.
David Calloway, M.D. is a former Lieutenant
Commander of the U.S. Navy and an emergency room
physician. He has extensive civilian and military experience, and now serves as the Chief Medical Officer
for Team Rubicon, a veteran-led disaster response organization, and as a Professor of Emergency Medicine
at Carolinas Medical Center.
Vet Voice Foundation is a Washington, D.C.based non-profit, non-partisan organization that organizes and empowers veterans to become civic leaders and policy advocates. Vet Voice’s interest in this
appeal arises from the great importance that maintaining the strength of the military and caring for current and former servicemembers holds to the organization’s membership.
5
INTRODUCTION &
SUMMARY OF ARGUMENT
“The U.S. military is the strongest fighting force on
Earth, in large part, because we can draw on an unmatched strategic resource: the talents of the American people,” Secretary of Defense Lloyd J. Austin told
Congress earlier this year. L. Austin Letter to J. Reed,
July 18, 2023. 2 The decision below threatens the ability of the military to draw on that strategic resource
by restricting access to important reproductive
healthcare for women servicemembers and veterans.
That restriction in turn impairs the ability of the military to recruit and retain women and to maintain
ready troops.
In Part I of this brief, amici explain that military
readiness—the capacity of our military forces to be
ready to deploy globally, fight, and fulfill their combat
and other missions—is a critical element of national
security. The ability to maintain that readiness is currently in danger, however, as the military faces a recruiting crisis driven largely by a dearth of Americans,
especially men, who are interested in joining the military and meet its rigorous enlistment qualification
standards. The Department of Defense (“DOD”) has
addressed this crisis in part by undertaking efforts to
increase the recruitment and retention of female servicemembers. These female servicemembers volunteer
to serve their country in uniform and willingly take on
the military’s arduous training, frequent assignments
and deployments, and risk, including that they may be
2 https://www.armed-services.senate.gov/imo/media/doc/dod_
briefing_on_non-covered_reproductive_healthcare_policies.pdf.
6
sent into harm’s way. The military encourages women
to join by presenting them the opportunity to serve
their country, develop themselves mentally and physically, and gain life and professional experience. But it
can only be successful in that effort if the life and professional experience it offers is one that is attractive
to female recruits.
In Part II, amici explain that the availability of reproductive healthcare, including abortion care, is critical to encouraging female servicemembers to join and
remain in the military, and in turn, critical to military
readiness. Women are unlikely to select a career that
may deny them bodily autonomy or access to
healthcare during or after their service. DOD and the
Department of Veterans Affairs (“VA”) have acknowledged this, as have numerous lawmakers and members of the military. DOD and VA policy reflects this
recognition: both agencies have taken steps to facilitate access to abortion care for active-duty servicemembers and for veterans, recognizing that doing so
furthers their ability to recruit and retain women and
to maintain deployable units. Yet abortion care remains elusive for many members of the military. The
accounts shared in this brief elucidate the barriers
that confront military women seeking to access this
care.
Upholding the decision below would only make
matters worse. Mifepristone has provided military
women and veterans a safe, effective, and more accessible means of obtaining abortion care. Returning to
the pre-2016 conditions for accessing mifepristone
would eliminate this critical alternative pathway to
abortion care, thus eroding the military’s ability to
7
ensure women access to comprehensive healthcare
during and after their service. That threatens the military’s ability to recruit and retain women and, in
turn, military readiness. Put simply, lack of access to
reproductive healthcare, including abortion care, and
the real prospect of being forced to take unwanted or
unsafe pregnancies to term, only makes the military
less attractive to today’s recruitment-age females.
These threats to military readiness—and, consequently, to national security—are clearly relevant to
the “public interest.” Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 26 (2008) (vacating preliminary injunction that jeopardized Navy’s ability to adequately
train forces). This Court should evaluate the impacts
to the military that upholding the decisions below
would have and conclude that the stay of the FDA’s
actions is not warranted. The order below should be
reversed.
ARGUMENT
Respondents ask the Court to restrict access to
medication abortion by rolling back FDA actions that,
among other things, eliminated a medically unnecessary in-person visit, J.A. 300-02, 456-59, and allowed
non-physicians to become certified prescribers of mifepristone, J.A. 309-10, 461-62.
Doing so would restrict access to a method of abortion care that is particularly critical to members of the
military and their families. Mifepristone offers a less
expensive, more convenient method of abortion care
for servicemembers stationed in remote locations and
to whom the military cannot provide care directly. Access to mifepristone without in-person dispensing
8
therefore reduces barriers to care that can make military service less appealing to women, and it allows
women to make decisions about their bodies that fulfill
their own objectives, including to continue to serve in
uniform. Restricting this important method of care
would undermine the military’s ability to recruit, retain, and care for female servicemembers, and thus
undermine military readiness and America’s national
security.
I.
MILITARY READINESS IS THREATENED,
AND WOMEN ARE KEY TO ADDRESSING
THE THREAT
A. Readiness is an Essential Element of National Security
The United States military cannot protect America’s national security unless it is prepared and
equipped to confront global conflicts as they arise. Accordingly, the military must maintain what the defense community terms “readiness”—that is, “[t]he
ability of military forces to fight and meet the demands of assigned missions,” JCS, Joint Publication
1, Doctrine for the Armed Forces of the United States,
incorporating change 1, July 12, 2017, at p. GL-10. 3
Maintaining readiness is a statutory responsibility,
see Cong. Rsch. Serv., The Fundamentals of Military
Readiness at 8–9 (Oct. 2, 2020)4; the target of billions
of dollars in funding each year, id. at 33-35; and a “crucial component of America’s national security,” Eric
Edelman et al., Providing for the Common Defense:
3 https:// www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp1_
ch1. pdf?ver=2019-02-11-174350-967.
4 https://sgp.fas.org/crs/natsec/R46559.pdf.
9
The Assessment and Recommendations of the National
Defense Strategy Commission, at xi (Nov. 13, 2018). 5
Because it is a crucial component of national security, changes in readiness have broader security implications. In particular, reductions in readiness (1) render the military less prepared for unanticipated conflicts, and (2) increase the risk of conflict, as adversaries take note of the United States’ compromised
preparedness. Leon Panetta et al., Bipartisan Pol’y
Ctr., The Building Blocks of a Ready Military: People,
Funding, Tempo, at 19 (Jan. 2017). 6 Such reductions
can be caused by threats to any of the elements of
readiness, including personnel, equipment, and training.
As relevant here, threats to military personnel
pose uniquely severe risks to readiness. After all,
trained and ready people are the heart of readiness;
the two are “inextricably linked.” Panetta et al., supra
at 5. Without “highly capable people,” the military is
deprived of “[t]he foremost recourse required to produce a highly capable military.” Edelman et al., supra,
at xi. That is because people—both new recruits and
retained servicemembers—are an essential input to
the “requisite supply of ready forces.” Laura J. Junor,
Inst. For Nat’l Strategic Stud., Nat’l Def. Univ., Managing Military Readiness, at 5 (Feb. 2017). 7 A supply
of ready forces is an essential piece of the military’s
5 https://www.usip.org/publications/2018/11/providing-commondefense.
6 https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2019/03/BPC-Defense-Military-Readiness.pdf.
7 https://inss.ndu.edu/Portals/68/Documents/stratperspective/
inss/Strategic-Perspectives-23.pdf?ver=2017-02-07-160518-893.
10
ability to “generate and deploy ready military forces,”
a “basic element of national security.” Id. at 1.
B. Readiness is Threatened by a Recruiting
Crisis
The military’s ability to maintain a supply of ready
forces is currently endangered by a “recruiting crisis.”
Jim Garamone, Chiefs Discuss Military Recruiting
Challenges at Committee Hearing, DOD News (Dec. 7,
2023) (hereinafter, “Garamone I”). 8 That crisis is
driven in part by declining numbers of Americans
“with both the fitness and propensity to serve.” Edelman, supra, at xi. In particular, “[f]ewer [young Americans] . . . are interested in serving. And that’s something that we are working very hard to change,” General Randy A. George, the Army’s vice chief of staff,
told the House Armed Services Subcommittee on
Readiness in April of last year. Jim Garamone, Vice
Chiefs Talk Recruiting Shortfalls, Readiness Issues,
DOD News (Apr. 20, 2023). 9
General George’s acknowledgement of the urgent
need to increase interest in military careers reflects
the dire state of affairs. Faced with fewer interested
Americans, the Army, Navy, and Air Force all failed to
meet recruiting goals last fiscal year. Garamone I, supra. As a result, “[t]he all-volunteer force faces one of
its greatest challenges since inception,” the acting undersecretary for personnel and readiness, Ashish
Vazirani, testified in December 2023. David Vergun,
8 https:// www.defense.gov/News/News-Stories/Article/Article/
3610846/chiefs-discuss-military-recruiting-challenges-at-committee-hearing/.
9 https://www.defense.gov/News/News-Stories/Article/article/
3369472/vice-chiefs-talk-recruiting-shortfalls-readiness-issues/.
11
DOD Addresses Recruiting Shortfall Challenges, DOD
News (Dec. 13, 2023). 10 “I’ve been studying the recruiting market for about 15 years, and we’ve never
seen a condition quite like this,” said another senior
Defense Department official. Ben Kesling, The Military Recruiting Crisis: Even Veterans Don’t Want
Their Families to Join, Wall St. J. (June 30, 2023,
12:01 a.m.). 11
Recruiting shortfalls undermine the military’s
ability to “balance the supply and demand of deployable forces around the world,” which DOD carefully
manages to address global conflicts and security priorities. Department of Defense Fact Sheet: Sequestration’s Impact to Regaining Readiness, at 1 (last visited
Jan. 29, 2024). 12 “For decades, the United States has
enjoyed unchallenged or dominant military advantage
. . . [because it] could generally deploy forces when it
wanted, assemble them where it wanted, and operate
how it wanted.” Statement of Diana Maurer, Director,
Defense Capabilities and Management, Testimony Before the Subcommittee on Readiness and Management
Support, Committee on Armed Services, U.S. Senate:
Military Readiness: Improvement in Some Areas, but
Sustainment and Other Challenges Persist, at 1, U.S.
Gov’t Accountability Off. (May 2, 2023). 13 Without
that ability, the United States’ dominance may be
jeopardized. Moreover, “U.S. recruiting shortfalls
10 https://www.defense.gov/News/News-Stories/Article/Article/
3616786/dod-addresses-recruiting-shortfall-challenges/.
11 https://www.wsj.com/articles/military-recruiting-crisis-veterans-dont-want-their-children-to-join-510e1a25.
12 https://dod.defense.gov/Portals/1/Documents/pubs/DoD_Readiness_Fact_Sheet_FINAL.pdf.
13 https://www.gao.gov/assets/gao-23-106673.pdf.
12
represent a long-term problem that, if not resolved,
would compel the military to reduce its force size.”
Kesling, supra. In a moment of increased global instability, “that problem has become more serious.” Id.
C. Recruiting and Retaining Women is Necessary to Maintain Readiness
Reflecting these concerns, “recruiting and retaining female servicemembers” has been recognized as
important to “maintain[ing] and improv[ing] mission
readiness,” U.S. Gov’t Accountability Off., Female Active-Duty Personnel: Guidance and Plans Needed for
Recruitment and Retention Efforts, at 1–2 (May
2020). 14 Women “represent a higher percentage of the
recruitable population than their male counterparts,”
Kyleanne M. Hunter et al., How the Dobbs Decision
Could Affect U.S. National Security, RAND Corp., at
1 (Sept. 2022), 15 and offer a particularly promising
target for increased recruiting efforts.
But recruiting and retaining female servicemembers is a priority for reasons beyond increasing numbers. More women are needed “to more accurately reflect the nation’s population [and] ensure the strongest possible military leadership.” GAO, Female ActiveDuty Personnel, supra, at 1–2. Furthermore, as Pentagon spokesman Jonathan Rath Hoffman explained in
June 2020, “[b]y recognizing the diverse roles women
play across the spectrum of conflict—and by incorporating their perspectives throughout plans and operations—DOD is better equipped to promote our security, confront near-peer competitors, and defeat our
14 https://www.gao.gov/assets/gao-20-61.pdf.
15 https://www.rand.org/pubs/perspectives/PEA2227-1.html.
13
adversaries,” Jim Garamone, DOD Unveils Women,
Peace, Security Strategy, DOD News (June 11, 2020). 16
Thanks in part to recruitment policies that
acknowledge the importance of female servicemembers, women’s contributions in the military have
grown significantly since the passage of the Women’s
Armed Services Integration Act of 1948. Douglas
Yeung et al., Recruiting Policies and Practices for
Women in the Military: Views from the Field, RAND
Corp. (2017). 17 Women have long filled critical roles in
healthcare, operational, and administrative functions,
see Hunter et al., supra, at 2. Their roles have expanded since 2013, when then-Secretary of Defense
Leon E. Panetta ended the ban on women serving in
direct ground combat roles. Yeung et al., supra, at 1.
Secretary Panetta did so in a January 2013 memorandum that rescinded the 1994 rule excluding women
from assignment to combat roles. It recognized this
change as a step to “remov[e] as many barriers as possible to joining, advancing, and succeeding in the U.S.
Armed Forces,” and as reflective of the fact that
“women . . . are indispensable to the national security
mission.” Martin E. Dempsey and Leon E. Panetta,
Memorandum: Elimination of the 1994 Direct Ground
Combat Definition and Assignment Rule (Jan. 24,
2013). 18 The move also recognized that gender-based
restrictions on qualified servicemembers performing
certain roles made little sense in an environment
16 https://www.defense.gov/News/News-Stories/Article/Article/
2217438/dod-unveils-women-peace-security-strategy/.
17 https://www.rand.org/pubs/research_reports/RR1538.html.
18 https://dod.defense.gov/Portals/1/Documents/
WISRJointMemo.pdf.
14
where, even then, the military was struggling to meet
its recruitment goals. Tom Vanden Brook, Just 10
years ago, women were banned from combat. Now,
they’re on the front lines, climbing the ranks., USA Today (Apr. 18, 2023, 11:02 a.m.). 19
Following that shift, women have been fully integrated into the services as a matter of policy since January 1, 2016. Yeung et al., supra, at 1. Women now
comprise approximately 17.5% of the military’s activeduty force and 21.6% of the selected reserves. U.S.
Dep’t of Defense, 2022 Demographics Profile of the
Military Community, at iii, iv (2022) (hereinafter,
“2022 Demographics”). 20 Those numbers represent increases of approximately 2.9 and 4.4 percent, respectively, since 2005. U.S. Dep’t of Defense, Defense Department Report Shows Decline in Armed Forces Population While Percentage of Military Women Rises
Slightly (Nov. 6, 2023). 21 Yet women are 28% more
likely to leave the military than men, driven in part by
difficulties with family planning. See GAO, Female Active-Duty Personnel, supra, at 18, 29-30. Reducing that
attrition rate—combined with recruiting more women
to join—is essential to maintaining the readiness of
America’s military and to protecting our national security.
19 https://www.usatoday.com/story/news/politics/2023/04/16/
women-in-combat-military-progress/11548931002/.
20 https://download.militaryonesource.mil/12038/MOS/Reports/
2022-demographics-report.pdf.
21 https://www.defense.gov/News/Releases/Release/Article/
3580676/defense-department-report-shows-decline-in-armedforces-population-while-percen/#:~:text=Over%20the%20same%
20period%2C%20the,reserve%20has%20risen%20by%204.4%25.
15
II.
ENSURING ACCESS TO ABORTION CARE
IS ESSENTIAL TO READINESS
A key element of the military’s ability to better
maintain readiness is ensuring access to a full range
of reproductive healthcare services, including abortion
care, without which the military cannot recruit and retain sufficient women to combat its recruiting crisis.
Access to abortion care has upstream effects: the
knowledge that they will be able to access reproductive healthcare—for themselves or their partners—
factors into potential recruits’ decisions about whether
to join or remain in the military. It also affects the
physical readiness of individuals and their units by allowing servicemembers to make individualized family
planning decisions that support their own mental and
physical health—including the decision to terminate
unsafe, nonviable, unintended, or unwanted pregnancies. Abortion thus impacts recruitment, retention,
physical preparedness, and unit cohesion—in other
words, military readiness.
A. Access to Reproductive Healthcare—Including Abortion Care—is Essential To
Readiness
The military cannot convince women to join or to
stay if it cannot offer healthcare access that supports
their training, service, career progression, and personal choices, including after their military service
ends. Its ability to offer full reproductive healthcare
impacts the effectiveness of its efforts to recruit and
retain men, too; men care that their partners will have
access to care that they need, and that the institution
they serve treats all their fellow soldiers equally.
16
Military leaders, lawmakers, and servicemembers
have all recognized this.
Military leaders, faced with the prospect of new restrictions on abortion care, voiced fears about the impact decreased access would have on the service. In
the wake of Dobbs, for example, Gilbert R. Cisneros,
Jr., the Pentagon’s Undersecretary of Defense for Personnel and Readiness, expressed “concerns that some
service members may choose to leave the military altogether because they may be stationed in states with
restrictive reproductive health laws.” Alex Horton and
Rachel Roubein, Abortion ruling will worsen military
personnel crisis, Pentagon says, Wash. Post (July 29,
2022, 5:17 p.m.). 22 Moreover, Cisneros said, abortion
restrictions raise “concerns about recruitment.” Id.
Members of Congress and White House personnel
have echoed these concerns. In a 2022 Congressional
hearing, Representative Jackie Speier (D-Cal.) noted
that restrictions on abortion care “creat[e] a real incentive for women not to serve.” Hearing: Military Personnel on Reproductive Health and Readiness Before
the House Armed Services Committee Readiness Subcommittee, 117th Cong. (July 29, 2022). And National
Security Council spokesperson John Kirby reported
that active-duty servicemembers “told him that restrictive abortion laws in many states are impacting
their willingness to continue to serve in the military.”
Trevor Hunnicutt, Restrictive abortion laws hurting
US military, White House says, Reuters (July 17, 2023,
22 https://www.washingtonpost.com/national-security/2022/07/
29/military-abortion-recruiting/.
17
6:23 p.m.). 23 Kirby cautioned, “if you don’t think
there’s going to be a retention and morale issue, think
again, because it’s already having that effect.” Id.
Active-duty servicemembers, too, have worried
about how lack of access to abortion care could impact
them, their colleagues, and the military as a whole. As
one female servicemember testified before the U.S.
House of Representatives:
I’m worried that these barriers to accessing
reproductive care are going to discourage new
recruits from joining the military. I’m also
worried that current members would leave
the military depending on what duty station
they are, because that would mean that
they’re going to risk their access to reproductive care. . . . [I]t affects the whole family, and
it affects all of us male and female, and it affects the military at large.
Testimony of Theresa Mozzillo, Active-Duty Servicemember, Hearing: Military Personnel on Reproductive
Health and Readiness Before the House Armed Services Committee Readiness Subcommittee, 117th Cong.
(July 29, 2022). Referring to the effect of restricting
abortion access, another servicemember testified, “I
think overall, it degrades morale, it affects retention.”
Id., Testimony of Sharon Arana, Active-Duty Servicemember.
Barriers to abortion affect elements of readiness
other than recruiting and retention—namely, unit deployability. When women must take extended leave
23 https://www.reuters.com/world/us/restrictive-abortion-lawshurting-morale-retention-us-military-w-house-2023-07-17/.
18
and travel several hours or even states away from base
to access abortion care, their units are deprived of full
staffing. Moreover, delays in accessing abortion care
can increase health risks—for patients facing threats
to their health or life, waiting until the last minute
substantially increases the risk of detrimental effects
on the health of the woman. See, e.g., Stephania Taladrid, In the Post-Roe Era, Letting Pregnant Patients
Get Sicker—By Design, New Yorker (May 6, 2023). 24
When servicemembers experience significant health
consequences due to delayed care, their units are deprived of full staffing for planning, training, maintenance, and other purposes during any recovery period.
And when women are denied their choice of abortion
care entirely, and must leave the military as a result,
their units are deprived of full staffing, sometimes for
“up to two years.” Statement of Dr. Jacqueline
Lamme, Hearing: Military Personnel on Reproductive
Health and Readiness Before the House Armed Services Committee Readiness Subcommittee, 117th Cong.
(July 29, 2022). 25 Furthermore, single military parents who are unable to demonstrate that they have reliable day-to-day caregiving plans that support training and unpredictable work hours, as well as someone
who will accept legal custody of their child if they are
deployed, are forced to leave the military, depriving it
of trained and experienced soldiers, sailors, airmen
and marines. Military units without full staffing
“aren’t ready to respond quickly.” Kesling, supra.
Moreover, “units with fill-in soldiers don’t have the
24 https://www.newyorker.com/news/dispatch/in-the-post-roeera-letting-pregnant-patients-get-sicker-by-design.
25 https://docs.house.gov/meetings/AS/AS02/20220729/115074/
HHRG-117-AS02-Wstate-LammeJ-20220729.pdf.
19
same effectiveness as a unit whose members trained
together for months or years.” Id. Forced unavailability thus harms not only the women denied the care
they need; it also restricts the deployability of their
units and curtails the military’s readiness overall.
B. DOD and the VA Have Tried to Make
Abortion Care Accessible
Recognizing that ensuring access to abortion care
is essential to recruiting, retaining, and properly serving female servicemembers, military policymakers
have taken steps to facilitate abortion access. Recent
policy changes reflect these efforts.
In October 2022, the Secretary of Defense issued a
memorandum on “Ensuring Access to Reproductive
Health Care.” Secretary of Defense, Ensuring Access
to Reproductive Health Care at 1 (Oct. 20, 2022) (hereinafter, the “Oct. 2022 Memorandum”). 26 The memorandum directed DOD to, among other things, create
a policy “that allows for appropriate administrative
absence consistent with applicable federal law for noncovered reproductive health care,” and to “[e]stablish
travel and transportation allowances for Service members and their dependents . . . to facilitate official
travel to access non-covered reproductive health care
that is unavailable within the local area of a Service
member’s permanent duty station.” Id. at 2. This direction accounted for the reality that “Service members and their families are often required to travel or
move to meet our staffing, operational, and training
requirements” in a way that limits their access to
26 https://www.health.mil/Reference-Center/Policies/2022/10/20/
Ensuring-Access-to-Reproductive-Health-Care.
20
reproductive healthcare, and that the hardship of attempting to access such care when restricted “will interfere with [DOD’s] ability to recruit, retain, and
maintain the readiness of a highly qualified force.” Id.
Following the Secretary’s directive, DOD enacted a
policy providing that active-duty Service members, including Reserve or National Guard members on active-duty orders for 30 or more consecutive days, could
“request an administrative absence from their normal
duty station for non-covered reproductive health care
without loss of pay or being charged leave.” Gilbert R.
Cisneros, Jr., Under Secretary of Defense, Administrative Absence for Non-Covered Reproductive Health
Care (Feb. 16, 2023) (hereinafter, “Feb. 16, 2023 Memo
re: Leave”). 27 It also established policies and procedures for “authorized travel and transportation allowances for Service members and dependents who must
travel to access lawfully available non-covered reproductive health care” in furtherance of its commitment
to “taking care of our people and ensuring that the entire Force remains ready and resilient.” Jeffrey R. Register, Director, Defense Human Resources Activity,
Military Advisory Panel Item 86-22(R), Paragraph
033013 ‘Travel for Non-Covered Reproductive Health
Care Services’” (Feb. 16, 2023) (hereinafter, “Feb. 16,
2023 Memo Re: Travel Allowances”). 28
27 https:// media.defense.gov/2023/Feb/16/2003163307/-1/1/1/MEMORANDUM-ADMINISTRATIVE-ABSENCE-FORNON-COVERED-REPRODUCTIVE-HEALTH-CARE.PDF.
28 https://media.defense.gov/2023/Feb/16/2003163300/-1/-1/1/
MEMORANDUM-TRAVEL-FOR-NON-COVERED-REPRODUCTIVE-HEALTH-CARE-SERVICES.PDF.
21
The VA, too, has recognized that providing access
to reproductive healthcare, including abortions, serves
its commitments and furthers the military’s recruiting
and retention goals. 29 In 2022, the VA enacted an Interim Final Rule (“IFR”) that expanded access to abortion services for military veterans. Reproductive
Health Services, 87 Fed. Reg. 55287 (Sept. 9, 2022) (to
be codified at 38 C.F.R. 17). While veterans were historically unable to access any abortion care through
the federal government, the IFR allows pregnant veterans to access abortion services through the VA
“when the life or health of the pregnant Veteran would
be endangered if the pregnancy were carried to term,
or when the pregnancy is the result of rape or incest.”
Women Veterans Health Care: Abortion Services, U.S.
Dep’t of Veterans Affairs (last visited Jan. 29, 2024).30
This policy was necessary, the VA determined, “to protect the lives and health of veterans” and “to avert imminent and future harm to the veterans . . . whose interests Congress entrusted VA to serve.” 87 Fed. Reg.
55288.
C. There Are Limits on the Military’s Ability
to Make Abortion Care Accessible, and Alternative Options Are Limited Post-Dobbs
Despite these policy changes, abortion care remains elusive for many members of the military. That
29 The promise of access to comprehensive healthcare benefits—
both during and after service—is one of the reasons many recruits opt to join the military. Offering a full range of healthcare
benefits to veterans, then, is an element of recruitment much like
the care offered to active-duty servicemembers.
30 https://www.womenshealth.va.gov/topics/abortion-services.asp.
22
is because DOD’s and the VA’s ability to facilitate access to comprehensive abortion care is limited. Federal
law prohibits DOD from performing or paying for the
performance of abortions unless the life of the mother
would be endangered if the fetus were carried to term,
or when the pregnancy results from rape or incest (collectively known as “covered abortions”). 31 See 10
U.S.C. § 1093.
Even before this Court’s decision in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), female
servicemembers relied on their own funds and local,
non-military healthcare providers for abortions in any
non-covered circumstance. That remains true postDobbs, but servicemembers now face the added complication that many states—25 as of the time of writing—restrict access to abortions. See Interactive Map:
US Abortion Policies and Access After Roe,
Guttmacher Institute (Jan. 24, 2024). 32,33 That, as the
Secretary of Defense recognized in the wake of Dobbs,
31 All abortions other than those the federal government may per-
form or pay for the performance of are referred as “non-covered
abortions.”
32 https://states.guttmacher.org/policies/.
33 The Guttmacher Institute assigns states to one of seven policy
categories based on a review of abortion “policies currently in effect and the cumulative impact of those policies on abortion rights
and access.” Methodology and Sources, Guttmacher Institute
(last visited Jan. 29, 2024), https://states.guttmacher.org/policies/methodology.html. Those categories are: “Most restrictive,”
“Very restrictive,” “Restrictive,” “Some restrictions/protections,”
“Protective,” “Very protective,” and “Most protective.” Id. For the
purposes of assessing how many states restrict access to abortion,
this brief considers states categorized as “Restrictive,” “Very restrictive,” and “Most restrictive” to be states that restrict access
to abortion.
23
has “readiness, recruiting, and retention implications
for the Force.” Oct. 2022 Memorandum at 1.
Servicemembers have no control over where they
live, which means they may find themselves stationed
in a state that denies access to abortion. See Oct. 2022
Memorandum at 2. Indeed, many of the states that
have restricted access to abortion since Dobbs have a
large military presence, including Texas, Georgia,
Florida, Oklahoma, South Carolina, Arizona, and
North Carolina. See Guttmacher, supra; Hunter et al.,
supra, at 3. As a result, it was estimated that in 2022,
approximately 40 percent of active-duty female servicemembers stationed in the United States “w[ould]
have no or severely restricted access to abortion services where they are stationed.” Hunter et al., supra,
at 3. The vast majority—around 95 percent—of those
women are of reproductive age. Id.
This lack of access causes great hardship to female
and male servicemembers alike. One active-duty servicemember who was a Major in the Army at the time
of her pregnancy recounted the despair and abandonment she felt when she was denied an abortion for a
nonviable pregnancy, and one that posed a serious risk
to her health, all because her life was not imminently
threatened:
I got married, got pregnant, and wanted the
pregnancy. Everything was fine, but, because
I was 37, I was offered genetic testing. The
testing revealed a fatal diagnosis: Trisomy 18.
The pregnancy had no chance. The 12-week
ultrasound showed that I, too, was at risk—of
stroke, future fertility, preeclampsia. My life
was in danger. But because it wasn’t in
24
immediate danger, Tricare wouldn’t cover the
termination or any subsequent follow-on care.
I’d experienced loss in combat, but this was
worse because I was alone. We have a support
system in place for combat loss. There was no
one there for me. This was the first time in my
career where I was completely alone: “Figure
this out on your own; if something goes catastrophically wrong, you’re on your own.” I
have never felt of so little value. After twenty
years of service, being told I’m not worth anything until my life was in danger. It was completely dehumanizing.
Email received Jan. 17, 2024.
The momentous mental toll of having to find care
on one’s own is exacerbated by the logistical burdens
many women face. Testifying before the U.S. House of
Representatives, the same active-duty servicemember
who worried about the impact of abortion restrictions
on morale and retention described the challenge of attempting to access care from her station in Alabama:
[My then-boyfriend/now-husband] and I were
stationed in Alabama and access to abortion
was restricted. So, the weekend before we
graduated training, we drove 3.5 hours to Atlanta. The morning of my appointment, I
learned that Georgia had a three-day “cooling
off” period, which meant that the first day was
only to confirm the pregnancy. The same
pregnancy that I had already confirmed in
that gas station bathroom. I was expected to
return to the clinic in three days for the
25
abortion. But, since I was in training, I
needed to return to Alabama to finish my
course in order to commission later that week.
Testimony of Sharon Arana, active-duty servicemember, Hearing: Military Personnel on Reproductive
Health and Readiness Before the House Armed Services Committee Readiness Subcommittee, 117th Cong.
(July 29, 2022). She ultimately obtained an abortion
in New York and had to use her leave time to recover.
Id.
In the same hearing, another active-duty servicemember whose testimony is also discussed above recounted how she had to travel from Missouri to Illinois
and seek a Saturday appointment to avoid having to
formally request time-off from a commander with
whom she viewed discussing her reproductive
healthcare decisions as “out of the question.” Id., Testimony of Theresa Mozzillo.
These challenges are not limited to active-duty servicemembers. Abortion access is also restricted for veterans who do not benefit from travel allowances or administrative leave to seek non-covered abortion care.
That remains true even though veterans are typically
older, on average, when they experience pregnancy,
Lisa S. Callegari, MD, MPH, and Sonya Borrero, MD,
MS, Abortion Care for Veterans—A Historic Step Forward, JAMA Health Forum (Nov. 1, 2022) 34; face high
risk of chronic conditions as a result of their military
service, id.; Jonathan G. Shaw et al., Post-traumatic
Stress Disorder and Antepartum Complications: a
34 https:// jamanetwork.com/journals/jama-health-forum/fullarticle/2798138.
26
Novel Risk Factor for Gestational Diabetes and
Preeclampsia, 31 Pediatric & Perinatal Epidemiology
185 (2017) 35 ; and experience high rates of mental
health conditions and homelessness, Eleanor Bimla
Schwarz et al., Induced Abortion among Women Veterans: Data from the ECUUN Study, 97 Contraception
41 (2018) 36—factors that increase the risk of an unsafe
pregnancy and that may exacerbate the negative mental and economic effects of being denied access to abortion care.
For recruits considering joining the military or servicemembers weighing whether to stay, the
knowledge that they, too, might face steep challenges
in accessing abortion care serves as a deterrent to military service. And, as we discuss next, access to safe
medication abortion has for years served as a way to
overcome some of these obstacles and allow women to
more freely and comfortably enter and remain in military service.
D. Access to Mifepristone Alleviates Some of
the Challenges of Accessing Abortion
Care, Mitigating Restrictions’ Effects on
Readiness
Mifepristone—as available under current regulations—offers a way to address roadblocks military
women face in accessing abortion care. Under current
regulations, servicemembers can obtain safe and effective medication abortions without having to visit a
doctor’s office. They can be prescribed the medication
35 https:// doi.org/10.1111/ppe.12349.
36 https:// www. ncbi. nlm.nih.gov/pmc/artcles/PMC5732058/
pdf/nihms915509.pdf.
27
through, among other avenues, telehealth appointments, and they can receive it through the mail where
legally available. Servicemembers can take the medication and terminate the pregnancy on their own time,
and in their own home.
Such remote access to medication abortions reduces the burden of seeking abortion care on servicemembers stationed in remote locations or in some areas where procedural abortion services are unavailable. That holds true even accounting for recent
changes to military policy that provide administrative-leave and travel allowances for non-covered abortions. See Feb. 16, 2023 Memo Re: Leave; Feb. 16, 2023
Memo Re: Travel Allowances. Although those policies
mitigate some burdens and support female servicemembers’ reproductive choices, servicemembers who
make use of them must still travel and take time—often significant distances and days, and potentially for
multiple appointments. Those days away can be detrimental to unit training and readiness, whether in garrison or deployed. Requiring these days away, furthermore, harms female servicemembers’ sense of well-being by forcing them to do something that violates their
ethos not to leave their duty stations or the combat
buddies who rely on them. And they cause female servicemembers to fear they will be regarded by their superior officers, a majority of whom are men, as less reliable and worthy of promotion and advancement. Accessing mifepristone remotely allows servicemembers
to reduce burdens on their time and time away from
their units.
Moreover, the remote accessibility of mifepristone
can be especially valuable to veterans, who are denied
28
the travel- and administrative-leave allowances that
active-duty servicemembers have. The logistical burdens associated with traveling for procedural abortions weigh more heavily on this population, and so
remote medication abortion’s ability to alleviate those
burdens is even more powerful than for active-duty
servicemembers.
Mifepristone preserves access to abortion care in
another way, too: by offering an alternative to a surgical procedure at an in-person clinics where servicemembers may face hostile protesters. For example, a
female servicemember who sought to end an unsafe
pregnancy reported that a medication abortion “saved
me from having to wait for a surgical procedure, or
worse, having to go back to that clinic” where she
feared facing protestors. Email received Jan. 17, 2024.
“My mental health was awful, I was suicidal,” she recounted, and “I don’t know if I could have gone back to
that clinic, experienced protestors, [double airlock
doors], all of it—for a wanted pregnancy.” Id.
In sum, the availability of mifepristone under current regulations has provided a more easily accessible
pathway for servicewomen and veterans to obtain a
full range of safe reproductive healthcare, thus mitigating impacts on recruiting, retention, and readiness
that stem from limited reproductive healthcare options.
E. Upholding the Decision Below Threatens
an Important Pathway to Safe Abortion
Care
Respondents ask this Court to put those vital mitigating effects at risk. Upholding the Fifth Circuit’s
29
decision would essentially nullify many of the benefits
of access to mifepristone for servicemembers and veterans. That is because, under the Fifth Circuit’s regime, servicemembers would be required to obtain
mifepristone in person. See All. for Hippocratic Med.
v. Food & Drug Admin., 78 F.4th 210, 256 (5th Cir.
2023) (upholding stay of 2016 amendments and 2021
Non-Enforcement Decision). Some servicemembers
have found that to be no less—and perhaps even
more—burdensome than traveling for procedural
abortions in the past. See, e.g., Karen Grindlay et al,
Abortion Knowledge and Experiences Among U.S. Servicewomen: A Qualitative Study, 49 Perspectives on
Sexual and Reproductive Health 191, (Dec. 11, 2017)
(recounting story of servicemember who opted for procedural abortion because of follow-up-visit requirement for medication abortion). 37
A return to the pre-2016 conditions for mifepristone would thus eliminate a key means of reducing
barriers to abortion for military women. In doing so, it
would erect significant new barriers to the military’s
efforts to recruit, retain, and care for female servicemembers at a time when they are needed in the ranks
more than ever.
F. Upholding the Decision Below is Against
the Public Interest
Undoing the actions that have allowed remote access to mifepristone would put servicemembers in an
even worse position than they faced in 2016; then, they
at least had the constitutional protection of Roe. It
would exacerbate the recruitment, retention, and
37 https://onlinelibrary.wiley.com/doi/10.1363/psrh.12044.
30
deployment challenges that the military faces, and
which have already been aggravated by increased restrictions following Dobbs. It would make it harder for
the military to combat its recruiting crisis and
strengthen its forces. And it would make it harder for
the military to maintain trained and ready troops.
Those impacts are clearly relevant to an evaluation
of the “public interest.” Winter, 555 U.S. at 26. This
Court should acknowledge these impacts and follow
its own assessment that, where the requested relief
risks leaving the military with inadequately equipped
forces, “the proper determination of where the public
interest lies . . . [is not] a close question.” Id. at 25-26.
Here, as in Winter, there is “no basis for jeopardizing
national security, as the present [stay] does.” Id. at 33.
***
Those who defend America’s freedom should not
have less access to reproductive healthcare than those
they defend. That is more than a matter of principle.
It’s a matter of national security.
31
CONCLUSION
The Court should reverse the order below.
Respectfully submitted,
January 30, 2024
SUSANNE SACHSMAN GROOMS
CARMEN IGUINA GONZÁLEZ
Counsel of Record
KATE EPSTEIN
KELSEY FRASER
Kaplan Hecker & Fink LLP
1050 K Street NW, Suite 1040
Washington, DC 20001
(212) 763-0883
ciguinagonzalez@kaplanhecker.com
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.