Abortion Services and Military Medical Facilities

Congressional research reportJan 9, 2013

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Abortion Services and Military

Medical Facilities

-name redactedSpecialist in Military Manpower Policy

January 9, 2013

Congressional Research Service

7-....

www.crs.gov

95-387

CRS Report for Congress

Prepared for Members and Committees of Congress

Abortion Services and Military Medical Facilities

Summary

In 1993, President Clinton modified the military policy on providing abortions at military medical

facilities. Under the change directed by the President, military medical facilities were allowed to

perform abortions if paid for entirely with non-Department of Defense (DOD) funds (i.e.,

privately funded). Although arguably consistent with statutory language barring the use of

Defense Department funds, the President’s policy overturned a former interpretation of existing

law barring the availability of these services. On December 1, 1995, H.R. 2126, the FY1996

DOD appropriations act, became law (P.L. 104-61). Included in this law was language barring the

use of funds to administer any policy that permits the performance of abortions at any DOD

facility except where the life of the mother would be endangered if the fetus were carried to term

or where the pregnancy resulted from an act of rape or incest. Language was also included in the

FY1996 DOD Authorization Act (P.L. 104-106, February 10, 1996) prohibiting the use of DOD

facilities in the performance of abortions. These served to reverse the President’s 1993 policy

change.

Over the last three decades, the availability of abortion services at military medical facilities has

been subjected to numerous changes and interpretations. Within the last 15 years, Congress has

considered numerous amendments to effectuate such changes.

Abortions are generally not performed at military medical facilities in the continental United

States. In addition, few have been performed at these facilities abroad for a number of reasons.

First, the U.S. military follows the prevailing laws and rules of foreign countries regarding

abortion. Second, the military has had a difficult time finding health care professionals in uniform

willing to perform the procedure.

With the enactment of P.L. 104-61 and P.L. 104-106, these questions became moot, because then,

neither DOD funds nor facilities could be used to administer any policy that provides for

abortions at any DOD facility, except where the life of the mother may be endangered if the fetus

were carried to term. Privately funded abortions at military facilities are permitted when the

pregnancy was the result of an act of rape or incest.

In 2011, attempts to expand coverage for cases of rape and incest and allow for privately funded

abortion were blocked in the Senate.

Language in the Senate version of the National Defense Authorization Act for FY2013 that would

expand coverage of government-funded abortions for cases of rape and incest was included in the

conference report and signed into law.

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Contents

Purpose ............................................................................................................................................ 1

Issue ................................................................................................................................................. 1

Background ...................................................................................................................................... 3

“Plan B” and RU-486 .................................................................................................................... 11

“Parental Notification” .................................................................................................................. 13

Legislative Action Since 1995 ....................................................................................................... 13

Recent Legislative Action........................................................................................................ 19

Problematic Comparisons to Foreign Military Policies........................................................... 21

Tables

Table 1. Therapeutic Abortions at Military Treatment Facilities ..................................................... 9

Appendixes

Appendix. Availability of Abortion Services at Military Facilities Overseas ................................ 20

Contacts

Author Contact Information........................................................................................................... 21

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Purpose

The purpose of this report is to describe and discuss the provisions for providing abortion services

to military personnel, their dependents, and other military health care beneficiaries at military

medical facilities. The report describes the history of these provisions, with particular emphasis

on legislative actions. Finally, this report discusses a number of proposals to modify the law as

well as other related legislative and administrative actions.

Issue

Language in the Senate version of the National Defense Authorization Act for FY2013 that would

expand coverage of government-funded abortions provided via military health care to cases of

rape and incest was included in the conference report and signed into law.1 Previously, federal

funds could only be used in cases where the life of the mother was at risk if the fetus was carried

to term. Current law allows for privately funded abortions at military medical facilities where the

life of the mother would be at risk if the fetus was carried to term or in cases where the pregnancy

is the result of rape or incest. With this recent change, federal funds and military facilities can be

used to preform abortion where the life of the mother would be at risk if the fetus was carried to

term or in cases where the pregnancy is the result of rape or incest.

Shortly after his inauguration on January 20, 1993, President Clinton issued a memorandum on

abortions at military hospitals. This memorandum directed a change in policy so that abortions

could be performed at military medical facilities provided that the procedure was “privately

funded.” This memo stated that

Section 1093 of title 10 of the United States Code prohibits the use of Department of

Defense (“DOD”) funds to perform abortions except where the life of a women would be

endangered if the fetus were carried to term. By memorandum of December 21, 1987, and

June 21, 1988, DOD has gone beyond what I am informed are the requirements of the statute

and has banned all abortions at U.S. military facilities, even where the procedure is privately

funded. The ban is unwarranted. Accordingly, I hereby direct that you reverse the ban

immediately and permit abortion services to be provided, if paid for entirely with non-DOD

funds and in accordance with other relevant DOD policies and procedures.2

The issue at hand was how the language in Title 10 of the United States Code and the President’s

memo were to be interpreted. As the President’s memorandum made obvious, this language has

been subject to varying interpretations that allowed or denied abortion services. Prior to the most

recent change, Section 1093 stated:

Cunningham, Paige Winfield, “Abortion Funding Fight Could Complicate Defense Spending Legislation,” The

Washington Times, May 30, 2012: 7. Bassett, Laura, Abortion For Military Rape Victims Passes Senate, Huffington

Post, posted December 5, 2012, updated December 6, 2012. Sec. 711 of S. 3254 became Sec. 711 of the Senate passed

version of the National Defense Authorization Act for Fiscal Year 2013: see H.R. 4310. This section states: Section

1093(a) of title 10, United States Code, is amended by inserting before the period at the end the following: ‘or in a case

in which the pregnancy is the result of an act of rape or incest’.

President William J. Clinton, Memorandum for the Secretary of Defense, Memorandum on Abortions in Military

Hospitals, January 22, 1993; filed with the Office of the Federal Register, 11:50 a.m., January 27, 1993; cited in Public

Papers of the Presidents of the United States, William J. Clinton, 1993, Washington, D.C., Government Printing Office,

1994: 11.

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Funds 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.3

Although the President’s interpretation of the language was arguably consistent with the letter of

the law, critics contend that it countermanded the spirit of the statute and is overly broad. In other

words, it is argued that the intent of this language was to prevent the DOD from providing

abortion services. Proponents of the Clinton change argued that Congress allowed for exactly this

type of interpretation. Proponents note that this interpretation was particularly important for

eligible beneficiaries who are deployed overseas in areas where affordable and sanitary abortion

services may not be available in the local economy.

Following the election of the 104th Congress, Representative Robert K. Dornan, the then-new

Republican chairman of the Military Personnel and Compensation Subcommittee (the then-House

National Security Committee), noted that one of his priorities “[was] barring abortions at overseas

military hospitals, even if the patients pay for them.”4 On December 1, 1995, P.L. 104-61 was

enacted. According to this law:

Sec. 8119. None of the funds made available in this Act may be used to administer any

policy that permits the performance of abortions at medical treatment or other facilities of the

Department of Defense.

Sec. 8119A. The provision of Section 8119 shall not apply where the life of the mother

would be endangered if the fetus were carried to term, or the pregnancy is the result of an act

of rape or incest.

On February 10, 1996, P.L. 104-106 was enacted. This law further limited that availability of

abortion services:

Sec. 738(b). RESTRICTION ON THE USE OF FACILITIES—No 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.5

Since then, efforts to modify the law pertaining to abortions have become a routine part of the

legislative process. As noted above, language has been included in the Senate version of the

FY2013 National Defense Authorization Act that would expand the availability of governmentfunded abortion to cases where the pregnancy was the result of an act of rape or incest.

10 U.S.C. Sec. 1093, added P.L. 98-525, Sec. 1401(e)(5), October 19, 1984, 98 Stat. 2617. It should be noted that the

Civilian Health and Medical Program of the Uniformed Services (CHAMPUS, now TRICARE), a medical program for

military dependents, certain retirees and their dependents who are unable to receive care at a military medical facility,

will provide coverage for abortions only when the mother’s life is in danger. “The attending physician must certify in

writing that the abortion was performed because a life-endangering condition existed, and must provide medical

documentation to the CHAMPUS claims processor in order for CHAMPUS to share the cost of the procedure.” See

U.S. Department of Defense, OCHAMPUS, CHAMPUS Handbook, October 1994: 42.

Maze, Rick, “Representative Dornan: ‘Pay gap one of top concerns,’” Army Times, January 16, 1995: 3.

U.S. Congress, Conference Committee, National Defense Authorization Act for Fiscal Year 1996, H.Rept. 104-450,

S. 1124, 104th Cong., 2nd Sess., January 22, 1996: 206-207.

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In conclusion, under then-current law, 10 U.S.C., Section 1093, Performance of Abortions:

Restrictions

(a) Restriction on Use of Funds.—Funds 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.

(b) Restriction on Use of Facilities.—No 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.

Following the passage of H.R. 4310, National Defense Authorization Act for Fiscal Year

2013 (Sec. 704), 10 U.S.C., Section 1093 now reads:

(a) Restriction on Use of Funds.—Funds 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.

(b) Restriction on Use of Facilities.—No 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.

Background

There appears to be no evidence of a formal service policy on abortions prior to 1970. Sources

familiar with the issue at that time note that the availability of abortion services at military

medical facilities varied by service, location, physician, and “command milieu.” Each of the

services approached the issue differently. The Air Force tended to be somewhat more liberal,

while the Army and the Navy tended to be somewhat more conservative. Each facility also tended

to follow the laws and regulations of the state within which it was located. Individual physicians

ultimately had a say regarding whether or not they personally would provide such services.

Finally, the commanders of various medical facilities may have had some effect on how and

under what circumstances abortion services may have been provided. Commanders often lead by

example without explicitly stating their own opinions or policies, or giving direct orders.

Subordinates are acutely aware of their commander’s approach to issues and often will integrate

this approach into their own practice. In other words, a policy may exist without one ever being

officially stated. Although formal policy may not exist, physicians also follow professional

guidelines, as they interpret them, by practicing “good medicine.” Thus, the decision to provide

an abortion may have been based on a host of medical indications particular to any given case.

Generally, it appears that military physicians performed relatively few abortions at military

medical facilities in this era.

In certain situations, such as in Vietnam (1961-1975), military medical facilities generally did not

provide abortion services. Instead, medical evacuations to other countries that had available

procedures (Japan, for example) provided access to abortion services.

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In 1970, the office responsible for health affairs at DOD reportedly issued “orders that military

hospitals perform abortions when it is medically necessary or when the mental health of the

mother is threatened.”6 The rules, however, did not require military personnel to perform

abortions. These rules were less restrictive than the abortion laws in a number of states. One year

later, then-President Richard M. Nixon directed that military policy concerning abortions at

military bases in the United States “be made to correspond with the laws of the States where the

bases are located.”7 This correspondence of policy between the military and states (including

foreign nations) came to be known as “the good neighbor policy.”

Following the 1973 Supreme Court case of Roe v. Wade,8 the Department of Defense funded

abortions for any women eligible for DOD health care, subject to certain limitations: first, two

physicians were required to find that the abortion was “medically indicated” or required for

“reasons of mental health”; second, the funding for these services could not be in conflict with the

law of the state in which the abortion is carried out.9 Since states had differing rules regarding

abortion, it was possible for women to be treated differently depending on the location of the

facility. Nevertheless, there remains anecdotal evidence of variations in accessibility similar to

those that existed before Roe v. Wade.

In 1975, concerns were raised over inconsistencies between state statutes and the Roe decision.

Military medical personnel were instructed to follow the constitutional guidance provided in Roe

in certain instances, even though the state statutes had not been successfully challenged in court.10

From August 31, 1976, to August 31, 1977, approximately 26,000 abortions were performed in

military hospitals or in the CHAMPUS program.11

In 1978, an amendment to the Department of Defense appropriations bill offered by

Representative Robert Dornan prohibited the use of Defense Department funds for abortions with

certain exceptions. This amendment, as enacted, stated that

None of the funds appropriated by this Act shall be used to perform abortions except where

the life of the mother would be endangered if the fetus were carried to term; or except for

such medical procedures necessary for the victims of rape or incest, when such rape or incest

has been reported promptly to a law enforcement agency or public health service; or except

in those instances where severe and long-lasting physical health damage to the mother would

result if the pregnancy were carried to term when so determined by two physicians. Nor are

Wolffe, Jim, “Abortion ban may be lifted soon stateside,” Air Force Times, April 12, 1993: 23.

Statement about Policy on Abortions at Military Base Hospitals in the United States, April 3, 1971, Public Papers of

the Presidents of the United States, Richard Nixon, 1971, Washington: GPO,1972) p. 500. Since CHAMPUS (the point

of service contract health care for non-active duty beneficiaries—now known as TRICARE Standard) relied, then as

now, on local health care providers, these individuals were already subject to State laws and regulations pertaining to

abortion.

Roe v. Wade, 410 U.S. 113 (1973). The Court held that the Constitution protects a woman’s decision whether or not to

terminate pregnancy and that a State may not unduly burden the exercise of that fundamental right by regulations that

prohibit or substantially limit access to the means of effectuating that decision.

Ayres, B. Drummond, Jr., New York Times, August 10, 1978: 79 (microfilm).

U.S. Department of Defense, Assistant Secretary of Defense (Health and Environment), James R. Cowen,

Memorandum for the Assistant Secretaries of the Military Departments (M&RA), Abortion Policy, September 17,

1975.

U.S. Department of Defense, Directorate for Defense Information, Press Division, 9 August, 1978.

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payments prohibited for drugs or devices to prevent implantation of the fertilized ovum, or

for medical procedures necessary for the termination of an ectopic pregnancy.12

In 1979, similar language was enacted in the FY1980 DOD appropriations act. The 1979

language did not contain any restrictions with regard to the “severe and long-lasting physical

health damage to the mother that would result if the pregnancy were carried to term when so

determined by two physicians.” In other words, a determination that carrying the pregnancy to

term would affect the physical health of a woman was not a basis for providing abortions under

this language.13

This language did not prevent all abortions at military hospitals. Military hospitals overseas

reportedly performed approximately 1,300 abortions in FY1979. These abortions were privately

paid for. Defense officials allowed these procedures under the rationale that at certain overseas (or

isolated U.S.) stations, safe and reliable civilian facilities were not always available.14

In 1980, the language included in the FY1981 DOD appropriations act was again modified as

follows:

None of the funds appropriated by this Act shall be used to perform abortions except where

the life of the mother would be endangered if the fetus were carried to term; or except for

such medical procedures necessary for the victim of rape or incest, when such rape has

within seventy-two hours been reported to a law enforcement agency or public health

service; nor are payments prohibited for drugs or devices to prevent implantation of the

fertilized ovum, or for medical procedures necessary for the termination of an ectopic

pregnancy: Provided, however, That the several States are and shall remain free not to fund

abortions to the extent that they in their sole discretion deem appropriate.15

Under this language, the reporting requirement for incest was removed. Also, victims of rape

were required to report the incident within 72 hours.16 In addition, language was added

encouraging the states to exercise their authority with regard to funding abortions.

The language was shortened considerably in 1981. Many of the exceptions to the prohibition of

funding were removed. This language stated that

None of the funds provided by this Act shall be used to perform abortions except where the

life of the mother would be endangered if the fetus were carried to term.17

P.L. 95-457, §863, October 13, 1978, 92 Stat. 1254. In anticipation of this change, the Office of the Assistant

Secretary of Defense (Public Affairs) published a News Release (September 29, 1978) functionally implementing this

language effective September 30, 1978. This change also affected funding for CHAMPUS claims.

P.L. 96-154, §762, December 21, 1979, 93 Stat. 1162.

Smith, Paul, “1300 FY79 O’seas Abortions Revealed,” Army Times, December 8, 1980: 2.

P.L. 96-527, §760, December 15, 1980, 94 Stat. 3091.

Previous language required that such a report should be made “promptly.” DOD interpreted this to mean within 48

hours. It was also expected that victims of incest would report the incident(s) to appropriate authorities, however, the

lack of a time restriction meant that a report could be delayed indefinitely. (See “DOD Issues New Rules On Abortion,”

Army Times, March 9, 1981: 15.)

P.L. 97-114, §757, December 29, 1981, 95 Stat. 1588.

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Identical language was included in the following two years’ appropriations acts.18 Finally, in

1984, Congress codified this language in Title 10, United States Code (see quoted text at the top

of page 2).19

In 1988, DOD modified its rules to require a physician’s statement for abortion claims made via

CHAMPUS. This change was instituted to assure that all claims for abortions performed in the

private sector and covered by CHAMPUS were for life-threatening situations. “CHAMPUS

officials said life-threatening conditions include leukemia, breast cancer and other malignancies,

kidney failure, congestive heart failure, severe heart disease, uncontrolled diabetes and several

other conditions.”20

On June 21, 1988, Dr. William Mayer, then-Assistant Secretary of Defense (Health Affairs),

issued a memorandum barring abortions in military medical. Although Dr. Mayer recognized that

privately paid abortions did not violate the letter of the law, he issued the memorandum to avoid

the appearance of “insensitivity to the spirit” of the law.21

In 1990, an attempt to overturn this restriction failed. An amendment (to the DOD authorization

act) to allow abortions at military medical facilities overseas was withdrawn when the Senate fell

two votes short of the number needed to invoke cloture (58-41).22 The House of Representatives

rejected a similar amendment.

On May 22, 1991, the House of Representatives reversed itself and passed (220-208) an

amendment to the DOD authorization act that would have reinstated the pre-paid overseas policy.

Proponents argued that the language would be merely a return to the policy as it existed prior to

Dr. Mayer’s memo of 1988. Opponents countered that, as drafted, the amendment offered by

Representative AuCoin would go beyond the then-prevailing policy by allowing abortions for any

reason and at any time during the pregnancy.23 The measure was rejected once again when the

Senate fell two votes short of the 60 votes needed to invoke cloture (58-40).24

The battle over this language intensified. Proponents stated that military women or dependents

overseas were forced into dangerous or life-threatening situations in countries where safe, legal,

or affordable abortions could not be provided. Opponents argued that no woman was denied

military transportation to receive access to an abortion in another country.

P.L. 97-377, §755, December 21, 1982, 96 Stat. 1860; P.L. 98-212, §751, December 8, 1983, 97 Stat. 1447.

10 U.S.C. 1093, P.L. 98-525, sec 1401(e)(5), October 19, 1984, 98 Stat. 2617. Note this change occurred via an

authorization act and not as a part of the appropriations process (Omnibus Defense Authorization Act, 1985).

Kimble, Vesta, “Doctor’s Statement Needed for Abortion Claims,” Navy Times, March 14, 1988: 24.

“Abortion Is Restricted At Military Hospitals,” New York Times, July 19, 1988: A11. “The abortion issue in military

hospitals has a symbolic and political importance that dwarfs the actual numbers of people involved. Military hospitals

overseas performed only six abortions in the last year they were permitted [1987].” Willis, Grant, “Clinton Ends Ban

on Military Abortions,” Air Force Times, February 1, 1993: 4; and, U.S., Department of Defense, Assistant Secretary

of Defense, William Mayer, M.D., Memorandum for Military Departments, DOD Policy Regarding Non-Funded

Abortions in Outside the Continental United States Medical Treatment Facilities, June 21, 1988, “The policy is that the

performance of pre-paid abortions in military treatment facilities is not authorized.”

Congressional Record, August 3, 1990: S11813-S11824.

Congressional Record, May 22, 1991: H3394 et seq.

Nelson, Soraya, “Overseas Abortion Amendment Fails,” Army Times December 1991: 16.

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Again in 1992, Representative AuCoin introduced language to overturn the restrictions on

abortions at overseas military facilities. This amendment was passed (216-193).25 On September

18, 1992, the Senate rejected (36-55) an effort to strike language overturning the restrictions on

overseas abortions. Despite these votes, it was expected that President George H. W. Bush would

veto any defense legislation reinstating the former policy. This expected veto was cited as the

reason for the language being dropped by the conferees.26 By unanimous consent, the Senate

agreed to substitute the language pertaining to overseas abortions into S. 3144 after striking all

after the enacting clause.27 S. 3144 was simultaneously passed by unanimous consent. The House

subsequently passed the measure (220-186) on October 3, 1992.28

Arguably, the Senate and House agreed to remove this language from the DOD authorization act

in anticipation of a presidential veto. By removing the language and passing it as a free-standing

bill, the authorization act was not jeopardized. Since this was not presented in the authorization

act, it remains unknown whether President Bush would have exercised his veto authority over the

entire bill. Nevertheless, President Bush did pocket-veto S. 3144 on October 31, 1992 (after the

congressional adjournment). No attempt was made to override this veto.29

As a result of President Clinton’s 1993 memorandum (see page 1), then-Secretary of Defense Les

Aspin directed the secretaries of the military departments to reinstate the pre-1988 policy

concerning the availability of abortions overseas. On May 9, 1994, the Assistant Secretary of

Defense (Health Affairs), Dr. Stephen C. Joseph, released a memorandum30 seeking to unify and

make consistent DOD policy. This policy had five parts that (1) provided access to abortion

services for service women and eligible dependents overseas, (2) required the valid consent of a

parent or other designated person in the case of a minor who was “not mature enough and well

enough informed to give valid consent,” (3) relieved those medical practitioners directly involved

from performing abortions if they objected, (4) respected host nation laws regarding abortion,

and, (5) directed the Military Health Services System to provide other means of access if

providing pre-paid abortion services at a facility was not feasible. Such alternate means could

include supplementing staff with contract personnel, referrals, travel, etc. The cost of an abortion

had been reported to be about $500.31 (It should be noted that cost determination is not based on

the actual cost of the service to the military but rather on estimates. As a result of the way DOD

funds accounts, that is, personnel, construction, operations and maintenance, etc., it is difficult to

determine the valid cost of any one procedure. This has led some to question whether or not any

federal funds are used in cases of “pre-paid” abortions.)

Congressional Record, June 4, 1992: H4150-H4156.

Dewar, Helen, “Bush’s Veto Power Stalled the Abortion-Rights Push in Congress,” Washington Post, November 30,

1991: A6.

Both House and Senate versions of the FY1993 Defense Authorization Act contained provisions that would “entitle

military personnel and their dependents to reproductive health care services in a medical facility of the uniformed

services outside the United States on a reimbursement basis.... The conferees agree to exclude this provision. The

Senate has passed a bill (S. 3144) that contains this provision. The House intends to pass this bill and send it to the

President as soon as possible.” U.S. Congress, House Conference Committee, National Defense Authorization Act for

Fiscal Year 1993, H.Rept. 102-966, H.R. 5006, 102d Cong., 2nd Sess., October 1, 1992: 716.

See H.Res. 589, Congressional Record, October 2, 1992: H10803-H10804, and Congressional Record, October 3,

1992: H10966-H10975.

Congressional Quarterly, December 19, 1992: 3926.

U.S. Department of Defense, Assistant Secretary of Defense (Health Affairs), Memorandum, Implementation of

Policy Regarding Pre-Paid Abortions in Military Treatment Facilities, May 9, 1994: 2p.

Nelson, Soraya S., “Pentagon Pens Rules on Abortion,” Army Times, May 23, 1994: 10.

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In practice, the policy instituted by President Clinton’s 1993 action may not have had the effects

the President had expected. Although abortion access had been liberalized in terms of overall

policy, liberalization had not necessarily occurred in terms of actual access.

In the six years preceding the 1988 ban, military hospitals overseas had performed an

average of 30 abortions annually. Last spring, though, when the military medical officials

surveyed 44 Army, Navy and Air Force obstetricians and gynecologists stationed in Europe,

they found that all but one doctor adamantly refused to perform the procedure.

That one holdout, too, quickly switched positions.... No military medical personnel willing to

perform abortions have stepped forward in the Pentagon’s sprawling Pacific theater of

operations, either.32

A number of reasons have been advanced to explain this general unwillingness by health care

personnel in uniform to perform these procedures. First, fewer medical schools require or provide

training in these techniques than was the case in the years immediately following the Roe v. Wade

decision.33 Second, it is widely thought that the military in general, and military physicians in

particular, tends to be more conservative on social issues than many population cohorts. Even if

training were made available it is unlikely that many would volunteer. Third, the social order on

military posts tends to be very close-knit and hierarchical. A subordinate may choose not to

“ruffle the feathers” of a superior over such a contentious issue. Thus, the social norms

established by superiors in the military environment are likely to translate into action or inaction

by subordinates. This conventional wisdom gains credibility given the enormous amount of

leverage superiors in the military have over the careers of subordinates. (Although this is true in

the civilian context, it apparently exists to a lesser degree, especially in professional fields such as

medicine in which civilians are generally unwilling to formally judge or second-guess

professional colleagues.) Fourth, the medical team must consist of volunteers. Any member of a

medical team needed to perform an abortion can essentially “veto” it. Fifth, since military

physicians are paid a salary, and not on the basis of procedures performed, there is no economic

incentive to provide abortions. Finally, rules exist requiring the services to respect the prevailing

laws in each country. Thus, the restrictions of a particular country may limit the access to pre-paid

abortions at military facilities (see Appendix).34

Given these factors and considerations, it was reported that 27 abortions were performed at

military hospitals worldwide in 199335 and 10 in 1994. All of the 1994 abortions were reported to

be “life of the mother” cases; that is, none were “pre-paid.” According to data provided by the

Morrison, David C., “An Order That Didn’t Take,” National Journal, April 16, 1994: 900.

According to the Alan Guttmacher Institute, from 1976 to 1991, the proportion of residency programs that did not

offer abortion training rose from 7.5 to 31%. In 1976, 26% of the residency programs required abortion training. By

1991, only 12% required such training. The Accreditation Council for Graduate Medical Education has directed

obstetrical residents should be taught how to perform abortions, unless they have a moral or religious objection. This

change in policy was scheduled to become effective on January 1, 1996. Abortion mandated for OB training,

Washington Times, February 15, 1995: A12. On March 19, 1996, the Senate passed the Coats amendment (no. 3513):

“to amend the Public Health Service Act to prohibit governmental discrimination in the training and licensing of health

professionals on the basis of the refusal to undergo or provide training in the performance of induced abortions,” by a

vote of 63 yeas and 37 nays. Congressional Record, March 19, 1996, S2262-S2266, S2268-S2276, S2280.

“Most countries where American military personnel are stationed restrict or outlaw them [abortions] altogether.”

Nelson, Soraya S., “Limits Remain on Abortions at Overseas Hospitals,” Navy Times, February 22, 1993: 11.

Nelson, Soraya S., “Military Abortions Overseas: Still Rare,” Army Times, September 5, 1994: 18.

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military services, the following table displays the number of therapeutic abortions by year

by service.

Table 1. Therapeutic Abortions at Military Treatment Facilities

1996

Armya

Navyb

TOTAL

Air

Forcec,d

TOTAL

Source: Department of Defense

Notes:

ICD-9 Code Ranges: 635-636. Data Source Standard Inpatient Data Record (SIDR). All cases have been

reviewed and determined to be within compliance of Federal law.

ICD-9 Code Ranges: 635-636. No encounters for 636. Data source is the Standard Inpatient Data Record

(SIDR) in the MHS Mart (M2) database. Data in M2 is truncated at FY04 and historic data prior to FY04 is

unavailable. MHS Coding Guidelines changed 1 July 2006; those cases identified before 2006 will be pulled

and analyzed to insure that they were coded using the policies in place prior to the coding guideline change.

1996 is different because the only information available was one cover sheet/narrative summary/operation

report on an Active Reserve member.

Data from 1997 forward was retrieved from the Biometric Data Quality Assurance.

(Since 2010, DOD has not responded to CRS requests for data on abortions.)

Over these 15 years, DOD has performed an average of 3.79 therapeutic abortions per year.

Responding to the lack of medical personnel willing to perform abortions, the Army’s 7th Medical

Command (Europe) sought in 1993 to hire a civilian physician whose duties would include

providing abortion services.36 This move would have been consistent with the President’s memo

stating that “[i]n circumstances in which it is not feasible to provide pre-paid abortion services in

a particular military facility, the [Military Health Services System] shall develop other means to

assure access.” Such an affirmative step would have provided access where none was available

before. However, such a step could have been viewed as encouraging abortion and threatened to

provoke protests both within the uniformed services and in the international community.37 To

date, reports of protests have not been found.

Another consideration along similar lines is to expand the use of foreign physicians, as suggested

by the Defense Advisory Committee for Women in the Services (DACOWITS). This may be

effective in certain situations, but not all, since DOD is still required, as a result of the “good

Scholar, Steve, “Army Seeking Civilian Doctor Willing To Do abortions at Military Hospitals,” Stars and Stripes

(European), April 28, 1993: 1.

“A Pentagon Decision To Send Doctors Overseas To Perform Abortions in Military Hospitals Could Spark Protest

from Pro-Life Groups in Germany, Pro-Life GIs say,” Pro-Life Protests, American Legion, July 1994: 10.

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Abortion Services and Military Medical Facilities

neighbor policy,” to observe local laws. Countries such as Spain, South Korea, and Panama

outlaw or sharply restrict abortions.38

Following German unification, in 1993, a German court issued an injunction against a law that

would have unified abortion policies in the east and west. The Bundestag, lower house of the

German parliament, struggled to write new laws. During this void, the performance of abortions

or restrictions on abortion services at military facilities in Germany, although not illegal, may

have been inflammatory to certain German sensitivities.39 On August 21, 1995, German President

Roman Herzog signed into law a measure passed by the Bundestag (on June 29) and approved by

the Bundesrat, upper house (on July 14). Under this law, abortions are illegal (except in cases of

rape or “medical necessity”), but a woman who seeks an abortion during the first 12 weeks of

pregnancy will not be subject to criminal prosecution provided she attends a compulsory

counseling session reviewing her options.40

Contracting with foreign physicians poses its own problems. Countries that lack professional

medical personnel trained to U.S. standards (the very reason argued for providing these services

in the first place) are arguably less likely to have physicians with a skill level that would be

commendable for contracting.

In certain cases, contracting may be an option, but it raises other considerations. If the patient was

to pay the cost of the abortion, does such a cost include a pro-rated amount based on contracting,

training, travel, and other costs required to provide these services? Inclusion of these in such a

cost calculation could well make the price of these services prohibitive. Conversely, using

Defense Department funds to make available “pre-paid” abortions (i.e., through contracting,

travel, etc.) could be viewed as in conflict with 10 U.S.C. 1093.

According to a DOD Information Paper, in August 1994, “a policy on hiring non-military

physicians to perform abortions was issued with specific reference to treatment facilities in

Germany. DOD respects host nation laws regarding abortion.”41

Furthermore, it was unlikely that abortion services would become more available if the military

reduced the number of physicians as part of downsizing of the force structure. One drawdown

proposal suggests that DOD could reduce the number of physicians in uniform by as much as

50%.42 Under the then-Administration’s long-term defense spending plans, 5,600 civilian medical

personnel will be cut from the Army over the next six years. The Navy and Air Force, together,

are expected to be reduced by less than 2,000. These reductions “amount to the equivalent of

shutting three of the Army’s eight medical centers, experts say.”43 The reduction of civilian

“Women in the services,” Fast Track, Army Times, July 4, 1994: 20.

“Women’s groups, opposition politicians from the west, and easterners across the political spectrum expressed

outrage at the court’s decision. Many observers felt the decision exposed the deep east-west social divide.” CRS Issue

Brief IB91018, German-American Relations in the New Europe, by (name redacted), January 27, 1994, p. 6 (out-ofprint; available from the author at 7-....).

The Week in Germany, January 30, 1998.

Memorandum for Assistant Secretary of Defense (Health Affairs), Information Paper on abortion policy for Dr.

Hambre’s confirmation hearing, July 1997.

“In June [1994], a Pentagon study found that only about half of the current number of military doctors are needed for

any foreseeable military operation.” Jowers, Karen, “50% Cut Is Planned in Military Doctors,” Air Force Times,

January 23, 1995: 28.

Nelson, Soraya S., “Medicare Users May Lose Hospital Access,” Navy Times, September 5, 1994: 26.

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professionals in the U.S. military may require DOD to rotate uniformed physicians back to the

United States from overseas, further reducing the number of physicians overseas. Such a

reduction would likely serve to reduce the availability of abortion services overseas.

On May 29, 2002, a federal judge ruled that the military must pay for a 1994 abortion of an

anencephalic fetus.44 Later, in August 2002, a second federal court ruled likewise in a separate

case involving another anencephalic fetus.45 Both cases were reversed on appeal.46

“Plan B” and RU-486

In February 2002, the DOD Pharmacy and Therapeutics (P&T) Executive Council recommended

adding levonorgestrel, aka “Plan B,” to the Basic Core Formulary,47 subject to further review.

Plan B is described as an emergency contraceptive used to prevent pregnancy following a known

or suspected contraceptive failure (e.g., broken condom) or when a pregnancy may result because

no contraception was used (e.g., rape). It is noted that it will not terminate an “established

pregnancy.” In other words, it is not RU-486, a known abortifacient, which chemically induces an

abortion. RU-486 is subject to restrictions under 10 U.S.C. Section 1093.48

According to a DOD Information Paper, Plan B could possibly “prevent a pregnancy by

interfering with ovulation, sperm transport through cervical mucus and fallopian tubes, release of

pituitary gonadotropins, corpus luteum functions, fertilization, embryo transport and

implantation.”49 [emphasis added] The possibility of preventing a fertilized egg from implanting

leads to the argument, for those who maintain that life begins at conception, that Plan B

represents a potential form of abortion in certain cases. In May 2002, the P&T Executive Council

Meeting released the following:

At the February 2002 DOD Pharmacy & Therapeutics (P&T) Executive Council meeting,

the Council recommended the addition of levonorgestrel 0.75 mg (Plan B) to the Basic Core

Formulary (BCF), subject to the review of the Director, TRICARE Management Activity

(TMA) and/or the Assistance Secretary of Defense for Health Affairs (ASD(HA)). On 28

March 2002, the Executive Director of TMA signed an Action Memo approving the

recommendation. On April 3, 2002 the co-chair of the DOD P&T Committee informed the

Council members and pharmacy consultants of the decision, and re-informed the Council on

7 May 2002. On 8 May 2002 the Executive Council was reconvened briefly to announce that

the Council co-chairs had been informed that the ASD(HA) also wanted to review the

Council’s recommendation and that the Executive Director of TMA had rescinded his earlier

Britell v. United States, 204 F.Supp.2d 182, May 29, 2002.

Ostrom, Carol M., “Judge: Navy Must Cover Women’s Abortion,” Seattle Times, August 13, 2002. The 9th Circuit

Court of Appeals, without comment, denied a last minute appeal in this case. “Court Rejects Effort to Stop Navy

Funding of Abortion,” Baltimore Sun, August 18, 2002.

Britell v. United States, 372 F.3d 1370, June 24, 2004, and Doe v. USA, et al., civil docket for case #: 2:02-cv-01657TSZ, August 18, 2005.

The Basic Core Formulary or BCF refers to those pharmaceuticals that DOD makes available at DOD pharmacies.

Legislation was offered in the 109th Congress (S. 511, Sen. DeMint, March 3, 2005 and H.R. 1079, Rep. Bartlett)

“To provide that the approved application under the Federal Food, Drug, and Cosmetic Act for the drug commonly

known as RU-486 is deemed to have been withdrawn, to provide for the review by the Comptroller General of the

United States of the process by which the Food and Drug Administration approved such drug, and for other purposes.”

Both bills were referred to Committees and have received no further action.

Col. Daniel Remund, Co-chair, DOD Pharmacy & Therapeutics Committee, Information Paper, April 11, 2002.

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approval. Therefore, Plan B has NOT been approved for addition to the BCF at this time, and

the ASD(HA) is reviewing the Council’s recommendation. [Military Treatment Facilities]

MTFs are required to include all BCF drugs on their local formularies. As a result of Plan

B’s removal from the BCF, each MTF’s P&T committee must now re-evaluate whether this

product is within the scope of practice at the MTF and whether the MTF wants to continue to

have Plan B on its formulary.50

In May 2005, a proposed amendment to make Plan B available on all military bases died in the

House Rules Committee (as part of its consideration of the FY2005 National Defense

Authorization Act).51 This is not to say that Plan B was not available at certain military bases or to

military health care beneficiaries. On September 7, 2005, it was reported that certain military

bases do have Plan B on hand and have offered it, usually in cases of sexual assault, but also in

cases where other contraceptives failed or unprotected sex was involved. Further, military

physicians may prescribe the medication allowing the beneficiary to have the prescription filled at

civilian pharmacies.52

Although tangentially relevant to DOD policy, Plan B was the subject of controversy within the

Food and Drug Administration (FDA):

FDA Commissioner Lester Crawford on August 26 [2005] said the agency is indefinitely

deferring Barr Laboratories’ application for nonprescription sales of its emergency

contraceptive Plan B and opening a 60-day public comment period on the application

sparking charges that the decision was motivated by politics rather than science, ... FDA in

May 2004 issued a “not approvable” letter in response to Barr’s original application to allow

Plan B – which can prevent pregnancy if taken within 72 hours of sexual intercourse – to be

sold without a doctor’s prescription and in January delayed a ruling on Barr’s revised

application, which would allow EC to be sold without a doctor’s prescription only to women

ages 17 and older. During a confirmation hearing in March, Crawford told the Senate

committee that FDA would approve the application “within weeks.”53

On August 24, 2006, the FDA approved over-the-counter sales of Plan B to women 18 years old

and older.54 Nearly three months later, Plan B began appearing in drug stores.55

Although this latter controversy was not directly related to the Department of Defense, it appears

that the decision made by the FDA was taken into consideration by DOD officials with regard to

emergency contraceptives.

In 2007, according to the DOD Pharmacoeconomic Center, Plan B was not on the Basic Core

Formulary, but Military Treatment Facilities may have had it on hand as part of their formulary.56

Department of Defense, Pharmaeconomic Center, Minutes of the DOD Pharmacy & Therapeutics Executive Council

Meeting, May 7, 2002, pp. 2-3.

The proposal was similar to language contained in H.R. 2635, Rep. Michael H. Michaud, May 25, 2005.

Montgomery, Nancy, Army Hospitals in Europe Offering ‘Morning-After’ Pill, Stars and Stripes (European edition),

June 8, 2005.

“FDA: Indefinitely Defers Decision on Emergency Contraceptive; Plan B,” National Journal Group, Inc., September

6, 2005

Harris, Gardiner, F.D.A. Approves Broader Access t Next-Day Pill, New York Times, August 25, 2006: 1.

Payne, January W., “For Plan B, A Broader Reach,” Washington Post, November 21, 2006: F1.

DOD, MTF Formulary Management For Contraceptives (Updated 26 Jan 07).

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In June 2009, Plan B was voluntarily discontinued by the manufacturer and replaced by a product

under the name “Next Choice.”

In November 2009, P&T Committee recommended placing Next Choice on the BCF. On

February 3, 2010, this recommendation was approved by TMA and Next Choice was placed on

the list of drugs all military facilities stock.57

“Parental Notification”

“Parental notification” is concerned with those instances in which an abortion is sought at a

military facility by or on behalf of a military dependent who is a minor and/or incapable of

making such a decision.

According to DOD:

Assuming that an abortion is authorized [under statute], consent must be obtained before any

surgical procedure is performed. The requirement to obtain consent is required in military

treatment facilities (MTFs), because the standard of care for medical practice in MTFs within

the United States is governed by the Federal Tort Claims Act (FTCA). The standard of care

for obtaining consent under FTCA is that the provider will follow state law governing the

circumstances under which a minor may consent for medical treatment. In overseas facilities,

consent by minors for abortions is governed by [DOD] Health Affairs Policy dated May 9,

1994, as amended by [DOD] Health Affairs Policy 96-030, dated February 13, 1996. Those

policies state that the host nation laws or legal requirements will apply. In the absence of

such host nation laws or legal requirements, valid consent for minors may be obtained in

either of two methods. First, the consent of at least one parent or guardian is provided.

Second, the commanding officer of the medical treatment facility (or if the commanding

officer is not a physician, a senior physician designated by the commanding officer) makes a

judgment, upon the recommendation of the attending physician, that the minor is mature

enough and well enough informed to give valid consent, or, if she is not sufficiently mature

and informed, that the desired abortion would be in her best interest.58

Legislative Action Since 1995

The House version of the FY1996 Defense Authorization Act contained a section that would

terminate the policy of allowing the performance of abortions on a pre-paid basis, at military

facilities. Under this language:

This section would amend Section 1093 of Title 10, United States Code, to include

restricting the Department of Defense from using medical treatment facilities or other DOD

facilities, as well as DOD funds, to perform abortions unless necessary to save the life of the

mother.59

Stein, Rob, “Pentagon to stock health facilities with morning-after pill,” The Washington Post, February 5, 2010.

Letter from Speight, Cynthia, CIV, OASD(HA)TMA to Richard Best, CRS, May 28, 2003.

U.S. Congress, House Committee on National Security, National Defense Authorization Act for Fiscal Year 1996,

H.Rept. 104-131, H.R. 1530, 104th Cong., 1st Sess., June 1, 1995: 237.

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Abortion Services and Military Medical Facilities

The Senate report contained no similar provisions.

As a result of numerous political differences between the House and the Senate language, as well

as Administration opposition on a number of issues raising the specter of a veto, the authorization

act stalled in conference. Legislators sought to have language included in the FY1996 DOD

appropriations act that would prohibit abortions at overseas military facilities. The Appropriations

Conference Committee originally included the following language:

Sec. 8119. None of the funds made available in this Act may be used to administer any

policy that permits the performance of abortions at medical treatment or other facilities of the

Department of Defense, except when it is made known to the federal official having

authority to obligate or expend such funds that the life of the mother would be endangered if

the fetus were carried to term: Provided, That the provisions of this section shall enter into

force if specifically authorized in the National Defense Authorization Act for Fiscal Year

1996.

Thus, the nature of this language only allowed it to take effect, when and if the authorization

language was enacted into law. As noted, at the time, the authorization bill was stalled in

conference and faced a possible veto. The failure of the authorization bill to be passed would

negate any language concerning abortions in the appropriations bill.

On September 29, 1995, pro-life legislators in the House and a large number of Democrats

(opposed to the bill on policy and other spending considerations) joined ranks and rejected the

conference version of the FY1996 DOD appropriations act (151-267), thereby returning the bill to

the House-Senate conference.60 On November 16, 1995, the conferees agreed to a compromise

that included the following language:

Sec. 8119. None of the funds made available in this Act may be used to administer any

policy that permits the performance of abortions at medical treatment or other facilities of the

Department of Defense.

Sec. 8119A. The provision of Section 8119 shall not apply where the life of the mother

would be endangered if the fetus were carried to term, or the pregnancy is the result of an act

of rape or incest.

On December 1, 1995, the appropriations act, with the above two sections, became law.61

On December 15, 1995, the House passed the FY1996 Authorization Act (containing the

language cited on page 13). The bill was approved by the Senate on December 19, 1995. On

December 28, 1995, the President vetoed the authorization act, and in a letter to Congress, he

stated:

H.R. 1530 [FY1996 Defense Authorization Act] also contains ... provisions that would

unfairly affect certain service members.... I remain very concerned about provisions that

would restrict service women and female dependents of military personnel from obtaining

privately funded abortions in military facilities overseas, except in the cases of rape, incest,

or danger to the life of the mother. In many countries, these U.S. facilities provide the only

Maze, Rick, and William Matthew, “Defense Spending Bill Slapped Back by Unlikely Union in Congress,” Army

Times, October 9, 1995: 25.

P.L. 104-61, 109 Stat. 636, December 1, 1995.

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accessible, safe source for these medical services. Accordingly, I urge Congress to repeal a

similar provision that became law in the “Department of Defense appropriations act, 1996.62

On January 3, 1996, the House of Representatives failed to override the veto with a vote of 240156. Two days later, the House amended S. 1124 by striking “all after the enacting clause of S.

1124 and insert[ing] in lieu thereof the text of H.R. 1530 [the vetoed language] as reported by the

committee of conference on December 13, 1995, contained in [H. Rept. 104-406].”63 Under

unanimous consent, the language was taken from the Speaker’s table, as amended, and sent to

conference. On January 22, conference report H.Rept. 104-450 was filed. On January 24, 1996,

the House agreed to the conference report (287-129). Two day later, the Senate agreed to the

conference report (56-34). Provisions barring the use of DOD facilities to perform abortions,

except in cases of rape, incest or where the life of the mother would be endangered if the fetus

were carried to term or in a case in which the pregnancy, were included in this language (see

quoted text on page 2). On February 10, 1996, President Clinton signed the FY1996 Defense

Authorization Act into law.64

Although the prohibition against using funding in the appropriations act would have lapsed at the

end of the fiscal year, the change made via the authorization act modifies Title 10 United States

Code. As such, this change will not lapse at the end of the fiscal year. Thus, this language will

stay in effect unless and until Congress (with the President’s signature) specifically acts to amend,

modify, strengthen or repeal these provisions.

On May 14, 1996, an amendment was offered to the House version of the FY1997 National

Defense Authorization Act to overturn the prohibition on military facilities performing abortions

and allow such abortions to be performed at these medical facilities so long as federal funds are

not used (i.e., patient-paid abortions). The amendment was defeat by a vote of 192 ayes and 225

noes.65 Slightly more than one month later, the Senate passed an identical amendment to its

version of the FY1997 National Defense Authorization Act by a voice vote.66 Ultimately, the

Senate conferees receded and the Senate amendment was dropped.

Efforts to amend these provisions have continued. On June 19, 1997, Representative Jane Harman

offered an amendment to the FY1998 DOD Authorization Act that would purportedly

[restore the] policy affording access to certain health care procedures for female members of

the armed forces and dependents at Department of Defense facilities.

The amendment was rejected (196-224).67

In 1998, the House National Security Committee rejected another attempt to allow for privately

funded abortions at these facilities.68 On June 25, 1998, the Senate rejected a similar provision

(44-49).69

Veto message from the President of the United States (H. Doc. No. 104-155), cited in the Congressional Record,

January 3, 1996: H12.

Congressional Record, January 5, 1996: H302.

P.L. 104-106, 110 Stat. 186, February 10, 1996.

Congressional Record, May 14,1996, H5013-H5022.

Congressional Record, June 19, 1996, S6460-S6469.

Congressional Record, June 19, 1997, H4056-H4069.

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During consideration of the FY2000 National Defense Authorization Act, the House Personnel

Subcommittee accepted an amendment by Representative Loretta Sanchez to reverse the

restrictions on privately funded abortions being performed at overseas military medical facilities.

Another amendment, by Representative Kuykendall, would have allowed Defense Department

funding of abortions in cases of rape or incest. Upon consideration by the House Armed Services

Committee, the Sanchez amendment was dropped and the Kuykendall amendment was further

amended by Representative Buyer. As amended, the Kuykendall amendment would allow

Defense Department funding of abortions in cases of forcible rape or incest provided that the rape

or incest had been reported to a law enforcement agency. [Italics represent the Buyer changes.]

Later efforts to reinstate the Sanchez language allowing for abortions at overseas military

facilities when personal funds are used were rejected by both the House and the Senate.

Ultimately, the Kuykendall amendment, as amended, was also deleted during conference

consideration of the FY2000 National Defense Authorization Act, thereby leaving the law

unchanged.70

Although not specifically related to the above discussion of the military abortion issue, other

language has been proposed that would have had an effect on the consideration of the abortion

issue. H.R. 243671 included, in part, language modifying Title 10, United States Code. According

to this language, any conduct violating certain provisions of the Uniform Code of Military

Justice, by a person subject to the Uniform Code of Military Justice, that causes death or bodily

injury to a fetus who is in utero at the time the conduct takes place, would be guilty of a criminal

offense. For example, if during an assault on a pregnant women, the fetus were injured, such an

injury would constitute a separate offense. Exceptions were included in cases of abortions,

medical treatment of the woman, or conduct of the woman with regard to her fetus. On September

30, 1999, the House passed this language (254-172). The next day, it was received and read in the

Senate. On February 23, 2000, the Senate Committee on Judiciary held hearings on a Senate

companion bill, S. 1673. No further action was then taken by the Senate, and the legislation failed

to become law. (Similar language was considered in 2004; see “Unborn Victims of Violence Act

2004,” below.)

Proponents note that such language would recognize the victimization of the child while in utero

and afford appropriate criminal sanctions to perpetrators of violent acts. Critics view the inclusion

of such language as a means of defining a fetus as a victim and thereby acknowledging or

creating a separate human existence. These critics are concerned that such language would

arguably recognize the fetus as separate person in the eyes of the law thereby complicating the

abortion debate.72

In consideration of the FY2001 National Defense Authorization Act (H.R. 4205), the House

Armed Services Committee “voted to retain its ban on abortions at military hospitals unless the

mother’s life is at risk. The 31-20 vote came May 10, 2000, on an amendment that would have

allowed abortions at overseas hospitals if patients rather than the government paid for them. The

(...continued)

CQ Weekly, Other Policy Issues, May 9, 1998: 1240.

Congressional Record, June 25, 1998, S7060-S7076.

Maze, Rick, “Abortion Provision Dropped from Defense Bill,” Times, August 16, 1999: 11.

H.R. 2436, Rep. Linsey Graham, July 1, 1999.

For additional information on the legal aspects of the abortion issue, see CRS Report RL33467, Abortion: Judicial

History and Legislative Response, by (name redacted).

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29-26 vote came on a failed try to allow military hospitals to perform abortions in cases of rape or

incest.”73 Eight days later, a floor amendment was offered that would strike subsections a and b of

10 U.S.C. Section 1093, effectively removing any restriction to providing abortions under this

title. The amendment was defeated (221-195).74

On June 20, 2000, the Senate tabled (50-49) an amendment to the FY2001 National Defense

Authorization Act, S. 2549, that would strike Section b of 10 U.S.C. Section 1093. The

amendment would have lifted the ban on the use of military facilities in performing abortions.

Although proponents noted that the amendment “would lift restrictions on privately funded

abortions at military facilities overseas,” as written, the amendment would affect such facilities in

the United States as well.75

On September 25, 2001, Representative Loretta Sanchez offered an amendment to the National

Defense Authorization Act for FY2002. This amendment would have limited the restriction on the

use of DOD facilities for performing abortions at those facilities “in the United States.” In other

words, this language would remove the restriction of providing privately funded abortion services

at DOD facilities overseas. The amendment was rejected (199-217).76

During debate on the Bob Stump FY2003 National Defense Authorization Act, the Senate (52-40)

passed an amendment that would remove the restriction on the use of military facilities.77 The

House had earlier rejected a similar measure (215-202).78 In a letter to Senator Carl Levin, thenChairman of the Armed Services Committee, Secretary of Defense Donald H. Rumsfeld wrote:

The Senate bill removes the current statutory prohibition on access to abortion services at

Department of Defense (DOD) medical facilities. The President’s senior advisors would

recommend that the President veto the bill if it changes current law.79

The Senate amendment was dropped by the conference committee.80

On April 1, 2004, President Bush signed H.R. 1997, “Unborn Victims of Violence Act of 2004

(Laci and Conner’s Law)” into law.81 Although intended to protect fetuses, this legislation

contains a provision that would not permit the prosecution “of any person for conduct relating to

an abortion” in which consent was legally obtained or implied.

Amendments to the FY2004 National Defense Authorization Act to modify the law were also

offered. In the House, an amendment that would have limited the restriction on DOD facilities to

the United States was rejected (201-227).82

FastTrack, Times, May 29, 2000: 6.

Congressional Record, May 18, 2000: H3347-H3350, H3371.

Congressional Record, June 20, 2000: S5406-S5421, S5425.

Congressional Record, September 25, 2001: H.R. 25, H.R. 33.

Congressional Record, June 21, 2002: S5882.

Congressional Record, May 9, 2002: H2380.

Letter from Secretary of Defense Donald H. Rumsfeld to the Honorable Carl Levin, September 24, 2002.

Congressional Record, November 12, 2002: H8462.

P.L. 108-212; 1185 Stat. 568; April 1, 2004.

Congressional Record, May 22, 2003: H4571.

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Likewise the Senate rejected (48-51) an amendment that would have repealed the restriction on

using DOD facilities, in general.83

However, the Senate agreed, subject to certain limitations, to consider legislation, S. 1104,84 “to

provide for parental involvement in abortions of dependent children of the Armed Forces.” The

legislation was placed on the Legislative Calendar85 but failed to be called to the floor.

Consideration of the Ronald W. Reagan FY2005 National Defense Authorization Act included a

number of amendments regarding abortion services. In the House of Representatives,

Representative Susan A. Davis introduced an amendment that would allow military personnel and

their dependents to use their own funds to obtain abortion services at overseas military hospitals.

This amendment was defeated (202-221).86

In the Senate, an amendment offered by Senator Barbara Boxer, would allow DOD funding of

abortions in cases of rape or incest. This amendment, along with 25 other amendments, was

passed en bloc by unanimous consent.87 On October 8, 2004, the conference report for this

legislation noted that the “Boxer amendment” had been dropped.88

Two other Senate amendments to the Ronald W. Reagan FY2005 National Defense Authorization

Act (H.R. 4200) were submitted. The first, S.Amdt. 3406 (Senators Frist and Brownback), would

“provide for parental involvement in the performance of abortions for dependent children of

members of the Armed Forces.” The second, S.Amdt. 3407 (Senators Frist and Brownback),

would require the notification of authorities regarding the identity of perpetrators, where possible,

in cases of rape or incest when abortions are sought at military facilities. Neither S.Amdt. 3406

nor S.Amdt. 3407 was called up.

On May 25, 2005, the House of Representatives considered an amendment (offered by

Representative Susan Davis) to the National Defense Authorization Act for Fiscal Year 2006

(H.R. 1815). The amendment would allow overseas military facilities to provide privately funded

abortions for women who are in the miliary or are military dependents. This amendment was

rejected (194-233).89

On July 25, 2005, Senator Lautenberg filed an amendment in the Senate that would “restore the

previous policy regarding restrictions on the use of medical treatment facilities or other

Department of Defense facilities.” This amendment would strike Section 1093(b) of title 10

U.S.C. (and remove the title language “Restriction on Use of Funds.–” from Section 1093(a)). No

further action has been taken on this amendment.90

Congressional Record, May 22, 2003: S6911.

Sen. Brownback, May 22, 2003.

Congressional Record, May 22, 2003: D576. See also, “Congress Votes to Keep the Abortion Ban on Bases,”

Washington Post, May 23, 2003: A7.

Congressional Record, May 19, 2004: H3358.

Congressional Record, June 22, 2004: S7152.

Congressional Record, October 8, 2004: H9549.

Congressional Record, May 25, 2005: H4009-H4013, H4017.

Congressional Record, July 25, 2005, S8845.

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Abortion Services and Military Medical Facilities

On May 10, 2006, the House of Representatives considered an amendment (offered by

Representative Robert E. Andrews) to the John Warner FY2007 National Defense Authorization

Act that would allow overseas military facilities to provide privately funded abortions for women

who are in the military or are military dependents. This amendment was rejected (191-237).

Recent Legislative Action

Language included in the Senate version of the National Defense Authorization Act for Fiscal

Year 201191 would, if enacted, repeal the prohibition on using any military facilities to perform

abortion, with certain exceptions. This action would allow the Department of Defense to return to

the Clinton administration policy of allowing military facilities to provide abortions using private

funds. Similar language was not included in the House version. On September 21, 2010, and

December 15, 2010, attempts were made to move this legislation to the floor for a vote. However,

due to disagreements over procedures, cloture votes were taken and failed. Ultimately, the

FY2011 National Defense Authorization Act became P.L. 111-383 without the Senate provision

allowing military facilities to be used to perform abortions.

Amendments to the National Defense Authorization Act for FY 2012, offered by Senator Jeanne

Shaheen, were not include in the final passed version. S.Amdt. 1120 would have expanded

government-funded abortion at military medical facilities to include pregnancies resulting from

rape or incest. S.Amdt. 1121 would have removed subsection 10 U.S.C. 1093(b) thereby allowing

for a return to the Clinton policy of allowing privately funded abortions.92

As noted on page 1, language was included in the Senate version of the National Defense

Authorization Act for FY 2013 (H.R. 4310, Sec. 704) that allowed for an expansion of

government-funded abortions to cases where the pregnancy resulted from an act of rape or

incest.93

U.S. Congress, Senate, Armed Services Committee, National Defense Authorization Act for Fiscal Year 2011,

S.Rept. 111-201, S. 3454, 111th Cong., 2nd Sess., June 4, 2010: 149.

P.L. 112-81, SA 1120 was determined to be nongermane and SA 1121 was submitted on Nov. 17, 2011, with no

further action listed in LIS.

An earlier version of the Senate’s National Defense Authorization Act for Fiscal Year 2013 included language that

allowed the use of Federal funds to perform abortions in cases of pregnancies that occurred as the result of rape or

incest. That version was not passed by the Senate. The Senate later took up the House passed version (H.R. 4310

substituting S. 3254), which contained Sec. 711 providing for funding for abortions in the case of rape or incest

(Congressional Record, December 4, 2012: D998). This bill was signed into law on January 2, 2013; the public law

number was not available at the time of this update.

Congressional Research Service

Abortion Services and Military Medical Facilities

Appendix. Availability of Abortion Services at

Military Facilities Overseas

According to Department of Defense and individual command officials (as reported to the Army

Times, September 5, 1994: 18; source: Defense Department and individual command officials),

the availability of abortion services (prior to the restrictions enacted on December 1, 1995) at

military facilities overseas could vary depending on location.

GERMANY

•

National policy: See discussion on page 10 above.

•

Local U.S. military policy: Under German law, abortions are illegal except in

cases of rape or medical necessity. Abortions carried out during the first twelve

weeks of pregnancy are not considered a prosecutable offense provided the

woman has certification attesting to receiving state approved counseling to

review her options. The military does not allow abortions at its facilities.

•

Since the U.S. ban was lifted: Estimates of how many American service women

or family members received abortions from German providers in 1993 are as

high as 1,500, although German officials say there is no way to confirm this

number.

ITALY

•

National policy: Abortions are permitted. They must be performed by a licensed

gynecologist.

•

Local U.S. military policy: Abortion services comparable to those in the United

States are available from Italian providers in the Naples and Sigonella areas.

Service women and family members who desire abortions are referred to preidentified licensed local providers. Abortions are not performed at military

hospitals.

•

Since the U.S. ban was lifted: One elective abortion was reportedly provided in

Sigonella at an Italian facility.

JAPAN

•

National policy: Abortion is legal and fairly unrestricted, but more expensive

than in the United States.

•

Local U.S. military policy: Given that abortions are readily available in the

Japanese community, women seeking abortion from Navy hospitals here are

referred to family-service counselors for referrals to Japanese doctors.

•

Since the U.S. ban was lifted: Few, if any, abortions were performed at military

hospitals, Navy officials said. The number of abortions by civilian doctors is

unknown.

Congressional Research Service

Abortion Services and Military Medical Facilities

KOREA

•

National policy: Abortion is illegal except to save the life of the mother.

However, it has been noted that Korean women have not been denied access to

medically provided abortion services despite this law.

•

Local U.S. military policy: The U.S. military’s rules for Korea could not be

learned from military officials, but because of the local law, abortions would not

be available at U.S. hospitals. However, since Korean women have access to such

services, it is reasonable to infer that such services could also be available to U.S.

service women off-base.

•

Since the U.S. ban was lifted: Service members or family members continue to

have to travel outside of Korea to obtain an abortion.

For a country-by-country listing of abortion laws and policies go to the following

website: http://www.un.org/esa/population/publications/abortion/profiles.htm.

Problematic Comparisons to Foreign Military Policies

Abortion policies of foreign militaries vary. These variations depend on the country’s general

policy regarding abortion. For instance, abortion policies are affected by religion (Vatican, Israel,

and Islamic nations, for example), population control policies (China) and other cultural factors

(nationalized health care policies, such as are found in Great Britain), and issues pertaining to the

structure of the military—the presence of women in uniform (many Islamic countries do not have

women in uniform, making the issue moot). Some countries do not have a military (Costa Rica

for instance does not have a military per se but rather a paramilitary style security force). In

addition, internal legal restrictions or rulings, such as court rulings on abortion (see Germany),

affect the country’s policy. Finally, very few countries maintain a level of overseas deployments

that make direct comparisons relevant. For these reasons, comparisons to foreign nations in terms

of their abortion policy in general, and their policy regarding military abortions at overseas

military medical facilities, in particular, are difficult to justify and of questionable utility.

Author Contact Information

(name redacted)

Specialist in Military Manpower Policy

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

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