Abortion Services and Military Medical Facilities

Order Code 95-387 F

Abortion Services and

Military Medical Facilities

Updated July 10, 2008

David F. Burrelli

Specialist in National Defense

Foreign Affairs, Defense, and Trade Division

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 nonDepartment 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. Recent attempts to change or modify these laws have failed.

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. Although Congress, in 1992, passed one such amendment

to make abortions available at overseas installation, it was vetoed.

The changes ordered by the President did not necessarily have the effect of

greatly increasing access to abortion services. 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 now, neither DOD funds nor facilities may 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.

There has been little legislative activity affecting the military on this issue. The

last major effort occurred with an amendment to the House version of the FY2007

National Defense Authorization Act would allow DOD facilities outside the U.S. to

perform privately-funded abortions. This language was rejected by the conference

committee.

This report will be updated as warranted.

Contents

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

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

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

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

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

Legislative Action Since 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Legislative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Problematic Comparisons to Foreign Military Policies . . . . . . . . . . . . . . . . 22

Abortion Services and

Military Medical Facilities

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

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.1

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. Specifically, section 1093 states:

1

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.

CRS-2

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.2

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, Democrats were replaced by

Republicans as committee leaders. Representative Robert K. Dornan, the then-new

Republican Chairman of the Military Personnel and Compensation Subcommittee

(House National Security Committee), noted that one of his priorities “[was] barring

abortions at overseas military hospitals, even if the patients pay for them.”3 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.4

2

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), 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.

3

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

16, 1995: 3.

4

U.S. Congress, Conference Committee, National Defense Authorization Act for Fiscal

(continued...)

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

routine part of the legislative process.

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,

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.

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.”5 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.”6

4

(...continued)

Year 1996, H.Rept. 104-450, S. 1124, 104th Cong., 2nd Sess., January 22, 1996: 206-207.

5

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

23.

6

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

(continued...)

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Following the 1973 Supreme Court case of Roe v. Wade,7 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.8 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.9

From August 31, 1976, to August 31, 1977, approximately 26,000 abortions

were performed in military hospitals or in the CHAMPUS program.10

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

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.11

6

(...continued)

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.

7

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.

8

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

9

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.

10

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

August, 1978.

11

P.L. 95-457, Section 863, October 13, 1978, 92 Stat. 1254. In anticipation of this change,

(continued...)

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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.12

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.13

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.14

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

victims of rape were required to report the incident within 72 hours.15 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:

11

(...continued)

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.

12

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

13

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

2.

14

15

P.L. 96-527, Section 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.)

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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.16

Identical language was included in the following two years’ appropriations acts.17

Finally, in 1984, Congress codified this language in Title 10, United States Code (see

quoted text at the top of page 2).18

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 lifethreatening 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.”19

On June 21, 1988, Dr. William Mayer, then-Assistant Secretary of Defense

(Health Affairs), issued a memorandum barring abortions in military medical

facilities overseas. 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.20

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).21 The House of Representatives rejected a similar amendment.

On May 22, 1991, the House of Representatives reversed itself and passed (220208) an amendment to the DOD authorization act that would have reinstated the prepaid 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

16

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

17

P.L. 97-377, Section 755, December 21, 1982, 96 Stat. 1860; P.L. 98-212, Section 751,

December 8, 1983, 97 Stat. 1447.

18

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).

19

Kimble, Vesta, “Doctor’s Statement Needed for Abortion Claims,” Navy Times, March

14, 1988: 24.

20

“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.

21

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

CRS-7

during the pregnancy.22 The measure was rejected once again when the Senate fell

two votes short of the 60 votes needed to invoke cloture (58-40).23

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.

Again in 1992, Representative AuCoin introduced language to overturn the

restrictions on abortions at overseas military facilities. This amendment was passed

(216-193).24 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.25 By unanimous consent, the Senate agreed

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

all after the enacting clause.26 S. 3144 was simultaneously passed by unanimous

consent. The House subsequently passed the measure (220-186) on October 3,

1992.27

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.28

As a result of President Clinton’s 1993 memorandum (see page 1), thenSecretary of Defense Les Aspin directed the Secretaries of the Military Departments

22

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

23

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

24

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

25

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

Washington Post, November 30, 1991: A6.

26

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.

27

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

Congressional Record, October 3, 1992: H10966-H10975.

28

Congressional Quarterly, December 19, 1992: 3926.

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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 memorandum29 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

$500.30

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.31

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.32 Second, it is widely

29

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.

30

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

31

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

32

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 is 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

(continued...)

CRS-9

thought that, the military in general, and military physicians in particular, tend 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).33

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

performed at military hospitals worldwide in 199334 and 10 in 1994. All of the 1994

abortions were reported to be “life of the mother” cases; i.e., none were “pre-paid.”

According to data provided by DOD, two abortions were performed at military

treatment facilities worldwide in FY1999. For fiscal years 2000, 2001, 2002, 2003,

and 2004, the respective number of therapeutic abortions reported was 1, 5, 3, 4, and

3. For fiscal years 2005, 2006 and 2007, the numbers of therapeutic abortion

reported were 4, 5 and 5, respectively. Over these 8 years, DOD has performed an

average of 3.75 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.35 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

32

(...continued)

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.

33

“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.

34

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

1994: 18.

35

Scholar, Steve, “Army Seeking Civilian Doctor Willing To Do abortions at Military

Hospitals,” Stars and Stripes (European), April 28, 1993: 1.

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threatened to provoke protests both within the uniformed services and in the

international community.36 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 to observe local laws. Countries such as Spain, South Korea,

and Panama outlaw or sharply restrict abortions.37

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.38 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.39

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 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

36

“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,” ProLife Protests, American Legion, July 1994: 10.

37

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

38

“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 Karen E. Donfried, January 27, 1994, p. 6 (out-of-print;

available from the author at 7-8033).

39

The Week in Germany, January 30, 1998.

CRS-11

treatment facilities in Germany. DoD respects host nation laws regarding abortion.”40

Furthermore, it was unlikely that abortion services would become more

available if the military reduced the number of physicians as part of DOD downsizing

of the force structure. One drawdown proposal suggests that DOD could reduce the

number of physicians in uniform by as much as 50%.41 Under the 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.”42 The reduction of

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

physicians back to the U.S. 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.43 Later, in August 2002, a second federal court

ruled likewise in a separate case involving another anencephalic fetus.44 Both cases

were reversed on appeal.45

“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,46 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,

40

Memorandum for Assistant Secretary of Defense (Health Affairs), Information Paper on

abortion policy for Dr. Hambre’s confirmation hearing, July 1997.

41

“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.

42

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

5, 1994: 26.

43

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

44

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.

45

Britell v. United States, 372 F.3d 1370, June 24, 2004, and Doe v. USA, et al., civil docket

for case #: 2:02-cv-01657-TSZ, August 18, 2005.

46

The Basic Core Formulary or BCF refers to those pharmaceuticals that DOD makes

available at DOD pharmacies.

CRS-12

which chemically induces an abortion. RU-486 is subject to restrictions under 10

U.S.C. § 1093.47

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.”48 [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 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.49

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).50 This is not to say that Plan B is 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

47

Legislation was offered in the 109th Congress (S. 511, Senator 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.

48

Col. Daniel Remund, Co-chair, DOD Pharmacy & Therapeutics Committee, Information

Paper, April 11, 2002.

49

Department of Defense, Pharmaeconomic Center, Minutes of the DOD Pharmacy &

Therapeutics Executive Council Meeting, May 7, 2002, pp. 2-3.

50

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

May 25, 2005.

CRS-13

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.51

Although tangentially relevant to DOD policy, Plan B has been 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.”52

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

women 18 years old and older.53 Nearly three months later, Plan B began appearing

in drug stores.54

Although this latter controversy is 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.

According to the DOD Pharmacoeconomic Center, Plan B is not on the Basic

Core Formulary, but Military Treatment Facilities may have it as part of their

formulary.55

“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.

51

Montgomery, Nancy, Army Hospitals in Europe Offering ‘Morning-After’ Pill, Stars and

Stripes (European edition), June 8, 2005.

52

"FDA: Indefinitely Defers Decision on Emergency Contraceptive; Plan B," National

Journal Group, Inc., September 6, 2005

53

Harris, Gardiner, F.D.A. Approves Broader Access t Next-Day Pill, New York Times,

August 25, 2006: 1.

54

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

F1.

55

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

CRS-14

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.56

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.57

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

56

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

2003.

57

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.

CRS-15

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.58 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.59

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 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.”60

58

Maze, Rick, and William Matthew, “Defense Spending Bill Slapped Back by Unlikely

Union in Congress,” Army Times, October 9, 1995: 25.

59

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

60

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

(continued...)

CRS-16

On January 3, 1996, the House of Representatives failed to override the veto with a

vote of 240-156. 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].”61 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 at the bottom of page 2). On February 10,

1996, President Clinton signed the FY1996 Defense Authorization Act into law.62

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.63 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.64 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).65

60

(...continued)

Congressional Record, January 3, 1996: H12.

61

Congressional Record, January 5, 1996: H302.

62

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

63

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

64

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

65

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

CRS-17

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

allow for privately funded abortions at these facilities.66 On June 25, 1998, the

Senate rejected a similar provision (44-49).67

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.68

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. 243669 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 Victim 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.

66

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

67

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

68

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

11.

69

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

CRS-18

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.70

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 29-26 vote came on a failed

try to allow military hospitals to perform abortions in cases of rape or incest.”71 Eight

days later, a floor amendment was offered that would strike subsections a and b of

10 USC § 1093, effectively removing any restriction to providing abortions under

this title. The amendment was defeated (221-195).72

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 USC

§ 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.73

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).74

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.75 The House had earlier rejected a similar measure (215-202).76

In a letter to Senator Carl Levin, then-Chairman 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

70

For additional information on the legal aspects of the abortion issue, see CRS Report

RL33467, Abortion: Legislative Response, by Jon O. Shimabukuro and Karen J. Lewis.

71

FastTrack, Times, May 29, 2000: 6.

72

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

73

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

74

Congressional Record, September 25, 2001: H6022-25, H6032-33.

75

Congressional Record, June 21, 2002: S5882.

76

Congressional Record, May 9, 2002: H2380.

CRS-19

senior advisors would recommend that the President veto the bill if it changes

current law.77

The Senate amendment was dropped by the conference committee.78

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

Violence Act of 2004 (Laci and Conner’s Law)” into law.79 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).80

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

the restriction on using DOD facilities, in general.81

However, the Senate agreed, subject to certain limitations, to consider

legislation, S. 1104,82 “to provide for parental involvement in abortions of dependent

children of the Armed Forces.” The legislation was placed on the Legislative

Calendar83 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).84

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.85 On October 8,

77

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

September 24, 2002.

78

Congressional Record, November 12, 2002: H8462.

79

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

80

Congressional Record, May 22, 2003: H4571.

81

Congressional Record, May 22, 2003: S6911.

82

Senator Brownback, May 22, 2003.

83

Congressional Record, May 22, 2003: D576. See also, “Congress Votes to Keep the

Abortion Ban on Bases,” Washington Post, May 23, 2003: A7.

84

Congressional Record, May 19, 2004: H3358.

85

Congressional Record, June 22, 2004: S7152.

CRS-20

2004, the Conference Report for this legislation noted that the “Boxer amendment”

had been dropped.86

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

Defense Authorization Act (H.R. 4200) were submitted. The first, S.A. 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.A. 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.A.

3406 nor S.A. 3407 was called up.

In conclusion, under current law, 10 U.S.C. § 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.

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).87

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.88

Legislative Action

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 miliary or are military

dependents. This amendment was rejected (191-237).

86

Congressional Record, October 8, 2004: H9549.

87

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

88

Congressional Record, July 25, 2005, S8845.

CRS-21

Appendix

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 pre-identified 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

CRS-22

Navy hospitals here are referred to family-service counselors for

referrals to Japanese doctors.

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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.

KOREA

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

mother.

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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.

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

members continue to have to travel outside of Korea to obtain an

abortion.

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 are difficult to justify and of questionable utility.