Brooke Army Medical Center in Texas.

Brooke Army Medical Center in Texas. U.S. Army / Jason W. Edwards

Limited Abortions Will Continue On DOD Bases Despite Roe v. Wade Reversal

“There will be no interruption to this care,” the Pentagon said in a memo.

Defense Department facilities will continue to perform some abortions in states that ban the procedure, the Pentagon announced Tuesday.

The June 28 memo from Gilbert Cisneros, the defense undersecretary for personnel, is an attempt to give troops the same benefits regardless of where they are stationed, now that 13 states have moved to ban abortion after Friday’s reversal of Roe v. Wade. It’s unlikely, however, that the policy would hold in a Republican administration, according to legal experts. 

“The Supreme Court’s decision does not prohibit the department from continuing to perform covered abortions, consistent with federal law,” the memo says. “There will be no interruption to this care.” 

The memo says the court’s ruling will not change the services provided by Defense Department facilities or covered by Tricare. The department and Tricare are allowed to perform and pay for abortions only in cases of rape, incest, or where the life of the pregnant person is at elevated risk—limitations imposed by the 1976 Hyde Amendment

Since the court’s ruling, some states have quickly imposed more severe limits. Several states, including, Texas, which is home to a large number of service members, now forbid abortions even in cases of rape or incest, making the Pentagon’s policy more lenient than state regulations for those stationed there. 

This sets up potential conflicts. At Fort Hood, for example, the lease agreement between the military and Texas gives the state “concurrent jurisdiction,” meaning state officials can enforce local laws, according to Sean Timmons, a managing partner and military attorney at Tully Rinckey law firm. Timmons predicted the Pentagon’s policy is likely to spark a court fight with states like Texas, but that any legal effort would likely find that federal laws take priority. 

“With the political climate being as contentious and divisive as it is, I could put money on it that they’ll file something, but I don’t think it’ll go far,” Timmons said. 

The Pentagon will work with the Justice Department to provide lawyers for troops and civilian employees if states try to prosecute Defense Department personnel who perform abortions in states where it is banned.

“It is the Department of Justice’s longstanding position that states generally may not impose criminal or civil liability on federal employees who perform their duties in a manner authorized by federal law,” the memo says. 

Some experts slammed the policy as insufficient to support troops or military doctors. Rachel VanLandingham, a former Air Force judge advocate who is now a professor at Southwestern Law School, called the memo “really weak” because it does not explicitly mention the supremacy clause of the Constitution, which gives federal law precedence over state law.

“If I was a medical provider right now in the military, I’d be a little nervous because you’re not getting a ringing endorsement,” VanLandingham said.

The department’s leave policies are also not affected by the court’s ruling. Troops can still travel as necessary to get an abortion, the memo says.

There’s also the question of how this policy would change if a Republican is elected president. Timmons said the president, as commander in chief, could lawfully order commanders to follow state law wherever they are based, rolling back what services troops can access in some states. That would set up a fight with Congress, which passed the Hyde Amendment in 1976 saying that the military could provide abortions in cases of rape, incest, or an elevated risk to the pregnant person’s life.

“It’s possible a new administration, any future Republican administration tries to undo this policy,” Timmons said. “It’s very likely and foreseeable.”

There’s precedent for following local laws rather than federal regulations, Timmons said. Possessing pornography is legal under U.S. federal law, for example, but a felony in Kuwait. Troops stationed there follow the more restrictive laws of the country rather than U.S. law.

Some Democratic lawmakers have been trying to codify troops’ and dependent’s access to abortion with legislation that would last regardless of who is in the White House. More than 80 Democratic members introduced a bill June 3 that would allow military medical facilities to perform and pay for abortions for service members and dependents. 

“Abortion care isn’t a privilege, it is standard health care essential to one’s ability to determine their own destiny,” said Rep. Jackie Speier, D-Calif., chair of the House Armed Services Military Personnel Subcommittee. “Our brave servicemembers deserve the same access to basic health care as the people they are fighting to protect.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.