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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.”