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Constitutional Law

Jun. 24, 2022

Reproductive and healthcare rights of service women depend on their duty station

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Even under the protection of Roe v. Wade, service women were having a difficult time. A 2018 online survey showed that women were required to seek abortion-related services off base. None of the women who were able to pay for their abortion received any follow-up care from military health providers.

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Eileen Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council' Veterans and Military Families Subcommittee. She is a member of the American Bar Association's Standing Committee on Armed Forces Law, is an advisor to the California Lawyers Association's Military and Veterans Committee and the Orange County Veterans & Military Committee as well as a founding member of USVets' Women's Advisory Committee. She is the author of two award-winning books, Race Results and Gender Results.

Pregnancy has always been a particular challenge for women who serve in the military. Now that Roe v. Wade has been overturned, matters just got much more difficult.

For a long time, a pregnant service woman’s only choices were to either get an abortion or lose her job

Formerly, service women were able to have abortions on military bases. But they were not permitted to give birth.

Susan Struck entered the Air Force as a commissioned officer in 1967. While serving on active duty in Vietnam, Captain Struck became pregnant. At the time, there was a regulation providing for discharge of officers who became pregnant. She was recommended for discharge as soon as possible due to her pregnancy. A federal judge ordered a temporary stay of her discharge, but a panel of a circuit court overturned the stay. At that point, Supreme Court Justice William O. Douglas entered an order staying her discharge pending final decision on the merits.

Affirming a district court’s judgment against Captain Struck, the Ninth Circuit Court of Appeals held “there is a compelling public interest in not having pregnant female soldiers in the Military establishment.” Struck v. Secretary of Defense, 460 F.2d 1372 (9th Cir. 1972) The United States Supreme Court granted certiorari. 93 S.Ct. 292

According to a 2019 Guardian article, the government’s top attorney at the time, U.S. solicitor general Erwin Griswold, told military top brass the case could be lost by the government. He advised the military should waive Captain Struck’s discharge and then change the rule prospectively so pregnancy would no longer result in an automatic discharge. That is what the Air Force did. Captain Struck gave her baby up for an open adoption and remained in the military.

The Hyde Amendment meant no more abortions on military bases

In September 1976, the 94th Congress enacted Public Law 94-439, making appropriations for the Departments of Labor, Health, Education, Welfare and related agencies. Section 209 of the bill states: “None of the funds contained in 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.”

Since then, Congress has annually reauthorized the Hyde Amendment. Over the years, similar language has been incorporated in a variety of federal funding programs, including the military’s TRICARE medical insurance program. This has been particularly difficult for women stationed to bases overseas, especially places that offered inferior medical care.

Increasing incidents of sexual assaults and rapes in the military

In 2004, in response to increasing numbers of rapes in the military, U.S. Senators Barbara Boxer (D-Calif.) and Olympia Snowe (R-Maine) sponsored a bill to amend the National Defense Authorization Act to permit abortions in military facilities in cases of rape and incest.

In introducing the Boxer-Snowe Amendment, Senator Snowe stated: “Any victim facing the horror of rape or sexual assault needs every option and support made available to them.” Despite its bipartisan backing and support from numerous pro-choice and reproductive health organizations, the Boxer-Snowe amendment failed.

An article in an ACLU publication, Speak Freely, was written by Jessica Kenyon about her experiences after she joined the Army in 2005. She was raped by a fellow soldier while stationed in Korea. She discovered she was pregnant as a result of the rape, not from the military doctor who examined her, but from her commander. Instead of telling Kenyon she was pregnant, the military doctor reported her pregnancy to her commander. The commander summoned her to discuss charging her with adultery. The charge was not filed, not because she had been raped, but because Jessica Kenyon had once been divorced. She then had to face, not only the fact that the military would not permit an on-base abortion, but also that she was unable to find a safe abortion off-base in a foreign country. She ended up being discharged, flew home and miscarried.

However, a similar bill to the Boxer-Snowe Amendment was successfully added to the National Defense Authorization Act nine years later. Access to healthcare by service women became a little easier in 2013 when the Shaheen Amendment was signed into law, Public Law 112-239. Women in the military who were victims of rape or incest were thereafter able to have access to abortions at military medical facilities.

Service women stationed in states that ban abortions

About half the states are likely to ban abortions without the precedent of Roe v. Wade. Obviously, some female service members will be stationed in those states. If a woman stationed in a state that bans abortions needs an abortion, she will face a number of hurdles.

Debbie Wasserman Schultz, D-Fla, chair of the House Armed Services Committee, says military women already have a higher rate of unintended pregnancies than civilian women. Wasserman Schultz predicts massive negative ramifications for women in the military resulting from overturning the landmark case.

A pregnant service woman who wants an abortion will need approval to leave the state.

In order to obtain permission for extra time off, she will be required to divulge her reason for the requested leave to various persons within the chain of command. If she does not disclose the reason for leaving the state when requesting leave, she may not be able to follow the post-op instructions of the medical provider because of duty requirements.

She will have to find a provider in another state who can accommodate her needs because military healthcare facilities will not perform the procedure. She will have to find the funds to pay for the procedure because military insurance will not cover it. She will also need travel funds.

Even under the protection of Roe v. Wade, service women were having a difficult time. A 2018 online survey showed that women were required to seek abortion-related services off base. None of the women who were able to pay for their abortion received any follow-up care from military health providers.

On May 12, 2022, after the draft opinion for Dobbs v. Jackson Women’s Health Organization was leaked, Senators Duckworth, Gillibrand, Hirono, King, Peters, Rosen, Shaheen and Warren wrote a joint letter to the Secretary of Defense, Lloyd Austin. The letter included these sentences: “Good order and discipline is placed at risk as servicemembers must consider whether to break state law – including proposed laws that would seek to criminalize crossing state lines to obtain an abortion. . . At a minimum, you and your staff should consider implementing policy changes to allow servicemembers to obtain, for example, special liberty or permissive temporary additional duty permissions in order to travel out of state for reproductive healthcare and abortions if they are stationed in a jurisdiction that curtails these rights after the Dobbs decision is issued.”

Existing military policies may be used to assist service women in need of abortions

After the leak of the Dobbs draft, the Army Times published an article about the ideas of its top enlisted soldier. Sergeant Major of the Army Michael Grinston told the Army Times that existing Army policies can apply to the abortion situation, as something of a stop-gap while the service figures out what can be done in the long term. Grinston said the Army is exploring ways to ensure female soldiers would have access to safe, legal abortions despite being stationed in states where they are banned.

Grinston said soldiers are already able to take leave to get medical care when an on-post facility doesn’t offer it, and commanders, theoretically, already have the authority to grant non-chargeable leave – meaning it wouldn’t come out of vacation time – so their troops can leave the state to secure a legal abortion.

Another existing policy is the Exceptional Family Member Program. Each of the branches of the military has an EFMP program. All service members are required to be members. If a family member has a special need, a whole system is in place for the military to try to meet that need. Part of the EFMP policy is to transfer the service member to a duty station where the special need can be met. Grinston mentioned such a transfer as a way of assisting service women who are stationed in states that outlaw abortions.

Conclusion

It looks as if the military is attempting to find ways to assist service women who try to work around the new state of the law wherein women no longer have a constitutional right to control their own bodies. Ultimately, the Secretary of the Department of Defense will need to be involved in setting policy. But it is good to know the branches are already at the drawing board.

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