The complications caused by the recent Dobbs decision by the United States Supreme Court continue to grow as jurisdictions and entities across the country try to work out the implications. While the basic landscape faced by members of the military hasn’t changed at one level, the upheaval being experienced everywhere is likely to have unique effects on both individuals and the services as a whole.
Prior to the Dobbs ruling, abortion services were generally not available from military medical facilities nor were covered under Tricare, the military health insurance system. Since 1995 there has been legislation that provides that no abortions may be provided at any military medical facilities except in the case of rape, incest, or danger to the life of the mother. Similarly, no Department of Defense funds may be used to perform abortions. (10 USC 1093) Military Times) reported at the end of June that fewer than 100 had been performed between 2016 and 2012. Because of the ban on use of defense funds, the federally funded Tricare program cannot be used to obtain abortion services from civilian providers. Nothing in the Dobbs decision directly affected this situation. Secretary of Defense Lloyd Austin released a statement that said policies were being evaluated to “ensure we continue to provide seamless access to reproductive health.” No more details have been reported as of the middle of July 2022.
Soon after the issuance of Dobbs, the federal government issued guidance that the Emergency Medical Treatment and Labor Act (EMTALA) required medical providers to provide treatment necessary to resolve an emergency condition including abortion regardless of any state regulations to the contrary. EMTALA applies to any hospital that receives payments from the Medicare system. While this means that nearly every civilian hospital is covered under the act, it doesn’t include military or Veterans Administration providers as they do not receive payments from Medicare. However, members of the military and their families should be protected under the act for emergency treatment at a civilian hospital that is subject to the act.
Taken together, the net effect is that members of the military are not insulated from the constantly changing abortion access landscape. Any access they might have will be subject to the vagaries of the state laws of the current assignment. However, unlike the civilians, the members of the military have little to no control over where they are ordered to live. Southwestern Law School professor Rachel VanLandingham told Stars and Stripes that restricting access “places an undue burden on women serving in the military because they are going to have to go through extraordinary lengths to seek fair access to reproductive health care, which they wouldn’t be facing if they hadn’t joined the military, for example, and then been stationed in a state that has very restrictive access.” In late June, legislation was introduced in the House of Representatives that would require the provision of leave for reproductive access, including abortions requiring out of state travel. In the last year, both the Army and Air Force have removed the ability of commanding officers to deny leave requests made to obtain an abortion.
There have been predictions that recruitment of women into the military will become more difficult following the Dobbs decision. The Department of Defense reported that 17.3% of the active-duty military were women in fiscal year 2021, totaling 231,364 people. Separate from the effects of the Dobbs, the US Army was reported to be likely to be understrength by at least 7,000 at the end of the 2022 fiscal year. In the same testimony to Congress, the deficit could be as many as 28,000 by the end of the following fiscal year despite having already lowered recruitment goals by 15,000. Predictions on a possible additional shortfall resulting from women being more reluctant to join haven’t been reported yet.
As the political and legal landscape around reproductive healthcare and access to it develop, the unique challenges faced by members of the military, especially women, are likely to be missed by much of the media. Attention needs to be paid to how opportunities for women will be limited, how careers may be cut short because of unintended pregnancies (sometimes the result of sexual assault), and how the character of the military as a whole will be changed if fewer women choose to join.