What Is the Ban?

By statute, the United States government bans almost all abortion services at U.S. military hospitals and other medical facilities. Federal law provides that:

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.

By preventing women from obtaining an abortion at U.S. military medical facilities even with their own funds, the ban compromises the health and safety of American servicewomen. The ban’s impact is particularly devastating for service members, spouses and dependents stationed overseas. When facing an unwanted pregnancy, these women are forced either to attempt to obtain an abortion in a local medical facility in the country in which they are stationed, or to travel to a medical facility in the United States or in another country to obtain the abortion.

In some countries in which U.S. troops are stationed, abortion is illegal and therefore unavailable to U.S. servicewomen under any circumstances. However, even in countries where abortion is legal,² in practice women frequently do not have access to legal abortions in local health facilities. Local health facilities can be inaccessible because:

• they are inadequate, unsafe, below the standards of U.S. medical facilities, or lack trained medical personnel;
  
• U.S. military bases may be located in remote areas without access to local medical facilities;
  
• U.S. military personnel may be serving in countries where animosity toward the United States runs high, jeopardizing the safety of U.S. service personnel if they were to use local health facilities; and
  
• U.S. military personnel may be serving in an area under active hostilities, imposing a significant threat to the safety of personnel who leave the U.S. military base.³

Therefore, the only option for women serving abroad who are unable to obtain a safe and legal abortion where they are stationed is to travel to another country. This "option" can be dangerous, if not impossible, for those serving in areas under active hostilities, and for those serving in remote locations. Further, traveling requires women to take leave from their military duty and/or their family. Servicewomen must also clear the leave time with their superiors, requiring them to disclose information about private medical decisions and their personal lives to people with whom they would otherwise not discuss these issues. The superior may delay or refuse to grant a woman leave to obtain an abortion, thus increasing the risks to her health or denying her this right altogether. Further, because the superior is responsible for future decisions concerning the servicewoman’s promotions and career, the woman’s inability to obtain confidential medical care could have significant repercussions for her career.

The Ban Prevents Some Servicewomen from Exercising Their Constitutional Right to Choose Abortion.

Many U.S. citizens are currently serving around the world to protect the United States and defend the fundamental rights and freedoms embodied in the Constitution. The U.S. Constitution protects the right of the individual – not government – to make decisions concerning his or her own body, including decisions as personal as whether or not to carry a pregnancy to term. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 938 (2000); Planned Parenthood of Southeastern PA v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973). However, the ban prevents some U.S. service members from exercising this right. Although the U.S. Supreme Court held in Harris v. McRae, 448 U.S.297 (1980), that the Constitution does not require the government to provide public funds for abortions, this ban goes further because it prohibits women from using their own, private funds to obtain abortions. The ban is also different from Missouri’s ban on the use of state facilities for abortions upheld in Webster v. Reproductive Health Services, 492 U.S. 490, 509-510 (1989), because in some cases there is no alternative facility in which the military woman can obtain an abortion. As the Court noted in Webster, while the ban there did not burden any "procreational choice," id. at 510, "[a] different analysis might apply if a particular State had socialized medicine and all of its hospital and physicians were publicly funded," id. at 510 n.8, thus eliminating all alternative medical facilities and making abortion services completely unavailable.

Furthermore, a federal court recently held that the denial of coverage under the military insurance program CHAMPUS for an abortion of an anencephalic fetus (a fetus lacking a cranium) was unconstitutional, and that forcing women to carry such pregnancies to term is "irrational, and worse yet, it is cruel."⁴ The ban on the use of military facilities for almost all abortions, even privately funded abortions, is also unconstitutional, at least to the extent that it similarly makes no exception for these abortions.

The Ban Contravenes International Commitments.

The United States government endorsed the agreement made at the five-year review of the International Conference on Population and Development (ICPD). In this document, the United States made a commitment – to its own citizens as well as to the international community – to ensure that:

In circumstances where abortion is not against the law, health systems should train and equip health-service providers and should take other measures to ensure that such abortion is safe and accessible. Additional measures should be taken to safeguard women’s health. Key actions for the further implementation of the Programme of Action of the International Conference on Population and Development, para 63(iii).

The United States has an obligation to fulfill this commitment and to protect the health, safety and well-being of its citizens – including U.S. military women serving this country throughout the world.

The U.S. Government Has Increasingly Penalized U.S. Servicewomen.

In 1978, Congress included language in the fiscal year (FY) 1979 Department of Defense (DoD) appropriations bill prohibiting DoD funding of abortions except in cases of life endangerment, rape, incest, or severe health consequences.⁵ In 1979 Congress enacted further limitations in the FY 1980 appropriations bill to prohibit funding where pregnancy caused severe health consequences.⁶ In the FY 1982 appropriations bill, Congress also prohibited funding in cases of rape or incest – thus, only funding abortions where a woman’s life was endangered.⁷ In 1984, the ban on U.S. funding of abortions except in cases of life endangerment was enacted in an authorization bill and placed in the U.S. Code.⁸ Women were still able to obtain abortions at military hospitals, but they were required to use their own funds.

In 1988, without Congressional consultation, the DoD issued a memorandum that extended the ban on funding to prohibit servicewomen from obtaining abortions at overseas military medical facilities with their own funds, except in cases of rape, incest or life endangerment. President Clinton lifted this restriction on privately funded abortions by Executive Order in 1993. However, in 1996, anti-choice forces in Congress maneuvered to place the ban on privately funded abortions into the U.S. Code, preventing DoD facilities from being used to perform most abortions, except in cases of rape, life, and incest.⁹ Since 1996, members of both the House and Senate have repeatedly, yet thus far unsuccessfully, attempted to remove this ban.

The Center for Reproductive Rights urges a repeal of the ban on abortions at U.S. military medical facilities.

1. Part (a) of this provision prohibits the use of U.S. funds for abortions except for life endangerment:

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.