GOP Lawmaker Warns Defense Secretary ‘You Will Lose’ in Court Fight Over Military Abortion Policy

Ryan Morgan
By Ryan Morgan
March 30, 2023Politics
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GOP Lawmaker Warns Defense Secretary ‘You Will Lose’ in Court Fight Over Military Abortion Policy
Rep. Mike Johnson (R-La.) speaks to reporters in Washington in a file image. (Alex Wong/Getty Images)

Rep. Mike Johnson (R-La.) criticized as “unlawful” a new Department of Defense (DoD) policy that would pay for military service members to travel to get an abortion if they are stationed in a state where access to abortion is restricted.

During a Tuesday House Armed Services Committee hearing, Johnson accused the DoD of exceeding its legal authority with the new policy to reimburse pay for abortion-related personal travel for service members. Johnson noted Title 10 Section 1093 of the U.S. Code, which states that “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 or in a case in which the pregnancy is the result of an act of rape or incest.”

Section 1093 further states no DoD medical facility may be used to perform an abortion except where the life of the mother is endangered or the pregnancy is the result of an act of rape or incest.

Last June, the U.S. Supreme Court issued a decision in the case of Dobbs v. Jackson Women’s Health Organization, which overruled portions of the 1973 Roe v. Wade abortion case and ruled that the states have the power to regulate matters pertaining to abortion that are not currently subject to federal law.

In October, Defense Secretary Lloyd Austin issued a memo ordering the DoD to “establish travel and transportation allowances for Service members and their dependents, as appropriate and consistent with applicable federal law and operational requirements, and as necessary amend any applicable travel regulations, to facilitate official travel to access non-covered reproductive health care that is unavailable within the local area of a Service member’s permanent duty station.” The DoD has proceeded with the implementation of that policy in the months since.

“I get that you’re trying to find a crafty workaround, but it’s a blatant violation,” Johnson told Austin during the hearing.

Austin said that the DoD came to implement this abortion-related policy “based on sound legal advice.”

Austin further noted that one in five military service members are women and that “80,000 of them now live in places where they don’t have access to non-covered reproductive healthcare,” referring to abortion restrictions.

“This is important to our force,” Austin continued.

“What’s more important is adherence to the rule of law,” Johnson replied. “It is the United States Congress that makes those decisions … This is a statute that was created by the people’s elected representatives and the last time I checked, not a single person in this country voted for you.”

Johnson then called on Austin to repeal the DoD’s abortion policy.

“It will be challenged in court. I’m certain … you will certainly lose it, but save us all the hassle involved,” Johnson said.

Politicized Military

Throughout his speaking time, Johnson repeatedly tied the abortion issue to a larger concern about the current leadership of the military pulling the force into political debates. In particular, Johnson referenced a November survey (pdf) by the Ronald Reagan Presidential Foundation and Institute, which found that 48 percent of respondents had a “great deal” of confidence in the U.S. military compared to 70 percent of respondents four years prior. Sixty-two percent of survey respondents said they are specifically concerned that “military leadership are becoming overly politicized.”

“You’re not an elected official. You don’t get to make this policy, and this insistence upon diving into issues outside of simply maintaining a lethal and capable fighting force is tearing our military apart,” Johnson said.

Austin contended that the U.S. military remains “the most combat-credible force on the planet.”

Johnson linked the perceived politicization of the military to recent shortfalls in military recruiting. The U.S. Navy hit its recruiting goal for active-duty enlisted personnel, but missed its goals for recruiting new active and reserve officers and reserve enlisted personnel. The U.S. Air Force also met its active-duty recruiting goals but missed its recruiting goals for the Air Force Reserve and Air National Guard.

The U.S. Army missed its active-duty recruiting goal by a full 25 percent, falling 15,000 recruits short of its 60,000 recruitment goal for fiscal year 2022.

While Johnson and other Republican lawmakers have raised concerns about recruitment, Austin argued back that those already in the military are continuing to reenlist.

“Reinlistment rates are higher than they’ve ever been in 50 years,” Austin said. “Our troops like what they’re doing. They liked the fact that their leadership cares about them and we’re going to continue to care.”

Earlier this month, Sen. Tommy Tuberville (R-Ala.) blocked the Senate from approving a batch of 150 nominations for flag officers and civilian DoD officials, requiring the Senate to approve each nomination individually through the Senate’s regular order procedures. Tuberville explicitly linked the block to the DoD’s abortion policy, saying, “Three months ago, I informed Secretary Austin that if he tried to turn the DoD into an abortion travel agency, I would place a hold on all civilian, flag, and general officer nominees.”

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