Pentagon Releases Policy Details Protecting Reproductive Rights in Military

The United States Department of Defense (DOD) has announced that it will implement an array of new policies aimed at addressing current gaps in its policies on reproductive care for its servicemembers and their families, according to a memorandum issued Thursday by Defense Secretary Lloyd Austin.

Defense officials announced the new policies during a nonpublic press briefing this afternoon that was attended by Newsweek. The Pentagon said the new regulations fall into four main categories: "preserving privacy for servicemembers, protecting health care providers, ensuring access to reproductive health care, and improving awareness of resources."

These new rules following the the striking down of Roe v. Wade by the Supreme Court in June, which led to months of uncertainty regarding the protection of reproductive rights of servicemembers. A number of prominent defense scholars questioned how such fallout would impact military retention, and whether the Department would act swiftly to address lingering questions regarding access.

"All the secondary impacts of what these laws are doing were not thought through," Erin Kirk-Cuomo, co-founder of the sexual assault-prevention advocacy group NotInMyMarineCorps, told Newsweek last summer. "So, the national security impacts are definitely something that I don't think they put thought into."

Newsweek has been in communication with the Pentagon regarding these questions since late August.

Preserving Privacy of Servicemembers

To improve the level of privacy afforded to those servicemembers in need of reproductive services, the Pentagon stated in a memorandum that it would standardize and extend the time servicemembers have to notify their commanding officer to "to no later than 20 weeks."

The Department will issue guidance instructing providers that they cannot "notify or disclose" reproductive health information to commanders unless not doing so would "risk harm to mission, occupational safety requirements, or acute medical conditions interfering with duty."

In addition to this guidance, the Pentagon memorandum states that commanders must "display objectivity and discretion" when responding to matters concerning reproductive health, emphasizing their "duty to enforce existing policies against discrimination and retaliation" in respect to this form of care.

Protecting Health Care Providers

Pentagon health care providers "should not be held personally liable for performing their official duties," the memorandum reads. It states that those individuals should not face criminal or civil liability or risk losing their jobs for performing such duties.

In order to ensure protection, the memorandum directs the Department to create a program to reimburse DOD health care providers who wish to become licensed in a new state where they can carry out their reproductive health care duties.

Furthermore, the Pentagon plans to introduce a program that will provide support to providers who are "subject to adverse action, including civil or criminal penalties or loss of license or reprimand, for appropriately performing their official duties."

When asked by a reporter what the Department would do if a state were to assert criminal jurisdiction and prosecute a provider for carrying out a covered abortion, a defense official offered the following response:

"If it's a criminal charge then it would be deferred to the Department of Justice," the official said, adding that it would provide representation. "If Department of Justice is taking the case, we would work with them to coordinate the response. We would be in support of our member and/or employee, and, of course, that's part of what we're working through in developing the policies."

Ensuring Access to Reproductive Health Care

Servicemembers often must travel or move to meet operational requirements, the memorandum acknowledged, and DOD wants to ensure such moves do "not limit their access to reproductive health care."

Should someone be forced to travel in order to receive reproductive care, the Department writes that they could be required to take extra time off work, face high out of pocket expenses and lengthy travel times.

"In my judgment, such effects qualify as unusual, extraordinary, hardship, or emergency circumstances for Service members and their dependents," Austin wrote in the memorandum, "and will interfere with our ability to recruit, retain, and maintain the readiness of a highly qualified force."

In order to address this concern, the Pentagon will develop a policy that allows for "appropriate administrative absence" consistent with federal law addressing non-covered reproductive health care — which includes care that is not being administered in cases of rape, incest, and life of the mother.

The Department will additionally establish travel and transportation allowances for servicemembers and their dependents, applicable with federal law, amending any "applicable travel regulations, to facilitate official travel to access non-covered reproductive health care that is unavailable within the local area."

Comprehensive access to contraception will continued to be offered. Military medical treatment centers will expand their services to include "dedicated hours for walk-in contraceptive care."

"These actions are fully consistent with federal law, and the department has worked closely with the Department of Justice which has provided a legal written opinion on the authority to provide travel and transportation allowances that ensure the health of the force," a defense official asked when a reporter questioned whether the Department was confidence that there would not be a legal challenge.

Improving Awareness of Resources

Moving forward, the Department plans to ensure members are made aware of resources and will "conduct a comprehensive contraception education campaign," which will highlight that TRICARE, which provides civilian health benefits to military personnel, has eliminated co-pays for medical contraceptive services.

It will also "expand publicly displayed information" to make its force aware of resources. In conjunction, TRICARE and other Military Health System websites will clarify the types of medical care offered following "any abortion." Furthermore, the HEALTH.mil and TRI CARE.mil websites will offer an "easy-to-find point of contact" for personnel experiencing difficulty accessing reproductive care.

Takeaways

Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles who served as a senior legal advisor in the military international law of armed conflict during her time with the U.S. Air Force, told Newsweek that the striking down of Roe was expected to have adverse effects on the recruitment of female servicemembers.

"Female service members have a higher rate of unintended pregnancies," she said. "Number two, female servicemembers don't get to choose primarily where they live, and many of our bases are in what I call 'abortion deserts.'"

It is as yet unclear what effects the nation's changing abortion laws will have on the U.S. military's efforts to recruit female troops, and whether the policies outlined in the memorandum will be effective in easing their concerns.