By: Kirsten Companik
Last June, the Supreme Court held in Dobbs v. Jackson Women’s Health Organization that there is no constitutional right to an abortion. The landmark ruling overturned decades of precedent set by the 1973 decision Roe v. Wade and allowed individual states to set their own abortion care policies within their borders. This first-order effect of Dobbs came through what are called “trigger laws”—abortion bans codified in state law that were designed to automatically go into effect if Roe was overturned. Thirteen states had trigger laws on the books at the time that the Dobbs decision came down. Those states without trigger laws but that sought to restrict abortion access enacted their own laws shortly after the decision. In total, by January 2023, twenty-four states enacted abortion bans or restrictions, leaving abortion access available in just over half of all U.S. states. What dominated the headlines in the weeks following the ruling was individual and state responses to the sudden change in healthcare policy; unrealized at the time was the impact that Dobbs would have on national security. Over a year out from Dobbs, the materialized implications of the decision include challenges to military recruitment and retention and a congressional response that undermines military readiness.
After Dobbs, with abortion access severely limited nationwide, military service members and their families face particular hurdles if they require access to reproductive health care. According to one study, 46% of active-duty military service women live in a state with no or severely restricted access to abortion care post-Dobbs. Therefore, to obtain an abortion, these women (or any military dependant) would have to travel to a state that has the full suite of reproductive health care. This creates steep barriers for individuals, including the need to request and take time off to make the necessary travel and the added costs of travel and lodging accommodations. Furthermore, military service members and their families largely cannot control where they are stationed and are required to move frequently throughout the course of their careers. This means that it is foreseeable that they may be moved to a state with limited abortion access, and some members may therefore choose to opt out of military service entirely rather than risk jeopardizing their access to reproductive health care. This second-order effect of Dobbs takes aim at the United States’ ability to effectively recruit and retain a full military force able to respond to any threat, which in turn hinders military readiness. With women already comprising only 17% of the active-duty force, there is less incentive for women to join the military if there is no guarantee that their reproductive rights are respected. Additionally, if any service member’s spouse or dependant seeks an abortion in a state that restricts it, they would face the same challenges, creating a disincentive for families as well as female service members.
While the 1976 Hyde Amendment has long blocked the federal government from paying for abortions (with limited exceptions), service members were able to obtain abortions from local civilian medical providers at their own expense. With the Dobbs decision and the subsequent spread of restrictive abortion laws, service members now face major hurdles in obtaining an abortion. Recognizing this, in October 2022, Secretary of Defense Lloyd Austin issued a memorandum to Department of Defense personnel, noting that the Dobbs ruling had impacted the Department’s ability to retain a highly qualified force. The memorandum directed the Department to remedy these post-Dobbs challenges by creating a policy that allows service members to take a leave of absence and receive travel funds should they need to travel out of state to obtain an abortion or receive other forms of reproductive health care, such as in vitro fertilization (IVF). In acknowledging the hurdles to obtaining an abortion, the Department tried to remedy some of the largest obstacles post-Dobbs for its employees.
The October memo, while applauded by some for its desire to alleviate the second-order effects of Dobbs, caught the attention of those on the other side of the issue. Staunch anti-abortion senator Tommy Tuberville, a member of the Senate Armed Services Committee, began a campaign in December 2022 to pressure the Department of Defense to reverse its planned directives. Senator Tuberville argued that the proposed policies violated the “spirit” of the Hyde Amendment and that Secretary Austin needed congressional approval before enacting the policies. When the Department formally implemented the policies in February 2023, Tuberville fought back by placing a hold on the confirmations of those Department of Defense nominees subject to Senate approval. Since much of Senate business is conducted by unanimous consent, including the decision to vote on a nominee, one senator can hold up such business decisions even if the other ninety-nine want to move them forward. Tuberville is doing just that by not allowing the Senate to vote en masse on the more than 300 military nominees awaiting confirmation. While the Senate could get around this procedural quirk by voting on each officer individually through a roll call vote, doing so would take about 700 hours of Senate floor time. This means that in this past session of Congress where the Senate had 179 legislative days, for example, about 90 of them would be required to confirm 300 nominees—nearly half. Time devoted to individual votes means time away from debating other important congressional actions, including the annual National Defense Authorization Act, which authorizes fiscal appropriations and sets policy for the Department of Defense.
Tuberville has vowed to maintain his position unless the Department of Defense reverses its abortion policy. Even amid pleas from military officials, former Secretaries of Defense, and fellow members of Congress (some from his own party), Senator Tuberville has not relented. While the Senate was able to hold individual votes for three senior officials in September, the rest remain held up by unanimous consent. Those nominees awaiting their vote include prospective leaders of the Navy, Air Force, and several other top posts. It is estimated that by the end of 2023, 650 military officers will need to pass through the Senate for confirmation.
The practical effects of this blockade mean that senior military officials are prevented from moving up in ranks, and their vacancies are filled in the meantime on an “acting” basis by individuals who now have to perform two jobs simultaneously. What is left is that the acting officials lack the authority to effectively lead the military, as they cannot make significant hiring decisions or create long-term policy. Additionally, those senior nominees who await confirmation face uncertainty—without an assured promotion and on an indefinite timeline, they may decide to retire from military service to find stability and higher pay in the private sector. This sort of congressionally imposed brain drain at the Pentagon could force out the institution’s longest-serving and most qualified individuals, creating a vacuum at the top of the Department’s organizational chart. This third-order effect of the Dobbs decision is estimated to take years to recover from.
Taken together, it is clear that the fallout of Dobbs cuts the national security field deep. Today, after a spate of legal challenges struck down some laws, twenty-one states ban or restrict access to abortion. In an increasingly diverse and geographically diffuse national security landscape, the U.S. cannot afford a lapse in its military readiness; the military is already suffering through historically low levels of enlistment. The immediate impact of Dobbs targets the military from the bottom-up by challenging recruitment and retention. Senator Tuberville himself has been vocal about the military recruitment crisis, calling it a “national security emergency.” With abortion access now determined on a state-by-state basis, the military faces a new test in generating interest in joining the armed forces; the policies implemented so far have at least tried to assure those who have doubts about enlisting.
Senator Tuberville’s longstanding hold has shown itself to be a larger problem, undermining the military from the top-down. The Government Accountability Office has determined that the Department’s abortion policies are not subject to congressional review, and Congress therefore does not have the authority to nullify the provisions. Even so, the blockade remains, with potentially serious ramifications.
The U.S. military is entirely composed of volunteers; no one is forced to enlist. The Dobbs decision has shone a light on how domestic social issues such as abortion continue to give pause to those who otherwise wish to honorably serve their country. Residual effects of the once decades-long anti-gay “don’t ask, don’t tell” policy mean that LGBTQ+ service members are still experiencing harassment and discrimination. Just this past month, lawsuits were filed against military academies in a challenge to their affirmative action policies after the Supreme Court rejected race-based admissions considerations at Harvard and UNC as a valid means of promoting diversity. Without assurances for service members, from those in the lowest ranks to those at the highest echelons, individuals will undoubtedly lose interest in supporting an institution whose hands are tied from supporting them back.