Surrendering Rights: Access to abortion is a constitutional right--unless you happen to be a U.S. soldier overseas

by David Englin
The New Republic Online, Sept. 12, 2002

A few years ago at an overseas military base, an officer I know was approached by a distraught enlisted woman under her command. The soldier explained that she had gotten pregnant unintentionally and, after wrestling with the decision, had decided she wanted an abortion. But a presidential executive order in force at the time forbade doctors on the base from performing the procedure. Her only alternative was to get her commander's permission to buy an airline ticket back to the United States, where she could have an abortion in a private facility--a trip that would cost her many months of pay, use up hard-earned vacation time, and, depending on her superiors, compromise her career. The officer, who very much wanted this sharp young troop to succeed in the military, decided to help. Thanks to her fluency in the host nation's language, the officer was able to help the enlisted woman get a safe abortion in a local hospital, and to do so discretely.

It might surprise you that a woman in the military serving her country an ocean away would endure such restrictions, given that the Supreme Court's Roe v. Wade decision declared abortion a constitutional right in 1973--and given that the Casey decision two decades later forbade any "undue burden" on the exercise of that right. But women in the military have put up with this for years. Back in 1979, Congress outlawed taxpayer-funded abortions at military hospitals. Although women were initially allowed to use their own funds to pay for the procedure at base medical facilities, in 1988 the Reagan administration struck down that option with an executive order. The Clinton administration reversed that order in 1993, but when the Republicans took over Congress in 1994, they promptly reinstated it--this time, with actual legislation.

In recent years, Senators Patty Murray of Washington and Olympia Snowe of Maine have tried to change that law. But anti-choice congressional Republicans have blocked their efforts--until now. As part of this year's defense budget, the Senate, controlled by Democrats, voted 52 to 40 to reverse the ban on self-financed abortions.

Unfortunately, the House, which remains under Republican control, voted 215 to 202 to keep the ban in place; President Bush has said he sides with the House. There's still one more chance to undo the ban this year, as congressional negotiators from both parties hammer out the differences in their versions of the defense-spending bill. But despite Murray and Snowe's bipartisan collaboration, they face an uphill battle--in part because so few people even seem aware of the problem.

In a way, the soldier whose officer helped her obtain an abortion was one of the lucky ones: She happened to be serving in a country where abortion was safe, legal, and readily available, and her supervisor--the officer--happened to be willing to go out on a limb. A woman stationed in, say, Saudi Arabia or Bosnia would not have been so fortunate. Even under the best circumstances, she would have had to use her hard-earned vacation days and spend her own money--several months of pay for a junior enlisted woman--to return to the United States for the procedure. Putting aside the time and cost, she would have been forced to discuss this most private issue with her superiors--the same superiors who determine everything from promotions to future assignments. If her chain of command--the same chain of command this soldier had been trained to obey even at risk to her life--refused to grant her leave, she would have had little recourse. Even if, quite reasonably, her commanders asked her to delay her leave until a better time, she might have had no choice but parenthood.

Some 35,000 women serve in the military overseas, and they're not the only ones who suffer under this ban. The prohibition includes others who get their health care through military bases: wives and daughters of servicemen, as well as civilian employees on U.S. bases--teachers, technicians, and other civil servants--and their dependents. If you assume, for argument's sake, that about half of civilian employees are female (a conservative assumption, given the number of teachers and nurses this includes) and exclude those greater than or less than childbearing age, you've just added around 95,000 to the number of people who fall under these restrictions, bringing the total to about 130,000.

So why, then, haven't we heard more about this problem? As an officer who has spent his entire life around the military, I have a few guesses. Military people don't often talk about things like abortion. Maybe it's because so many of us are from small-town America, where such topics just aren't polite conversation. Maybe it's because, as a group, we tend to be a little more religious than other Americans, making discussion of the topic even more taboo. Or maybe it's because in a profession where we sacrifice so much privacy--especially when stationed overseas--we share some kind of tacit understanding that abortion is fundamentally a private issue. Given that women in larger society aren't always forthcoming about abortion, it's hardly surprising that military women stationed overseas are even more reticent.

Of course, if you support keeping abortion legal but oppose the use of taxpayer funds to finance it--as many Americans do--this state of affairs might not seem so troubling. But keep in mind the unique situation of military life: When somebody joins the military, in exchange for the many sacrifices we ask him or her to make, we rightly expect the government to provide that person with the basic health and welfare services easily available to a civilian living in the United States. Besides, the current law goes way beyond banning the use of taxpayer money for abortions. It prevents a soldier, sailor, airman, or Marine overseas from using her own money for an abortion. How could that possibly square with the Supreme Court's Casey decision prohibiting any "undue burden" on reproductive choice?

Admittedly, those who serve in the military voluntarily give up some rights. But it is one thing to be told what clothes to wear, how to cut your hair, where to live, or what job to do; it is quite another to give up your reproductive rights. In today's military, more than half of uniformed members have families; birth control of every kind is freely and easily available for men, women, and even for minors; obstetric, gynecological, and pediatric care are available and encouraged; and even vasectomies are free and commonplace. Nobody contemplating the rights they might forgo in the service of their country could reasonably look at the reality of the military health care system and believe they will be expected to sacrifice their constitutional rights to reproductive choice. And certainly nobody would reasonably expect wives, daughters, and other civilians to sacrifice their rights.

Ironically, while the current ban denies the right to choose to military women stationed overseas, it also bestows that right upon a group who probably would rather not have it. Under the military leave system, commanders and supervisors have the power to approve or deny a subordinate's request to use his or her accumulated vacation days. Since it is ultimately a woman's superiors who determine if she can take leave, when, and for how long--and since that is the only safe and reliable way for most military women stationed overseas to have an abortion--this ban effectively shifts the right and the burden of reproductive choice to those commanders and supervisors. Even the most pro-choice commander would probably not want to be put in that position, but imagine the moral dilemma this situation would create for a commander staunchly opposed to abortion.

There's one more reason to reverse the ban on privately financed abortion--one even those less sympathetic to abortion rights might consider: It compromises the effectiveness of our armed forces. As anyone trained in military leadership can tell you, a responsible commander will always try to strike a balance between the requirements of the mission and the needs of the people who are performing that mission. There are times when it would be irresponsible for a commander to allow one of his or her people, man or woman, to leave the unit for an extended period on short notice. In today's military, where women serve on the front lines as everything from fighter pilots to intelligence officers to security guards, requiring women who want safe and legal abortions to leave their posts for up to several weeks could weaken American military units when we need them to be at their strongest.

We have heard much in the ongoing war on terrorism about the clash between basic rights and national security. This is one case in which the protection of both happens to coincide--if only the hard-core opponents of abortion will get out of the way.