Serving Those Who Serve?

Restrictions on Access to safe, legal abortion services is essential to access for servicemembers, a person’s health and central to their economic and social veterans, and their well-being. Everyone deserves access to, and comprehensive dependents coverage for, safe abortion services in their communities, and that includes members of our and their families. Yet servicemembers and their dependents, as well as veterans, face unjustified, hardline restrictions on their access to abortion.

Federal law prohibits the Department Overall, the rate of unintended pregnancy of Defense from providing abortion in the Armed Forces is higher than among services at military treatment facilities, the general population.5 An analysis of the and the TRICARE insurance program 2011 Survey of Health Related Behaviors from covering such services, except when found that seven percent of active-duty a pregnancy is the result of rape, incest or women of reproductive age reported an when the life of the pregnant person is at unintended pregnancy in the previous risk. The Veterans Health Administration year. That same year, 4.5% of women of (VHA), which provides health services to reproductive age in the general U.S. popu- veterans, does not provide or cover abor- lation reported an unintended pregnancy.6 tion services under any circumstances. This issue brief — the first in a three-part Bans on abortion care and coverage series — discusses the unique barriers adversely impact veterans, servicemem- servicemembers, veterans and their bers and their families, including the dependents face in accessing abortion women and transgender men whose care. First, we explain the restrictions on service is vital to the abortion for active duty servicemembers of the United States. Women comprise and their dependents, and describe the more than 17 percent of the Armed Forces institutional barriers servicemembers face and ten percent of veterans.1 As of 2017, when they are forced to seek care off base, TRICARE covered 1,563,727 women such as restrictions on leave and travel and of reproductive age, including female mandatory disclosure of confidential med- spouses and dependents. Women are also ical information. Then, we describe the now the fastest growing cohort within the financial and logistical barriers imposed veteran community.2 Additionally, an on servicemembers and their dependents estimated several thousand transgender due to TRICARE’s abortion coverage men who serve on active duty and in the ban, and the myriad of state abortion Guard or Reserve Forces,3 as well as thou- restrictions patients may encounter while sands of transgender military dependents,4 seeking care off base. Finally, we detail the are covered by TRICARE and may be absolute bans on abortion coverage and Issue Brief impacted by the military’s abortion ban. provision for veterans in the VHA system. 2

ACTIVE DUTY SERVICEMEMBERS care outside the military healthcare AND THEIR DEPENDENTS FACE system is amplified for servicemembers NUMEROUS BARRIERS TO who are posted onboard a ship. “Went in for [a] UTI, was brought in ACCESSING ABORTION and told I had a positive pregnancy The process of obtaining leave or an For decades, federal law has prohibited test. They had already written approved pass can be difficult. General me a script for prenatal vitamins the Department of Defense (DOD) from leave and pass policies are set by each as if I had no other choice than to providing abortion services at military branch of the armed forces, and their carry forward with the pregnancy. treatment facilities (MTFs) except in policies may vary from base to base, I asked about the abortion pill and cases of rape or incest or to save the life they said ‘no, military medicine sometimes even between units within of the pregnant patient. Known as the does not allow it.’ I asked where bases.9 A request may require providing “facilities ban,” this prohibition forces I could go as an alternative and necessary documentation and servicemembers and their dependents at they had no info. It was horren- explanations for the request, and prior dous care and I’m a nurse!” home and abroad to access care off base approval from the unit commander, and outside the military healthcare system. a process that may take days or weeks.10 Doing so often comes with substantial risk, logistical barriers and at great cost. Such Moreover, obtaining medical leave to seek Navy Officer, Veterani costs and delays undermine access to safe, treatment is not guaranteed.11 For example, legal, and affordable abortion services. under Army regulations, the decision to grant a leave request is entirely discre- Until recently, the TRICARE insurance tionary.12 If a servicemember is denied program, which provides coverage to permission to travel for the abortion or servicemembers and their dependents, any of the multiple visits mandated by only covered performed to save some states, they could be left without the life of the patient. In 2012, Congress “I am a member of the armed access to the health care that they need. passed an amendment to the Defense forces currently serving in Conversely, if they leave base to obtain Bill offered by Sen. Jeanne Shaheen that Afghanistan. I am here with my care without obtaining prior approval or husband and was unaware that permits abortion coverage in the case of miss scheduled duty due to unexpected the pills I take to prevent malaria rape or incest.7 While Senator Shaheen’s delays or difficulties in reaching the facil- can counteract my birth control amendment brings DOD policies in line ity, they risk facing serious disciplinary pills. My husband is as shocked as with most other federal policies on insur- I am. We do not want a child now; consequences civilians do not encounter.13 ance coverage for abortion, the underlying we have a job to do here. Due to restriction still imposes a substantial the military’s no-abortion policy, Leave requests and other I am pretty desperate. It isn’t like hardship on the vast majority of service- internal regulations can force you can even go off base here, and members and dependents whose abortions servicemembers to disclose you can’t just say you need medi- are not covered by TRICARE and results in confidential medical information cal leave without saying why.” financial hardship and emotional distress to their superiors for servicemembers and military families. Because the process of obtaining leave or an approved pass may require servicemem- Anonymous, Afghanistanii The facilities ban forces servicemembers to seek care off bers to disclose the reason for requesting base, but institutional barriers leave to their superiors, the facilities ban may prevent them from leaving often forces servicemembers to reveal private medical information to persons Servicemembers cannot simply leave who are under no legal obligation to protect base to travel to far away clinics at will.8 their . This leaves their sensitive For example, their ability to travel outside personal information vulnerable to their base may be severely restricted or disclosure. Moreover, some military by rules requiring them to obtain leave branches require servicemembers to dis- or be on an approved pass, granted by close their pregnancies to their superiors a superior. The difficulty of obtaining 3

regardless of their pregnancy intentions. For example, Navy guidelines require ser- vicemembers who learn they are pregnant to “promptly confirm[] their pregnancy “Two years ago, as a young single woman in the Air Force, I found out I was and inform[] their commanding officer.”14 pregnant. I knew I couldn’t talk to my immediate supervisor because he was The guidelines do not appear to make an a Catholic priest. You see, my job in the armed services was “Chaplain’s Assistant.” So instead, I went to the next level in my chain of command. In return exception for servicemembers who do for requesting time off, I was verbally reprimanded and told that I had sinned in not intend to continue their pregnancy. the eyes of God and was going to hell if I didn’t repent immediately.”

Lack of insurance coverage of abortion imposes a substantial barrier to care Julie,* Japaniii * name changed to protect the storyteller’s privacy TRICARE does not provide insurance coverage for abortions except in the case or rape or incest or to save the life of the patient. But for many people, coverage for abortion care means the difference between getting the health care they need and being denied that care.

For many servicemembers but particu- larly for junior servicemembers, the cost “I found out I was pregnant in the months leading up to my deployment and of an abortion can be prohibitive. For didn’t feel comfortable telling my doctor or chain of command for fear of example, the base pay of a Private (E1) retribution. I took a day of after finally talking to my chief about it, he was nice but it was incredibly uncomfortable and later on he told the entire with less than two years of experience is chiefs’ mess about it. […].” less than $21,000 a year.15 The costs of the abortion may increase while a ser- vicemember waits for approval for their Active Duty Navy Enlistediv leave or pass to be granted, because the cost of an abortion rises as a pregnancy proceeds. Costs may also be compounded by additional expenses related to travel and hotel stays when servicemembers are denied care at their military base.

Servicemembers who are already living near the poverty line and are turned away from obtaining an abortion or who are unable to afford abortion services DOD schools were eligible for free meals Recent research shows that a woman are at great risk of falling into poverty. based on their parents’ income, and 21% who seeks but is denied abortion care is were eligible for reduced-price meals.18 more likely to fall into poverty than Recent reports indicate that many mili- a woman who is able to get the care she tary families, especially lower-ranking The impact of denying abortion care can needs.19 This may also have a cascading enlisted members with children, experi- have long- term, devastating effects on effect on their future retirement from the ence food insecurity.16 Already, about a person and their family’s economic military, as women veterans are more 23,000 active-duty servicemembers rely future. Turning away low-earning military likely to live in poverty and qualify for on the federal Supplemental Nutrition servicemembers from abortion care —espe- food stamps than male veterans.20 Assistance Program (“SNAP”).17 A recent cially those already struggling to make ends GAO report found that 24% of children in meet—may push them further into poverty. 4

Forcing patients outside the services. In addition, many junior ser- military healthcare system delays vicemembers do not own a car, making it access to time-sensitive care and even more difficult to travel to a clinic.24 “It was very difficult to come up increases costs with the $600 when I was an E-1 When patients face delays in obtaining Servicemembers cannot choose where living in the barracks. It was an an abortion, the logistical and financial entire month pay at the time. [. . .]” they are based. Because servicemem- burdens they face multiply. On average, bers are denied abortion services at a patient must wait at least a week between MTFs, they have no choice but to seek when they attempt to make an appoint- care off base when in the United States. Enlisted Air Force Veteranv ment and when they receive an abortion.25 At the same time, an unprecedented Delays also have the effect of increasing number of state-level abortion bans and the cost of an abortion. Abortion in the first restrictions are shutting down clinics trimester is substantially less expensive that provide abortion services and are than in the second trimester: the median imposing burdensome obstacles to price of a surgical abortion at ten weeks care. These restrictions on abortion, is $508, while the cost rises to $1,195 at combined with the insurance coverage week twenty.26 The rising cost of abortion “I had just left Korea and then I ban and problematic military procedures as gestational age increases poses received orders originally to Iraq. often form insurmountable barriers for a profound challenge to the affordability […] I found out I was pregnant and service members and dependents. all I kept thinking was I was letting of the procedure for lower-income women. my team down. […] I knew I In the United States, six states—Kentucky, And because fewer clinics offer second- wanted an abortion, but I couldn’t Mississippi, Missouri, North Dakota, trimester abortions, a patient who has go to a military doctor. Preparing South Dakota and West Virginia, nearly been delayed into the second trimester for deployment is a very costly all of which have a large military pres- will typically be required to travel farther endeavor. I ended up spending ence—have only one abortion provider.21 to obtain an abortion, thereby incurring quite a bit of money just getting 27 new gear. So by the time that I Eighty-nine percent of counties in the additional travel and related costs. realized I needed this procedure, United States do not have a single abor- As a result, indirect referrals that result in I was broke. I didn’t know what tion clinic and some counties that have a delay in care can significantly drive up to do, I was at the end of my a clinic only provide abortion services the cost for a patient seeking abortion care. rope. […] I remember calling the on certain days of the week.22 In addi- North Dakota office [of Planned For servicemembers and their dependents tion, many states require multiple, Parenthood]. They referred me living outside the United States in a host medically unnecessary provider visits to a clinic in Minnesota, so I had country where safe abortion services are or unnecessary medical services. These to drive four hours, and then I unavailable, the only safe option may barriers both delay and prolong the time would have to wait three days. be to travel long distances to and from I also thought, where am I going a patient must take to receive care.23 the United States or locate a provider to stay? So the only option was my car, and eating crackers and Simultaneously, the limited availability in a nearby country where abortion is Gatorade. I’m like, we’re going of abortion providers across the country legal.28 There, patients may addition- cheap. I need to have enough gas and burdensome state restrictions drive ally face language and cultural barriers to get me back to work after all of up the cost of accessing an abortion. in their attempts to access care. The this is done. There was the option It may be difficult or even impossible for necessary travel would also delay access to be awake or not awake but the a patient to access care when the nearest to care and potentially push the patient not awake version cost $150 more abortion provider is hundreds of miles into a later stage of pregnancy, where dollars, and I was like, yeah, that’s not going to happen either.” away, has a weeks-long waiting list or they fewer providers may be available and are unable to obtain sufficient leave to procedures may be more complex. No one travel to and from the clinic. This burden should have to travel to another country is compounded where a state requires to access basic health care services. Holly, Air Force Veteranvi multiple, medically unnecessary clinic visits in advance of providing abortion 5

Minor dependents face additional, unique barriers to care The facilities ban and ban on insurance “When I arrived at the hospital, I was sent into a cubicle. None of the nurses spoke coverage for abortion care pose addi- English, so I had no way of giving them my medical history. I had no Japanese tional challenges for minor dependents friends to translate, and the Air Force would not provide any assistance. My first of servicemembers. Minors may not doctor did not speak English either, so I had no idea what the doctor did, or what have a driver’s license or access to a car medication he gave me. I was completely alone. I will never forget the humiliation and may be unable to travel to faraway I felt. I couldn’t speak the language. I was turned away by my American doctors clinics without an adult present. For on base whose hands were tied. The doctors on base weren’t even allowed to give me information regarding this medical procedure. Although I served in the minors who must additionally navigate military, I was given no translators, no explanation, no transportation, and no help the maze of state restrictions on abortion for a legal medical procedure.” access or who live in a foreign country hostile to abortion rights, the barri- ers to care may be insurmountable. Julie,* Japanvii In the United States, twenty-one * name changed to protect the storyteller’s privacy states require a parent to consent for a minor’s abortion. Three of these (Kansas, Mississippi, and North Dakota) require both parents to consent, and eight states require a notarized consent document.29 This process may addition- ally delay or prevent access to care, and compromises minors’ right to privacy.

Most young people choose to involve their “Although I had been using birth control I found out I was pregnant during my first parents in decisions regarding abortion. assignment as a second lieutenant stationed in Germany. I didn’t speak German But, as the Supreme Court has recognized, and had no idea how to find a reputable clinic. My military doctor offered no assistance. I was lucky that I was stationed in a country where abortions are legal requiring parents to be notified or to and safe but even so it was extremely stressful finding care.” consent can sometimes put young people in danger instead of aiding their decision- making process. Minors often have good Ellen Haring, retired Army colonel reason when they avoid involving their parents, such as fears of abuse.30 The U.S. Supreme Court has ruled that states with parental consent laws must provide a “judi- cial bypass” procedure that allows minors to receive court approval for an abortion without informing their parents. However, this option may be infeasible for minor dependents who live on remote bases with little access to the civilian court system. 6

VETERANS AND THEIR CHAMPVA, an insurance program for which can significantly raise the cost of DEPENDENTS ARE SUBJECT TO certain eligible veterans’ dependents, is accessing care. For example, veterans may SEVERE BARRIERS TO ACCESS similarly oppressive. Regulations govern- face restrictions that require multiple, Veterans also face severe barriers on ing CHAMPVA make a single exception medically unnecessary trips to an abor- access to abortion care. Veterans who to the abortion ban to permit life-saving tion clinic that are cumbersome, impose receive an honorable discharge are eligible abortions. While all abortion bans are costly travel and childcare expenses and for veterans health care benefits through bad policy, these regulations are also delay access to care. Delayed access to the VHA system.31 Accordingly, covered contrary to law, which requires CHAMPVA care increases the cost of care because the veterans can obtain nearly all essential to provide “the same or similar” care cost of an abortion rises as a pregnancy services at VHA facilities. VHA is the as TRICARE. TRICARE bans abortion proceeds. Long waiting lists and far country’s largest integrated health care coverage except in cases of rape, incest distances to the nearest abortion clinics system—with more than 1,200 care loca- and to save the pregnant person’s life.33 precipitated by the national abortion tions serving nearly nine million veterans provider shortage compound these costs. Because of these bans, beneficiaries with essential health services each year. must seek abortion care outside the VA Women veterans are more likely to live However, VA regulations exclude all system, pay for their care out of pocket, in poverty than male veterans. Similarly, abortions from the VA’s medical benefits and navigate the private health care transgender veterans are more likely package, making abortion unavailable in system and maze of state restrictions on to live in poverty than their cisgender VHA facilities—even to save the life of the abortion on their own. As described in counterparts.34 Consequently, the cost of pregnant person.32 Forced outside of the detail above, an unprecedented number accessing abortion care without insurance VHA health system, veterans must pay of state-level abortion bans and restric- coverage is likely to drive access out of for any abortion services out of pocket. tions are forcing clinics to shut their doors, reach for a significant number of veterans.

Recommendations

Congress and the administration should take Servicemembers should be permitted to swift action to ensure that all servicemembers access abortion on base, with appropriate and veterans are able to access comprehen- privacy protections and without consulting sive care services in their superiors. the facilities dedicated to their health care. The administration must rescind regulations Abortion care is health care and must be made prohibiting abortion care within VHA facili- available in a timely and affordable manner. ties. VHA must provide access to and cover- The decision to have, or not to have, an abor- age for abortion services as it does with other tion should not depend on whether or not pregnancy-related care. the individual can afford the procedure. Abortion is a human right. Congress and the Congress must repeal the prohibition on the administration must fulfill their obligation use of military bases for abortion and the ban to make that right a reality for servicemem- on use of military funds for abortion care. bers, veterans and their dependents. oral reprimand and a reduction of grade of their 25 See Lawrence B. Finer et al., Timing of Steps and Endnotes ranking. At a more extreme level, if a service Reasons for Delays in Obtaining Abortions in the member were court-martialed pursuant to UCMJ United States, 74 CONTRACEPTION 334, 338-43 Article 92 for “failure to obey a lawful order,” she (2006) (The median is seven days, while the 1 U.S. Dep’t of Defense, 2017 Demographics: Profile of could receive a bad conduct discharge, forfeiture average is 10 days. Moreover, poorer women the Military Community, (2017) available at http:// of all allowances and pay and up to six months wait two to three days longer than the typical download.militaryonesource.mil/12038/MOS/ confinement if found guilty of this offense.). woman.). Reports/2017-demographics-report.pdf; Facts 14 Dep’t of the Navy, Office of the Chief of Naval 26 Rachel K. Jones et al., Differences in Abortion and Statistics about Women Veterans, U.S. Dep’t Operations, Navy Guidelines Concerning Service Delivery in Hostile, Middle-Ground and of Veteran’s Affairs, available at https://www. Pregnancy and Parenthood, OPNAVINST 6000.1D Supportive States in 2014, 28 Women’s Health womenshealth.va.gov/WOMENSHEALTH/latestin- at 4.b (Mar. 12, 2018), available at https://mcca- Issues 215-16 (2018) available at http://www. formation/facts.asp (last visited Nov. 6, 2019). reer.files.wordpress.com/2018/03/opnavinst- whijournal.com/article/S1049-3867(17)30536-4/ 2 Nat’l Ctr. for Veterans Analysis and Statistics, U.S. 6000-1d-navy-guidelines-concerning-pregnancy- abstract. Dep’t of Veterans Affairs, The Past, Present and and-parenthood.pdf. 27 Rachel K. Jones & Jenna Jerman, How Far Did US Future of Women Veterans 10 (2017), available at 15 Monthly Rates of Basic Pay for Enlisted Members Women Travel for Abortion Services in 2008?, 22 J. https://www.va.gov/vetdata/docs/SpecialReports/ (Active) effective Jan. 1, 2019, Def. Fin. & ACCT. Women’s Health 706 (2013). Women_Veterans_2015_Final.pdf. Serv., available at https://www.dfas.mil/mili- 28 Heather D. Boonstra, Off Base: The U.S. Military’s 3 Gary J. Gates & Jody L. Herman, The Williams tarymembers/payentitlements/Pay-Tables/Basic- Ban on Privately Funded Abortions, 13 Guttmacher Inst. at UCLA School of Law, Transgender Military Pay/EM.html (last visited Nov. 5, 2019). Policy Review 2, (2010) available at https://www. Service in the United States 4 (2014) available at 16 Dorian Merina, When Active-Duty Service guttmacher.org/sites/default/files/article_files/ https://williamsinstitute.law.ucla.edu/wp-content/ Members Struggle to Feed Their Families, Nat’l gpr130302.pdf. uploads/Transgender-Military-Service-May-2014. Pub. Radio, Apr. 19, 2017, available at https://www. 29 Advocates for Youth, Fact Sheet: Abortion and pdf. npr.org/sections/thesalt/2017/04/19/524563155/ Parental Involvement Laws: A Threat to Young 4 Patricia Kime, More Military Children Seeking when-active-duty-service-members-struggle-to- People’s Health and Safety (2019) available at Transgender Medical Care, Report Finds, Military. feed-their-families. https://advocatesforyouth.org/resources/fact- com, Mar. 28, 2019, available at https://www. 17 Id. sheets/abortion-and-parental-involvement-laws/. military.com/daily-news/2019/03/28/more-mili- tary-children-seeking-transgender-medical-care- 18 U.S. Gov’t Accountability Off., GAO-16-561, 30 ACLU of New York, Legislative Memo: Parental report-finds.html. Military Personnel: DOD Needs More Complete Involvement in Minors’ Abortion Decisions (2007) Data on Active-Duty Servicemembers’ Use of Food available at https://www.nyclu.org/en/legislation/ 5 Ibis Reproductive Health, Sexual and reproductive Assistance Programs (2016) available at https:// legislative-memo-parental-involvement-minors- health of women in the US military, Issue brief 4: The www.gao.gov/assets/680/678474.pdf. abortion-decisions. impact of unintended pregnancy on servicewomen and the military (2013) available at https://www. 19 Diana Greene Foster, PhD, Sarah C. M. Roberts, 31 Eligibility for VA health care, U.S. Dep’t of Veterans ibisreproductivehealth.org/sites/default/files/files/ DrPH and Jane Mauldon, PhD, Socioeconomic Affairs, available at https://www.va.gov/health- publications/Military%20Brief%204%202017-02- consequences of abortion compared to unwanted care/eligibility/ (last visited Nov. 6, 2019). birth (Oct. 30, 2012) (abstract from the Am. Pub. 21_0.pdf (last updated February 2017). 32 38 C.F.R. §17.38(c). Health Ass’n annual meeting) available at https:// 6 Id. apha.confex.com/apha/140am/webprogram/ 33 38 USC §1781(b). 7 10 U.S.C. § 1093(a), (b). Paper263858.html. 34 Disabled American Veterans, supra note 20; See 8 Brief for Service Women’s Action Network et 20 Disabled American Veterans, Women Veterans: The also Press Release, The Williams Inst. at UCLA el. as Amici Curiae Supporting Appellant Whole Journey Ahead 9 (2018) available at https://www. Sch. of Law, Transgender veterans as healthy as Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 dav.org/wp-content/uploads/2018_Women- cisgender veterans, study finds (Jul. 11, 2018) (2016) (No. 15-274), available at https://www. Veterans-Report-Sequel.pdf. available at https://williamsinstitute.law.ucla.edu/ press/trans-vets-health-press-release/. reproductiverights.org/sites/default/files/docu- 21 Elizabeth Chuck, Missouri begins hearing over ments/Service%20Women’s%20Action%20 Planned Parenthood clinic, state’s lone abortion Network%20Shearman.pdf (each service branch clinic, NBC News, Oct. 28, 2019, available at has polices which impose travel restrictions for https://www.nbcnews.com/news/us-news/mis- passes and liberty that include limits on how far souri-begins-hearing-over-planned-parenthood- Quote Endnotes a service member may travel during a weekday, clinic-state-s-lone-n1072736. weekend, or 3- or 4-day weekend). 22 National Partnership for Women & Families, Bad i Service Women’s Action Network, Access to 9 Id. at 14. Medicine: How a Political Agenda is Undermining Reproductive Health Care: The Experiences of 10 Id. at 15. Abortion Care and Access 13 (3rd ed. 2018), Military Women 10 (2018) available at https:// available at http://www.nationalpartnership.org/ 11 Id. www.servicewomen.org/wp-content/ our-work/resources/repro/bad-medicine-third- uploads/2018/12/2018ReproReport_SWAN-2.pdf. 12 Id. edition.pdf. ii National Abortion Federation hotline. 13 Id. at 20 (“Even if a service woman is granted 23 See id. at 21-22; See also Virginia Department iii Id. leave to travel, she may end up missing of Health, Regulations for Licensure of scheduled duty due to a change in schedule, Abortion Facilities, Proposed Regulation Agency iv Service Women’s Action Network, supra note i. unexpected difficulties in reaching the facility, or Background Document 10, Jan. 8, 2013, avail- v Id. at 11. other delays. A service woman could be subject able at http://townhall.virginia.gov/L/GetFile. to punishment as a result of disobeying military cfm?File=C:\TownHall\docroot\58\3563\6315\ vi Bill Moyers, No Choice: Holly Alvarado, Vimeo orders, rules or regulations. For example, a ser- AgencyStatement_VDH_6315_v2.pdf. (Nov. 13, 2017), available at https://vimeo. vice woman could potentially face restrictions, com/242627786. 24 Brief for Service Women’s Action Network, supra extra days of duty, forfeiture of pay, written or note 8. vii Service Women’s Action Network, supra note i. 199 Water St. Fl 22 1015 15th Street, NW, Suite 600 New York, NY 10038 Washington, DC 20005

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