Pentagon (Photo by Newscom)

Alongside another controversial provision in the 2011 defense authorization bill pending in Congress is language that illustrates the continuing challenge of taxpayer support for elective abortions. Included in the version of the bill that emerged from the Senate Armed Services Committee is an amendment sponsored by Sen. Roland Burris (D–IL) that would allow the use of military facilities around the world for “pre-paid” abortions.

The policy at stake has a long history, but for most of the past four decades, decisions by various Administrations and laws adopted by Congress have limited public funding for abortions in military hospitals as well as any use of those hospitals to perform elective abortions. The first iteration of the policy was President Richard Nixon’s “federalist” instruction in 1971, two years before the Supreme Court ruling in Roe v. Wade that legalized abortion nationwide. Nixon directed the Department of Defense (DOD) to ensure that military medical facilities followed the law of the jurisdiction in which those facilities were located. At that time, a majority of the states and the District of Columbia had statutes that outlawed abortion under most circumstances.

Under President Ford, the DOD reversed the Nixon policy and both permitted and financed abortions in military facilities. During a one-year period at that time, 26,000 service members and dependents obtained abortions in military hospitals. In 1978, Congress adopted an annual funding amendment—similar to the Hyde Amendment governing spending by the Department of Health and Human Services—denying the use of federal funds for elective abortions in military health programs.

With this policy in place, a number of military facilities overseas, particularly in countries where abortion was illegal under local law, established their own system for “pre-paid” abortions, where the service members or dependents provided their own funds for the procedure. The abortion rate declined but still totaled more than 1,300 in one year under the policy. The Reagan Administration moved in the 1980s to end federal involvement in funding or promoting abortion. In 1985, Congress made the annual abortion funding amendment for the DOD permanent law, and in June 1988 the Reagan DOD issued a formal policy barring the use of military hospitals and facilities for pre-paid abortions.

On his first day in office in January 1993, President Clinton undid all of the Reagan-era abortion policies he had the authority to reach, reestablishing the use of military health facilities for privately funded abortions. The 1985 law against direct funding for abortion, however, remained in place. Then, in 1995, Congress stepped in and wrote the law that exists today, a statutory restriction on allowing the use of DOD facilities for elective abortions on the pre-paid basis Clinton had authorized. The restriction echoed the rationale of the Reagan Administration that allowing elective abortions in such settings would show “insensitivity to the spirit of the Congressionally-enacted policy of withholding government involvement in the provision of abortions.”

The Obama Administration has encouraged, if not led, efforts to weaken several longtime congressional limitations on abortion funding, backtracking under pressure when higher stakes (e.g., passage of Obamacare) warranted.

Allowing elective abortions in military hospitals presents a whole new set of issues for the Administration. Taxpayer funding of the procedure may still be barred by law, but allowing elective abortions in military health facilities would inevitably involve the use of taxpayer-supplied resources and personnel.

The Burris amendment also presents questions of conscience for military personnel, particularly administrative staff, who are protected under current law from involvement in the procedure. One of the strongest impetuses for President Clinton’s 1993 directive was the fact that military medical personnel, trained to provide life-saving medical care on the home front and in the battlefield, almost uniformly objected to the use of military health care facilities for elective abortion. Because of these objections, the Clinton Administration resorted to efforts to identify civilian physicians who could perform the abortions in military settings.

These objections from military medical personnel continue—apparently prompting some advocates of the Burris amendment to complain that current conscience protections for medical personnel who reject participation in abortion should be overridden.

Moreover, the Burris amendment would put the U.S. military in the unenviable position of possibly hiring private doctors willing to perform abortions on bases in countries where the practice is limited or prohibited by law. The impact of such a policy on the public diplomacy objectives of the U.S. has not been evaluated.

Sen. Roger Wicker (R–MS) recently noted the potential impact of the Burris amendment on an already strained military health care system. Meanwhile, the Obama Administration has not weighed in on the Burris amendment. To borrow a phrase from a prior phase of this debate, Burris’s proposal seems to show “insensitivity to the spirit” of President Obama’s executive order on public subsidies for abortion.