Tuberville Challenges DOD Abortion Subsidies, Holds Military Promotions

Senator Tommy Tuberville (R-Ala.) declared Friday that he would “follow through” with a “plan to hold all DOD civilian, flag, and general officer nominations that come before the U.S. Senate” in response to the Department of Defense (DOD) “following through” with a “radical plan to facilitate thousands of abortions a year with taxpayer dollars.”

While Tuberville cannot singlehandedly sack military promotions, he can block the lane. The Senate typically confirms DOD and military nominations and promotions (approximately 50,000 per year) in batch votes by unanimous consent to save time.

However, Tuberville can force the Senate to hold a formal vote (around 15 minutes) for each general and admiral promotion. With more than 200 promotions pending action before the Senate Armed Services Committee or full Senate as of Tuesday, this process would have the potential to significantly slow down the Senate’s work. “While Tuberville is using some procedural tools at his disposal to slow down DOD nominees, it is likely they will still get confirmed just at a later date or will force the Senate to prioritize which nominees they want to move,” Connor Semelsberger, FRC’s director of Federal Affairs for Life and Human Dignity, told The Washington Stand.

The DOD on Thursday announced three new policies granting up to 21 days of “administrative absence to non-covered reproductive health care,” subsidizing “travel for non-covered reproductive health care services,” and loosening “command notification of pregnancy” to benefit abortion.

“For the first time in U.S. history,” said Semelsberger, “this new, expanded policy … is proposing to allow up to 21 days of paid leave to get an abortion, pay for travel and accommodations to go out of state to get an abortion, and drastically prioritizes abortion over childbirth in a new policy delaying when a servicemember must disclose a pregnancy to an officer.”

The policies came in response to an October 20, 2022 memo by Defense Secretary Lloyd Austin lamenting that the Supreme Court’s Dobbs decision “has impacted access to reproductive health care with readiness, recruiting, and retentions implications for the Force.” The court in Dobbs overturned the 1973 Roe v. Wade decision which legalized nationwide abortion-on-demand by judicial fiat, returning authority to set abortion policy to the people’s elected representatives. Multiple states moved quickly to substantially restrict or ban abortion or enforce pre-existing trigger laws.

In his memo, Austin committed DOD to “taking all appropriate action, within its authority and consistent with applicable federal law, as soon as possible to ensure that our Service members and their families can access reproductive health care.”

U.S. Code specifies that DOD funds and facilities “may not be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term or in a case in which the pregnancy is the result of an act of rape or incest.” Congress adopted the provision governing DOD funds in 1984. It added the provision governing DOD facilities in 1996 after President Clinton “attempted to circumvent the law” by “allowing federally-funded DOD facilities to provide abortions if ‘the procedure is privately funded.’”

The Department of Justice had lent a shadow of legality to Austin’s memo in an October 3, 2022 opinion concluding that, “The Department of Defense may lawfully expend funds to pay for service members and their dependents to travel to obtain abortions that DOD cannot itself perform due to statutory restrictions.”

However, 66 members of Congress wrote Austin a letter on December 15, 2022 notifying him that “funding travel and transportation to obtain non-covered, elective abortions through the DOD would, in and of itself violate federal law. It also contradicts DOD’s past recognition, interpretation, and implementation of this law.”

The letter continued, “Both the law itself and Congressional intent are clear: the U.S. military may not fund elective abortion. This necessarily includes funding for any activity necessitated by the abortion, such as travel and transportation.” The lead House member on the letter was Rep. Chris Smith (R-N.J.), who has been in Congress since 1981, giving him firsthand knowledge of Congress’s intentions in 1984 and 1996.

Hence Tuberville’s block on officer nominations. “If Secretary Austin wants to change law, he should go through Congress,” said Tuberville. “This is an illegal expansion of DOD authority and gross misuse of taxpayer dollars — and I will hold him accountable. The American people want a military focused on national defense, not facilitating a progressive political agenda.”

Tuberville and other Republican members of the Senate Armed Services Committee demanded an explanation of Austin’s October 20 in a November 21, 2022 letter. After DOD scheduled and then abruptly cancelled a briefing without explanation, Tuberville placed a hold on DOD nominations on December 5 until they rescheduled the meeting — which they did within 24 hours.

After learning of DOD’s intentions, on December 9, Tuberville “announced his intent to place a hold on all future U.S. Department of Defense (DOD) civilian and general flag officer nominees” if the DOD implemented the proposed new policies. Now that they have followed through on policies facilitating abortion, Tuberville is following through on his pledge to gum up the works.

“I applaud Senator Tuberville for his efforts to prevent the DOD from using taxpayer money for abortions in the military. The method he is using is legitimate and has been used before particularly about DOD issues that Senators have found objectionable,” Lt. Gen. (Ret.) Jerry Boykin, FRC’s executive vice president, told The Washington Stand. “Holding up nominations and promotions within the DOD will get the attention of the President and the Secretary of Defense and most likely force them into a dialog between DOD, Senator Tuberville, and other supporters of his effort.”

“Senator Tuberville’s decision to take a principled stand against the Pentagon’s radical abortion agenda represents what a vast majority of Americans agree on. They do not want their tax dollars subsidizing abortion,” agreed Semelsberger. Yet, “in the end, the Pentagon is likely to continue its push towards flying service members around the country to get elective abortions on the taxpayers dime.”