Military Abortion Ban: Female Soldiers Not Protected by Constitution They Defend

“You hear these legends of coat-hanger abortions,” a 26-year-old former Marine sergeant told me recently, “but there are no coat hangers in Iraq. I looked.” Amy (who prefers not to use her real name) was stationed in Fallujah as a military journalist two years ago when she discovered she was pregnant. As a female Marine, a distinct minority in the branch, Amy was fearful of going to her chain of command to explain her situation.

For military women, who lack all rights to medical privacy, facing an unplanned pregnancy is a daunting obstacle. Thanks to anti-abortion forces in Congress, military hospitals are banned from providing abortion services, except in cases of life endangerment, rape, or incest (and for the latter two, only if the patient pays for the service herself). Amy says her options were “like being given a choice between swimming in a pond full of crocodiles or piranhas.”

“I have long been aware of the stigma surrounding this circumstance and knew my career would likely be over, though I have received exceptional performance reviews in the past,” Amy explains. Although Fallujah has a surgical unit, and abortion is one of the most common surgical procedures, Amy knew that if her pregnancy were discovered, she would be sent back to her home base at North Carolina’s Camp Lejeune, where she would then have to seek a private abortion off-base, or she could request leave in Iraq and try her luck at a local hospital. She also knew she could face reprimands from her commanding officers for having had sex in Iraq (part of a broader prohibition on sex in war zones), and that she might not be promoted as a result: a potentially career-ending situation in the Marines, where failure to obtain regular promotions results in being discharged. Moreover, as a woman in the military, accustomed to proving herself to her male peers over her six-year career, Amy was wary of appearing a “weak female.”

“If you get sent home for something like that, everyone will know about it,” says Amy. “That’s a really bad stigma in the military. I thought, that’s not me, I’ve worked harder and I could outrun all the guys. So I chose to stay, and that was just as bad.”

From a remove of two years, Amy now sees the sex that resulted in her pregnancy as rape: something that may have qualified her for an on-base (though self-funded) abortion. However, at the time, because the rape wasn’t brutally violent, and because she had seen fellow servicewomen be ostracized for “crying rape” in the past, she imagined nothing but trouble would come of making a complaint.

Instead, using herbal abortifacient supplements ordered online, Amy self-aborted. Unable to find a coat hanger she used her sanitized rifle cleaning rod and a laundry pin to manually dislodge the fetus while lying on a towel on the bathroom floor. It was a procedure she attempted twice, each time hemorrhaging profusely. Amy lost so much blood on the first attempt that her skin blanched and her ears rang. She continued working for five weeks, despite increasing sickness, until she realized she was still pregnant.

The morning after her second attempt, she awoke in great pain, and finally told a female supervisor, who told Amy to take an emergency leave to fly back to the United States where a private abortion clinic could finish the procedure. However, Amy was afraid that she would miscarry on the 15-hour plane ride and have no medical escort to help her. She went to the military hospital instead and told the doctor everything. Shortly thereafter, her company first sergeant and other officers were notified of Amy’s condition. The first sergeant came to her hospital room to announce that Amy would be punished under Article 92 of the Uniform Code of Military Justice, which addresses violations of general regulations, for having had sex in a war zone.

That night, Amy miscarried alone in her shower. Fearful of the advice of a sympathetic female officer who suggested that Amy might be charged for the abortion as well (she wasn’t), she flushed the fetus down the toilet. “I don’t believe there was ever a life or a soul there,” Amy says, “but I feel undignified for doing that.” When her nonjudicial punishment (a plea sentence for a misdemeanor-like offense) went through, Amy was fined $500 and given a suspended rank reduction.

Master Sergeant Keith Milks, a public affairs officer in Amy’s former unit, the II Marine Expeditionary Force, says he can’t comment specifically on Amy’s case, as the administration action of the punishment and Amy’s personnel details are covered by privacy provisions. However, he says, her sentence is in keeping with the options for disciplining soldiers for breaking the prohibition on sex in a war zone.

At Amy’s request, she was sent home from Iraq, after a military psychiatrist determined that she was “too psychologically unstable” to remain, and diagnosed her with acute anxiety, PTSD, and depression. “They convinced themselves that anyone who would do a self-abortion is crazy,” Amy says. “It’s not a crazy thing. It’s something that rational, thinking women do when they have no options.”

Alexa Kolbi-Molinas, staff attorney for the ACLU Reproductive Freedom Project, says Amy’s horrifying story is the logical outcome of the longstanding military ban on abortion that affects 200,000 female service members as well as female military spouses and dependents living on military bases covered by the armed forces’ Tricare health coverage. Shocking as the story may be, Kolbi-Molinas says, “If you restrict women to unsafe abortions, this is what will happen.”

Military Women “Do Not Receive the Protection of the Constitution they Defend”

Starting in 1979, Defense Department appropriations bills have been used to restrict or prohibit the use of federal funds—meaning all military health coverage—for abortion services at overseas military hospitals. Although President Clinton reversed the ban shortly after taking office, anti-abortion forces in Congress made the ban permanent in 1995, preventing future presidents from altering the rules by executive order.

What began as a funding ban, compelling women to pay for abortion services themselves, was later extended into a more comprehensive embargo on performing abortions in any military hospital except in cases of rape, incest, or threat to the life of the mother. Rep. Susan Davis (D-CA), argued that “servicewomen do not receive the protection of the Constitution they defend,” and tried unsuccessfully in 2005 and 2006 to repeal the ban—or at least to bring it in line with current Medicaid standards by allowing abortion funding in rape and incest cases. Opponents like Kansas Republican Jim Ryan postured in response claiming that, “allowing self-funded abortions would simply turn our military hospitals overseas into abortion clinics.”

In fact, before Roe v. Wade the situation was reversed: servicewomen were pressured into having abortions due to a military policy of automatically discharging pregnant women. That policy ended with Crawford v. Cushman, a 1976 US Appeals Court case ruling that the discharge rule violated due process.

The result of the ban is that active-duty servicewomen and military dependents are faced with a number of equally unappealing options: venture out to local hospitals while overseas, to medical facilities that may have different standards of care, where medical workers may not speak English, or where there is animosity towards the United States; seek a back-alley abortion in a country that prohibits abortion; or undertake an arduous process of obtaining permission from commanding officers to fly home or to a neighboring country, find space on a military transport, or pay for a commercial flight home (a prohibitive cost for lower-ranking servicewomen), and return to their units aware that their superiors know intimate details about their medical records.

Kolbi-Molinas says the ACLU has received reports about commanding officers attempting to interfere with women taking leave to obtain abortions. Even for those who are able to obtain an abortion off-base, says Bethany Niebauer, a military spouse and writer at RH Reality Check, the lack of medical privacy in the military means women often return to social shaming “for making a choice with which her superiors might disagree.”

A General Accounting Office report on the issue in 2002 found that the policy was a humiliation for servicewomen, who must seek travel approval from commanding officers, many of whom “have not been adequately trained about the importance of women’s basic health care.” Furthermore, servicewomen may be uneasy with the appearance of requesting special treatment, or may face commanding officers who disapprove of abortion—a serious concern for women reliant on these officers for career advancement.

Vicki Saporta, President of the National Abortion Federation, says that military women seeking abortions face a no-win situation. “If you’re a woman in the military, you’re going to have to obtain a leave to get the care you need. If you’re honest about why you need that care, you put your military career in jeopardy. If you’re not honest, then you put your military career in jeopardy.”

Lieutenant General Claudia J. Kennedy, in a 2002 letter to the Senate in support of lifting the ban, described her experiences as a battalion commander in Germany in the late 1980s, when she helped a servicewoman get an abortion locally. Even in the modern hospitals of Germany, the experience was “both mortifying and painful.” The woman received no pain medication; the cultural differences in German hospitals violated her modesty and comfort; and none of the medical staff spoke enough English to give adequate instructions.

“It was a searing experience for all of us,” Kennedy wrote, “that in a very vulnerable time, this American who was serving her country overseas could not count on the Army to give her the care she needed.”

In addition, Kennedy noted, throughout those years she encountered Army doctors who displayed anti-abortion posters, “creating a climate of intimidation for anyone who might want to discuss what is a legal option.”

“Since the doctors are officers and far outrank enlisted soldiers,” Kennedy wrote, “and since the soldiers have no way to choose which doctor they see on sick call, it was only with good luck that a young soldier might be seen by someone who would treat her decision with the respect she deserved.” Many do, says Kolbi-Molinas, citing military medical doctors who later became abortion providers and who spoke to the ACLU of their distress, either at not being able to provide abortion care to women in need, or at treating women who arrived septic from back-alley abortions.

But their hands are tied. The National Abortion Federation reported the comments of Dr. Jeffrey Jensen, a naval medic who witnessed many complications from unsafe abortions performed on servicewomen in the Philippines. “Imagine having the tools and training available to help these women, as I did,” he wrote, “and being forced to deny those services.”

In response to questions regarding the obstacles that servicewomen face in obtaining abortions, Pentagon spokesperson Cynthia Smith explains that “Our policy implements the law Congress passed. The Department will continue to follow Congressional mandate regarding the funding of abortions and restrictions regarding abortions conducted in [Department of Defense] medical treatment facilities.”

Reproductive Rights Lost as Church and State Become Entwined

The ban on abortions at military hospitals hasn’t been a prominent aspect of abortion rights advocacy in recent years, as reproductive rights activists have scrambled to avoid losing further ground to anti-abortion measures like the House health care bill’s Stupak amendment or the corresponding Nelson amendment defeated last week in the Senate. But there are reasons why it should be.

The new Secretary of the Army, John McHugh, came to the Pentagon after serving as the representative of New York’s 23rd District, where last month conservative activists forced the Republican running for McHugh’s old seat, Dede Scozzafava, out of the race for being insufficiently conservative. McHugh’s own culture war credentials are solid, earning him kudos from religious right and anti-abortion groups, and skepticism from church-state separation groups.

Upon McHugh’s nomination last June, the Military Religious Freedom Foundation, a civil rights watchdog group that monitors proselytization and religious discrimination in the US military, lamented that McHugh was too little change from Bush appointees who intermingled the military’s mission with that of evangelizing ministries. MRFF senior researcher Chris Rodda noted that McHugh had backed such constitutionally-ambiguous legislation as proposals to privilege the right to pray on public property or to prevent legal challenges to the words “under God” in the Pledge of Allegiance. Americans United executive director Rev. Barry W. Lynn urged an inquiry into his record on church-state separation while the Secular Coalition for America argued that, “McHugh’s past record in the House of Representatives indicates an unwillingness to improve our military’s policies that relate to religious proselytizing and discriminatory practices.” But these concerns were not even addressed in the confirmation process.

As often follows the interweaving of church and state concerns, McHugh also has a long history of conservatism when it comes to women’s and reproductive rights—particularly those of women in the military. McHugh has a solidly anti-abortion record (100%, according to the National Right to Life Committee) and has voted against embryonic stem cell research, and for at least eight anti-choice bills that would limit abortion access or advance “fetal personhood.” As the ranking Republican on the Armed Services Committee, McHugh co-sponsored a 2005 bill that would have extended a combat ban for women to support units—a gesture supported by the far-right group the Center for Military Readiness and antifeminist grand dame Phyllis Schlafly. But perhaps more significantly, McHugh consistently voted against Rep. Davis’ efforts to expand abortion access to military women.

Unsurprisingly, this did not come up in discussions of McHugh’s nomination, as the military abortion ban has largely disappeared from the public radar. It’s just one more category of women—including those below the poverty line, federal employees, those cared for by Indian Health Service and Peace Corps volunteers—who fall into the canyons created by sweeping bans on federal funding for abortion. Caitlin Borgmann, a CUNY law professor and board member of the National Abortion Federation, wrote a letter to the editor of the New York Times this August when the paper ran a story on the challenges facing American servicewomen that omitted mention of the abortion ban altogether. Borgmann says that while reproductive rights groups following this issue hoped the Obama transition would address the ban, the failure of the new government to aggressively defend reproductive freedom has left the rights of military women a largely forgotten inequality.

“We’re right now basically fighting to maintain current federal law, which we think needs to be changed,” explains Vicki Saporta. And with the Obama administration appointing a key supporter of the ban, hope for military women seems largely moot.

But perhaps not entirely. In the wake of the Stupak amendment (which even conservative pundit David Frum acknowledged would effectively ban abortion for large numbers of women), a look at the experience of military women who are already living under the burden of similar prohibitions could be timely and politicizing, as well as a reminder of how much ground has been ceded already. Going forward, the failure in care that military women have long had to contend with could be shared by all American women.

Kolbi-Molinas says:

When you look at all these bans together, you get the sense that, okay, Indian women are carved out, poor women and women on Medicaid are carved out, military women and women in government are carved out. Then you see Stupak, and you see that it’s not a class of women as limited as those, but it’s actually middle-class women.

Toss in the threat that private insurance companies could follow government programs and, Kolbi-Molinas says, it could soon “be everybody.”

As it stands the National Abortion Fund receives thousands of calls monthly from women desperate to fund their abortions, Saporta says, and while there are important distinctions between the military abortion ban and the implications of the Stupak amendment, she considers the results more or less the same. “Women in rural areas may have to travel over 50 miles to obtain care, but they don’t have to travel thousands of miles. So the burdens are more onerous on women in the military stationed in countries where abortion is illegal or unavailable. But even women who live on the same street as a clinic, if they can’t afford the care they need, they don’t have access to service either.”