Veterans Get Outside Day
Floor Speech
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Mr. REED. Res. 206, 223, and 226; that the Senate proceed to the en bloc consideration of the following Senate resolutions: S. Res. 206, Veterans Get Outside Day; S. Res. 223, National Public Works Week; S. Res. 226, Kids to Parks Day; and S. Res. 229, National Brain Tumor Awareness Month.
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Mr. REED. Madam President, I rise and join my colleague Senator Warren to discuss the unprecedented political holds the Senator from Alabama has placed on 221 general and flag officers. This hold is now into its fourth month, and it is beginning to have serious impacts on military personnel and their families. Commanders who are supposed to retire or move on to a new assignment cannot do so because there is no one to replace them. Commanders who are set to take new assignments remain in limbo. Family members don't know when they are going to move. Children don't know what new school they will attend or when. Thousands of lives are being disrupted, all because the Senator from Alabama has chosen to block merit-based, nonpolitical military promotions over a policy he does not like.
(Mr. OSSOFF assumed the Chair.)
I would like to address a few of the assertions raised by the Senator from Alabama that he has used to justify his unprecedented and damaging hold on military promotions.
First, on the matter of the Hyde Amendment and the prohibitions on Federal funding for abortions, the Senator says the Department of Defense does not have the authority to provide travel benefits and grant leave for reproductive health care not covered by TRICARE. He is in error.
Let's provide some clarity on terms. The so-called Hyde Amendment does not apply to the Department of Defense. Instead, the Department has its own statute that restricts the use of Department of Defense funding ``to perform abortions'' and restricts the use of Department of Defense medical facilities ``to perform an abortion,'' except when the life of the mother is endangered or in cases of rape or incest.
No reasonable interpretation of the policy can conclude that it authorizes the Department of Defense to pay for the performance of abortions unless under those conditions I mentioned--the life of the mother is in danger or in cases of rape or incest. Those costs for such abortions that are not covered under DOD will continue to be borne, as they are today, by servicemembers and dependents out of pocket. That does not change.
The Department's policy is legal and rooted in longstanding Department of Justice interpretation of the Hyde Amendment and similar restrictions. In fact, the Department of Defense General Counsel requested the Justice Department's views on its policy last fall. The Justice Department's Office of Legal Counsel issued a lengthy and informative slip opinion concluding that ``10 United States Code Section 1093 does not bar the Department from using appropriated funds to pay for servicemembers and their dependents to travel to obtain abortions that the Department cannot fund directly.''
The opinion, which I encourage all my colleagues to read, traces the legislative history of the Hyde Amendment, similar Hyde-like restrictions, and the specific restriction applicable to the Department codified in section 1093.
Mr. President, I ask that an excerpt of the October 2022 Justice Department slip opinion considering the Department of Defense policy be printed in the Record.
DoD may lawfully expend funds to pay for such travel pursuant to both its express statutory authorities and, independently, the necessary expense doctrine. (October 3, 2022) Memorandum Opinions for General Counsel Department of Defense
You have asked whether the Department of Defense (``DoD'') may lawfully expend funds to pay for service members and their dependents to travel to obtain abortions that DoD itself cannot perform due to statutory restrictions. We conclude that DoD may lawfully expend funds for this purpose under its express statutory authorities and, independently, under the necessary expense doctrine. i.
By statute, ``[f]unds available to the Department of Defense 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,'' 10 U.S.C. 1093(a), and ``[n]o medical treatment facility or other facility of the Department of Defense may be used to perform an abortion 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,'' id. 1093(b ). By its express terms, 10 U.S.C. 1093(a) applies only to funds used to ``perform abortions.'' As we have previously concluded in assessing identical language restricting the Peace Corps' use of its appropriations, the plain text is dispositive here. See Peace Corps Employment Policies for Pregnant Volunteers, 5 Op. O.L.C. 350, 357 (1981). This language ``does not prohibit the use of funds to pay expenses, such as a per diem or travel expenses, that are incidental to the abortion.'' Id.
This conclusion is confirmed by section 1093's legislative history. When Congress originally enacted the provision in 1984, it prohibited DoD only from using funds ``to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.'' Pub. L. No. 98-525, 1401(e)(5), 98 Stat. 2492, 2617-18 (1984). DoD subsequently adopted a policy of prohibiting non-covered abortions from being performed at any DoD facility even when privately funded--a policy that President Clinton then directed DoD to reverse, stating that it went ``beyond . . . the requirements of the statute.'' Memorandum on Abortions in Military Hospitals, 1 Pub. Papers of Pres. William J. Clinton 11, 11 (Jan. 22, 1993). In 1996, Congress responded to President Clinton's directive by amending 10 U.S.C. 1093 to make clear that, in addition to the prohibition on using funds to ``perform abortions,'' ``[n]o medical treatment facility or other facility of the Department of Defense may be used to perform an abortion 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.'' 10 U.S.C. 1093(b). It is notable that the amendment was targeted narrowly to address the specific issue of DoD's use of its medical treatment facilities, rather than reaching the same result via a broader prohibition on expenditures indirectly related to the provision of abortions.
The limited scope of the 1996 amendment is especia11y significant because when Congress has wanted to restrict abortion-related expenditures beyond those for the procedure itself, Congress has done so. For example, in 1988--prior to amending 10 U.S.C. 1093--Congress had attached a restriction to Department of Justice (``DOJ'') funds prohibiting the use of those funds ``to require any person to perform, or facilitate in any way the performance of, any abortion.'' Pub. L. No 100-459, tit. II, 206, 102 Stat. 2186, 2201 (1988) ( emphasis added); see also, e.g., Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, div. E, 726(d), 136 Stat. 49, 131 (``CAA 2022'') (referring to funding for ``abortion or abortion related services'' (emphasis added)). This DOJ restriction is also in the current appropriation. See CAA 2022, div. B, 203. That Congress chose not to include such capacious language in the 1996 amendment confirms that it did not intend for the prohibition to sweep so widely.
Other DOJ appropriation restrictions provide further evidence that Congress did not intend DoD's prohibition on the use of funds to perform abortions to reach ancillary expenses, such as travel costs. In addition to the provision noted above, section 202 of the current appropriation contains a general prohibition against using the appropriated funds ``to pay for an abortion.'' Id., div. B, 202. Section 204 then contains a clarification that the prohibition on requiring any person to perform or facilitate an abortion does not ``remove the obligation of the Director of the Bureau of Prisons to provide escort services necessary for a female inmate'' to obtain an abortion ``outside the Federal facility.'' Id., div. B, 204. Importantly, this language in section 204 does not also create an exception to the general funding restriction in section 202, but rather only clarifies that nothing in section 203 ``remove[s] the obligation'' of the agency to provide transportation services. Id. Section 204 therefore is premised on an understanding that section 202's general prohibition on ``pay[ing] for an abortion'' does not affect the agency's ability to provide such escort services, showing that when Congress prohibits funds from being used ``to pay for an abortion,'' it does not intend that prohibition to reach transportation expenses.
Comparing 10 U.S.C. 1093 to the text and history of the longstanding funding restriction known as the Hyde Amendment is similarly instructive. The Hyde Amendment restricts expenditures by the Departments of Labor, Health and Human Services, and Education by providing that no covered funds ``shall be expended for any abortion'' or ``for health benefits coverage that includes coverage of abortion,'' except ``if the pregnancy is the result of an act of rape or incest; or . . . in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.'' CAA 2022, div. H, 506-507. In previous advice, we concluded that the Hyde Amendment would not bar the use of appropriated funds to provide transportation for women seeking abortions. See Memorandum for Samuel Bagenstos, General Counsel, Department of Health and Human Services, from Christopher H. Schroeder, Assistant Attorney General, Office of Legal Counsel, Re: Application of the Hyde Amendment to the Provision of Transportation for Women Seeking Abortions (Sept. 27, 2022). In reaching that conclusion, we noted, among other considerations, that earlier versions of the Hyde Amendment only applied to funds ``for any abortion,'' and that in 1997 Congress added language to reach funds ``for health benefits coverage that includes coverage of abortion.'' Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-78, 509(a)-(b), 111 Stat. 1467, 1516 (1997); see Application of the Hyde Amendment to Federal Student-Aid Programs, 45 Op. O.L.C. __, at *3 (Jan. 16, 2021); H.R. Rep. No. 105-390, at 119 (1997) (Conf. Rep.); see also 143 Cong. Rec. 17,448 (1997) (statement of Sen. Ashcroft). In the context of health insurance, the funds are paid to reimburse the provider or the insured for, and thus effectively pay for, the abortion procedure itself. As a result, payment for health insurance that covers abortions is more closely connected to the actual provision of abortion than transportation to and from the procedure. Thus, the fact that Congress revised the Hyde Amendment to specify that it applies to payments for health benefits coverage supports the view that the prohibition on expending funds ``for any abortion'' is limited to the direct provision of abortions and would not apply to transportation. More generally, the amendment suggests that when Congress has wanted to clearly encompass certain expenditures beyond the direct provision of the procedure, Congress has amended abortion-related funding restrictions to do so.
For these reasons, 10 U.S.C. 1093 does not prohibit the use of funds for expenses that are indirect or ancillary to the performance of abortion. We therefore conclude that 10 U.S.C. 1093 does not bar DoD from using appropriated funds to pay for service members and their dependents to travel to obtain abortions that DoD cannot fund directly.
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Mr. REED. The Justice Department's opinion on the Defense Department's policy is not new and is not partisan. In fact, it relies on decades of executive branch interpretation of the Hyde Amendment through administrations of both parties.
In 1981, for example, the Justice Department considered what it described as identical language restricting the Peace Corps' use of Federal funds to ``perform abortions.'' In that opinion, President Reagan's Justice Department concluded that the language ``does not prohibit the use of funds to pay expenses, such as a per diem or travel expenses, that are incidental to the abortion.'' That opinion was authored by Ted Olson, then the Assistant Attorney General and the future Solicitor General of the United States under President George W. Bush.
A decision to terminate a pregnant volunteer must be based on a case-by-case assessment of the volunteer's ability to function effectively in her assignment while pregnant or after delivery of the child.
Under the PDA, the fact that a volunteer who has been terminated because of pregnancy chooses to have an abortion cannot he considered in a decision on her reapplication for service.
Even though a specific restriction in the Peace Corps' appropriation prohibits the use of its funds to perform abortions, so that the Peace Corps may not pay for the cost of an abortion for one of its volunteers, the PDA would require the Peace Corps to continue to pay travel and per diem expenses to volunteers evacuated to have an abortion, as long as it provides such compensation to other volunteers evacuated for comparable medical conditions. The Peace Corps must also allow volunteers to draw upon their accumulated readjustment allowance to pay for an abortion, if similar access is allowed for other medical expenses. (November 20, 1981) Memorandum Opinion for the General Counsel, Peace Corps
This responds to your request for this Office's views on several questions about the Peace Corps' policies on hiring and reinstatement of volunteers who become pregnant while overseas and of pregnant volunteers who elect to have an abortion, and on reimbursement of travel and per diem expenses to volunteers evacuated to the United States for the purpose of obtaining an abortion. We conclude that the Pregnancy Discrimination Act would prohibit the Peace Corps from implementing any across-the-board policy of terminating volunteers who become pregnant while overseas or pregnant volunteers who elect to have abortions, but that in some limited circumstances termination or reassignment may be appropriate, on an ad hoc basis, because of the unique demands and constraints of Peace Corps service. We do not believe, however, that the Peace Corps may consider the fact that a volunteer who had been terminated because of pregnancy subsequently elected to have an abortion in reviewing that individual's application for reinstatement. With respect to the funding of abortion-related expenses, we conclude that the Peace Corps is not barred from using appropriated funds to pay travel costs and a per diem to volunteers who are evacuated for the purpose of obtaining an abortion, and, in fact, that the Pregnancy Discrimination Act requires the Peace Corps to continue paying those costs, so long as travel and per diem expenses are paid to volunteers evacuated for other comparable medical disabilities. I. Background
Current Peace Corps policy provides for an ad hoc determination whether volunteers who become pregnant or pregnant volunteers who elect to have an abortion will be allowed to remain in their assigned countries. In determining whether a pregnant volunteer (including her spouse) should be allowed to remain in service, the Country Director looks at a variety of factors, including health hazards to the mother and child, the ability of the parents to support the child, and the prospects for continued effectiveness by the parents. A pregnant volunteer who elects to have an abortion may be separated, or returned to duty if the Country Director determines she will be able to serve effectively under the circumstances. Pregnant volunteers, volunteers with dependent children, and volunteers who have had abortions while in service do serve in the Peace Corps, although individuals who are pregnant or who have dependent children are not encouraged to become volunteers. Volunteers who choose to have an abortion are generally evacuated to the United States for the procedure. The Peace Corps pays travel expenses and a per diem to those volunteers who have an abortion, as it does for volunteers evacuated for other medical or surgical treatment. Because of a prohibition in the Peace Corps' current appropriations authority against the use of appropriated funds to pay for abortions except where the life of the woman would be endangered or in cases of reported rape or incest, the Peace Corps does not now pay the costs of the abortion procedure itself. Volunteers may, however, draw upon accumulated readjustment allowance funds to pay for abortion procedures.
You have asked us to address the following questions:
1. Can the Peace Corps terminate any volunteer who becomes pregnant while a volunteer because of pregnancy? If so, could such a policy be limited to single volunteers? III. Reimbursement or Expenses
You have also asked whether the Peace Corps must, or indeed can, consistent with the PDA and current restrictions on the use of appropriated funds, continue to pay travel costs and a per diem for volunteers who obtain an abortion while in service. The Peace Corps now pays those costs under a general policy providing for evacuation to the United States of volunteers who require ``elective (necessary but not emergency) surgery of any consequence.'' Until the beginning of FY 1979, the Peace Corps also paid for the costs of the abortion procedure itself. In 1978, Congress included language in the Peace Corps' appropriations legislation limiting the use of appropriated funds for abortions. We understand that the currently effective language is contained in Pub. L. No. 96- 536, Sec. 109, 94 Stat. 3166, 3170 (1980), and prohibits the use of funds ``to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for victims of [reported] rape or incest . . . or for medical procedures necessary for the termination of an ectopic pregnancy.''
On its face, this restriction covers only payments made ``to perform abortions''; it does not prohibit the use of funds to pay expenses, such as a per diem or travel expenses, that are incidental to the abortion. We believe that the plain language of the appropriations restriction is dispositive, and does not require the Peace Corps to cease payment of incidental expenses other than the costs of the abortion itself.
This does not, however, dispose of the question whether the Peace Corps, in its discretion, may cease payment of travel and per diem expenses for volunteers who elect to have abortions. The statutory authority for payment of those expenses vests broad discretion in the President or his delegated representative to authorize ``such health care
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Mr. REED. The Justice Department has likewise considered and concluded that the Hyde Amendment does not prevent the Bureau of Prisons from providing transportation services for inmates to seek abortion care outside the prison system, noting that the Bureau has ``long provided'' such benefits. This authority to provide transportation benefits dates at least to the 1996 version of Bureau regulations and continues uninterrupted to the present day.
So, again, this assertion that the Department's policy contravenes some long-held principle is wrong and contrary to fact.
Second, on the matter of travel authorities, the Defense Department has broad statutory authority to provide travel and transportation benefits to servicemembers and dependents and empowers the Secretary of Defense to define those parameters by regulation. As the Justice Department noted, 37 United States Code, section 452, authorizes the Secretary to provide ``actual and necessary expenses of travel and transportation, for, or in connection with . . . any travel as authorized or ordered by the administering Secretary.''
Further, the Justice Department aptly noted that 37 United States Code, sections 452 and 453, authorize travel benefits for servicemembers and dependents in connection with ``unusual, hardship, or emergency circumstances'' and leaves the definition of those terms and other implementing guidance to the Secretary.
I remind my colleagues again that never before in our history has a fundamental healthcare right been denied to servicemembers by a single decision on a single day by the Supreme Court. No matter what side of the abortion debate you are on, you cannot deny that what many women considered to be a fundamental, constitutionally protected right for 50 years was eliminated by the stroke of a pen and that those who depend on these rights now find themselves assigned to locations, through no choice of their own, where these services are no longer available in any meaningful way. In my view, this meets any definition of ``unusual, hardship, or emergency circumstances.''
The Defense Department's policy is a result, as I just suggested, of the Dobbs decision which places extraordinary hardships on servicewomen and dependents, resulting in military personnel no longer being treated equitably at every military base. The Department of Defense's policy seeks to provide a level playing field so that a woman's access to healthcare is not based on her assignment and such access is consistent throughout the force. It seeks further to ensure that these issues do not become determinant in a woman's decision to join the military or remain in the military.
The U.S. Government has provided transportation and other incidental benefits and support relative to healthcare not covered by government programs, including abortion, to certain populations for decades. Servicemembers and their dependents are, I believe, uniquely affected by the Dobbs decision and deserve at least that same level of support.
Lastly, the Senator from Alabama has stated that these officers whose promotions he is holding will receive backpay. That is simply not true. The Department of Defense confirmed for the Armed Services Committee this week that there is no backpay mechanism for these officers. Their date of rank is the date of their appointment, which for general and flag officers can only occur after Senate confirmation. There will be no backpay.
I want to state again what I stated before. It is deeply detrimental to our national security and harmful to the well-being of military families to delay the promotions of senior military leaders for political purposes or any purpose, really, unrelated to an officer's qualifications. It is contrary to the practice and traditions of the Senate Armed Services Committee and the Senate. It does a great disservice to the men and women in uniform and their families.
I would ask that the Senator from Alabama release his holds immediately before more damage is done.
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Mr. REED. Mr. President, I just want to reiterate what Senator Warren pointed out: This policy is not illegal. It has been fully justified by the Department of Justice and by interpretations of many different agencies.
In fact, one of the excruciating ironies here is that Senator Tuberville is denying promotions to general officers because he will not allow female members of the military to have some of the same protections that Federal prisoners have. If that is not absurd, I don't know what is.
Also, I have had the opportunity--really, the privilege--to serve in and command a paratrooper company. I have a lot of friends who have made careers in the U.S. military. When you get to the level of a colonel who is about to be voted brigadier general, it is a great honor. You have worked your whole life for it, and you very much want to do that, but you have family responsibilities, and you have other responsibilities. I can pretty much assure you that most people who are qualified to be a brigadier general in the Army are being courted assiduously by companies to work for several hundred thousand dollars a year.
The longer this goes on, the more demands of the family, the more the uncertainty, the more the frustration, we will lose these talented people at a moment in our history when we need the leadership to assist our allies and also to confront a very serious threat across the Indo- Pacific region at a time when the practice of warfare is changing second by second with technology.
When you have the proponents of AI warning us this week that AI could be the catastrophic destruction of our species, well, guess where that is going to be first manifested--in the military domain, I believe. That requires leaders of character, intelligence, compassion, and dedication to democracy. Those leaders now are questioning whether they can continue because of an attempt to suggest that this is not legal, which is wrong, and, ironically, again, to take away healthcare support for women who serve in the military that we extend to Federal prisoners in this country.
I yield to the Senator from Massachusetts.
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Mr. REED. Mr. President, first, anyone who suggests that the Secretary of Defense does not have a role--in fact, a responsibility-- to shape policy in the Department of Defense--it is nonsense, and I would suspect that the person has never served in the military forces of the United States.
This is a policy that the Secretary of Defense is not only legally entitled to promulgate, but is, I think, compelled to clarify the position of the Department of Defense when it comes to this Dobbs decision and its effect on the military.
Now, the gentleman from Utah did not hear my opening remarks. I did not refer to judicial decisions; I was referring to opinions--very valid opinions--of the Department of Justice, dating back to 1981.
Section 1093, which he cites, is the most significant provision of the law. What it does, it prevents funding to perform abortions and restricts the use of Department of Defense medical facilities to perform an abortion except when the life of the mother is in danger or in the case of rape or incest. I might suggest that I think my colleagues over there wouldn't even recognize that part of the law, but that is part of the law. There is no discussion of other aspects--i.e., providing transportation--and I pointed out Federal prisons provide transportation for female inmates requesting an abortion.
These are policy decisions that are reserved to the Secretary of Defense by statute, the same types of decisions he has to make every day. What are the physical standards for the troops in the U.S. military? Is that an act of Congress? No. I don't think anyone here would reasonably argue that we are the experts who should decide that and we know better than the Secretary of Defense.
There are a whole bevy of reasons, but section 1093 is the key statute, and it prevents Department funding being used for the performance of non-covered abortions. It makes no comment whatsoever in terms of any other aspects of incidental expenses.
The Department's policy is legal, as I pointed out. It is rooted in the longstanding Department of Justice interpretations of both the Hyde amendment and similar restrictions.
In fact, the Department of Defense General Counsel requested the Justice Department's views on the policy last fall because they wanted to be sure they were right before they went ahead, and they issued a lengthy and informative slip opinion, which is part of the record.
And they concluded that 10 United States Code section 1093, which my colleague from Utah continually refers to, does not prevent the Department from using appropriated funds to pay for servicemembers and their dependents to travel to obtain abortions that the Department cannot fund directly because of section 1093.
So this is not illegal. And what is contemptuous, I think, is not this debate over this policy. That is what we would do. It is ignoring years and years and years of respecting the promotion of military officers by the Department of Defense based on merit, based on their abilities, not their politics; and, for the first time, using military officers as tokens in a political game of trying to change things that they don't like, even though these policies are absolutely legal and have been confirmed by the Department of Justice and provide, I think, benefits that we provide to Federal prisoners. I would hate to see our soldiers--our female soldiers, particularly--treated any less appropriately than Federal prisoners.
So this argument is a lot of ``sturm und drang.'' I think that is the German pronunciation for it.
The policy is legal. On one other point--a sort of simple-minded point--if it is not legal, why hasn't it been challenged in court? Because it is legal.
Now, you can disagree with the policy, and many of my colleagues do. In fact, many of our colleagues have submitted legislation, and that legislation will be considered at some point. But no one has risen to the point of invoking this block of military promotions. It affects the military. It affects families. It affects our readiness. It affects our recruitment, if people look far enough down the road. And every day it continues, it does more and more damage. It is a cumulative effect. And I very, very strongly object to the continued decapitation of our military.
Let's carry this forward for 6 months or a year. We don't have a Chairman of the Joint Chiefs of Staff. I think we will because I think a majority of my colleagues will realize how important it is to have that. But it won't be done in an efficient, coordinated way. It will be objected to. It will be argued about.
The Commandant of the Marine Corps--no, we have to put this gentleman, General Smith, through the ringer. The Chief of Staff of the Army, the same thing.
We are in a situation with a tremendous pressure globally, assisting the Ukrainians in their battle; particularly, our new peer competition with China, trying to assimilate the technology that is changing the battlefield literally every second.
And now we are spending time arguing about what is within the legal authority of the Secretary of Defense and doing it by taking military officers and making them political tokens that you trade for something. I personally resent such treatment of professional officers in our military.
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