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Defense Officials Hold a Background Briefing on Department Efforts to Ensure Access to Reproductive Health Care

DEFENSE OFFICIAL 2:  Good afternoon, everyone.  I appreciate you taking the time to be here today.

On June 24th, 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women's Health Organization overruling Roe v. Wade, and holding that the Constitution does not confer a right to abortion.  State laws that have come into force since Dobbs was -- was decided to have impacted access to reproductive healthcare, including non-covered abortions, with recruitment, retention and readiness implications across the force.

Federal law restricts the Department of Defense from using its funds or facilities to perform abortions except where the life of the mother would be endangered if the fetus were carried to term or in the case in which the pregnancy is the result of an active rape or incest, referred to generally as covered abortions.  The Supreme Court's decision in Dobbs does not prohibit the department from continuing to perform covered abortions as described, and which are consistent with federal law.

Since the decision, the department has heard concerns from service members and families and recognizes that healthcare providers may also have concerns if they carry out their lawful federal duties.  A department-wide multi-disciplinary team has reviewed current policies and procedures to assess the impact of the Dobbs decision.

As Secretary Austin has made clear, nothing is more important than the health and well-being of our people, and to that end, today, the secretary has signed a memorandum entitled, "Ensuring Access to Reproductive Healthcare," directing additional actions to ensure service members and their families are able to access reproductive healthcare and DOD healthcare providers are able to operate effectively consistent with federal law.

Generally, the highlights of the Secretary's memo fall into four main categories.  Those four main categories are preserving privacy for service members, protecting healthcare providers, ensuring access to reproductive healthcare and improving awareness of recourses, and if I may, my colleague and I will review some of the specific actions within each one of those categories.

Returning to the first that I mentioned is preserving privacy for service members, and to that end, the department will issue uniform policies establishing additional privacy protections for reproductive health information for service members, and this includes action to clarify when reproductive information is shared with commanders.  Directions standardize and extend the timeframes for service members to inform their commanders about a pregnancy and direction that ensures commanders exercise objectivity and discretion when handling reproductive healthcare issues.  These actions will ensure service members have the time to make private decisions about their reproductive healthcare while maintaining the responsibility of commanders to meet operational requirements and protect the health and safety of those in their care, consistent with readiness.

DEFENSE OFFICIAL 1:  And good morning to you all, also.  On protecting healthcare providers, the department will develop programs to support DOD healthcare providers who may be concerned about legal risk for performing their official duties.  This includes developing appropriate mechanisms to reimburse applicable fees for DOD healthcare providers who want to gain licensure in a different state from where they are currently licensed, and to provide indemnification and reimbursement as appropriate if DOD healthcare providers are subjected to legal action for performing their official duties.

Now, I should caveat that these initiatives will reassure -- are being done to reassure our DOD healthcare providers that they have DOD's support when in providing federally-authorized reproductive healthcare within the scope of their official duties, and we have gone and had many interactions within the federal government with DOJ and others to affirm, and feel that we confidently can say that our healthcare providers will be protected.  Over.

DEFENSE OFFICIAL 2:  The third category we mentioned, ensuring access to reproductive healthcare -- within that line of effort, service members who do not necessarily control where they are stationed, and due to the nature of military service, are frequently required to travel and move to meet operational requirements.  The department will therefore develop policies to ensure service members are able to access reproductive healthcare regardless of where they're stationed.  This includes policies allowing service members to request an administrative absence from their normal duty stations without being charged leave and travel allowances for service members and dependents who must travel to access reproductive healthcare and would otherwise have to pay for that travel themselves.  This will include travel for reproductive healthcare not covered by the Department of Defense such as non-covered abortion services and certain non-covered assisted reproductive technology services such as in vitro fertilization.  While allowances will cover travel and transportation, it is important to note that the service member is responsible for the fees associated with the non-covered reproductive healthcare.

These policies will reduce the burden and costs for our service members and their dependents who may require to travel greater distances to access reproductive healthcare.

DEFENSE OFFICIAL 1:  Now, we also realize that we need to improve awareness of resources that are available for reproductive healthcare, so the department's taking steps to ensure service members and their families have access to resources and information about their reproductive healthcare, and these actions are including expanding walk-in contraceptive services at all military medical treatment facilities with appropriate clinical capacity capability; implementing a comprehensive contraception education campaign, enhancing information on our military health system websites and military medical treatment facilities about the kinds of reproductive healthcare available; and providing points of contact for beneficiaries to get help if they have trouble assessing reproductive healthcare in the military health system.

These steps build on some of our previous actions, like publishing (Qs and As ?) internally for our -- our members and dissemination of website to ensure our beneficiaries understand what kind of healthcare is available to them and who they can rely on for authoritative information and for help.

DEFENSE OFFICIAL 2:  I believe it's appropriate and -- that many of you would say "well, why are we taking these -- these steps today?"  And the answer is that since the Dobbs decision, Secretary Austin has been clear that the department would closely examine the decision and related state laws and that we would evaluate policies to ensure seamless access to healthcare, consistent with federal law.

In the intervening months, as we mentioned, the department has heard from a cross-section of experts with representatives from each of the military departments and services, we've engaged with independent researchers like Rand, and we've heard directly from impacted service members.  All these engagements have informed these actions that we're talking about today.

And it is clear that the Dobbs decision has diminished access to reproductive healthcare with recruitment, retention and readiness impacts across the force and the decision has created complexity, confusion and anxiety for service members and families who may now need to travel significant distances for reproductive healthcare and for DOD healthcare providers who may have concerns about legal risk.

The actions that we're announcing today is the next step as part of the deliberate and intentional process where Secretary Austin will help ensure access to reproductive healthcare for our service members and their families and address concerns raised by the force and our DOD healthcare providers regarding privacy, risk of liability, and readiness.

And with that, I'll turn it back over to (inaudible) to help manage questions.

STAFF:  One moment.  All right, we're going to go ahead and kick off with our questions and answers.  All right, starting with Tara Copp.

Q:  Hi, thank you for doing this.  I hope you can hear me.  My microphone started having some issues.  I wanted to get back to the timing of this and the impact.  Obviously, access to reproductive care has become a major issue in the midterm elections and there are some questions about whether or not service members would continue to have the same types of access they could if policies -- you know, if Congress switches hands.  Was there a sense of urgency to get this policy out prior to the midterms?

DEFENSE OFFICIAL 2:  No, we appreciate that question.  And as I mentioned, the Secretary and the department has taken a thoughtful and deliberate approach in developing the actions that we mentioned.  In his statement immediately following Dobbs, the Secretary stated that the department is examining this decision closely and evaluating our policies to ensure we continue to provide seamless access to reproductive healthcare as permitted by federal law.

And as you may know, within days of the Dobbs decision, the department issued guidance to reassure the force that we would continue to provide federally authorized healthcare and would take action to increase access to contraceptive service -- services.

And during the time since, we've conducted that multi-disciplinary team to review our existing policies and analyze the impacts of the Dobbs decision on recruitment, retention and readiness, and we wanted to make sure that we spoke directly with service members and families to understand where their greatest needs were.

And I cannot -- just really reassure you that we -- we took a thoughtful and deliberate approach, and while we are announcing the actions today, there is more work for us to do on our end to develop the final details of those policies.  And the Secretary's memo prioritizes some of those actions and emphasizes that our work on drafting policy and implementing guidance should be completed by the end of this calendar year.

So we're making this announcement today but the work continues.

Q:  And then just as a quick follow up, have you seen any impact to recruiting or retention in this calendar year after Dobbs?  And was there a concern that families or -- or female service members may not decide to re-up because of the uncertainty of being based in a state where there was no access?

DEFENSE OFFICIAL 2:  We have -- both in discussions with service members and in looking at the research that we mentioned from Rand, we do have information, both quantitatively and qualitatively, indicating that there is concerns with respect to considerations for military service, considerations for continuing service once in, consideration for family choices, concerns about being stationed in a location where they may not have access to this information or access to these -- these services.

And so we do feel that we have done the deliberate work to make sure that these actions are informed by the greatest needs of service members, families, and even perspective applicants.

STAFF:  All right.  Next question, Meghann Myers.

Q:  Thanks so much.  I want to hone in on the privacy initiative here, the guidance that healthcare providers may not disclose reproductive health information unless, for instance, there is a risk of harm to mission.  That seems like a pretty broad litmus test and something that could be easily abused.  Can you offer some examples of what might be considered a risk to mission, and whether the guidance that comes out will be a little bit more narrow about what those scenarios are?

DEFENSE OFFICIAL 1:  Yes.  We -- we felt that it was important to be clearer on that.  And so we're developing a -- developing policies, just like we've done recently with behavioral health, on sort of the left and right boundaries, if you will, for notification to help and just make it clearer.

There clearly are a number of examples of where it's important to know about that information, particularly from a -- you know, a safety of the mother and the fetus perspective, for exposures, et cetera, and so -- and also mandated statutorily at times, depending on what their MOS is.

So what -- the intent of the policy is to clarify those sort of situations, if you will, and make sure that the commanders get the information they need to make the right decisions to protect the individual and we can protect individuals from a privacy point of view and allow them to make their decisions.

And of course, part of the point of the policy is to try to standardize that approach across the DOD so we have consistent implementation of the policy.  I hope that helps.

Q:  I want to follow up.  The examples you gave are about risks to the woman or risks to the unborn child but that doesn't immediately strike me as a situation where it would be a risk of harm to the mission.

You know, examples where -- I could think of where someone might try to invoke this is you have an upcoming deployment, you have an upcoming training rotation, and that might -- I know that these are healthcare providers and so they may not be thinking along those lines, but that seems like an in where someone could make the case that there's a risk of harm to mission if there's a pregnant woman going to training and she might need to -- you know, she might need to drop out at any point, you know, either giving late notice or -- or, you know, have something happen during the training and she needs to leave.

So those are the -- the examples, where it’s not about the woman; it's about this risk to mission, and what does that really mean?

DEFENSE OFFICIAL 1:  But I think that is part of what we are, you know, working the policy through, because of the question about pregnancy and deployment, a ship immediately getting under way, those sorts of pieces. But also, we want to be able to protect the individual having to disclose that information.

And as you see in the memo, that is -- we're extending that period of time, not only to allow them to make good decisions, but also, at times, individuals who have been experiencing problems with fertility will find that they don't want to acknowledge the fact that they're pregnant because they don't know whether they're going to be able to carry it to term. So I think both of those are -- are critical pieces of protecting the privacy piece.

But back to the mission, clearly that's -- that's what we're working through, to make sure that we have the least impact on the mission while, again, trying to protect the -- the woman and her fetus.

STAFF:  All right, next question, Lara Seligman?

Q:  Hi, my question's been -- been asked and answered. Thank you.

STAFF:  Thank you. Heather Mongilio?

Q:  Hi, thank you so much. I was wondering if we can get some numbers on, since the Dobbs decision, how many women have requested leave for -- or, you know, childbearing people have requested leave for abortion services, and how many abortion services the DOD has been able to provide since the Dobbs decision?

DEFENSE OFFICIAL 1:  We -- we do, on an annual basis, report information to -- to Congress. But we have not done, you know, a specific study looking at that information since the Dobbs decision.

STAFF:  All right –


Q:  Wait, sorry, real quick, just to follow up, is that -- those numbers that you mentioned are reported to Congress. Are those public?

DEFENSE OFFICIAL 1:  Yes, I think, because they are reported to Congress. But I can tell you that, within the military treatment facilities, you know, we only do covered -- covered abortions. And between 2016 and 2021, there were a total of 91 that were completed, if that's helpful.

Q:  Yes, thank you.

STAFF:  All right, over to Rebecca Kheel?

Q:  Thank you for doing this. In terms of the administrative absences and the travel allowances, how are you going to ensure those are granted, while balancing the privacy aspects that you've talked about, if a woman doesn't feel comfortable disclosing why she's asking to take time off or, you know, if she's worried about some sort of official documentation that she's getting an abortion in a state where it's legal to get an abortion?

DEFENSE OFFICIAL 2:  I think I can address that. Our goal here is to ensure that we have a menu of options, so to speak, where service members and families can choose the approach that best suits their needs. So, of course, taking, you know, individual leave, or chargeable leave, is always an option, should the member choose to not disclose any additional information.

But insofar as the administrative absence and travel allowances, as we develop those policies, the goal is to also provide additional privacy in making those decisions, but in doing so, we recognize that -- that we may need to have a little bit of information about the -- why they may need to take those programs but it may just be a -- a -- with respect to healthcare and reproductive healthcare without necessarily providing details.

Q:  Okay, so if they want the non-chargeable leave or the travel allowance, they can just say it's for reproductive healthcare as opposed to specifically for an abortion?

DEFENSE OFFICIAL 2:  The department will provide specific guidance once we finalize the policies, but as we are working (through ?) development, the goal is to balance privacy interests with also executing the requirement.

STAFF:  All right, over to Jared Serbu.

Q:  Hi there.  I wanted to ask a bit about the provider indemnification piece, which, you know, seems kind of straightforward on the civil side and the administrative side -- but -- but what could or what would the department do in a case where, let's say, a state tries to assert criminal jurisdiction and prosecute a provider who performs a covered abortion at an MTF?  Like, what -- what are -- what are the options there?

DEFENSE OFFICIAL 1:  So you had already mentioned on -- the civil side.  Certainly that's where we would have assistance, et cetera.  If it -- if it's a criminal charge, then it would be deferred to the Department of Justice.

Q:  Who would do what?  Provide defense counsel to the provider or what?

DEFENSE OFFICIAL 1:  They would provide representation, although that will be up to the Department of Justice, of course, depending on the specifics of the case.

STAFF:  All right, over to Haley Britzky.

Q:  Hi, yeah, thank you for doing this.  I want to follow up on that last question, just to make sure I'm understanding right.  So when we're talking about, you know, in -- in the instance that a provider might be facing some sort of lawsuit or something, what is the DOD's action or -- or, you know, role in providing that support if the Department of Justice is primarily going to be handling that?

DEFENSE OFFICIAL 1:  So clearly, if Department of Justice is taking the case, we would work with them to coordinate the response, but they would be obviously -- we would be in support of our -- of our member and/or employee.

So -- and, of course, that's part of what we're working through in developing the policies.

Q:  Okay.  And then just to follow up on something else earlier, so there -- there isn't yet really a set path for when -- you know, service members requesting that travel allowance?  I guess I'm just trying to think ahead to, you know, it -- putting -- putting myself in the shoes of a service member who may be requesting that leave and, you know, trying to protect their privacy as much as possible and avoid sort of the rumor mill in their unit or at their installation, that they're traveling to get an abortion.

So, I mean, what -- what kind of assurances can you give service members there, that they're going to be able to -- to, you know, use those things that you all are offering but also protect their own privacy and their own reputation?

DEFENSE OFFICIAL 2:  Well, commanders are charged with balancing the needs of both their units and their members in an equitable -- equitable manner, consistent with department policy, to ensure the readiness of their units and protect the health interests of those service members.

So as I mentioned, as we develop these policies, our goal is to balance the privacy interests of the service member and their ability to make personal decisions with the needs of commanders to manage operational requirements and -- and readiness decisions.

And as I mentioned before, you know, part of our approach here is to emphasize the importance of commanders displaying objectivity, compassion and discretion when addressing all healthcare matters, this one included.  And certainly, that -- that goes hand in hand with, you know, protecting PII information.

And so, again, we are trying to provide a range of options, from taking personal leave all the way through administrative absence and then travel support so that they can decide how best to approach a decision for their own needs and interests.

STAFF:  All right, over to Jennifer Hilad.

Q:  Hi, thank you for doing this.  I had actually two questions.  One is pretty quick though.

So for the travel provisions, both of them but I guess more so for the covering the costs, does that also apply to troops and families overseas?  I know that there are some countries where there are troops -- U.S. troops that it is either illegal or very, very difficult to get an abortion out in town.

DEFENSE OFFICIAL 2:  We are, as I mentioned before, working through the -- the policy details but I anticipate the answer would be yes.  Our goal is certainly to provide equitable treatment across the board for all service members and the -- and families.

Q:  Okay.  And then this is just a clarification thing.  When you were talking about the covered abortions, that -- does that include if there's like a D&C after miscarriage or whatever the procedure is to remove an ectopic pregnancy, as long as it -- well, obviously an ectopic pregnancy threatens the health of the -- or the life of the mother -- but the -- the miscarriage D&C, does that -- is that all under the same umbrella or is that something different?

DEFENSE OFFICIAL 1:  From a medical point of view, it's something different.

Q:  Okay.

DEFENSE OFFICIAL 1:  But it is -- all the -- all of what you described is part of our covered benefit, if you will.

Q:  Okay.  So they could get all of that done at a medical military treatment facility is basically my question.

DEFENSE OFFICIAL 1:  That's exactly right.

Q:  Okay.

DEFENSE OFFICIAL 1:  And just to clarify, when I gave you the number of 91 -- not you but one of the other --


Q:  -- right.

DEFENSE OFFICIAL 1:  -- that was talking about the select covered abortions that are related to the -- incest or rape and/or saving the life of the mother.

Q:  Okay, so not necessarily those other -- the other things.  Okay, cool.

DEFENSE OFFICIAL 1:  That's right.

Q:  Thank you.

STAFF:  All right, over to Barbara Starr.

Q:  I would also like to go back, if I may, to the indemnification question.  So my -- my first question is just to make sure I'm not getting this wrong.  The -- even with Dobbs, covered -- covered abortions policy under the Hyde Amendment supersedes Dobbs, right?

DEFENSE OFFICIAL 1:  Yes, if done in federal -- under federal authority in one of our medical treatment facilities, for example.

Q:  Right.  So that's kind of -- that's the starting point.  So I don't understand -- I'm sorry, I just don't understand.  So if it's all basically set out under the Hyde Amendment and those categories of a covered procedure, why would there even be a question of civil or criminal penalties, loss of license, reprimand?  Why would you have to develop policies to -- this is the first part of my question -- why do you even have to develop these policies of protection for providers if they are simply carrying out procedures covered under the Hyde Amendment?

DEFENSE OFFICIAL 1:  That's a good question.  The reality is, is that a weighted -- we -- the reason why we're doing it is to reassure our providers.  The bottom line is, is that we think if it's done under federal jurisdiction, it will not be a problem, but with, quite frankly, all the press and other things that are out there, there is an underlying sort of concern about the potential --



Q:  Do you think -- is this also, then, if I could just explore it for one second.  So you developed these policies, and if it's sort of aimed at, should a state or some party in a state file -- I want to say a lawsuit.  Maybe that's the wrong word -- file some kind of action against a provider in what you might perceive as a test case, you have these procedures you want to set out to protect a provide -- one of your providers against a test case scenario of the Hyde Amendment versus Dobbs.  That make sense?

DEFENSE OFFICIAL 1:  Yes, ma'am, it does, and bottom line is, is we just want to support our providers.

Q:  Okay, so let me just ask you this very quickly:  You're saying you're going to develop policies, and you said, again, should there be a criminal case, it would be up to the Justice Department to take it, as it is with all criminal action against DOD.  But there's no guarantee, so will this -- what's going to be in this policy that is going to reassure providers?

DEFENSE OFFICIAL 1:  Well, as -- as we've reiterated a number of times during this conversations, the policy is still under development.  Once it is done, of course, we will share it widely.

Q:  Yes, I got you.


Q:  All right.  Thank you.  I appreciate it.

MODERATOR:  All right, that's all I have on the list for questions.  If -- we do have a little bit more time here.  Is there anyone else in the room that would have a question?

Q:  Hey (inaudible).  Can you hear me?

MODERATOR:  Yes.  Kristina Wong?

Q:  Yes.  Hi.  Thank you so much.  Just to clarify, the DOD will create travel and transportation allowances for abortions that are non-covered as well?  Is -- is -- is that correct?

DEFENSE OFFICIAL 2:  Yes, that is correct.

Q:  Okay, thank you.

Q:  Hi.  Ellen Milhizer here with a question.  Does this policy give DOD providers within MTS clearance to discuss options for getting abortions that are not covered that service members would need to travel for?  So are you -- you know, is a DOD provider allowed to help the service member figure out where to go and how to get an abortion?

DEFENSE OFFICIAL 1:  I think broadly, whenever a provider has a relationship with a patient, they will talk through their various healthcare needs.  And so we do not have a prohibition on our providers, you know, providing counseling, if you will, in those kinds of situations.  That's part of the standard of care for the provision of medicine.

Q:  Thank you.

Q:  Hi.  This is Maureen Groppe with USA Today.  I just wanted to
ask about the language on the travel allowance that says this'll be done consistent with applicable federal law.  So it -- what -- how does (inaudible) the law possibly restrict how you would use this to set up this fund?  And how are you confident that there will not be a legal challenge to it?

MODERATOR:  All right.  It appears we --

DEFENSE OFFICIAL:  (inaudible) --


DEFENSE OFFICIAL 2:  Are you -- would you like me to answer that question?

MODERATOR:  Oh, I'm so sorry.  I apologize.

DEFENSE OFFICIAL 2:  That's okay.

MODERATOR:  Please do answer the question.  My -- my apologies.

DEFENSE OFFICIAL 2:  No, not at all.  Just to respond, these actions are fully consistent with federal law, and the department has worked closely with the Department of Justice, which has provided a legal written opinion on the -- the authority to provide travel and transportational (sic) allowances that ensure the health of the force.