For most of this year, almost all of the controversy surrounding the National Defense Authorization Act for Fiscal Year 2011 (NDAA-FY2011) focused on an amendment within the Senate Armed Services Committee to repeal the DOD’s “Don’t Ask; Don’t Tell” policy. Once that battle was finally resolved, Senator Roland Burris (D, IL) quickly injected an amendment to lift the military’s ban on privately-funded abortion. His timing allowed the amendment to be attached without opportunity for anti-choice forces to lobby against it. And so at the close of May, the Senate Armed Services Committee completed its markup of NDAA-FY2011 and recommended it (as amended) to be scheduled for a floor vote. The Burris Amendment to the bill for the National Defense Authorization Act for Fiscal Year 2011 (NDAA-FY2011) shows great initiative, symbolic significance, parliamentary cunning, and sound policy. It’s a correction over two decades overdue. But however good it may be, it is not good enough.
It’s been reported that the Burris Amendment applies the Conscience Rule to military health care. More so than even the original Conscience Rule, this military incarnation is extremely problematic and offers a clear, demonstrable potential to be very widely invoked in the most dangerous of settings. If a physician or pharmacist in a military hospital refuses to provide treatment or service, then a military patient has very few (or possibly no) alternatives to seek care off-base — especially in war zones.
The Military Abortion Ban & the Conscience Rule
Since 1979, the Department of Defense (DOD) has prohibited the use of federal funds for abortion services at military hospitals overseas in almost all cases. In 1985, the ban was made permanent by DOD authorization bill. In 1988, the DOD issued an administrative order — without congressional consultation — extending the funding ban to prohibit women from obtaining abortion care with their own funds at military facilities overseas.
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— NARAL Pro-Choice America on the origins of the ban
Two years later, Congress unsuccessfully attempted to override the ban by statute. Then, in his inaugural year, President Clinton reversed the ban via executive order, allowing abortion services paid with private funds at military hospitals. A year after the Republican resurgence of 1994, Congress enacted the National Defense Authorization Act for Fiscal Year 1996, which cemented the military abortion ban into statute, where it has endured ever since (notwithstanding an attempt by the Democratic majority in Congress to lift it in 2006).
A month after the Republicans lost the 2008 presidential election (as well as several seats in the House and Senate), President G.W. Bush issued several “eleventh-hour regulations” that would carry over through Obama’s term. Among them was an anti-choice regulation called the Conscience Rule — which not only granted health care professionals the right to refuse treatment and services, but also absolved them of any obligation to advise the patient of even the existence of alternatives.
Although almost immediately upon inauguration President Obama sought to rescind the rule, that effort was quickly lost in the madness of the national preoccupation with health care reform. Ultimately, the Conscience Rule was integrated into the Patient Protection and Affordable Care Act, which immunized the refusal of treatment and referral to treatment [see Sec. 1303(a)(3), Provider Conscience Protections], and affirmed the extent of any existing conscience protections not covered by the Act [see Sec. 1303(b)(2)(A)(i)].
NDAA-FY2011 & the Burris Amendment
As expected, there has been an explosion of positive pro-choice press commending the Burris Amendment and highlighting its compelling policy rationale. However, according to the ACLU, the Burris language also creates a military version of the Conscience Rule:
(The amendment would also allow health care professionals a right to refuse to perform an abortion.)
As of the time of this writing, the Thomas database of the Library of Congress had not updated its record of NDAA-FY2011 to include the Burris Amendment (or any amendments since April). And as such, the following comment is predicated upon the accuracy of the ACLU’s finding.
The policy argument to justify the Conscience Rule in the US is based on available alternatives in the free market — which is obviously impractical in a rural setting. In a military setting abroad, an even greater impracticality would create a de facto ban. Because of security considerations, a patient in Afghanistan cannot just freely seek medical alternatives if her military physician or pharmacist invokes the rule. She would need authorization and security clearance from her superiors to leave base — creating a disincentive.
Even if she were to get such authorization, there’s also the issue of availability and comparability. An abortion in Afghanistan or any foreign venue may not be easily obtained given hostile public policy, limited resources, and the woman’s ability to discover such resources in a foreign country. Moreover, Afghani and Iraqi hospitals offer what everyone, including even the DOD, regards as substantially poorer care.
Trends in the Military Market
Any reliance on the mythically bountiful marketplace is subject to market trends. And so, two assumptions necessary to justify the Conscience Rule in the US are that diverse producers in the market will offer diverse choices and when they don’t (ie, when the producers collude), the market will correct itself because it is motivated by consumer demand.
Both of those assumptions are flawed in the military context for the same reason: military health care isn’t capitalist. It’s uniformly institutionalized. A military physician’s, pharmacist’s, or hospital’s livelihood doesn’t fluctuate with patronage. Also, since there is exclusivity, there is no impetus to compete by providing more comprehensive services. Providers in the military health care “market” thus enjoy a secure station. If we empower that station with discretion to refuse service, then those health care professionals are no longer market participants. They become institutionalized gatekeepers. Access becomes entirely permissive.
Even more problematic is the fact that the military is based on a culture of homogeneity that isn’t germane to a diverse market. Like-minded providers provide “like-mindedly.” So the specter of a trend among military physicians to disfavor (or exclude entirely) abortion services is not only very real, but it would also be virtually immutable since such a like-minded fraternity needn’t adapt to consumer demand.
Conscience vs Command [base policy wins]
Yet another problem with the Conscience Rule in a military setting is that the military’s hierarchical command structure vests an override power in the base commander. This essentially gives the Colonel or Captain a base-wide kill switch for abortion services even where the physician has sided with the patient.
Why a Remedy May Be Disfavored
Now that the Senate Armed Services Committee has approved the bill, it is scheduled for a floor debate, before it ultimately advances it to a floor vote. While in debate, a floor amendment that cures the Conscience Rule could still be offered, yet there has been no movement towards such a remedy.
The extremely troubling implications of the rule seem fairly obvious. It creates an exemption that swallows the amendment. Indeed, the ACLU has noted the aforementioned considerations of impracticality that gave rise to the amendment, although it doesn’t mention the self-defeating effect of the Conscience Rule. In fact, there has been a conspicuous lack of objection to the NDAA’s Conscience Rule from the pro-choice community.
Since the bill is projected to pass without complication, there may be a reluctance to threaten the greater good of lifting the abortion ban with a fight that (on the civilian side) has already been capitulated to the private sector. If this is correct, it’s another example of sacrificing reproductive rights along the path of least turbulence.
The fear may also be that rattling the sabers over the Conscience Rule might give the opponents of DADT the “abortion scapegoat” they need (as we saw with health care reform). Thus, this insistence could potentially put the pro-choice community at odds with the LGBT community if pressing the problem of the Conscience Rule is misperceived as an overreach rather than a necessity.
Why This Imperative is Nonetheless Feasible
Because the Burris Amendment was introduced in committee and because it was drafted with protective language, it cannot be stripped from the bill without a three-fifths majority of 60 votes. Since NDAA-FY2011 contains appropriations that are vital to the DOD, the bill as a whole is also nearly immune from political sabotage via filibuster. And so, as the office of Senator Burris touts, the bill is an insuperable vehicle from which his amendment cannot be ousted. Similarly, the DADT repeal enjoys nearly complete safe passage through the floor, because it was constructed the same way.
Moreover, in the Senate, floor amendments need not be germane, allowing for riders. A floor amendment could be conceived with language that operatively supersedes the Conscience Rule. The Burris Amendment would thereby be inoculated from its only flaw — without threat to the Burris Amendment, the amendment repealing DADT, or to the overall bill. Thus, the urgency of removing the Conscience Rule should not be offset by any perceived need to protect interests that are already invulnerable.
Activating the Proper Action
As floor debate approaches, now is the appropriate time to pressure legislators with this change. Once debate is closed, the opportunity expires with it.
“If you’re not able to get access to services on base, you’re at the mercy of whatever medical services are out there. It’s a pretty dangerous scenario.”
— US Senator Burris [D, IL]
While Senator Burris’ initiative in lifting the military’s longstanding abortion ban should definitely be lauded, this endeavor should not be approached without due care. For the many reasons described at lengths above, the military Conscience Rule would be far more damaging to military women than the civilian version is to civilian women. Because the military context is distinct from the civilian context, this exemption sets the stage to make the right impractical even if it becomes legal.
Absent any unanticipated parliamentary concerns, it is critical that the repair of this defect does not yield to political convenience — or to any attempts to trivialize it. A simple departmental memorandum resulted in over twenty years of failed efforts to correct that poisoned policy. Ignoring a similarly small, “forgivable” defect in the antidote might actually perpetuate the exact same ill for decades more.