Authority of the Department of Defense to Use Appropriations for Travel by Service Members and Dependents to Obtain Abortions ( 2022 )

(Slip Opinion)
Authority of the Department of Defense to Use
Appropriations for Travel by Service Members and
Dependents to Obtain Abortions
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. DoD may lawfully expend funds to pay for such travel pursuant
to both its express statutory authorities and, independently, the necessary expense doc-
trine.
October 3, 2022
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF DEFENSE
You have asked whether the Department of Defense (“DoD”) may law-
fully 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 as-
sessing identical language restricting the Peace Corps’ use of its appropri-
ations, 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.1
46 Op. O.L.C. __ (Oct. 3, 2022)
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When Congress originally enacted the provision in 1984, it prohibited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 subse-
quently 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 “be-
yond . . . 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 spe-
cific issue of DoD’s use of its medical treatment facilities, rather than
reaching the same result via a broader prohibition on expenditures indi-
rectly related to the provision of abortions.
The limited scope of the 1996 amendment is especially significant be-
cause 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
2
Use of Department of Defense Appropriations for Travel to Obtain Abortions
the provision noted above, section 202 of the current appropriation con-
tains 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 pro-
vide 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 transpor-
tation expenses.
Comparing 10 U.S.C. § 1093 to the text and history of the longstanding
funding restriction known as the Hyde Amendment is similarly instruc-
tive. 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 trans-
portation 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
3
46 Op. O.L.C. __ (Oct. 3, 2022)
health benefits coverage that includes coverage of abortion.” 1 Depart-
ments 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 con-
nected 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 trans-
portation. 2 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 fund-
ing 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.
1 Although the various appropriation restrictions use somewhat different language,
compare 10 U.S.C. § 1093(a) (prohibiting “perform[ing] abortions”) with CAA 2022,
div. H, § 506(a) (prohibiting “expend[ing]” funds “for any abortion”) and id., div. B,
§ 202 (prohibiting “pay[ing] for an abortion”), we have concluded that in this context the
differences in phrasing do not reflect differences in substance. See Application of the
Hyde Amendment to the Provision of Transportation for Women Seeking Abortions at *3.
2 To be sure, some of the legislative history suggests that this amendment simply
“clarif [ied]” what the Hyde Amendment already prohibited. 143 Cong. Rec. 18,493
(1997) (statement of Rep. Hyde). Regardless, the debate—and Congress’s subsequent
action—indicate that the prohibition on funds being “expended for any abortion” did not
sweep beyond the direct provision of abortions to an extent that would reach transporta-
tion for abortion.
4
Use of Department of Defense Appropriations for Travel to Obtain Abortions
II.
The Constitution mandates that “[n]o Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law.” U.S.
Const. art. I, § 9, cl. 7. The Purpose Act, reflecting this constitutional
principle, provides that “[a]ppropriations shall be applied only to the
objects for which the appropriations were made except as otherwise
provided by law.” 31 U.S.C. § 1301(a). Consistent with the Purpose Act,
the Supreme Court has long recognized that “[t]he established rule” is that
“the expenditure of public funds is proper only when authorized by Con-
gress, not that public funds may be expended unless prohibited by Con-
gress.” United States v. MacCollom, 426 U.S. 317, 321 (1976).
Accordingly, in the absence of a statute prohibiting the expenditures
DoD is contemplating, the availability of the proposed expenditures
depends on whether authority exists for DoD to expend its appropriations
for this purpose. You have concluded that DoD has authority for the
contemplated expenditures under both express statutory authorities and
the necessary expense doctrine. We agree.
A.
You have concluded that “the Secretary of Defense has broad statutory
authority to pay for the travel and transportation expenses of Service
members and other authorized travelers.” Memorandum from Department
of Defense, Re: Legal Availability of DoD Appropriations to Pay Trans-
portation Costs to Obtain Abortions Outside the Scope of 10 U.S.C.
§ 1093 at 3 (Aug. 22, 2022) (“DoD Memo”). You have noted three
sources of statutory authority that you believe permit the Secretary of
Defense to authorize the contemplated expenditures: 37 U.S.C. § 452(a),
37 U.S.C. § 452(b)(11), and 37 U.S.C. § 453(d). We agree that these
provisions confer express authority for such expenditures.
1.
By its express terms, 37 U.S.C. § 452(a) provides broad authority for
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,” id. § 451(b)(1), with no enumer-
ated limitations.
5
46 Op. O.L.C. __ (Oct. 3, 2022)
The broad scope of 37 U.S.C. § 452(a)’s grant of authority to the Secre-
tary to provide travel expenses is confirmed by a list of examples of
covered travel expenses in 37 U.S.C. § 452(b)(1)–(20). This list is explic-
itly illustrative, not exclusive. See id. § 452(b) (noting that “[t]he authori-
ty under subsection (a) includes travel under or in connection with, but
not limited to, the following circumstances”). Of particular note, 37 U.S.C.
§§ 452(b)(18) and 452(b)(19) authorize expenses for travel by dependent
children of a service member to the continental United States to attend
school if the service member is assigned to a permanent duty location
outside the continental United States. These provisions demonstrate that,
consistent with the broad terms of the statutory definition, Congress
understood “official travel” to include travel for purely personal purposes
necessitated by the fact that service members and their families “generally
do not choose where they and their families will be stationed,” but are
assigned to locations “based on the needs of the Military Service and the
ability of Service members to meet those requirements.” DoD Memo at 7.
Relevant legislative history further confirms that Congress intended the
delegation of authority to the Secretary in 37 U.S.C. § 452(a) to be con-
strued broadly. One of the purposes of the travel and transportation au-
thorities for the uniformed services, including both 37 U.S.C. §§ 452 and
453, was to provide the Secretary with flexibility to authorize travel
expenses in the face of changing needs. See National Defense Authoriza-
tion Act for Fiscal Year 2012, Pub. L. No. 112-81, § 631(a), 125 Stat.
1298, 1452 (2011).
As such, both the text of 37 U.S.C. § 452 and its purpose indicate that
37 U.S.C. § 452(a) provides the Secretary with broad authority to provide
payment for expenses in connection with authorized travel. Should the
Secretary authorize travel for service members and their dependents to
obtain abortions, 37 U.S.C. § 452(a) would expressly permit the provision
of travel expenses.
2.
In addition, 37 U.S.C. § 452(b)(11) provides that the authority under
37 U.S.C. § 452(a) specifically “includes travel under or in connection
with[] . . . [u]nusual, extraordinary, hardship, or emergency circumstanc-
es.” A separate statute, 37 U.S.C. § 453(d), similarly provides that author-
ized travelers, including both service members and their dependents, see
6
Use of Department of Defense Appropriations for Travel to Obtain Abortions
id. § 451(a)(2), “may be provided travel and transportation allowances
under this section for unusual, extraordinary, hardship, or emergency
circumstances, including circumstances warranting evacuation from a
permanent duty assignment location,” id. § 453(d). 3 Neither provision
specifies what constitutes “[u]nusual, extraordinary, hardship, or emer-
gency circumstances.” Id. § 452(b)(11); see also id. § 453(d).
Consistent with your representations, discussed further below, that be-
ing stationed in a location without access to abortion “may impose signif-
icant costs on a Service member’s physical and mental health and well-
being,” DoD Memo at 7, you have concluded that “the Secretary of De-
fense or an authorized delegate could reasonably determine that Service
members who are required to serve in an area without access to essential
reproductive health care face unusual, extraordinary, hardship, or emer-
gency circumstances,” id. at 4 (quotation marks and alteration omitted)
(citing 37 U.S.C. § 453(d) and 37 U.S.C. § 452(b)(11)). We agree.
There is precedent for the armed forces recognizing that service mem-
bers and their families may experience hardship circumstances by virtue
of being stationed in locations without access to specialized reproductive
health care. A current Army policy provides several accommodations for
service members when they or their spouses “are undergoing fertility
treatment,” including potential eligibility for compassionate reassignment
to installations where fertility treatment is available. Christine E.
Wormuth, Secretary of the Army, Army Directive 2022-06 (Parenthood,
Pregnancy, and Postpartum) at 7–8 (Apr. 19, 2022) (“Army Directive
2022-06 ”). The policy also allows service members to remain in the same
geographic location for up to 365 days from the date of the first fertility
appointment, with an additional 365-day extension from the date the
service member is granted a fertility profile for assisted reproductive
technology procedures. Id. The policy references a DoD Instruction
providing that “[m]ilitary personnel assignment decisions will not be
3 You have explained that 37 U.S.C. §§ 452(b)(11) and 453(d) differ in that funding
authorized under 37 U.S.C. § 452 would typically apply across all the uniformed services
and be implemented through an amendment to the Joint Travel Regulations in consulta-
tion with the Secretaries of Homeland Security, Commerce, and Health and Human
Services, see 37 U.S.C. § 464, while 37 U.S.C. § 453(d) authorizes the Secretaries of
Defense, Homeland Security, Commerce, and Health and Human Services to provide
supplemental travel and transportation allowances for their respective uniformed services,
see id. § 453; DoD Memo at 3–4.
7
46 Op. O.L.C. __ (Oct. 3, 2022)
influenced by the . . . health of a Service member’s family member,”
except “[w]hen necessary to,” among other things, “relieve the personal
hardship of a Service member or family member because a family mem-
ber needs access to specialized medical treatment.” DoD Instruction
1315.18, Procedures for Military Personnel Assignments para. 3.b.1
(Oct. 28, 2015). In like vein, here DoD would be determining that service
members and their families may experience hardship circumstances by
virtue of being stationed in locations without access to specialized repro-
ductive health care. The two contexts are especially similar because DoD
does not provide or pay for either type of health care. See 32 C.F.R.
§ 199.4(e)(2) (excluding from DoD’s medical insurance program payment
for non-covered abortions); id. § 199.4(e)(3)(i)(B)(3) (excluding many
assisted reproductive technologies, including artificial insemination and in
vitro fertilization).
In light of the above, we conclude that the Secretary or an authorized
delegate, taking into account all relevant considerations, could reasonably
determine that requiring service members and their families to live in a
location without access to abortion creates an unusual, extraordinary,
hardship, or emergency circumstance. If the Secretary or an authorized
delegate should make such a determination, 37 U.S.C. § 452(b)(11) and
37 U.S.C. § 453(d) would expressly authorize the provision of travel
expenses for a service member or dependent to obtain that care.
B.
Apart from relying on express statutory authority, an agency may ex-
pend funds from a general appropriation under the necessary expense
doctrine. The necessary expense doctrine permits an agency to expend
funds from a general appropriation “‘[i]f the agency believes that [an]
expenditure bears a logical relationship to the objectives of the general
appropriation, and will make a direct contribution to the agency’s mis-
sion,’” where no “specific provision limits the amount that may be ex-
pended on a particular object or activity within [the] general appropria-
tion.” Use of General Agency Appropriations to Purchase Employee
Business Cards, 21 Op. O.L.C. 150, 153–54, 156 (1997) (“Employee
Business Cards”) (quoting Indemnification of Department of Justice
Employees, 10 Op. O.L.C. 6, 8 (1986)). Agencies “have considerable
discretion in determining whether expenditures further the agency’s
8
Use of Department of Defense Appropriations for Travel to Obtain Abortions
authorized purposes and therefore constitute proper use of general or
lump-sum appropriations.” Id. at 153; see Lincoln v. Vigil, 508 U.S. 182,
192 (1993). It is for “[t]he agency itself ” to “‘make the required determi-
nation,’ since [the agency] is ‘in the best position to determine whether’
an expenditure of funds is necessary to carry out the agency’s mission
effectively.” Religious Seasonal Decorations in Federal Government
Buildings, 45 Op. O.L.C. __, at *6 (Jan. 15, 2021) (quoting State and
Local Deputation of Federal Law Enforcement Officers During Stafford
Act Deployments, 36 Op. O.L.C. 77, 90 (2012)).
You have explained that the contemplated expenditure for travel ex-
penses to help service members and their dependents access non-covered
abortions “would rely on an operation and maintenance (O&M) appro-
priation, which is available for ‘expenses, not otherwise provided for,
necessary for the operation and maintenance’ of the Department, ‘as
authorized by law.’” DoD Memo at 4 (quoting CAA 2022, div. C). “This
appropriation is a general or lump-sum appropriation ‘covering a wide
range of activities without specifying precisely the objects to which the
appropriation may be applied.’” Id. (quoting Funding for the Critical
Technologies Institute, 16 Op. O.L.C. 77, 80 (1992)). You have concluded
that “the necessary expense doctrine permits DoD to use its . . . appropriations
to pay for Service members and dependents to travel to obtain non-
covered abortions if a responsible senior official determines that the
expenditures would make a direct contribution to the objectives of achiev-
ing and maintaining a ready force and/or recruiting and retaining a highly
qualified force.” Id. at 10. We agree.
DoD plainly has an interest in the readiness of its force, which it de-
fines as the “ability of military forces to fight and meet the demands of
assigned missions.” Id. at 6 (quoting Office of the Chairman of the Joint
Chiefs of Staff, DOD Dictionary of Military and Associated Terms at 179
(May 2022)). You have identified both individual medical readiness and
morale as aspects of force readiness that could be furthered by the con-
templated expenditure.
DoD defines medical readiness as “[a] Service member’s medical, den-
tal, and mental/behavioral health status necessary to perform their as-
signed missions.” DoD Instruction 6025.19, Individual Medical Readiness
Program at 24 (July 13, 2022) (“DoDI 6025.19, Individual Medical
Readiness Program”). You have identified several reasons why “[f]unding
9
46 Op. O.L.C. __ (Oct. 3, 2022)
a Service member’s transportation to and from a non-covered abortion
procedure could contribute meaningfully to readiness, such that the ex-
penditure helps accomplish ‘broader [DoD] objectives’ covered by the
O&M appropriations.” DoD Memo at 7.
First, as the Under Secretary of Defense for Personnel and Readiness
and the Acting Assistant Secretary of Defense for Health Affairs recently
testified before the House Armed Services Subcommittee on Personnel,
“[r]egardless of whether and where abortion is legal, and under what
circumstances, we know from established research that individuals will
continue to seek” abortion care, including within “the Military Communi-
ty.” Women’s Reproductive Health Issues: Hearing Before the Subcomm.
on Personnel of the H. Armed Services Comm. at 4 (July 29, 2022)
(statement of Gilbert R. Cisneros, Under Secretary of Defense for Person-
nel and Readiness, and Seileen Mullen, Acting Assistant Secretary of
Defense for Health Affairs) (“Cisneros Testimony”). To obtain a non-
covered abortion, service members or their family members who are
stationed in states without local access from licensed providers would
need to travel to another jurisdiction where the procedure is available,
despite potentially burdensome or prohibitive costs of travel and lodging.
See id. “Such expenses would add financial burden and stress to what is
already likely to be a challenging situation,” DoD Memo at 7, which could
further exacerbate negative impacts on service members’ physical and
mental health.
Moreover, service members who are unable to afford the added expense
“might instead obtain abortions from unlicensed local providers or even
resort to self-help, which could put Service members’ health at risk and
expose them to potential liability or jeopardy under state law.” Id. Others
“may be forced to carry unwanted pregnancies to term, ‘transform[ing]
what, when freely undertaken, is a wonder into what, when forced, may
be a nightmare.’” Id. (alteration in original) (quoting Dobbs v. Jackson
Women’s Health Org., 142 S. Ct. 2228, 2318 (2022) (Breyer, Sotomayor,
and Kagan, JJ., dissenting)). That would also render service members
temporarily non-deployable. See DoDI 6025.19, Individual Medical
Readiness Program at para. 3.1.a.3 (classifying pregnancy and post-
partum as “deployment-limiting medical condition[s]” that render service
members “[n]ot [m]edically [r]eady” to deploy). All these circumstances
“may impose significant costs on a Service member’s physical and mental
health and well-being,” DoD Memo at 7, which could negatively impact
10
Use of Department of Defense Appropriations for Travel to Obtain Abortions
their ability “to perform their assigned missions,” DoDI 6025.19, Individ-
ual Medical Readiness Program at 24.
To be sure, many women who reside in states enforcing newly stringent
abortion restrictions after the Supreme Court’s decision in Dobbs will
face similar obstacles in accessing abortions. Service members, however,
have far less ability than civilians to choose the state where they and their
families live. Service members must go where the Department of Defense
stations them. See DoD Memo at 7 (“Service members generally do not
choose where they and their families will be stationed.”). As a result, it is
possible that the “costs on a Service member’s physical and mental health
and well-being . . . could be exacerbated in some cases by a Service
member’s perception that military service has limited her reproductive
health care options and that the military is unable or unwilling to support
her.” Id. Where DoD stations a service member in an area with no or
limited access to reproductive health care options, the service member
may well view DoD itself as the major obstacle to the service member’s
or their family member’s ability to receive care. Cf. Harris v. McRae,
448 U.S. 297, 315 (1980) (distinguishing between obstacles that a woman
generally faces in accessing abortion and obstacles that the government
itself places in her path). Such a perception may be further exacerbated by
the fact that DoD does, in other contexts, offer accommodations to miti-
gate burdens on health care access caused by service members’ assign-
ment locations. See DoD Instruction 1315.19, The Exceptional Family
Member Program (EFMP) para. 1.2 (Apr. 19, 2017) (authorizing accom-
modations for service members whose families include a member with
special needs, including by establishing protocol “to ensure their family
members’ special needs are considered during the assignment process”
and by allowing for possible stabilization of assignment location “for a
minimum of 4 years”); Army Directive 2022-06 at 7–8 (establishing
accommodations within the Army for service members undergoing fertili-
ty treatment, as discussed above). This perception may affect not only
service members’ individual medical readiness, but also morale, which is
an independent component of force readiness. See DoD Instruction
1015.10, Military Morale, Welfare, and Recreation (MWR) Programs
para. 4 (July 6, 2009) (noting that morale, recreation, and welfare pro-
grams are intended to “maintain individual, family, and mission readiness
during peacetime and in time of declared war and other contingencies”).
11
46 Op. O.L.C. __ (Oct. 3, 2022)
For the above reasons, and in light of the discretion accorded to agen-
cies to determine whether expenditures further the agency’s authorized
purposes, see Employee Business Cards, 21 Op. O.L.C. at 153, we agree
that a DoD senior official could reasonably conclude that “paying for
Service members to travel to obtain non-covered abortions would directly
contribute to the objective of achieving and maintaining a ready force” by
contributing to service members’ physical and mental health and morale,
DoD Memo at 7.
In addition, you noted that DoD’s interest in military recruitment and
retention could provide an alternative, independent ground for the con-
templated expenditures from DoD’s O&M appropriation. You have repre-
sented that “DoD also has an important interest in recruiting and main-
taining the most qualified Service members.” DoD Memo at 8. The Under
Secretary of Defense for Personnel and Readiness and the Acting Assis-
tant Secretary of Defense for Health Affairs recently testified that “wom-
en . . . volunteer at lower rates than men,” and that “some potential re-
cruits [could] feel deterred from joining the military for fear of being
stationed at an installation or base” in states that severely restrict their
options for reproductive health care. Cisneros Testimony at 3. Moreover,
existing service members who are presently “living and working in states
with the full range of reproductive health care available to them” may be
“deter[red] . . . from remaining in . . . military service” because of the
possibility of “being required to move to a state that severely restrict
access to reproductive health care” and the attendant threat to their “pri-
vacy and health care choices.” Id. You noted that DoD’s interest in fund-
ing travel to pay for non-covered abortions would be especially strong if
private sector employers adopt such policies, given that it may put DoD
“at a distinct competitive disadvantage” if it cannot offer accommodations
similar to those in the private sector, particularly given that service mem-
bers, unlike civilians, “have little control” over where they live. DoD
Memo at 8.
For these reasons, we agree with your conclusion that DoD would have
discretion under the necessary expense doctrine to pay for travel for
service members and dependents to obtain non-covered abortions if DoD
were to “determine [that] . . . paying for Service members to travel to
obtain non-covered abortions would directly contribute to the objective of
recruiting and retaining a highly qualified force.” Id.
12
Use of Department of Defense Appropriations for Travel to Obtain Abortions
* * * * *
We therefore conclude that, pursuant to both express statutory authori-
ties and the necessary expense doctrine, DoD can lawfully expend funds
to pay for service members and their dependents to travel to obtain abor-
tions that DoD itself cannot perform.
CHRISTOPHER H. SCHROEDER
Assistant Attorney General
Office of Legal Counsel
13