Access to Abortion Drug is a National Security Issue, Former Top Military Officials Claim in Legal Filing

Demonstrators protest about abortion outside the Supreme Court
Demonstrators protest about abortion outside the Supreme Court in Washington, Friday, June 24, 2022. (AP Photo/Jacquelyn Martin)

Former secretaries of the Army, Navy and Air Force as well as former high-ranking military service members say that restricting access to mifepristone, the medication used in more than half of all medical abortions in the U.S., would hurt recruitment, military readiness and cause undue harm to national security.

In a brief filed to the U.S. Supreme Court ahead of oral arguments March 26 in a case challenging the availability of the drug, former secretaries Louis Caldera of the Army, Ray Mabus of the Navy and Deborah James of the Air Force urged the court to reject any move to limit its access. The three secretaries all served under Democratic administrations.

At issue in the case is a challenge to the Food and Drug Administration's long-standing approval of the drug and federal judicial rulings on prescriptions for it and access to it by telemedicine or mail. The case is also part of a larger legal and political fight in the U.S. over abortion access after the Supreme Court struck down Roe v. Wade in 2022, and unleashed a struggle in the courts -- also between Republicans and Democrats -- as states have legislated their own rules and restrictions on abortion.

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The secretaries, joined by retired Lt. Gen. Claudia Kennedy -- the Army's first female three-star officer -- and others, including the Vet Voice Foundation, a nonprofit veterans advocacy group, said restrictions would impair recruitment, which in itself poses a strain on the existing force.

They added that restrictions would also affect operational readiness if it caused women to leave the service to care for unplanned or unwanted children, and would hamper the Defense Department's ability to provide all aspects of health care to women.

"The ability to maintain that readiness is currently in danger ... as the military faces a recruiting crisis driven largely by a dearth of Americans, especially men, who are interested in joining the military and meet its rigorous enlistment qualification standards," they wrote.

"Women 'represent a higher percentage of the recruitable population than their male counterparts,’" they added, citing a report by the Rand Corp., a Washington, D.C.-based think tank.

Thus, given the current challenges of military recruitment, the nation can't afford for the services to not "offer health care access that supports their training, service, career progression and personal choices," the brief adds.

A Government Accountability Office report published in 2020 found that women separate from the armed forces at a rate 28% higher than men.

The GAO found that women largely leave the service over six concerns: family planning, dependent care, work schedules, organizational culture, deployments and sexual assault.

With women making up half the potential recruiting pool, the DoD needs to do more to address the continuing gaps between gender in the U.S. military, the GAO said.

Those filing the amicus brief to the Supreme Court said that the availability of reproductive health care, including abortion care, is critical to attracting women to the services and retaining them.

"Put simply, lack of access to reproductive health care, including abortion care, and the real prospect of being forced to take unwanted or unsafe pregnancies to term, only makes the military less attractive to today's recruitment-age females," they wrote.

The mifepristone case -- Food and Drug Administration et al. v. Alliance for Hippocratic Medicine et al. -- began shortly after the Supreme Court overturned Roe v. Wade, a decision that allowed states to make their own laws regarding abortion restrictions.

The Alliance for Hippocratic Medicine, an anti-abortion group, sued the FDA to have mifepristone, the first medication used in a two-drug medical abortion, restricted on the market.

A judge ruled in favor of the organization last April and invalidated the FDA's approval of the drug, which had stood for more than 23 years.

When the federal government appealed the ruling, the Fifth Circuit invalidated a portion of it but upheld parts that included restricting its availability to in-person visits and allowing only physicians to prescribe it.

In the U.S. military, abortions are covered only in Defense Department treatment facilities and under the DoD's civilian health benefits program, Tricare, in cases of rape or incest or when the mother's life is at risk.

Service women and dependents must pay for their own procedures in cases of elective abortions. Shortly after the Supreme Court overturned Roe v. Wade, Defense Secretary Lloyd Austin issued policies that gave service women up to three weeks' leave to obtain an abortion, if they are assigned to bases in states where the procedure is limited or illegal, and reimbursed them for travel expenses.

More than 30 briefs have been filed in the case, with nearly all advocating for the drug to remain on the market without restrictions.

In addition to the brief, the three service secretaries published an opinion piece on the issue in The Washington Post on Thursday,

Other signatories include a number of retired high-ranking officers: Army Maj. Gen. Tammy Smith, Army Maj. Gen. Paul Eaton, Navy Rear Adm. (Lower Half) Michael Baker, Army Brig. Gen. Robin Umberg and Army Brig. Gen. Steven Anderson, along with Army Sgt. Maj. Marshall Williams, an expert in military recruitment and retention. Dr. David Callaway, a former Navy lieutenant commander who serves as chief medical officer for the disaster-response nonprofit organization Team Rubicon, also signed the amicus brief.

Attorneys for the Alliance for Hippocratic Medicine said in their filing to the Supreme Court that the earlier rulings should stand because the group is not seeking to remove the drug from the market.

The "modest decision" of the Fifth Circuit Court of Appeals, they said, "merely restores the common-sense safeguards under which millions of women have taken chemical abortion drugs. Women will still have access to chemical abortion under the same protections that existed for the first 16 years of mifepristone's use, including crucial examinations and ongoing monitoring for complications by a prescribing physician."

In 2016, the FDA made changes to mifepristone's prescribing practices, allowing it to be used for abortions within 70 days of gestation rather than 49 days.

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