Sen. Tommy Tuberville, R-Ala., left, speaks with Defense Secretary Lloyd Austin in June 2021. This year, Tuberville has blocked hundreds of military nominations and promotions because of abortion policies that Austin approved. But a legal review by the Government Accountability Office published Sept. 26, 2023, said the Defense Department did not need approval from Congress to implement the trio of rules. (Chad McNeeley/Defense Department)
The Defense Department did not need congressional approval to implement a trio of reproductive health care rules earlier this year, including one that allows service members to use federal funds to travel out of state for abortions, a government watchdog agency determined.
The regulations have led to a monthslong standoff with Sen. Tommy Tuberville, R-Ala., who continues to block hundreds of senior military appointments and has cited the abortion provisions among his reasons.
Tuberville and his supporters have argued that the rules violate a ban on taxpayer-funded abortion and should have been approved by Congress before coming into effect.
However, a legal review by the Government Accountability Office published Tuesday said that because the policies deal with management and personnel, they are exempt from the Congressional Review Act, which requires government agencies to report major rules to Congress before they’re enacted.
Tuberville requested the review in March, the report said.
“All three … address matters that clearly and directly implicate agency personnel matters,” the report said. “They concern communications between employees and managers, leave and benefits. Because all three of these are personnel issues, they fall within the exception for rules relating to agency management and personnel.”
Besides the policy that reimburses travel expenses for service members who must leave their duty stations to get an abortion, another provides up to three weeks of paid leave for an abortion or fertility treatment.
An aerial view of the Pentagon in May 15, 2023. The Defense Department did not need approval from Congress to implement reproductive health care rules earlier this year, according to a legal review by the Government Accountability Office published Sept. 26, 2023. (John Wright/U.S. Air Force)
The third allows pregnant servicewomen up to 20 weeks to notify their commands about their situation, which would give them more privacy to get an abortion if they choose.
The rules are meant to help the military retain female personnel and were a response to the Supreme Court’s 2022 Dobbs v. Jackson decision, which reversed rulings that asserted a constitutional right to abortion.
Since last year, several states have passed laws outlawing abortions in most cases. As a result, more than 40% of female service members stationed in the U.S. have either no access or severely restricted access to abortion services, according to the Rand Corp. think tank.
Tuberville has waged an unprecedented campaign to try to change the Pentagon’s updated policy, holding up hundreds of military nominations and promotions.
Senior nominations and promotions are typically confirmed by the Senate in large groups but require unanimous consent.
They all can be voted on individually, but it would take months to get through the more than 300 affected by Tuberville’s hold, according to a Congressional Research Service report last month.
Nevertheless, the Senate started to vote last week on some of the top vacancies, confirming Air Force Gen. Charles Brown as the new chairman of the Joint Chiefs of Staff, Gen. Randy George as Army chief of staff and Gen. Eric Smith as Marine Corps commandant.
