A government watchdog found that the Department of Defense (DOD) did not need to get Congress’ approval before implementing its abortion travel rules in a legal analysis published Tuesday.
The three DOD memoranda, which allow service members to use federal funds for travel and time off to receive elective abortions, are exempt from a law called the Congressional Review Act (CRA) that requires government agencies to report major rules to Congress before they can be implemented, the Government Accountability Office found. Had the CRA applied, Congress would have been able to nullify the proposed rules before they came into effect in February.
In March, Alabama Republican Sen. Tommy Tuberville sent a letter to GAO asking for a determination of whether the CRA applied to the abortion travel policies, according to GAO’s decision. Tuberville implemented a blanket hold on high-ranking DOD officer promotions around the same time in protest of those policies, which he argues amount to federal funding for abortion. (RELATED: Senate Confirms Marine Corps Leader After Tuberville’s Holds Kept Position Empty For Months)
The Pentagon has stated it does not intend to overturn the “access to reproductive healthcare” policies. Meanwhile, Tuberville’s hold now affects more than 300 officers.
“The Pentagon violated the law by simply sending a memo and updating their website. That’s not how our system is supposed to work,” Steven Stafford, a spokesperson for Tuberville, told The Daily Caller News Foundation.
“The Pentagon ought to follow the law, and if they really want this policy, they should ask Congress to change the law,” he said.
A rule is “designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency,” according to U.S. code, GAO said. Most “major” rules are subject to the CRA, so federal agencies must provide copies of the proposal to both Congress and the GAO before they can take effect, according to the GAO website.
However, the CRA carves out an exception for rules “relating to agency management or personnel,” GAO said.
GAO’s analysis found that the DOD abortion travel and leave policies fall within that category, meaning DOD never had to report the rules to Congress or the GAO in the first place and they would not be subject to disapproval.
“In its response to us, DOD stated the memoranda were exempt from the CRA’s requirements,” the GAO decision stated. “We conclude that the memoranda are not rules under CRA.”
GAO cited previous memorandum, such as the Office of Personnel Management’s COVID-19 vaccination guidance, that were likewise determined to be exempt from the CRA.
One of us was bluffing. It wasn’t me.
Democrats are taking the same action they could’ve taken months ago. As long as the Pentagon keeps the unlawful elective abortion policy in place, my holds will remain. https://t.co/f497iygBDd
— Tommy Tuberville (@TTuberville) September 20, 2023
The memoranda in question include one that sets a timeline for service members to notify their superiors of pregnancy and a second that authorizes reimbursement for travel expenses for service members who must travel out of state to obtain abortions due to local laws. A third requires commanders to give those service members the necessary time off.
The DOD general counsel did not immediately respond to the DCNF’s request for comment.
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