Republican Alabama Sen. Tommy Tuberville could sue the Pentagon for financially reimbursing travel for female service members getting abortions, experts told the Daily Caller News Foundation.
Tuberville has been blocking officer promotions since March in a tactic to overturn what has become as the Biden administration’s taxpayer-funded “abortion tourism” policy. And, he’s refused to lift his hold on the nominations — now numbering nearly 450 — unless the Pentagon rescinds it and complies with a decades-old law prohibiting federal funding for abortions. (RELATED: Senate Confirms Top Navy, Air Force And Marine Corps Officers In Emergency Vote)
Tuberville could sue the Biden administration for flouting the law, but a lawsuit would come with challenges, legal experts told the DCNF.
“You’re not talking about the actual performing of abortions within the DOD … it’s what’s been colloquially referred to as abortion tourism, which is using federal federal tax money to pay for people to go and to get paid time off to do that at taxpayer expense,” Mike Berry, senior counsel at First Liberty Institute, told the DCNF. “That certainly would be in violation of long standing DOD policy and U.S. policy.”
Earlier this week Tuberville signaled openness to other options, mentioning a “maybe a lawsuit or something in that order” after an unusual closed-door meeting with Senate Republicans who are eager to resolve the blockade. “Some of them are not going to work,” he added.
Tuberville is “exploring all the options and discussing with other members of the conference,” Hannah Eddins, Tuberville’s spokesperson, told the DCNF.
Those who oppose Tuberville’s tactic, even if they support the motivation behind it, argue that stymieing promotions cripples the military’s ability to make critical decisions and respond to crises around the world.
The Pentagon says the abortion policy is critical to readiness, giving service members options when their duty station is in a state with abortion restrictions. Secretary of Defense Lloyd Austin had pledged in June 2022, after the landmark Dobbs v. Jackson Women’s Health Supreme Court decision overturned Roe v. Wade and put the onus to regulate abortion on state governments, to ensure abortion access to troops.
The policy went into effect in February and allows DOD to provide service members and escorts with allowances for travel-related expenses.
“Funds 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,” according to U.S. code. A corollary to the law also bans abortions from taking place in DOD facilities.
But the Pentagon is doing just that, legal experts told the DCNF. It is using funds authorized and appropriated by Congress to facilitate abortions, they said.
“Abortion is not healthcare, and no one should be forced to pay for abortions. The Biden administration is not only encouraging abortion on demand up to the moment of birth but also making Americans foot the bill for this life-ending, barbaric practice,” Erin Hawley, vice president of the Center for Life and Regulatory Practice with Alliance Defending Freedom, told the DCNF
Tuberville himself or a coalition of Congressmembers could file the suit, Berry explained to the DCNF.
Tuberville while blocking military nominees: I cannot simply sit idly by while the Biden administration injects politics in our military pic.twitter.com/U5qi47MhLV
— Acyn (@Acyn) November 9, 2023
“I think the strongest argument would be that the Department of Defense is using congressionally-allocated money for purposes that fall well outside the statutory purpose for those funds,” Berry said.
The Pentagon would argue that because the policy only addresses the actual abortion procedure, financing travel for the purpose of abortion is in line with the law. Plaintiffs would say it undermines the law’s intent or bypasses Congress’ authority to make law in the first place “by effectively rewriting the statute,” Steve Crampton, senior counsel at the Thomas More Society, told the DCNF.
“It facilitates the abortions and violates the spirit if not the letter of the law,” he said.
Congress passes a National Defense Authorization Act (NDAA) each year setting the parameters by which the Pentagon is allowed to spend money, Berry explained to the DCNF. Berry said during his days as a JAG Officer, one of his primary objectives was to ensure senior officers allocated funding within the bounds of the NDAA and a separate appropriations bill; commanders could face consequences, including being fired, for spending money on unauthorized activities.
In a 13-page memo dated Oct. 3, 2022, the Justice Department told the Pentagon its proposed travel reimbursement policy would not misappropriate Congressional funds. The law “applies only to funds used to ‘perform abortions,'” but not any expenses that are “incidental to abortion,” according to the memo.
“When Congress has wanted to restrict abortion-related expenditures beyond those for the procedure itself, Congress has done so,” the memo said.
In March, Republican Sen. Roger Wicker led Senate colleagues in sending a letter to Secretary Austin requesting a copy of its internal memo outlining the policy and legal justification for the abortion travel reimbursement policy. Secretary Austin responded to that letter in October but did not include a copy of the memo, according to the response letter provided to the DCNF.
Berry and Crampton cast doubt on the DOJ’s argument, telling the DCNF the Biden administration’s bias would cause it to justify a policy it already wanted to implement.
“In light of the current Administration’s embrace of abortion, the legal opinions of this politicized DoD are hardly worth the paper they are written on,” Crampton said.
Still, the legal option is not likely, legal experts said.
“The abortion distortion effect has impacted numerous areas of the law,” shrinking the pool of people considered victims with standing to sue, Crampton told the DCNF.
“The politicized DOJ would devote enormous resources to defending the policy, making a lawsuit difficult to prosecute,” Crampton added. In addition, courts are often hesitant to take on cases perceived as disputes between the president and Congress.
A political process does exist to overcome the holds, although Democrats have argued that it’s infeasible and would consume all of the Senate’s floor time.
“If Senator Schumer and the Senate Democrats would simply use the tools at their disposal, which is just the very thing we know that they don’t want to do, and that’s use their floor time to debate and vote on these promotions,” Berry told the DCNF.
The Pentagon referred the DCNF to the DOJ’s memo when reached for comment.
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