Dear Senator:
The American Civil Liberties Union urges you to support two important women's health amendments that will be offered during floor consideration of the FY 2005 Department of Defense Authorization Bill this week and to oppose two amendments that may be offered that would endanger the health and reproductive rights of servicewomen and female military dependants.
Support the Murray/Snowe Amendment
The ACLU urges you to support an important bipartisan women's health amendment that will be offered by Senators Patty Murray (D-WA) and Olympia Snowe (R-ME). The Murray/Snowe Amendment would ensure equal access to comprehensive reproductive health care for all U.S. servicewomen and military dependents, regardless of where they are stationed. At a time when we are expecting so much from our military women, it is critical that they have every resource at their disposal to meet their health needs.
Current law prohibits women from obtaining abortion services at U.S. military hospitals, even if they pay for these services with their own private funds. For military women and dependents stationed overseas, this restriction poses grave health risks. Local facilities are often inadequate or entirely unavailable. Traveling to a safe facility can result in delays that may substantially increase the risks of an abortion procedure.
The ban on privately funded abortions also discriminates against women and their families who have volunteered to serve their country and have been assigned to military posts overseas. These women are prohibited from exercising their fundamental constitutional right to choose simply because of their military service and where they have been stationed. In a letter to Congress dated May 7, 1999, the Department of Defense opposed this harmful restriction, emphasizing that ""it is unfair to female service members, particularly those assigned to overseas locations, to be denied their constitutional right to the full range of reproductive health care.""
Retired Lieutenant General Claudia Kennedy, the highest ranking woman ever to serve in the United States Army, has spoken out again this ban, explaining that it is ""imperative that our soldiers have access to safe, confidential abortion services at U.S. military hospitals overseas."" General Kennedy noted that a soldier's situation is ""different from that of a civilian woman"" because ""she is subject to the orders of the officers appointed over her. Every hour of her day belongs to the U.S. Army and she must have her seniors' permission to leave her place of duty."" These factors make it extremely difficult for military women to access abortion services off base. For all of these reasons, the ban on privately funded abortions should be repealed.
Support the Boxer Amendment
The ACLU urges you to support the Boxer Amendment, which would repeal the current ban on federal funding of abortions for female service members and dependents who are victims of rape or incest. Although other federal programs mandate federal funding for abortions in cases of rape, incest, or pregnancies that endanger a woman's life, public funding is permitted for female service members and dependents only in cases of life endangerment. Thus, passage of this amendment would merely bring DoD's policy in line with the policy that governs other federal programs, such as Medicaid. Our military women deserve no less.
Unfortunately, as recent events demonstrate, rape in the military is more common than was previously understood. Recent statistics from the Department of Defense indicate that between three and six percent of active-duty women in the military report having been sexually assaulted and a 2003 study found that 30 percent of female U.S. military veterans report having been raped or suffered a rape attempt during their military service. For military women facing the tragedy of a sexual assault, a resulting pregnancy is a further blow. At a minimum, these women should be able to receive timely medical treatment, including abortion, if they choose. The current funding ban acts as a barrier that may prohibit women from seeking the medical services they need or force them to delay care. It should be repealed.
Oppose the Brownback Amendment
The ACLU urges you to oppose an amendment that may be offered by Senator Sam Brownback, which would mandate parental notification for any minor who seeks an abortion at a Department of Defense facility. Because current law prohibits abortions on U.S. military bases except in cases of rape, incest, or life endangerment, the Brownback proposal would apply only in these extremely narrow circumstances.
Moreover, current military policy, instituted in 1994, already requires a minor to secure a parent's or guardian's consent before obtaining an abortion in the narrow circumstances the law currently allows (life, rape, incest). Though the 1994 policy is still in effect, codifying a parental-notification mandate with the Brownback Amendment is a much more serious legal step, requiring affirmative congressional action for it to be modified or repealed. There is no cause for Congress to step in and codify the law on this issue, particularly in light of evidence that suggests that parental involvement laws are ineffective and dangerous.
Although most young women who are pregnant and seeking an abortion voluntarily involve a parent in their decision, those who do not often have valid fears that prevent them from communicating with their parents. One third of teenagers who do not tell their parents about a pregnancy have already been the victims of family violence and abuse and fear it will recur. Long-term studies of abusive and dysfunctional families reveal that the incidence of violence escalates when a wife or teenage daughter becomes pregnant. Forcing a young woman to notify her abusive parent of a pregnancy can have dangerous, and even fatal, consequences for her and for other family members. Healthy family communication simply cannot be legislated.
The specifics of the Brownback proposal also raise serious legal and public health concerns. First, it would permit a delay in treatment because it does not set forth a clear time frame within which a physician can proceed with an abortion after providing the requisite parental notice. Second, the proposal includes a Byzantine judicial bypass mechanism that fails to comport with the standards that the United States Supreme Court has outlined for judicial bypass provisions in similar parental involvement measures. The provision includes jurisdictional requirements that a minor located overseas will find difficult, if not impossible, to navigate. For example, the provision requires a minor to file a petition for a judicial bypass in the U.S. district court of her state of last residence (if the minor proceeds by telephone) or the ""district in which the minor first arrives"" from outside the United States (if the minor elects to travel to the U.S.). Most young people will have no idea how to find or access the appropriate court from long distances. Moreover, a minor who travels to the U.S. is forced to file her petition in the first state in which her plane lands, which may merely be the state in which her flight stops over. The provision also fails to safeguard minors' confidentially by permitting the court to appoint a guardian ad litem without the minors' consent and allowing the court to choose a relative of the minor to serve that function. For all of these reasons, the Brownback proposal would pose serious obstacles to a minor's right to obtain an abortion.
Oppose the Frist/Brownback Amendment
The ACLU urges you to oppose an amendment that may be offered by Senators Frist and Brownback which would require that a military woman (or dependent) who is a victim of rape or incest and seeks abortion services at a U.S. military hospital must first report the crime and identify her attacker. This proposal is punitive and misguided and will deter military women who are crime victims from seeking necessary medical care. As the National Coalition Against Domestic Violence has told Congress when similar proposals were offered, ""No woman should be forced to report a rape in order to access medical care.""
For a variety of legitimate reasons, many women are unable to report sexual-assault crimes. Many are threatened by their attackers and fear retribution. Some are traumatized by the prospect of reliving the event through the process of reporting it. This problem may be exacerbated in closed communities such as the military, where a woman's commanding officer and fellow soldiers may learn the information. In fact, experts have identified the absence of a reliable confidentiality policy in the military as a major impediment to victims' willingness to report sexual assaults.
A policy of mandatory reporting as a condition to receiving medical care would also put the military at odds with other federal programs. Even the Hyde Amendment to the federal Medicaid and Medicare programs -- which allows federally funded abortions in cases of life endangerment, rape, or incest -- does not require victims to report the crime or identify their assailant. For all of these reasons, this amendment should be rejected.
* * *
The ACLU urges you to support the Murray/Snowe and Boxer Amendments and to oppose the Brownback and Frist/Brownback Amendments. Our military women deserve no less at this critical time.
Sincerely,
Laura W. Murphy
Director
Gregory T. Nojeim
Associate Director and Chief Legislative Counsel