The Government Accountability Office has determined that the Department of Defense did not need to submit a report on its controversial reproductive healthcare policy to Congress or the comptroller general ahead of implementation.
DOD issued three memorandums in February in response to the Supreme Court’s reversal of Roe v. Wade outlining how the department would respond in the post-Roe world. The department did not provide a report to Congress or the comptroller general at the time as required by the Congressional Review Act, though the GAO announced on Tuesday its determination that these rules are exempt from the requirement.
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The CRA requires that a federal agency must submit a report to the House, Senate, and Comptroller General before a rule, as defined under the Administrative Procedure Act, can take effect. The relevant agency also has to provide a procedure for Congress to disapprove of the rule.
The GAO determined that the Pentagon’s policy, which is to reimburse the travel expenses incurred by a service member or dependent who has to travel out of state for a noncovered reproductive healthcare procedure, fits under one of the three exemptions.
“The memoranda address matters such as leave and benefit policies, which deal with agency personnel,” Edda Emmanuelli Perez, GAO’s general counsel, said in the announcement. “Therefore, while the memoranda meet the APA definition of rule, they fall within CRA’s second exception for rules relating to agency management or personnel. As such, they are not subject to the requirement that they be submitted to Congress or the Comptroller General before taking effect.”
Had the CRA been applicable to these rules, Congress would have had the ability to nullify the proposed policy changes.
DOD’s policy has faced significant criticism from Republicans on Capitol Hill. In particular, Sen. Tommy Tuberville (R-AL) has held up more than 300 military nominations and promotions from getting confirmed due to his protest of the abortion policy. His hold, which could exceed 600 by the end of the calendar year if not solved by then, has fueled claims by defense and administration officials who argue that his position has hurt military readiness.
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Tuberville sought a GAO review of the policy in March.
While both the Pentagon and Tuberville have not budged on either of their stances, the Senate was able to confirm three military leaders last week. The Senate voted to confirm Gen. Charles Q. Brown to be the next chairman of the Joint Chiefs of Staff, Gen. Eric Smith to become the next Marine Corps Commandant, and Gen. Randy George to serve as Army chief of staff.
