Military and Veteran Highlights of 2022
| Jurisdiction | United States,Federal |
| Author | Written by Justice Eileen C. Moore |
| Citation | Vol. 2022 |
| Publication year | 2022 |
Written by Justice Eileen C. Moore*
Abortion........................................................................p. 84
Camp Lejeune Justice Act of 2022..............................................p. 86
Confederate names of military bases............................................p. 86
Criminal law changes...........................................................p. 87
Family law changes.............................................................p. 88
Feres Doctrine..................................................................p. 88
The Pact Act....................................................................p. 90
Social media use in military.....................................................p. 91
Torres v. Texas Department of Public Safety....................................p. 92
Toxic exposure screening........................................................p. 93
Transgender action filed against the government...............................p. 93
Pregnancy has always been a particular challenge for women who serve in the military. When Roe v. Wade, 410 U.S. 113 (1973), was overturned, matters got much more difficult.
Decades ago, service women were able to have abortions on military bases But they were not permitted to give birth.
Susan Struck entered the Air Force as a commissioned officer in 1967. While serving on active duty in Vietnam, Captain Struck became pregnant. At the time, there was a regulation providing for discharge of officers who became pregnant.
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She was recommended for discharge as soon as possible due to her pregnancy. A federal judge ordered a temporary stay of her discharge, but a panel of a circuit court overturned the stay. At that point, Supreme Court Justice William O. Douglas entered an order staying her discharge pending final decision on the merits.
Affirming a district court's judgment against Captain Struck, the Ninth Circuit Court of Appeals held "there is a compelling public interest in not having pregnant female soldiers in the Military establishment." Struck v. Secretary of Defense, 460 F.2d 1372 (9th Cir. 1972) The United States Supreme Court granted certiorari. 93 S.Ct. 292
According to a 2019 Guardian article, the government's top attorney at the time, U.S. solicitor general Erwin Griswold, told military top brass the case could be lost by the government. He advised the military should waive Captain Struck's discharge and then change the rule prospectively so pregnancy would no longer result in an automatic discharge. That is what the Air Force did. Captain Struck gave her baby up for an open adoption and remained in the military.
However, in September 1976, the 94th Congress enacted Public Law 94-439, making appropriations for the Departments of Labor, Health, Education, Welfare and related agencies. Section 209 of the bill states: "None of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term." Since then, Congress has annually reauthorized the Hyde Amendment. Over the years, similar language has been incorporated in a variety of federal funding programs, including the military's TRICARE medical insurance program. This has been particularly difficult for women stationed to bases overseas, especially places that offered inferior medical care.
In 2004, in response to increasing numbers of rapes in the military, U.S. Senators Barbara Boxer (D-Calif.) and Olympia Snowe (R-Maine) sponsored a bill to amend the National Defense Authorization Act to permit abortions in military facilities in cases of rape and incest. In introducing the Boxer-Snowe Amendment, Senator Snowe stated: "Any victim facing the horror of rape or sexual assault needs every option and support made available to them." Despite its bipartisan backing and support from numerous pro-choice and reproductive health organizations, the Boxer-Snowe amendment failed.
An article in an ACLU publication, Speak Freely, was written by Jessica Kenyon about her experiences after she joined the Army in 2005. She was raped by a fellow soldier while stationed in Korea. She discovered she was pregnant as a result of the rape, not from the military doctor who examined her, but from her commander. Instead of telling Kenyon she was pregnant, the military doctor reported her pregnancy to her commander. The commander summoned her to discuss charging her with adultery. The charge was not filed. She then had to face, not only the fact that the military would not permit an on-base abortion, but also that she was unable to find a safe abortion off-base in a foreign country. She ended up being discharged, flew home and miscarried.
What is known as the Shaheen Amendment was successfully added to the National Defense Authorization Act in 2013. Since then, women in the military who were victims of rape or incest were thereafter able to have access to abortions at military medical facilities.
After the United States Supreme Court issued Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228 (2022), the Department of Defense announced it will cover travel and transportation expenses for service members and dependents who need to travel to obtain an abortion. Service members will be able to request an administrative absence from duty stations if they need time off for an abortion, meaning that time won't be taken out of normal leave.
Additionally, according to the Marine Times, the Department of Veterans Affairs will offer abortion access to veterans and eligible dependents in cases
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of rape, incest and pregnancies that endanger the life or health of an individual. The move marks the first time VA physicians are able to perform abortions on federal property, even in states where it has been outlawed. Despite the new policy provision, concerns about access to reproductive healthcare are complicating the military assignment process and adding to existing concerns about military recruiting and retention.
After the VA announced its new abortion plan, the Attorneys General of Arizona, Arkansas, Florida, Georgia, Indiana, Kentucky, Mississippi, Nebraska, North Dakota, Ohio, South Carolina, Tennessee, Texas, Utah and West Virginia sent a letter to VA Secretary Denis R. McDonough. The letter states the new rule is unlawful and that it "will not stand in the way of the duly enacted laws of our States or our commitment to enforcing those laws."
Only those in outer space haven't seen commercials of lawyers looking for clients hurt by contaminated waters at Camp Lejeune, North Carolina. The Camp Lejeune Justice Act of 2022 was added as one section of the PACT Act, discussed below. While the main part of the PACT Act establishes presumptions for certain diseases relating to claims made to the Department of Veterans Affairs, the Camp Lejeune section of the Act creates a new federal cause of action for anyone exposed to contaminated water at the base for at least 30 days between 1953 and 1987. The Camp Lejeune Justice Act specifically forbids the government from asserting immunity under the Federal Tort Claims Act.
On October 7, 2022, Secretary of Defense Lloyd J. Austin ordered implementation of the findings of the Naming Commission, established by Congress in 2021. Austin's order will be held up by a 90-day waiting period, and the renaming process should be in place by 2024 at the latest.
The Commission took inventory of all of the military's contemporary references to the Confederacy. It found nine Army bases and several buildings commemorating rebel officers, in addition to a monument honoring Confederate soldiers at Arlington National Cemetery.
Using the word "haphazard, the Commission reported that the naming of these Department of Defense assets had to do with faulty memories about the Civil War in the late nineteenth and early twentieth century, rather than with any historical acts actually committed by their namesakes. The report says that white Southerners advocated for names they had been raised to revere, such as Benning, Bragg, Gordon, Hill, Hood, Lee, Pickett, Polk and Rucker. According to its findings, in preparing for World War I and World War II, while hastily naming bases, the...
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