How one senator has blocked the Pentagon over abortion

As a college football coach in the 1990s, Tommy Tuberville wasn’t afraid to take risks. His Ole Miss roster had been battered by NCAA sanctions, so he compensated with aggressive tactics – fake punts, onside kicks, trick plays. Mr. Tuberville’s reputation earned him a nickname: “The Riverboat Gambler.”

Now, as a first-term senator from Alabama, Mr. Tuberville has taken a similar strategy.

Since February, he’s blocked the confirmation of hundreds of Pentagon officials, protesting a Department of Defense policy ensuring access to abortion – one the department says is necessary to retain personnel. 

Key positions may soon lack a Senate-confirmed successor, meaning that whoever fills them will have limited authority. Those positions include more than half of the eight-member Joint Chiefs of Staff, a board of America’s top military officials. 

This week for the first time in more than 100 years, the Marine Corps does not have a confirmed commandant. Meanwhile, the United States is supporting Ukraine’s self-defense, a renaissance in European security, and increased competition with China. It’s a hard part of the game to play without a full roster, the Pentagon argues. 

Last night, the GOP-controlled House passed its annual military spending bill – the National Defense Authorization Act – with an amendment that would end the abortion policy Mr. Tuberville objects to. That amendment, among others, makes the current bill a nonstarter in the Democratic-controlled Senate, with its 60-vote threshold. 

The military has participated in the culture wars before, on issues of race, gender, and sexuality. But a sense of political neutrality has long been a fundamental part of its mission, and both parties in Congress traditionally line up behind the military. Its authority relies on the perception that it won’t become a partisan cudgel, and it is still the institution that enjoys the highest confidence among Americans. 

Manuel Balce Ceneta/AP

Gen. Eric Smith, acting commandant of the U.S. Marine Corps, applauds during a relinquishment of office ceremony for Marine Corps Gen. David Berger, July 10, 2023, at the Marine Barracks in Washington. General Smith has been nominated to be the next leader, but he hasn't been confirmed by the Senate.

But as the Tuberville hold and this week’s House vote show, it’s becoming harder for the military to stay separate from politics, especially given Republican complaints about “wokeness.” One amendment in the newly passed House defense bill does away with diversity, equity, and inclusion programs in the military.

In a previous generation, politics in the military used to take the form of officials riding the armed forces’ coattails, says Risa Brooks, a professor who studies civilian-military politics at Marquette University. “Now, the form it’s taking is trying to use the military as a wedge issue.” 

There’s a phrase for that in Washington: a political football. 

Roots of the dispute

The Tuberville dispute started last October. Roe v. Wade had ended in the summer, and Defense Secretary Lloyd Austin released a memo on abortion. Service members stationed in states that didn’t permit abortion could have their travel costs reimbursed and receive 21 days of administrative absence to end a pregnancy. 

The rationale was that abortion was no longer nationally protected, and service members don’t generally get to choose where they work. The department wouldn’t pay for abortions, but would help facilitate them. The Department of Justice, in an October opinion, decided that the defense department was acting within its authority. 

The GOP immediately objected, and on Dec. 9, Senator Tuberville wrote a letter to the secretary, pledging to hold promotions if the Department of Defense proceeded with its policy. In February, the blockade began. 

No one senator can halt nominations entirely, but he can make the process so time-intensive that it would overwhelm all other work – an estimated 668 hours in total to confirm the over 250 promotions currently jammed up. By the end of the year, the number of leadership positions in limbo could be 650, according to the Pentagon.

So far, Senate Majority Leader Chuck Schumer has refused to confirm any positions individually. Instead, the New York Democrat is hoping that the traffic will clear, and is calling on senior Republicans to find an off ramp.

Morgan Murphy, Mr. Tuberville’s former national security adviser in the Senate, doesn’t expect that to work. 

“Every other senator knows that [Mr. Tuberville] is 1,000% against this abortion policy,” he says. 

Mr. Murphy, like his former boss, argues that Secretary Austin violated the Hyde Amendment, which bans the military from funding or performing abortions with few exceptions. The secretary of defense is a political appointee, he says. It’s Congress’ job to change laws. 

“I think it’s fair to ask questions – how does this policy not violate the Hyde Amendment?” says Katherine  Kuzminski, a senior fellow who studies politics and the military at the Center for New American Security, a think tank. 

Many officers in limbo

What Ms. Kuzminski doesn’t think is fair is holding up hundreds of military personnel for a policy they had nothing to do with. 

“They are being held hostage over a fight between executive branch appointees and Congress,” she says. 

This is not the first time this tactic has been used – something Mr. Murphy points out. Other senators, from Illinois Democrat Tammy Duckworth to Missouri Republican Josh Hawley, have blocked Pentagon nominees in the past few years. The difference is their blockades were temporary. Mr. Tuberville’s is sticking. 

“His goal posts change continuously,” says one Democratic Senate aide, who requested anonymity to speak freely. 

There appear to be only two paths forward, according to Mr. Tuberville. The Pentagon could change its policy or Congress could pass a law codifying or nullifying it. 

The first is highly unlikely – lest the defense department incentivize holds like this in the future by rewarding this one. On the second front, the House version of the NDAA yesterday included an amendment striking down the policy. But it has no future in the Senate

Meanwhile, Pentagon officials are fretting that some of their top officials will serve in an “acting” basis, meaning they can carry out their predecessor’s directives but can’t set new ones themselves. “We have strong deputies, but at the same time they don’t have the same level of experience going forward,” Gen. Charles Q. Brown, nominated to lead the Joint Chiefs of Staff, told the Senate Armed Services Committee this week. 

Andrew Harnik/AP/File

Air Force Chief of Staff Gen. Charles Q. Brown Jr. speaks about U.S. defense strategy at the Brookings Institution in Washington, Feb. 13, 2023.

General Brown, like other Defense Department officials, warned that this standoff will harm military readiness at a crucial moment, and perhaps hurt retention. Many of the officers stuck in limbo have families, who now can’t resettle or find schools because the promotions haven’t gone through. 

“Holding up this many nominations has created an unprecedented level of disruption across the military,” writes Heidi Urben, a professor at Georgetown University and retired Army colonel, in an email. 

President Joe Biden said yesterday he was willing to meet with Mr. Tuberville if it would help resolve the hold. Secretary Austin called the senator, who didn’t accept and then later called back for five minutes, according to the Democratic aide. 

At least it’s a start, says Mr. Murphy.

“That’s where there’ll be an off ramp,” he says. “If there is an off ramp.”