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Floor Speech

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Mr. LEE. Mr. President, I stand here before my friend and colleague, the senior Senator from Alabama. He stands in opposition, as do I, to the plan of the Department of Defense to use Federal funds to facilitate the performance of abortions.

Now, let's remember what we are looking at here. This has been in place for a long time. Congress enacted a law. Codified 10 USC section 1093. Let's just brief that here.

1093 part (a) says:

Restriction on use of funds. 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.

Part (b) reads as follows:

No medical treatment facility or other facility of the Department of Defense may be used to perform an abortion 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.

Look, this policy has been in place for a long time--for decades, in fact. It is accompanied by other policies restricting the use of Federal funds on issues related to abortion.

You know, the American people, yes, are divided on questions, many questions, regarding abortion. There are a lot of gradations of that. Some would put restrictions here; others restrictions there; others would insist on no restrictions whatsoever.

But one thing that does tend to unite Americans, more than any other topic within the area of abortion, is that we don't want the use of Federal taxpayer dollars going to facilitate or fund abortions. We don't want that.

Overwhelmingly, that holds really, really well. Democrats and Republicans alike believe that it is unfair, understand that it is unjust, especially on an issue that is as divisive as abortion is.

To take money at the point of a gun, which is what we do when we collect tax revenue, essentially. You know, that if you don't pay your taxes, at some point people with guns will show up, and you have got to do what they say.

So when you are taking money at the point of a gun--as you do when you are collecting tax revenue--you have a sacred responsibility to handle that well. And if the American people don't want it, that is why they enacted a Congress that has put this in law, that we don't use Federal funds to fund abortion.

So along comes Secretary Austin and the current Department of Defense, and they decide, well, we really want to do this. And so I can only imagine how this conversation must have gone internally. Obviously, I wasn't part of those conversations. I was not made privy to them. They didn't invite me to them, we will just say.

But I would imagine they more or less went something like this, hey, what can we do to, you know, help people get abortions using Federal funds. And I am sure someone brought up, well, 10 USC section 1093 prohibits that. So they said, what could we do that arguably could circumvent that, something that Congress may not have specifically identified.

And at some point, someone said, well, there is nothing in here that directly categorically prohibits the use of travel funds or the availability of leave time for people seeking abortions.

So, bingo, they came up with this idea. Let's just give people who want abortions, women who want abortions in the military 3 weeks of paid leave and an expense account to handle out-of-state travel during that 3-week period, and that circumvents, technically speaking, the restriction. This is, of course, a major policy change, and it is a policy change on a topic that many Americans feel passionately about-- and, by many Americans, I mean not just Republicans. Republicans and Democrats don't like the idea that U.S. taxpayer dollars should be used for abortions, and they have put this in place--this being a major policy change, a major policy change affirmatively at odds with the spirit, if not also the letter, of various provisions of Federal law. Respect for the Constitution itself, for the separation of powers, and for the sacred role of the legislative branch to make laws should have commanded that the burden of making this policy change should be on those who would want Congress to act, and that we not give special privilege to an executive branch Department--here, the U.S. Department of Defense--to undertake such a major policy change that they knew they could never get past the Congress. They couldn't. It wouldn't pass. There is not a chance it would get past the House. It wouldn't get past the Senate either. They knew this, and that is why they did it by executive action--just executive fiat.

If Secretary Austin, the Secretary of Defense--if he wants to make law, he should run for Congress. He should run for the House. He should run for the Senate. I would welcome him here as a colleague or as a counterpart, down the hall in the House. I genuinely would. Then he would be in a position to do this. But he may not and must not be allowed to legislate from the E-Ring of the Pentagon. That is not how we do things in this country.

Now, as you look at the arguments that have been exchanged today, we have talked about military readiness. I agree with my colleague from Alabama. I haven't seen anything indicating that military readiness commands this, much less commands it in a way that justifies departing from the spirit, if not the letter, of Federal law.

I have also heard the argument made, quite counterintuitively, that if the Senator from Alabama, Senator Tuberville, wants to change the law, he should run legislation to that effect. He should be required to pass a statute.

That is not how our system works. We have got laws. This is a major departure from established policy set in existing law. The burden is not on Senator Tuberville.

You see, it is this body that gets to change laws, to change policy. We are the policymaking organ of the Federal Government, and to pass a law--any law--article I, section 1, and clause 1, the very first operative provision of the U.S. Constitution, right after the preamble and all the initial language, it says that ``all legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.''

Article I, section 7, makes it clear how you make a Federal law, and it is not made by the Secretary of Defense or any other executive branch official. It is made, under article I, section 7--the only way you can make a Federal law--when the House of Representatives and the Senate both agree on the same legislative text, then presents that legislation to the President of the United States, who may sign it or acquiesce to it--after 10 days, if he acquiesces, it becomes law--or he can veto it. If he vetoes, it can become law only after two-thirds of both Houses have overridden that veto. Those are the only ways you can change Federal law.

The onus is not on those of us opposing this policy. Nor should the onus be on Senator Tuberville to establish that he is not the one impacting military readiness. This is untrue. It is unproven. It is contrary to fact. But even if it were not so, this is not on him. You see, because to whatever degree this is impacting military readiness, that argument goes right back on Secretary Austin in a heartbeat. It goes right back on him because he doesn't have to impose this policy. He doesn't have to force this change in policy amounting to a hostile act against the spirit, if not the letter, of this law. He doesn't have to do that. He could and should allow Congress to make this determination in due course, as Congress does. And it just so happens that we are coming up, in the coming weeks and months, on an opportunity to do precisely that, through a committee--through legislation that comes through a committee--on which both the Senator from Massachusetts and the Senator from Alabama serve, the Senate Armed Services Committee.

This legislative vehicle of which I am speaking, of course, is the National Defense Authorization Act. It is an opportunity that we use every year, for many, many decades, to make policy decisions involving the Pentagon.

So, if this issue is so important to military readiness, let Secretary Austin and those around him come to Congress and ask us to approve that, to make that policy choice--recognizing, as they should have done already without having to be told, that it is wildly inappropriate for them to make this policy change so wildly in conflict with the spirit, if not also the letter, of existing statute.

So that is what he could do. He can come to us and make that argument in connection with the National Defense Authorization Act. If he can persuade enough Members of the House and enough Members of the Senate to get it passed, it would be done.

In the meantime, unless or until such time as he can do that, especially to the degree that this is impacting military readiness-- these objections--then, what he should do is abundantly clear: Suspend implementation of these policies until such time as Congress acts to change them. That is not an unreasonable demand--not in the slightest.

Look, it is also apparent that Secretary Austin and the Department of Defense have become hostile toward female members of the military who choose to have children. That is the message this sends--undeniably, unequivocally. When you tell people: You know, you are pregnant, and it sure would be convenient for us if you didn't have this baby--so inconvenient, in fact, that we will give you 3 weeks of paid leave and a travel account so that you can go somewhere else, you know, so that you cannot have that child--think about what that does. That creates a hostile work environment for our female servicemembers, and I find it repugnant, and so do the American people.

That is why we have a prohibition in law.

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Mr. LEE. Perhaps this was a Freudian slip, but one way or another, it was an acknowledgment of the fact that it is a change in policy--a change in policy that is in conflict with the spirit if not also with the letter of Federal law. So, as a bill--and I think it is fair to characterize it as such--it ought to have to be passed through Congress.

Now, my friend from the State of Massachusetts has used the language of the text of statute 10 U.S.C., section 1039 in much the same way, I would imagine, that Secretary Austin and his advisers parsed it and cribbed it and manipulated it in their development of this policy.

But let's remember the reason I say that it violates the spirit if not also the letter of it. It is that there is an argument to be made here that it is. Funds available to the Department of Defense may not be used to support abortions. How is this money being used? Well, with the extra leave time that you wouldn't get in the absence of this and with the travel to another State, it is for the purpose of an abortion. It is conditioned on your getting an abortion.

My friend and colleague from Massachusetts points out that it is also there with respect to fertility treatments--IVF or otherwise. Well, all that may be the case, and I have a couple of responses to that.

No. 1, I do not and would never object to that if that is what this were. In fact, I would relinquish my objections altogether if this policy were about helping military women gain access to fertility treatments. There is no provision in Federal law--not in title 10 and not anywhere else that I am aware of--that prohibits the Secretary of Defense from doing that. That would, moreover, not amount to a major departure from established policy. So, if that is really what is on the table here, I wouldn't object to that at all.

But it is the part about abortion. The Senator is conditioning the use of these funds--the receipt of additional leave time, the receipt of an expense account, and 3 weeks off--to go have an abortion. That is using Federal funds to get an abortion, to fund an abortion, because that is part of that.

Moreover, the suggestion that this applies evenhandedly, equally-- that it was equally intended to promote access by military women to fertility treatments--is at odds with and belied by the fact that the President, ever since the Dobbs opinion was released at the end of the last term of the Supreme Court, has been calling this an all-of- government cause--an all-of-government cause--to make sure that they can get around Dobbs in any way that they possibly can. This is, was, always has been, and always will be about abortion.

Like I say, the rest of it would be unobjectionable. I wouldn't raise any objection to it. I can't imagine my friend and colleague from Alabama would anyway. So that is a bit of a red herring, and it is a bit of a smokescreen to say that this is about fertility treatment. It is not about that.

With respect to the readiness component of it, look, I get it. As for the hard-working men and women of the military, for whom I have deep respect, in having gained promotions, we want to be able to promote them and approve their promotions. Yes, that needs to happen. And to the extent that any one of those people really needs to be processed and approved very quickly, there are ways to do that. We could tick these off one after the other. Senator Tuberville mentioned that we took care of one just in the last week or so on the floor. We could be doing that right now. If you want to see where the Senate's legislative priorities are, they are not with this. They are with other things. If this really were a priority, we would, through the leadership of the Democratic majority leader, be in a position to do that. He has chosen different priorities and not this one.

Look, at the end of the day, this thing--you could dress it up any way you want, but this is a major change in policy that is utterly at odds with the spirit if not also the letter of Federal law. As such, changing it should require a change in statute. If he wants to push for that, he is free to do so. If it doesn't pass, then he is stuck with that. If he is not content with being able to advocate for it from the outside, he should run for the House, or he should run for the Senate. He must not be allowed to legislate from the E-Ring of the Pentagon.

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