[Congressional Record Volume 169, Number 93 (Wednesday, May 31, 2023)]
[Senate]
[Pages S1824-S1837]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        VETERANS GET OUTSIDE DAY

                                 ______
                                 

                       NATIONAL PUBLIC WORKS WEEK

                                 ______
                                 

                           KIDS TO PARKS DAY

                                 ______
                                 

                  NATIONAL BRAIN TUMOR AWARENESS MONTH

  Mr. REED. Mr. President, I ask unanimous consent that the Committee 
on the Judiciary be discharged from further consideration on S. Res. 
206, 223, and 226; that the Senate proceed to the en bloc consideration 
of the following

[[Page S1825]]

Senate resolutions: S. Res. 206, Veterans Get Outside Day; S. Res. 223, 
National Public Works Week; S. Res. 226, Kids to Parks Day; and S. Res. 
229, National Brain Tumor Awareness Month.
  There being no objection, the committee was discharged from the 
relevant resolutions, and the Senate proceeded to consider the 
resolutions en bloc.
  Mr. REED. I ask unanimous consent that the resolutions be agreed to, 
the preambles be agreed to, and that the motions to reconsider be 
considered made and laid upon the table, all en bloc.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolutions were agreed to.
  The preambles were agreed to.
  (The resolution (S. Res. 206), with its preamble, is printed in the 
Record of May 10, 2023, under ``Submitted Resolutions.'')
  (The resolution (S. Res. 223), with its preamble, is printed in the 
Record of May 18, 2023, under ``Submitted Resolutions.'')
  (The resolution (S. Res. 226), with its preamble, is printed in the 
Record of May 18, 2023, under ``Submitted Resolutions.'')


 =========================== NOTE =========================== 

  
  On page S1825, May 31, 2023, first column, the following 
appears: (The resolution (S. Res. 226), with its preamble, is 
printed in the Record of May 20, 2023, under ``Submitted 
Resolutions.'')
  
  The online Record has been corrected to read: (The resolution 
(S. Res. 226), with its preamble, is printed in the Record of May 
18, 2023, under ``Submitted Resolutions.'')


 ========================= END NOTE ========================= 


  (The resolution (S. Res. 229), with its preamble, is printed in 
today's Record under ``Submitted Resolutions.'')
  The PRESIDING OFFICER. The Senator from Rhode Island.


             Unanimous Consent Request--Executive Calendar

  Mr. REED. Madam President, I rise and join my colleague Senator 
Warren to discuss the unprecedented political holds the Senator from 
Alabama has placed on 221 general and flag officers. This hold is now 
into its fourth month, and it is beginning to have serious impacts on 
military personnel and their families. Commanders who are supposed to 
retire or move on to a new assignment cannot do so because there is no 
one to replace them. Commanders who are set to take new assignments 
remain in limbo. Family members don't know when they are going to move. 
Children don't know what new school they will attend or when. Thousands 
of lives are being disrupted, all because the Senator from Alabama has 
chosen to block merit-based, nonpolitical military promotions over a 
policy he does not like.
  (Mr. OSSOFF assumed the Chair.)
  I would like to address a few of the assertions raised by the Senator 
from Alabama that he has used to justify his unprecedented and damaging 
hold on military promotions.
  First, on the matter of the Hyde Amendment and the prohibitions on 
Federal funding for abortions, the Senator says the Department of 
Defense does not have the authority to provide travel benefits and 
grant leave for reproductive health care not covered by TRICARE. He is 
in error.
  Let's provide some clarity on terms. The so-called Hyde Amendment 
does not apply to the Department of Defense. Instead, the Department 
has its own statute that restricts the use of Department of Defense 
funding ``to perform abortions'' and restricts the use of Department of 
Defense medical facilities ``to perform an abortion,'' except when the 
life of the mother is endangered or in cases of rape or incest.
  No reasonable interpretation of the policy can conclude that it 
authorizes the Department of Defense to pay for the performance of 
abortions unless under those conditions I mentioned--the life of the 
mother is in danger or in cases of rape or incest. Those costs for such 
abortions that are not covered under DOD will continue to be borne, as 
they are today, by servicemembers and dependents out of pocket. That 
does not change.
  The Department's policy is legal and rooted in longstanding 
Department of Justice interpretation of the Hyde Amendment and similar 
restrictions. In fact, the Department of Defense General Counsel 
requested the Justice Department's views on its policy last fall. The 
Justice Department's Office of Legal Counsel issued a lengthy and 
informative slip opinion concluding that ``10 United States Code 
Section 1093 does not bar the Department from using appropriated funds 
to pay for servicemembers and their dependents to travel to obtain 
abortions that the Department cannot fund directly.''
  The opinion, which I encourage all my colleagues to read, traces the 
legislative history of the Hyde Amendment, similar Hyde-like 
restrictions, and the specific restriction applicable to the Department 
codified in section 1093.
  Mr. President, I ask that an excerpt of the October 2022 Justice 
Department slip opinion considering the Department of Defense policy be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

                             (Slip Opinion)

Authority of the Department of Defense To Use Appropriations for Travel 
         by Service Members and Dependents To Obtain Abortions

       The Department of Defense may lawfully expend funds to pay 
     for service members and their dependents to travel to obtain 
     abortions that DoD cannot itself perform due to statutory 
     restrictions. DoD may lawfully expend funds to pay for such 
     travel pursuant to both its express statutory authorities 
     and, independently, the necessary expense doctrine.

                           (October 3, 2022)

     Memorandum Opinions for General Counsel Department of Defense

       You have asked whether the Department of Defense (``DoD'') 
     may lawfully expend funds to pay for service members and 
     their dependents to travel to obtain abortions that DoD 
     itself cannot perform due to statutory restrictions. We 
     conclude that DoD may lawfully expend funds for this purpose 
     under its express statutory authorities and, independently, 
     under the necessary expense doctrine.


                                   i.

       By statute, ``[f]unds 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,'' 10 U.S.C. 1093(a), and 
     ``[n]o 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,'' id. 
     1093(b ). By its express terms, 10 U.S.C. 1093(a) applies 
     only to funds used to ``perform abortions.'' As we have 
     previously concluded in assessing identical language 
     restricting the Peace Corps' use of its appropriations, the 
     plain text is dispositive here. See Peace Corps Employment 
     Policies for Pregnant Volunteers, 5 Op. O.L.C. 350, 357 
     (1981). This language ``does not prohibit the use of funds to 
     pay expenses, such as a per diem or travel expenses, that are 
     incidental to the abortion.'' Id.
       This conclusion is confirmed by section 1093's legislative 
     history. When Congress originally enacted the provision in 
     1984, it prohibited DoD only from using funds ``to perform 
     abortions except where the life of the mother would be 
     endangered if the fetus were carried to term.'' Pub. L. No. 
     98-525, 1401(e)(5), 98 Stat. 2492, 2617-18 (1984). DoD 
     subsequently adopted a policy of prohibiting non-covered 
     abortions from being performed at any DoD facility even when 
     privately funded--a policy that President Clinton then 
     directed DoD to reverse, stating that it went ``beyond . . . 
     the requirements of the statute.'' Memorandum on Abortions in 
     Military Hospitals, 1 Pub. Papers of Pres. William J. Clinton 
     11, 11 (Jan. 22, 1993). In 1996, Congress responded to 
     President Clinton's directive by amending 10 U.S.C. 1093 to 
     make clear that, in addition to the prohibition on using 
     funds to ``perform abortions,'' ``[n]o 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.'' 10 U.S.C. 1093(b). It is notable that 
     the amendment was targeted narrowly to address the specific 
     issue of DoD's use of its medical treatment facilities, 
     rather than reaching the same result via a broader 
     prohibition on expenditures indirectly related to the 
     provision of abortions.
       The limited scope of the 1996 amendment is especia11y 
     significant because when Congress has wanted to restrict 
     abortion-related expenditures beyond those for the procedure 
     itself, Congress has done so. For example, in 1988--prior to 
     amending 10 U.S.C. 1093--Congress had attached a restriction 
     to Department of Justice (``DOJ'') funds prohibiting the use 
     of those funds ``to require any person to perform, or 
     facilitate in any way the performance of, any abortion.'' 
     Pub. L. No 100-459, tit. II, 206, 102 Stat. 2186, 2201 (1988) 
     ( emphasis added); see also, e.g., Consolidated 
     Appropriations Act, 2022, Pub. L. No. 117-103, div. E, 
     726(d), 136 Stat. 49, 131 (``CAA 2022'') (referring to 
     funding for ``abortion or abortion related services'' 
     (emphasis added)). This DOJ restriction is also in the 
     current appropriation. See CAA 2022, div. B, 203. That 
     Congress chose not to include such capacious language in the 
     1996 amendment confirms that it did not intend for the 
     prohibition to sweep so widely.
       Other DOJ appropriation restrictions provide further 
     evidence that Congress did not intend DoD's prohibition on 
     the use of funds to perform abortions to reach ancillary 
     expenses, such as travel costs. In addition to the provision 
     noted above, section 202 of the current appropriation 
     contains a general prohibition against using the appropriated

[[Page S1826]]

     funds ``to pay for an abortion.'' Id., div. B, 202. Section 
     204 then contains a clarification that the prohibition on 
     requiring any person to perform or facilitate an abortion 
     does not ``remove the obligation of the Director of the 
     Bureau of Prisons to provide escort services necessary for a 
     female inmate'' to obtain an abortion ``outside the Federal 
     facility.'' Id., div. B, 204. Importantly, this language in 
     section 204 does not also create an exception to the general 
     funding restriction in section 202, but rather only clarifies 
     that nothing in section 203 ``remove[s] the obligation'' of 
     the agency to provide transportation services. Id. Section 
     204 therefore is premised on an understanding that section 
     202's general prohibition on ``pay[ing] for an abortion'' 
     does not affect the agency's ability to provide such escort 
     services, showing that when Congress prohibits funds from 
     being used ``to pay for an abortion,'' it does not intend 
     that prohibition to reach transportation expenses.
       Comparing 10 U.S.C. 1093 to the text and history of the 
     longstanding funding restriction known as the Hyde Amendment 
     is similarly instructive. The Hyde Amendment restricts 
     expenditures by the Departments of Labor, Health and Human 
     Services, and Education by providing that no covered funds 
     ``shall be expended for any abortion'' or ``for health 
     benefits coverage that includes coverage of abortion,'' 
     except ``if the pregnancy is the result of an act of rape or 
     incest; or . . . in the case where a woman suffers from a 
     physical disorder, physical injury, or physical illness, 
     including a life-endangering physical condition caused by or 
     arising from the pregnancy itself that would, as certified by 
     a physician, place the woman in danger of death unless an 
     abortion is performed.'' CAA 2022, div. H, 506-507. In 
     previous advice, we concluded that the Hyde Amendment would 
     not bar the use of appropriated funds to provide 
     transportation for women seeking abortions. See Memorandum 
     for Samuel Bagenstos, General Counsel, Department of Health 
     and Human Services, from Christopher H. Schroeder, Assistant 
     Attorney General, Office of Legal Counsel, Re: Application of 
     the Hyde Amendment to the Provision of Transportation for 
     Women Seeking Abortions (Sept. 27, 2022). In reaching that 
     conclusion, we noted, among other considerations, that 
     earlier versions of the Hyde Amendment only applied to funds 
     ``for any abortion,'' and that in 1997 Congress added 
     language to reach funds ``for health benefits coverage that 
     includes coverage of abortion.'' Departments of Labor, Health 
     and Human Services, and Education, and Related Agencies 
     Appropriations Act, 1998, Pub. L. No. 105-78, 509(a)-(b), 111 
     Stat. 1467, 1516 (1997); see Application of the Hyde 
     Amendment to Federal Student-Aid Programs, 45 Op. O.L.C. __, 
     at *3 (Jan. 16, 2021); H.R. Rep. No. 105-390, at 119 (1997) 
     (Conf. Rep.); see also 143 Cong. Rec. 17,448 (1997) 
     (statement of Sen. Ashcroft). In the context of health 
     insurance, the funds are paid to reimburse the provider or 
     the insured for, and thus effectively pay for, the abortion 
     procedure itself. As a result, payment for health insurance 
     that covers abortions is more closely connected to the actual 
     provision of abortion than transportation to and from the 
     procedure. Thus, the fact that Congress revised the Hyde 
     Amendment to specify that it applies to payments for health 
     benefits coverage supports the view that the prohibition on 
     expending funds ``for any abortion'' is limited to the direct 
     provision of abortions and would not apply to transportation. 
     More generally, the amendment suggests that when Congress has 
     wanted to clearly encompass certain expenditures beyond the 
     direct provision of the procedure, Congress has amended 
     abortion-related funding restrictions to do so.
       For these reasons, 10 U.S.C. 1093 does not prohibit the use 
     of funds for expenses that are indirect or ancillary to the 
     performance of abortion. We therefore conclude that 10 U.S.C. 
     1093 does not bar DoD from using appropriated funds to pay 
     for service members and their dependents to travel to obtain 
     abortions that DoD cannot fund directly.

  Mr. REED. The Justice Department's opinion on the Defense 
Department's policy is not new and is not partisan. In fact, it relies 
on decades of executive branch interpretation of the Hyde Amendment 
through administrations of both parties.
  In 1981, for example, the Justice Department considered what it 
described as identical language restricting the Peace Corps' use of 
Federal funds to ``perform abortions.'' In that opinion, President 
Reagan's Justice Department concluded that the language ``does not 
prohibit the use of funds to pay expenses, such as a per diem or travel 
expenses, that are incidental to the abortion.'' That opinion was 
authored by Ted Olson, then the Assistant Attorney General and the 
future Solicitor General of the United States under President George W. 
Bush.
  Mr. President, I ask unanimous consent that an excerpt of the 1981 
Justice Department opinion on the Peace Corps' policy be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

        Peace Corps Employment Policies for Pregnant Volunteers

       The Pregnancy Discrimination Act (PDA) would prohibit the 
     Peace Corps from implementing an across-the-board policy of 
     terminating or reassigning volunteers solely because they 
     become pregnant while assigned overseas, or because they have 
     an abortion. A decision to terminate a pregnant volunteer 
     must be based on a case-by-case assessment of the volunteer's 
     ability to function effectively in her assignment while 
     pregnant or after delivery of the child.
       Under the PDA, the fact that a volunteer who has been 
     terminated because of pregnancy chooses to have an abortion 
     cannot he considered in a decision on her reapplication for 
     service.
       Even though a specific restriction in the Peace Corps' 
     appropriation prohibits the use of its funds to perform 
     abortions, so that the Peace Corps may not pay for the cost 
     of an abortion for one of its volunteers, the PDA would 
     require the Peace Corps to continue to pay travel and per 
     diem expenses to volunteers evacuated to have an abortion, as 
     long as it provides such compensation to other volunteers 
     evacuated for comparable medical conditions. The Peace Corps 
     must also allow volunteers to draw upon their accumulated 
     readjustment allowance to pay for an abortion, if similar 
     access is allowed for other medical expenses.

                          (November 20, 1981)

        Memorandum Opinion for the General Counsel, Peace Corps

       This responds to your request for this Office's views on 
     several questions about the Peace Corps' policies on hiring 
     and reinstatement of volunteers who become pregnant while 
     overseas and of pregnant volunteers who elect to have an 
     abortion, and on reimbursement of travel and per diem 
     expenses to volunteers evacuated to the United States for the 
     purpose of obtaining an abortion. We conclude that the 
     Pregnancy Discrimination Act would prohibit the Peace Corps 
     from implementing any across-the-board policy of terminating 
     volunteers who become pregnant while overseas or pregnant 
     volunteers who elect to have abortions, but that in some 
     limited circumstances termination or reassignment may be 
     appropriate, on an ad hoc basis, because of the unique 
     demands and constraints of Peace Corps service. We do not 
     believe, however, that the Peace Corps may consider the fact 
     that a volunteer who had been terminated because of pregnancy 
     subsequently elected to have an abortion in reviewing that 
     individual's application for reinstatement. With respect to 
     the funding of abortion-related expenses, we conclude that 
     the Peace Corps is not barred from using appropriated funds 
     to pay travel costs and a per diem to volunteers who are 
     evacuated for the purpose of obtaining an abortion, and, in 
     fact, that the Pregnancy Discrimination Act requires the 
     Peace Corps to continue paying those costs, so long as travel 
     and per diem expenses are paid to volunteers evacuated for 
     other comparable medical disabilities.


                             I. Background

       Current Peace Corps policy provides for an ad hoc 
     determination whether volunteers who become pregnant or 
     pregnant volunteers who elect to have an abortion will be 
     allowed to remain in their assigned countries. In determining 
     whether a pregnant volunteer (including her spouse) should be 
     allowed to remain in service, the Country Director looks at a 
     variety of factors, including health hazards to the mother 
     and child, the ability of the parents to support the child, 
     and the prospects for continued effectiveness by the parents. 
     A pregnant volunteer who elects to have an abortion may be 
     separated, or returned to duty if the Country Director 
     determines she will be able to serve effectively under the 
     circumstances. Pregnant volunteers, volunteers with dependent 
     children, and volunteers who have had abortions while in 
     service do serve in the Peace Corps, although individuals who 
     are pregnant or who have dependent children are not 
     encouraged to become volunteers. Volunteers who choose to 
     have an abortion are generally evacuated to the United States 
     for the procedure. The Peace Corps pays travel expenses and a 
     per diem to those volunteers who have an abortion, as it does 
     for volunteers evacuated for other medical or surgical 
     treatment. Because of a prohibition in the Peace Corps' 
     current appropriations authority against the use of 
     appropriated funds to pay for abortions except where the life 
     of the woman would be endangered or in cases of reported rape 
     or incest, the Peace Corps does not now pay the costs of the 
     abortion procedure itself. Volunteers may, however, draw upon 
     accumulated readjustment allowance funds to pay for abortion 
     procedures.
       You have asked us to address the following questions:
       1. Can the Peace Corps terminate any volunteer who becomes 
     pregnant while a volunteer because of pregnancy? If so, could 
     such a policy be limited to single volunteers?


                     III. Reimbursement or Expenses

       You have also asked whether the Peace Corps must, or indeed 
     can, consistent with the PDA and current restrictions on the 
     use of appropriated funds, continue to pay travel costs and a 
     per diem for volunteers who obtain an abortion while in 
     service. The Peace Corps now pays those costs under a general 
     policy providing for evacuation to the United States of 
     volunteers who require ``elective (necessary but not 
     emergency) surgery of any consequence.'' Until the beginning 
     of FY 1979, the Peace Corps also paid for the costs of the 
     abortion procedure itself. In 1978, Congress included 
     language in the Peace Corps' appropriations legislation 
     limiting the use of

[[Page S1827]]

     appropriated funds for abortions. We understand that the 
     currently effective language is contained in Pub. L. No. 96-
     536, Sec. 109, 94 Stat. 3166, 3170 (1980), and prohibits the 
     use of funds ``to perform abortions except where the life of 
     the mother would be endangered if the fetus were carried to 
     term; or except for such medical procedures necessary for 
     victims of [reported] rape or incest . . . or for medical 
     procedures necessary for the termination of an ectopic 
     pregnancy.''
       On its face, this restriction covers only payments made 
     ``to perform abortions''; it does not prohibit the use of 
     funds to pay expenses, such as a per diem or travel expenses, 
     that are incidental to the abortion. We believe that the 
     plain language of the appropriations restriction is 
     dispositive, and does not require the Peace Corps to cease 
     payment of incidental expenses other than the costs of the 
     abortion itself.
       This does not, however, dispose of the question whether the 
     Peace Corps, in its discretion, may cease payment of travel 
     and per diem expenses for volunteers who elect to have 
     abortions. The statutory authority for payment of those 
     expenses vests broad discretion in the President or his 
     delegated representative to authorize ``such health care
  Mr. REED. The Justice Department has likewise considered and 
concluded that the Hyde Amendment does not prevent the Bureau of 
Prisons from providing transportation services for inmates to seek 
abortion care outside the prison system, noting that the Bureau has 
``long provided'' such benefits. This authority to provide 
transportation benefits dates at least to the 1996 version of Bureau 
regulations and continues uninterrupted to the present day.
  So, again, this assertion that the Department's policy contravenes 
some long-held principle is wrong and contrary to fact.
  Second, on the matter of travel authorities, the Defense Department 
has broad statutory authority to provide travel and transportation 
benefits to servicemembers and dependents and empowers the Secretary of 
Defense to define those parameters by regulation. As the Justice 
Department noted, 37 United States Code, section 452, authorizes the 
Secretary to provide ``actual and necessary expenses of travel and 
transportation, for, or in connection with . . . any travel as 
authorized or ordered by the administering Secretary.''
  Further, the Justice Department aptly noted that 37 United States 
Code, sections 452 and 453, authorize travel benefits for 
servicemembers and dependents in connection with ``unusual, hardship, 
or emergency circumstances'' and leaves the definition of those terms 
and other implementing guidance to the Secretary.
  I remind my colleagues again that never before in our history has a 
fundamental healthcare right been denied to servicemembers by a single 
decision on a single day by the Supreme Court. No matter what side of 
the abortion debate you are on, you cannot deny that what many women 
considered to be a fundamental, constitutionally protected right for 50 
years was eliminated by the stroke of a pen and that those who depend 
on these rights now find themselves assigned to locations, through no 
choice of their own, where these services are no longer available in 
any meaningful way. In my view, this meets any definition of ``unusual, 
hardship, or emergency circumstances.''
  The Defense Department's policy is a result, as I just suggested, of 
the Dobbs decision which places extraordinary hardships on servicewomen 
and dependents, resulting in military personnel no longer being treated 
equitably at every military base. The Department of Defense's policy 
seeks to provide a level playing field so that a woman's access to 
healthcare is not based on her assignment and such access is consistent 
throughout the force. It seeks further to ensure that these issues do 
not become determinant in a woman's decision to join the military or 
remain in the military.
  The U.S. Government has provided transportation and other incidental 
benefits and support relative to healthcare not covered by government 
programs, including abortion, to certain populations for decades. 
Servicemembers and their dependents are, I believe, uniquely affected 
by the Dobbs decision and deserve at least that same level of support.
  Lastly, the Senator from Alabama has stated that these officers whose 
promotions he is holding will receive backpay. That is simply not true. 
The Department of Defense confirmed for the Armed Services Committee 
this week that there is no backpay mechanism for these officers. Their 
date of rank is the date of their appointment, which for general and 
flag officers can only occur after Senate confirmation. There will be 
no backpay.
  I want to state again what I stated before. It is deeply detrimental 
to our national security and harmful to the well-being of military 
families to delay the promotions of senior military leaders for 
political purposes or any purpose, really, unrelated to an officer's 
qualifications. It is contrary to the practice and traditions of the 
Senate Armed Services Committee and the Senate. It does a great 
disservice to the men and women in uniform and their families.
  I would ask that the Senator from Alabama release his holds 
immediately before more damage is done.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Ms. WARREN. Mr. President, I want to thank the Senator from Rhode 
Island for his leadership. He has worked hard to make sure that the 
Senate Armed Services Committee works in a bipartisan manner to keep 
our country safe. His steadfast approach has rightfully earned him 
respect from our colleagues on both sides of the aisle, and I 
appreciate his being here tonight on this issue.
  Mr. President, several weeks ago, I came down to the Senate floor to 
ask the Senator from Alabama to reconsider his unprecedented action of 
blocking hundreds of promotions earned by our men and women in uniform. 
He refused, so I am here to ask again.
  As I said the last time I spoke about this, most people are aware 
that the Senate votes on nominees appointed by the President to occupy 
top roles in government--Cabinet Secretaries, judges, Ambassadors. Less 
well known is the fact that the Senate must also vote to approve 
thousands of military promotions each year. If a colonel has done 
really well on the job and their services promotion board decides that 
they are ready to be a brigadier general, the Senate must vote to 
approve this promotion before it can go through.
  Typically, this vote is a formality. These promotions are processed 
in big batches rather than one at a time, and they nearly always happen 
without taking a recorded vote. But right now, the Senator from Alabama 
all by himself is blocking every single senior military nomination and 
promotion from moving forward. This means that one Senator is 
personally standing in the way of the promotions for 221 of our top-
level military leaders, holding up pay raises for 221 men and women in 
uniform, blocking 221 senior military leaders from taking their posts, 
and jeopardizing America's national security.
  In April, I sent a letter to Defense Secretary Austin asking about 
the impact of holding up these military promotions. Secretary Austin 
didn't pull any punches. He said:

       The longer that this hold persists, the greater the risk 
     the U.S. military runs in every theater, every domain, and 
     every service.

  He went on to point out that these unprecedented and unnecessary 
holds are creating ``rising disquiet from our allies and partners at a 
moment when our competitors and adversaries are watching.''
  There is bipartisan opposition to the Senator from Alabama's actions. 
Thanks to Chairman Reed, seven former Defense Secretaries, including 
ones who served under President Trump and President George W. Bush, 
sent a letter stating that leaving senior positions ``in doubt at a 
time of enormous geopolitical uncertainty sends the wrong message to 
our adversaries and could weaken our deterrence.''
  The Senator from Alabama hurts Active-Duty military. He also hurts 
their families. In this letter describing the consequences of the 
Senator from Alabama's hold, Secretary Austin noted that it places an 
``unconscionable burden on families that are already making significant 
sacrifices.''
  There are mounting worries that the negative impacts on military 
families is threatening our military's ability to retain leaders who 
have completed thorough, months-long reviews to earn those promotions.

[[Page S1828]]

  At a recent Senate Armed Services Committee hearing, the Secretary of 
the Air Force said:

       One of the things that motivates our people in terms of 
     retention . . . is how they feel that their families are 
     being treated.

  He said that he also knows that these families do not want to be 
treated liked the Senator from Alabama's political football.
  The Senator from Alabama is punishing 221 dedicated men and women who 
serve in our military because he disagrees with one of the Pentagon's 
policy decisions. He is opposed to a Department of Defense policy 
established to help members of the military and their families access 
healthcare--specifically, reproductive healthcare.
  I strongly support this particular policy, but it is no secret that I 
disagree with a lot of other policy positions at the Pentagon. And, as 
I reminded the Senator from Alabama the last time we had this 
discussion on the Senate floor, as Senators, we have many tools we can 
use to shape and influence government policy without putting our 
national defense at risk.
  We can pass laws; we can conduct oversight; we can meet with 
administration officials; we can hold hearings. From time to time, 
Senators object to an individual nomination, usually to express 
opposition either to the nominee or to ensure that the Senator gets 
answers from a Federal Agency. I have done this in the past as have 
many of my colleagues on both sides of the aisle.
  That is not the approach the Senator from Alabama has taken. Instead, 
he is blocking every single top military leader from advancing 
indefinitely. The last time I came to the floor, he was holding up 184 
nominees. Now he has snared 221 top-level servicemembers who are 
currently slated for advancement. He has stopped every one of them dead 
in their tracks.
  The Senator from Alabama is singlehandedly holding up three 4-star 
commanders, 35 3-star commanders, multiple Silver Star and Purple Heart 
recipients, the next commander of our Fifth Fleet in the Middle East, 
the next commander of the Seventh Fleet in the Pacific, the Navy's air 
and surface warfare commanders; and as a preview of coming events, the 
Senator from Alabama has already promised to block the next Chairman of 
the Joint Chiefs of Staff.
  The Senator from Alabama has already held some of these nominees for 
as long as 3 months. That is 3 months that they won't have time in 
their next roles. That is 3 months that they won't get a pay bump, and 
there is no retroactive pay here. That is 3 months that they don't get 
the experience and the responsibilities of their new duty stations. 
That is 3 months, and there is no end in sight.
  How many blows to their military careers and to their families do 
these men and women have to suffer before some of them simply walk 
away?
  This isn't right.
  The Senator from Alabama has not raised any objections to the process 
by which these men and women were vetted and nominated. Each of these 
nominees has undergone a thorough review, first by their military 
service and then by the Joint Chiefs of Staff and the Office of the 
Secretary of Defense. Months after those reviews, their nominations 
were sent to the White House for additional scrutiny and then to 
Congress to officially authorize the promotions.
  These are our military's best leaders, and they have proven 
themselves to the highest degree. As a reward for their service and 
their exemplary dedication, the Senator from Alabama holds them 
hostage, with no concern for what it means to their careers, to the 
servicemembers depending on them for leadership, or to their families.
  The Senator from Alabama's actions are not just the usual back-and-
forth in Washington. His holds pose a grave threat to our national 
security and our military readiness. They actively hurt our ability to 
respond quickly to threats around the world. That is not my conclusion; 
that is the conclusion of the Secretary of Defense.
  When I tried to move these nominations forward the last time, I said 
I was concerned about how the actions of the Senator from Alabama were 
undermining military readiness. The Senator responded that he knew that 
I had sent a letter to Secretary Austin to ask him about the impact of 
the holds on military readiness but that the Secretary had not yet 
responded. The Senator said the last time we were on the floor here 
together that he would consider Secretary Austin's concerns. In fact, 
he said that he ``can't wait to read it,'' but he would not budge in 
the meantime.
  So I am here this evening to place into the Record Secretary Austin's 
reply. In his letter, the Secretary makes his concerns clear. He 
explains how the actions of the Senator from Alabama pose a grave 
threat to national security by harming military readiness. The 
Secretary also explains how the Senator from Alabama harms military 
families.
  I sincerely hope that the unvarnished assessment of our Secretary of 
Defense will be enough to move the Senator from Alabama to lift his 
holds and let these nominations go forward.
  Mr. President, I ask unanimous consent that Secretary Austin's letter 
be printed in full in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     Hon. Elizabeth Warren,
     U.S. Senate,
     Washington, DC.
       Dear Senator Warren: Thank you for your letter requesting a 
     full accounting of the impact on our national security and 
     the risks to our military readiness resulting from Senator 
     Tuberville's indefinite hold on the confirmation of our 
     general and flag officers.
       I appreciate and share your deep concern over this hold, 
     which is unprecedented in its scale and scope. Delays in 
     confirming our general and flag officers pose a clear risk to 
     U.S. military readiness, especially at this critical time.
       The Department of Defense has 64 three- and four-star 
     nominations pending for positions due to rotate within the 
     next 120 days. These include the Chief of Staff of the Army; 
     the Chief of Naval Operations; the Commandant and Assistant 
     Commandant of the Marine Corps; the Director of the National 
     Security Agency and Commander of United States Cyber Command; 
     and the Commander of United States Northern Command.
       Additionally, several one- and two-star nominations are now 
     on indefinite hold for general officers and flag officers 
     slated to take command or support critical positions across 
     the Joint Force. Within the next nine months, approximately 
     80 three- and four-star rotations are projected across the 
     Department. Those positions include the Chairman of the Joint 
     Chiefs of Staff, the Vice Chief of Staff of the Army, and the 
     Vice Chief of Staff of the Air Force. In total, between now 
     and the end of the year, the Department projects that 
     approximately 650 general and flag officers will require 
     Senate confirmation.
       This indefinite hold harms America's national security and 
     hinders the Pentagon's normal operations. The United States 
     military relies on the deep experience and strategic 
     expertise of our senior military leaders. The longer that 
     this hold persists, the greater the risk the U.S. military 
     runs in every theater, every domain, and every Service.


                           Mission Vacancies

       The tenure of Service Chiefs is limited by law, and thus, 
     incumbents must vacate their positions at the appointed time 
     and may only be extended under extraordinary circumstances. 
     Collectively, these positions oversee more than 1.2 million 
     active and reserve component Service members and provide 
     Service personnel and resources to the commanders of the 
     unified combatant commands. By law, Service Chiefs preside 
     over the capabilities, requirements, policies, and plans of 
     their Services and serve as the principal military advisors 
     to the Secretaries of the Military Departments. Put simply, 
     our Service Chiefs train and equip the Joint Force. Without 
     these leaders in place, the U.S. military will incur an 
     unnecessary and unprecedented degree of risk at a moment when 
     our adversaries may seek to test our resolve.
       The hold causes especially acute, self-inflicted problems 
     in new domains of potential conflict. The Director of the 
     National Security Agency and Commander of United States Cyber 
     Command, is responsible for supporting every combatant 
     commander and Service member around the globe--including 
     troops in hostile or hazardous areas--with actionable signals 
     intelligence and cybersecurity support. The Director also 
     ensures that military communications and data remain secure 
     and out of the hands of our adversaries, safeguarding our 
     advanced command, control, communications, computer 
     intelligence, surveillance, and reconnaissance capabilities 
     against the People's Republic of China, Russia, Iran, North 
     Korea, ISIS, and more. Failing to fill this position weakens 
     the cybersecurity of the United States.
       Furthermore, delays in confirming a large number of one- 
     and two-star general and flag officers jeopardizes our 
     current and future readiness. The Department relies on these 
     experienced leaders to execute tactical actions every day and 
     extend our strategic advantages for the long term. General 
     and flag

[[Page S1829]]

     officers at this level are responsible for executing 
     strategy, acquiring new technologies, enhancing tactical 
     effectiveness, conducting joint training, and strengthening 
     global alliances. These general and flag officers also 
     provide direct leadership and mentorship to thousands of 
     enlisted Service members and junior and field grade officers 
     across the Department. Their importance cannot be overstated.


                        Power Projection Abroad

       General and flag officers provide oversight of the 
     Department's military and civilian staffs, help decide how we 
     employ our forces, and take care of the Service members, 
     civilians, and families in their organizations. Delays in 
     confirmation will soon foist vacancies on the most senior 
     military positions across each of the Services, imposing new 
     and unnecessary risks on U.S. warfighters across multiple 
     theaters of operations.
       The hold also makes it harder for the United States to 
     fulfil its global leadership responsibilities, including to 
     our treaty allies and our valued partners around the world. 
     Our smoothly running normal processes and predictable 
     military transitions have long set helpful expectations among 
     allies and partners. Now, however, this hold has created 
     unnecessary uncertainty. That diminishes our global standing 
     as the strongest military in the world, which is in large 
     part based on our stable processes and orderly transitions.
       General and flag officers have the authority to make 
     decisions and commit resources, develop key policies, work 
     with our allies and partners, and confront our rivals and 
     foes. The full impact of this hold may not be immediately 
     noticeable because of the resilience built into our military 
     organizations, but over time, the hold will cause cascading 
     impacts to our readiness and needlessly hinder our ability to 
     meet our strategic objectives in the Inda-Pacific, Europe, 
     the Middle East, and beyond.
       The absence of experienced and Senate-confirmed senior 
     leadership limits our ability to deepen our cooperation with 
     our allies and partners through multilateral training and 
     cooperative engagements. Recent exercises, such as Balikatan 
     2023 with the Armed Forces of the Philippines or joint U.S.-
     Israeli naval activity in the Bab el-Mandeb Strait, may 
     become even more difficult if delays in confirmation force 
     other leaders to take on the responsibilities of officers 
     held up by the Senate. This hold could force senior leaders 
     to become dual-hatted, which would force them to juggle 
     competing priorities and sap their ability to excel.


                        Knowledge and Expertise

       Our general and flag officers cultivate their expertise and 
     experience over decades of service. Military units need 
     leaders, and our Service members deserve to be led by fully 
     confirmed general and flag officers. The failure to confirm 
     leaders in key roles transfers strategic risk down the chain 
     of command and forces our units to operate with less 
     experienced decision makers in charge. By destabilizing the 
     senior military promotion and rotation process, we put our 
     short- and long-term readiness at significant risk.
       Failure to fill these positions in a timely manner is 
     simply irresponsible. We owe it to our Service members to 
     provide them with the best leadership possible, and the 
     current hold jeopardizes the continuity and effective 
     transition of leadership.


                      Service Members and Families

       This hold disrupts not only our most senior military 
     leaders but their families as well. Service members and 
     military families are resilient, but the current hold adds 
     another layer of stress and unnecessary uncertainty.
       The damage here includes not just the disruption to our 
     most senior officers, but also profound confusion and 
     disturbance to our rising one- and two-star general and flag 
     officers and their families. Extended holds increase the time 
     from selection to promotion, which could further delay 
     promotion timelines by 12 to 24 months. This impedes not only 
     the current cadre of officers but those in the groups behind 
     them as well.
       General officer and flag officer end strength is tightly 
     controlled by statute. Promotion of one cadre of officers is 
     possible only with the retirement of others. Long-term holds 
     have a corrosive and cascading effect: they prevent our 
     rising officers and their families from being able to predict 
     promotion and rotation windows, which can increase the 
     pressure to leave the military in favor of greater stability. 
     The more our normal promotion processes are jolted, the more 
     we risk the loss of the diverse warfighting and technical 
     expertise that America needs to confront its 21st-century 
     security challenges.
       The current hold also means delaying or canceling permanent 
     change of station moves--not only for those now nominated and 
     on hold but also for numerous officers and their families who 
     must be extended on station to prevent critical gaps. 
     Military children will be unable to move to new schools when 
     the next school year begins, which imposes needless 
     additional stress on those students and their families. 
     Military families enrolled in the Exceptional Family Member 
     Program may endure serious delays or be unable to access the 
     services and support that they need and deserve when they 
     transition to their new duty stations. And outstanding 
     military spouses may not be able to accept or start new jobs 
     because they cannot predict when they could start. The 
     families of our general and flag officers serve right 
     alongside their Service members. The current hold imposes 
     additional burdens upon our military families that are both 
     unnecessary and unconscionable.


                          A Perilous Precedent

       As such, the Department urges the Senate to resolve the 
     current situation as swiftly as possible to limit these 
     serious consequences. Never before has one Senator prevented 
     the Department of Defense from managing its officer corps in 
     this manner, and letting this hold continue would set a 
     perilous precedent for our military, our security, and our 
     country.
       The ripple effects of this unprecedented and unnecessary 
     hold are increasingly troubling. Ultimately, the breakdown of 
     the normal flow of leadership across the Department's 
     carefully cultivated promotion and transition system will 
     breed uncertainty and confusion across the U.S. military. 
     This protracted hold means uncertainty for our Service 
     members and their families and rising disquiet from our 
     allies and partners, at a moment when our competitors and 
     adversaries are watching.
       As public servants and officials sworn to protect and 
     defend our Constitution, I hope that we can all acknowledge 
     the national security risks posed by these needless delays 
     and come together to safeguard the lethality and readiness of 
     the most powerful fighting force in human history.
       Thank you for your continued strong support for our Service 
     members and our national security. I again urge swift action 
     to confirm all U.S. general and flag officers.
           Sincerely,
                                             Lloyd J. Austin, III.

  Ms. WARREN. I am here today to ask my colleague from Alabama to let 
these promotions move forward and to find other ways to continue 
advocating for the policy changes that he wants to see. I am hopeful 
that he will do the right thing and allow these servicemembers to carry 
out their responsibilities to our country.
  In a moment, I will be asking the Senate to confirm Calendar No. 204. 
This nominee is a native of Pittsfield, MA. If confirmed, he would be 
the Navy's next sub boss, making him the most senior operational 
submariner in the Navy. The Submarine Force is integral to deterring 
our enemies and keeping America safe.
  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session to consider Calendar No. 204; that the Senate vote on 
the nomination without intervening action or debate; that if confirmed, 
the motion to reconsider be considered made and laid upon the table 
with no intervening action or debate; that any statements related to 
the nomination be printed in the Record; and that the President be 
immediately notified of the Senate's action.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Alabama.
  Mr. TUBERVILLE. Mr. President, in reserving the right to object, I 
continue to reiterate my stance and my position over the last almost 4 
months now about my opposition to this policy.
  Now, the burden is not on me to pass legislation to stop this illegal 
policy. The burden is on the administration. The burden is on the 
administration to stop breaking the law.
  So let me just say this one more time--because I keep getting asked 
the same question over and over again--I will keep my hold. I will keep 
it on until the Pentagon follows the law or changes the law. It is that 
simple. Those are the two conditions that would get me to drop the 
hold. So, until these conditions are met, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Massachusetts.
  Ms. WARREN. Mr. President, let's be clear what is at issue here.
  Servicemembers and their families don't get to decide where they 
serve. The policy that is at issue here allows servicemembers who need 
reproductive healthcare to request time to travel to receive the 
treatment that they need. The treatment could be an abortion, but it 
also could be IVF. It also could be helping a servicemember or a family 
member receive treatment after a miscarriage. Commanders respect a 
servicemember's privacy, and they don't want to be required to ask why 
the servicemember is taking leave. Now, I understand that the Senator 
from Alabama doesn't like that. He doesn't think that the Department 
should be facilitating certain types of reproductive healthcare in any 
way.
  The administration--let us be clear--is not breaking the law. 
Chairman Reed has already gone through all of

[[Page S1830]]

the legal precedent and the legal opinion that states that what the 
Department of Defense is doing is absolutely within its purview. The 
Department of Defense is following the law. I understand that the law 
could be changed, and the Senator from Alabama can advocate for the 
bill that he cosponsors that would ban the Department from providing 
paid leave or transportation to access legal reproductive care.
  I think that such a policy would have a terrible impact on the 
privacy of our servicemembers and their families who would have to tell 
their commanding officers intimate details of their medical situations 
in order to get the time they need to seek care for things like IVF or 
a miscarriage. It could prevent servicemembers or their families from 
accessing important, legal care that would require them to travel or to 
take time away from work.
  It would also have negative impacts on our commanders officers, who 
would spend less time training against our national security threats 
and more time asking invasive questions about their employees' health 
conditions or those of the employees' families.
  Even so, the Senator from Alabama is free to advocate for this 
policy. As I have said before, the Senator does not have the votes in 
Congress for a bill like that. I think the Senator from Alabama knows 
that, which is why he has taken this radical step of opposing the swift 
passage of every high-level military nomination pending before the 
Senate.
  This approach is dangerous. Many of us are frustrated by executive 
branch policies and actions, but that frustration is not an excuse to 
endanger our national security and to deprive servicemembers of the 
leaders they need.
  The Senator from Alabama and I fundamentally disagree on the issue of 
abortion and on the DOD's policies, but we should all be able to agree 
that a blockade of the promotion of every senior member of our Nation's 
military creates unacceptable risks to our national security.
  In a moment, I will be asking the Senate to confirm Calendar No. 192. 
If confirmed, this nominee would be the first female Superintendent for 
the Naval Academy. Of course, she is no stranger to breaking down 
barriers. She was also the first Hispanic woman to command a Navy 
warship. We are in the middle of a recruiting crisis. She is precisely 
the kind of leader we need to inspire our next generation to serve.
  I yield to the Senator from Rhode Island. Then I will make my motion.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I just want to reiterate what Senator Warren 
pointed out: This policy is not illegal. It has been fully justified by 
the Department of Justice and by interpretations of many different 
agencies.
  In fact, one of the excruciating ironies here is that Senator 
Tuberville is denying promotions to general officers because he will 
not allow female members of the military to have some of the same 
protections that Federal prisoners have. If that is not absurd, I don't 
know what is.
  Also, I have had the opportunity--really, the privilege--to serve in 
and command a paratrooper company. I have a lot of friends who have 
made careers in the U.S. military. When you get to the level of a 
colonel who is about to be voted brigadier general, it is a great 
honor. You have worked your whole life for it, and you very much want 
to do that, but you have family responsibilities, and you have other 
responsibilities. I can pretty much assure you that most people who are 
qualified to be a brigadier general in the Army are being courted 
assiduously by companies to work for several hundred thousand dollars a 
year.
  The longer this goes on, the more demands of the family, the more the 
uncertainty, the more the frustration, we will lose these talented 
people at a moment in our history when we need the leadership to assist 
our allies and also to confront a very serious threat across the Indo-
Pacific region at a time when the practice of warfare is changing 
second by second with technology.
  When you have the proponents of AI warning us this week that AI could 
be the catastrophic destruction of our species, well, guess where that 
is going to be first manifested--in the military domain, I believe. 
That requires leaders of character, intelligence, compassion, and 
dedication to democracy. Those leaders now are questioning whether they 
can continue because of an attempt to suggest that this is not legal, 
which is wrong, and, ironically, again, to take away healthcare support 
for women who serve in the military that we extend to Federal prisoners 
in this country.
  I yield to the Senator from Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Ms. WARREN. Mr. President, I thank Senator Reed for underscoring the 
point that the Department of Defense is not breaking the law. There is 
legal precedence for what the Department is doing, and it has been 
reviewed by the Department of Justice that the Department of Defense is 
fully in accord with current law.
  With that, I would like to go back to the nominee who would be the 
first female Superintendent of the Naval Academy. Mr. President, I 
renew my request with respect to Calendar No. 192.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Utah.
  Mr. LEE. Mr. President, reserving the right to object, let's talk 
about a few things.
  First of all, we have heard talk of clear legal authority, clear 
legal precedent.
  I wasn't here when the distinguished Senator from Rhode Island was 
providing that, but my understanding of it is that he is making the 
claim that there are judicial precedents for this. At least one of the 
cases he cited was from 1981. Significantly, that is a full 3 years 
before 10 U.S.C. section 1093 was even enacted into law. Talk about 
excruciating ironies. That was enacted into law as part of the Defense 
Authorization Act for Fiscal Year 1985, and it was voted on by, among 
others, then-Senator Joe Biden. He voted for it.
  So whatever 1981 case you are citing I don't know, but I am certain 
that it couldn't have involved 10 U.S.C. section 1093, the very statute 
that we are dealing with here, because it did not yet exist.
  I am equally certain that whatever personnel within the Department of 
Justice that blessed this, whatever lawyers within the Department of 
Defense that blessed this are also part of the Biden administration and 
are ultimately serving at the pleasure of the President. So I wouldn't 
expect that they would come back with an answer that he didn't want 
because he and his administration have made clear that this is an all-
of-government approach to make sure that the more abortions, the 
better, in the wake of Dobbs.
  So I find it impossible to believe that any court could have 
addressed this particular issue, setting aside whether that 1981 
judicial precedent that he cited that I haven't seen is the only one. 
Let's assume there were others. If there were others--there couldn't 
have been others even if they were decided after this was enacted into 
law in 1984 as part of the Defense Authorization Act for Fiscal Year 
1985 because this policy didn't exist. No, this policy didn't exist 
until just a couple of months ago. So it couldn't have come up.
  Courts don't answer these questions in the abstract. Under article 
III of the Constitution, the courts are empowered only to resolve cases 
in controversy. The case in controversy requirement of article III 
means that you have to have standing. To have standing, you have to 
have an injury, in fact, fairly traceable to the conduct of the 
defendant that is subject to being remedied by competent authority of a 
court. That would have been lacking here because until just a couple of 
months ago, this did not exist. They could not have addressed this. So 
I am not sure what authorities the Department of Justice officials to 
whom my colleagues are referring were relying on, but it is not a ripe 
controversy that could have been capably adjudicated.
  But, yeah, this is truly full of excruciating ironies--the fact that 
the same President who voted to support 10 U.S.C. section 1093 which 
unmistakably makes clear that we don't want Department of Defense 
funding going to perform abortions. No, they rely on this argument that 
is reminiscent of Pinocchio in the movie Shrek 3. I think it was 
technically called ``Shrek the Third.'' Pinocchio, in that movie, gets

[[Page S1831]]

away with all kinds of things by speaking in a form of legalese that 
would make any lawyer blush. It wouldn't be entirely untrue if I didn't 
say that I weren't entirely not opposed to this nonpolicy. It confuses 
people. That is sort of what they are doing here.
  Now, look, if you want to make the argument that this is legal, first 
of all, I don't agree with it. This violates at least the spirit, if 
not also the letter, of the law. And even to the extent that it is 
somehow compliant with the letter of the law on a point that I am not 
willing to concede because this is, in fact, funding the process of 
getting abortions; this is, in fact, funding the endeavor of an 
abortion--something that we go out of our way in American law to do. 
This is one of the things that unite Americans of different political 
backgrounds, of different party affiliations.
  Regardless of how you feel about abortion and under what 
circumstances it should or shouldn't be legal, Americans are 
overwhelmingly united behind the concept that we shouldn't use U.S. 
taxpayer dollars, thus forcing the American people at the point of a 
gun--because, ultimately, when you pay your taxes, you are paying at 
the point of a gun because, if you don't pay your taxes, people with 
guns are going to show up and make you pay. We don't force people, with 
the point of a gun, to fund abortions because we fundamentally 
recognize that is wrong regardless of how any individual feels about 
abortions themselves.
  But this comparison is too cute by half. The very best I can say it 
is to analogize it this way: You really want to park in that handicap 
spot that is reserved for persons with disabilities and you are annoyed 
that it is there, so you park right up next to it, thus rendering it 
unusable space within the actual handicap spot. That is the best I can 
analogize this to.
  To whatever extent you are complying with the letter of the law--and 
I don't concede that you are because I don't think you are--you are 
still really messing with the underlying purpose of the bill.
  As to the point made moments ago by my colleague from Massachusetts--
a distinguished lawyer, a Harvard law professor herself--that this 
somehow is lawful because Department of Justice lawyers said it is 
lawful, this is the same Department of Justice that has from time to 
time made mistakes, and I am understating that quite significantly 
here. This is, in any event, a clear affront to the men and women who 
elected each of us.
  These laws are policy changes. Yes, they saw the need for a policy 
change in 1984 when they adopted the National Defense Authorization Act 
for Fiscal Year 1985. They understood that to put that in place, they 
couldn't just rely on Department of Defense policy; they needed to put 
it in statute. So they enacted a statute to do that. This flies in the 
face of that. You are actively promoting, encouraging, and facilitating 
the performance of abortions.
  Make no mistake, don't think of this as an evenhanded approach, one 
that aims broadly to facilitate reproductive care. No. The American 
people are not stupid. They cannot be fooled. We certainly must not be 
here. This is about Dobbs. This is about their disagreement, their 
fundamental rejection of Dobbs. This is about their fundamental 
disagreement and rejection of the notion that the U.S. Constitution 
doesn't give this authority over abortion to unelected judges who sit 
across the street in the Supreme Court of the United States. And it was 
never a constitutional principle to begin with. The Constitution 
doesn't address it. They disagree with that. I get it. But it is their 
disagreement about this that prompted this policy. They have been 
unmistakably clear about that.

  Look, at the end of the day, this is a policy change. Policy changes 
need to be made by Congress--policy changes that involve a departure 
from the policy established in statute in the National Defense 
Authorization Act for Fiscal Year 1985, which remains legally binding 
and in effect to this very moment. If they want to get that changed, it 
is not incumbent upon those who oppose this policy to get the statute 
changed; it is those who want this policy to go into effect.
  So I return to my long-used refrain. If Secretary Austin wants to 
make policy, he should run for the Senate. He can't set this kind of 
policy from the E-ring of the Pentagon. It is wrong.
  As to the points about military readiness, look, I don't think there 
is anyone more concerned about military readiness than my colleague 
from Alabama. He sits on the Armed Services Committee. He is a faithful 
member of that committee. He performs his oversight responsibilities 
very faithfully, very conscientiously. Nobody is more concerned about 
military readiness than Senator Tommy Tuberville--no one. But to 
whatever extent this impinges upon military readiness--the fact that he 
has concerns with this and is therefore raising objections--that door 
swings both ways. If anything, it cuts stronger in the opposite 
direction. To the extent this is interfering with military readiness, 
we should set down this policy right now and allow Congress to decide 
this in connection with the National Defense Authorization Act for 
Fiscal Year 2024, which we will be turning to in the coming weeks and 
months. Let's let Congress decide that. In the meantime, set aside this 
policy--this policy that is a departure, a clear violation of at least 
the spirit if not also the letter of the law--and let that be decided. 
If, in fact, this interferes with military readiness, let's put this 
down and not allow American national security to be impaired by that.
  Now, I don't believe we are in that position. I believe that while it 
is ideal for us to be able to move these nominees forward and get them 
moved, it is also very legitimate for a U.S. Senator to identify a 
problem, a simple problem arising out of the fact that the Department 
of Defense has a couple of things it wants to get done. It wants to get 
these people confirmed so that they can be promoted, and it also wants 
to put in place a policy. It wants to do both at the same time.
  Senator Tuberville won't--in fact, Senator Tuberville can't 
physically--under the rules of the U.S. Senate, he cannot, he is 
physically unable to stop them from confirming these people. There are 
ways of going about it; it is just time-consuming to do it without his 
assent. So they want a shortcut, and they are asking for him to do them 
a favor--a favor that is unreciprocated--not just unreciprocated but a 
favor that he warned them he would not give them if they took this 
unfortunate step. He did that, I think, back in December. So knowing 
that as they did, they incurred this risk, to whatever degree.
  They are right that this impacts military readiness at the expense of 
American national security. This is on him. He knew it would have this 
effect, and now he wants to force Senator Tuberville, shame him--to 
shame him into doing him a favor by expediting this process so that the 
Senate won't have to go through the additional steps that the Senate 
will have to go through in order to get these people confirmed without 
Senator Tuberville relinquishing it.
  That is a shameful strategy on the Secretary of Defense, and he 
should be ashamed of the fact that he has become a policymaker. You 
can't legislate from the E-ring of the Pentagon. He has no business 
doing that here. He is thwarting, he is desecrating, he is 
disrespecting this institution and the sacred laws of our country--
passed with really good reasons--in order for him to promote his own 
woke policy agenda. Shame on him for doing that.
  I object, Mr. President.
  The PRESIDING OFFICER. The objection is heard.
  The Senator from Rhode Island.
  Mr. REED. Mr. President, first, anyone who suggests that the 
Secretary of Defense does not have a role--in fact, a responsibility--
to shape policy in the Department of Defense--it is nonsense, and I 
would suspect that the person has never served in the military forces 
of the United States.
  This is a policy that the Secretary of Defense is not only legally 
entitled to promulgate, but is, I think, compelled to clarify the 
position of the Department of Defense when it comes to this Dobbs 
decision and its effect on the military.
  Now, the gentleman from Utah did not hear my opening remarks. I did 
not refer to judicial decisions; I was referring to opinions--very 
valid opinions--of the Department of Justice, dating back to 1981.
  Section 1093, which he cites, is the most significant provision of 
the law.

[[Page S1832]]

What it does, it prevents funding to perform abortions and restricts 
the use of Department of Defense medical facilities to perform an 
abortion except when the life of the mother is in danger or in the case 
of rape or incest. I might suggest that I think my colleagues over 
there wouldn't even recognize that part of the law, but that is part of 
the law. There is no discussion of other aspects--i.e., providing 
transportation--and I pointed out Federal prisons provide 
transportation for female inmates requesting an abortion.
  These are policy decisions that are reserved to the Secretary of 
Defense by statute, the same types of decisions he has to make every 
day. What are the physical standards for the troops in the U.S. 
military? Is that an act of Congress? No. I don't think anyone here 
would reasonably argue that we are the experts who should decide that 
and we know better than the Secretary of Defense.
  There are a whole bevy of reasons, but section 1093 is the key 
statute, and it prevents Department funding being used for the 
performance of non-covered abortions. It makes no comment whatsoever in 
terms of any other aspects of incidental expenses.
  The Department's policy is legal, as I pointed out. It is rooted in 
the longstanding Department of Justice interpretations of both the Hyde 
amendment and similar restrictions.
  In fact, the Department of Defense General Counsel requested the 
Justice Department's views on the policy last fall because they wanted 
to be sure they were right before they went ahead, and they issued a 
lengthy and informative slip opinion, which is part of the record.
  And they concluded that 10 United States Code section 1093, which my 
colleague from Utah continually refers to, does not prevent the 
Department from using appropriated funds to pay for servicemembers and 
their dependents to travel to obtain abortions that the Department 
cannot fund directly because of section 1093.
  So this is not illegal. And what is contemptuous, I think, is not 
this debate over this policy. That is what we would do. It is ignoring 
years and years and years of respecting the promotion of military 
officers by the Department of Defense based on merit, based on their 
abilities, not their politics; and, for the first time, using military 
officers as tokens in a political game of trying to change things that 
they don't like, even though these policies are absolutely legal and 
have been confirmed by the Department of Justice and provide, I think, 
benefits that we provide to Federal prisoners. I would hate to see our 
soldiers--our female soldiers, particularly--treated any less 
appropriately than Federal prisoners.
  So this argument is a lot of ``sturm und drang.'' I think that is the 
German pronunciation for it.
  The policy is legal. On one other point--a sort of simple-minded 
point--if it is not legal, why hasn't it been challenged in court? 
Because it is legal.
  Now, you can disagree with the policy, and many of my colleagues do. 
In fact, many of our colleagues have submitted legislation, and that 
legislation will be considered at some point. But no one has risen to 
the point of invoking this block of military promotions. It affects the 
military. It affects families. It affects our readiness. It affects our 
recruitment, if people look far enough down the road. And every day it 
continues, it does more and more damage. It is a cumulative effect. And 
I very, very strongly object to the continued decapitation of our 
military.
  Let's carry this forward for 6 months or a year. We don't have a 
Chairman of the Joint Chiefs of Staff. I think we will because I think 
a majority of my colleagues will realize how important it is to have 
that. But it won't be done in an efficient, coordinated way. It will be 
objected to. It will be argued about.
  The Commandant of the Marine Corps--no, we have to put this 
gentleman, General Smith, through the ringer. The Chief of Staff of the 
Army, the same thing.
  We are in a situation with a tremendous pressure globally, assisting 
the Ukrainians in their battle; particularly, our new peer competition 
with China, trying to assimilate the technology that is changing the 
battlefield literally every second.
  And now we are spending time arguing about what is within the legal 
authority of the Secretary of Defense and doing it by taking military 
officers and making them political tokens that you trade for something. 
I personally resent such treatment of professional officers in our 
military.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Ms. WARREN. Mr. President, the Senator from Alabama earlier claimed 
that the Department of Defense's policy violates the law. The Senator 
from Utah then made a slight shift in how he described his complaint 
with the Department of Defense policy. He said it violates the spirit, 
if not the letter, of the law, and therein lies the difference.
  The law that we are talking about here is the Hyde amendment, and 
that is a congressional prohibition on the Federal government paying 
for abortions.
  Let's be clear about the Department of Defense policy. Servicemembers 
remain personally responsible for bearing the medical cost of abortion, 
just like they did before the Dobbs opinion, just like they did the 
year before that and the year before that and the year before that, and 
all the way back to when the Hyde amendment was passed.
  Instead, what DOD policy does is it clarifies that servicemembers who 
need to travel out of State to access any kind of reproductive 
healthcare that is not available where they are stationed can request 
the time off to go get that care for themselves or a family member. 
That is it.
  That is what people in the Peace Corps can do. That is what people in 
Federal prisons can do. And that is what our servicemembers can do. 
That is not a violation of the explicit language in the Hyde amendment.
  And to stand up and claim that somehow what the Department of Defense 
has done is violate the law is simply not to read the law. The law is 
clear, and the Department of Defense continues to follow it.
  But there are real consequences to this argument. I understand that 
there are Members of the Republican Party, Members of the Senate, who 
would like to change that policy. They would like the Department of 
Defense to follow a different policy. They can try to change the law. 
They can introduce an amendment. In fact, they already have introduced 
an amendment. But, in the meantime, they cannot hold hostage the 
promotions of our top military leaders. This jeopardizes our national 
defense.
  Secretary Austin's letter that I earlier entered into the Record goes 
into great detail about how these holds that the Senator from Alabama 
has put on our top military leaders create mission vacancies that 
``incur an unnecessary and unprecedented degree of risk at a moment 
when our adversaries may seek to test our resolve.''
  He goes on to explain that the holds undermine power projection 
abroad, which, ``diminishes our global standing as the strongest 
military in the world, which is in large part based on our stable 
processes and orderly transitions''--precisely what the Senator from 
Alabama is holding up.
  The risks are even greater in new domains of potential conflict, and 
Secretary Austin does not mince words on who benefits.
  Who benefits? Our Secretary of Defense identifies them: China, 
Russia, Iran, North Korea, and ISIS. The leaders whose nominations 
currently stand in purgatory are responsible, according to Secretary 
Austin, for ``executing strategy, acquiring new technologies, enhancing 
tactical effectiveness, conducting joint training, and strengthening 
global alliances.''
  This isn't rhetoric. These are specific examples of U.S. national 
security interests that are endangered by these reckless holds.
  I understand that the Senator from Alabama may not be persuaded by 
Secretary Austin's letter, but we have to face reality here. While we 
argue over the fact that the Republicans want to change current law 
under the Hyde amendment, we are endangering our national defense.
  We need to move forward on the nominations that have already been 
approved by the servicemembers, by the White House, by our own 
committee. In the Senate Armed Services Committee, we need a vote so 
that these people can move to their next posts and do their jobs.
  In a moment, I will be asking the Senate to confirm Calendar No. 199. 
If

[[Page S1833]]

confirmed, this nominee would be Deputy Commander for Air Force 
Materiel Command, which employs nearly 86,000 military and civilian 
airmen and manages a $71.3 billion budget.
  She is also a mama. She calls her kids the ``Three Musketeers'' and 
says they are the center of her universe.
  These holds are the hardest on military families who are trying to 
figure out how to sign up for new schools, trying to establish their 
lives in their next deployment.
  This nominee has already moved 17 times during her career, and she is 
now held by the Senator from Alabama, cannot move to her next 
deployment, cannot establish herself and her ``Three Musketeers'' and 
get them settled in school, and get her family in the place where they 
will be so that she can do her job for the American people.
  We need people with decades of logistics management experience, and 
we need to treat them with some respect.
  I renew my request with respect to Calendar No. 199.
  The PRESIDING OFFICER. Is there objection?
  Mr. MARSHALL. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. MARSHALL. Mr. President, I rise today to support my friend, my 
colleague Senator Tommy Tuberville as he continues to do the right 
thing, to do justice, as he continues this fight against the radical 
pro-abortion policies put in place by the Defense Department earlier 
this year.
  And I remind everybody that this is a fight the Department of Defense 
picked. We didn't pick this fight. They picked this fight. They are the 
ones who decided to change their policies to break the law.
  This February 16 policy provides military personnel 3 weeks of paid 
leave and uses taxpayer dollars for travel expenses incurred while 
seeking an abortion--a clear violation of the Hyde amendment.
  The policy is illegal. It violates Federal law, prohibiting funds to 
the DOD from being used to perform abortions except where the life of 
the mother is endangered, rape, or incest.
  This policy takes the number of the Department of Defense abortions 
from less than 20 per year to an estimated 4,500 abortions.
  The policy also describes abortion as reproductive healthcare. And I 
think that is the true issue here. You know, as an obstetrician, I am 
often asked two questions: When does life begin? What was the favorite 
part of a pregnancy for me?
  I want to talk about the pregnancy for a second. I took care of 
hundreds, maybe thousands, of infertile couples, and, certainly, that 
first time when they had a pregnancy test that was positive was a great 
moment for me to share with them.
  Four weeks after conception, we can see a baby's heartbeat on the 
ultrasound. That is another spectacular moment, for every couple to see 
that little baby's heartbeat at 4 weeks after conception.
  At 12 weeks, we could hear the baby's heartbeat on a doppler. And it 
was one of the favorite moments for that mom and dad to hear that 
baby's heartbeat, as well, especially those women who had recurrent 
miscarriages, those who had lost life early repeatedly and, through 
miracles and medicines, they were able to conceive and carry that 
pregnancy. They get through the first trimester. They hear their baby's 
heartbeat. They know they are pretty much out of the woods.
  One of my favorite visits came at about 15 to 16 weeks after 
conception. And the mom would come into my office, and I would ask her: 
How are you feeling?
  And the nausea and vomiting are now over with, and I would ask her: 
Are you feeling the baby move yet?
  And her eyes would light up. And she would say: Yes, Doctor. I can 
feel the baby move now. Isn't that incredible?
  So I always loved that.
  And maybe the next visit--maybe, you know, at 18, 20 weeks along--
they would come into the room, and I would examine the mom and put my 
hands on her abdomen. I could feel the baby's head and the baby's 
buttocks and maybe the limbs. And I would see the baby kind of start to 
move as I would kind of push on one spot. And maybe there was a little 
brother or sister in the room as well. And I would listen to the 
heartbeat. And almost every time that brother or sister would screech 
out: Mommy, is that my baby brother or sister?
  This is at 18 weeks.
  And, then, what was miraculous of all of this is that little baby, 
that fetus--the baby inside of the mom, the unborn baby--you could hear 
the heartbeat increase. You could hear it increase in intensity and the 
rate, recognizing this baby brother or sister's voice.
  The rest of the pregnancy, you know, maybe there was another 6 or 8 
visits, and they were all fun, and they were all special.
  I delivered a baby almost every day of my life for 25 years, and 
every labor was different. It was touchy; it was hard; it was easy--all 
those things. We had prolapsed cords, placentas separate, women with 
blood pressure problems seizing. I was blessed. I never lost a mom--
never lost a mom. God blessed us and gave me the skill to get them 
through that.
  Some labors were short, and some were long. Some lasted 30 minutes, 
and some lasted 2 days. Sometimes they would push for 2 minutes, and 
sometimes a woman would push for 3 hours. But my favorite moment of 
every pregnancy was delivering the baby and rubbing it down, and I 
would be checking its pulse and its heart rate and see if it was 
breathing and making sure it was dry and quietly praying to myself for 
this newborn baby until I heard it start crying.
  The favorite moment was giving that newborn baby to that mom and just 
watching her and observe her and just being able to watch that total 
nonjudgmental love of a mom for a newborn baby.
  I take it backward from there and talk about when life begins. There 
are those people in this Congress that, even after a baby would survive 
abortion, they think that baby should not be treated and cared for. 
Certainly, I believe life certainly begins when the baby survives an 
abortion, and it is past the point of viability. We should do 
everything we can to help that baby out.
  You know, you go backward. Viability is probably 20, 21 weeks--21 
weeks probably today. Does life begin at 21 weeks? If that baby was 
born outside the womb, would it survive? At 21 weeks, it has a chance. 
I think most of us certainly agree life begins then. What about 18 
weeks when that baby recognizes its brother's or sister's voice or at 
16 weeks when mom can feel the baby move or at 12 weeks when we can 
hear the heartbeat or 6 weeks when we can see the heartbeat? Well, 
after years of study and doing this, I just--my heart tells me life 
begins at conception, and no one has been able to prove me wrong. I 
think we have to assume life begins at conception.
  That is why it is so struggling for me to hear people calling 
abortionists reproductive healthcare. Reproductive healthcare, to me, 
means helping patients who can't conceive, helping moms to have a 
healthy pregnancy, getting them--taking folic acid a year before they 
are trying to conceive, making sure they are doing everything they can 
to prevent spina bifida or encephalic babies, getting their sugars 
under control--all those things. That is what reproductive healthcare 
means to me, not taking the life of a baby.
  Labeling abortion as ``healthcare'' is a tactic that is used to avert 
the radical abortion agenda. This irresponsible and unethical scheme 
politicizes our doctors' offices and, in almost all cases, does not 
improve women's health.
  I am sorely disappointed in the military that I once served in, that 
my dad served, my uncle served, my great uncles, my mom's dad, my mom's 
uncle who died in World War II, my son who is now serving. I am 
disappointed in the military. It turned its attention and resources to 
terminating life.
  I want to remind the Department of Defense they exist to protect the 
citizens of this great Nation, not to push a radical abortion agenda; 
that they took an oath to the Constitution to defend this country. Why 
are they picking this fight to end the lives of unborn babies? It is 
morally wrong; it is illegal; and the Pentagon needs to be held 
accountable.
  The Biden administration has created the most politicalized Pentagon 
in

[[Page S1834]]

history, destroying their own morality, destroying recruiting, 
destroying the readiness of our military. Unelected bureaucrats cannot 
ignore Congress and change the law with a memo. This policy is outside 
the Department of Defense's mission to uphold and fight for life, not 
destroy it.
  I am honored to stand up here and support my colleague Senator 
Tuberville to fight back against this outrageous abortion policy, both 
in the name of protecting life and ensuring that our military uses 
resources to protect our homeland and our interests abroad. The policy 
is wrong. The DOD's policy is wrong, and until the military gets back 
to providing for our common defense and out of the business of 
providing abortions, I am proud to stand with Senator Tuberville.
  Madam President, I object and yield back.
  The PRESIDING OFFICER (Ms. Hassan). The objection is heard.
  The Senator from Massachusetts.
  Ms. WARREN. Madam President, the Department of Defense has adopted a 
healthcare policy that is both legal and necessary to protect the 
readiness of our forces. It also protects our national defense. These 
policies were also reviewed by the Department of Justice.
  The prohibition to which my colleagues refer is the prohibition in 
the Hyde amendment of using Federal dollars to pay for abortions. Let 
me say this as clearly as I can. Under the Department of Defense's 
policy, servicemembers remain personally responsible for bearing the 
medical cost of abortion. That is true today; it was true last week; it 
was true the day after the Dobbs opinion; it was true the day before 
the Dobbs opinion; and for years, that has been the policy.

  What has changed is that the DOD has clarified that servicemembers 
who need to travel out of State to access any kind of reproductive 
healthcare that is not available where they are stationed and what kind 
of healthcare might not be available--it might be abortion care; it 
might be IVF; it might be care for someone who has suffered a 
miscarriage--that any person who has suffered that personally or 
someone in their family can request time off to go get that care for 
themselves or for a family member. That is it. That is all we are 
talking about here.
  Servicemembers do not get to decide where to serve. I am proud to 
support the DOD in saying that a change in station should not mean a 
change in your basic rights.
  I appreciate that my colleagues have strong views on abortion. So do 
I. We are not going to agree on that. But all of us should be able to 
agree that we should not take steps that harm the people who 
volunteered to serve in our military; that if they need care that they 
cannot get in the State where they are, they should have an opportunity 
to go somewhere else. That is it.
  There is no prohibition in law. There is no Hyde amendment violation 
here. Instead, what we have is wholesale holding up the nominations of 
more than 200 of our top military leaders who cannot advance to the 
posts that they have been thoroughly vetted and are ready to be 
promoted into, cannot advance to their duty stations, cannot settle 
their families in their next assignments, cannot receive the increase 
in their pay that they are entitled to.
  So, in a moment, I will be asking the Senate to confirm Calendar No. 
90. This is the person who would be America's military representative 
to the North Atlantic Treaty Organization but is currently being held 
up by the Senator from Alabama.
  I will be asking for the Senate to confirm Calendar No. 94. 
Collectively, these are 37 nominees who have served in the Army for 
nearly 1,000 years.
  I will be asking for the Senate to confirm Calendar No. 84. This 
nominee would command the Fifth Fleet, which operates in the Middle 
East.
  I will be asking the Senate to confirm Calendar No. 49. This is the 
man who is the Chief of Staff for Operation Warp Speed--one of the 
greatest achievements of the Trump administration--to rapidly develop 
tests and distribute lifesaving COVID vaccines.
  I will be asking the Senate to confirm Calendar No. 82. These 27 Air 
Force nominees have collectively served their country for more 600 
years. One of them, in fact, is a NASA astronaut who received his 
master's degree from MIT and commanded NASA's third longest duration 
commercial crew mission.
  I will be asking the Senate to confirm Calendar No. 47. This nominee 
would be Commanding General for the U.S. Army Space and Missile Defense 
Command and U.S. Army Forces Strategic Command.
  I will be asking the Senate to confirm Calendar No. 97. Collectively, 
these 16 nominees have served in the Navy for more than 400 years.
  I will be asking the Senate to confirm Calendar No. 46. This nominee 
studied at the Air War College at Maxwell Air Force Base in Alabama and 
currently serves as Commander of the 10th Medical Group and Command 
Surgeon for the U.S. Air Force Academy.
  I will be asking the Senate to confirm Calendar No. 83. This nominee 
studied at the Squadron Officer School at Maxwell Air Force Base in 
Alabama and she is now capable and ready to serve as the Chief of Staff 
for Air Mobility Command at Scott Air Force Base in Illinois.
  I will be asking the Senate to confirm Calendar No. 48. She would 
serve as Deputy Chief of Staff for the Army's G-4, which is responsible 
for the Army's strategy policy plans and programming for logistics 
sustainment.
  I will be asking the Senate to confirm Calendar No. 50. Collectively, 
these two women have served in the Army for over 60 years. They deserve 
to be promoted.
  I will be asking the Senate to confirm Calendar No. 51. This man 
would serve as Deputy Chief of Staff for Strategic Deterrence and 
Nuclear Integration for the Air Force.
  I will be asking the Senate to confirm Calendar No. 52. This nominee 
would be the Military Deputy and Director for the Army Acquisition 
Corps.
  I will be asking the Senate to confirm Calendar No. 86. Collectively, 
these 11 nominees have over 275 years of service in the Air Force.
  I will be asking the Senate to confirm Calendar No. 87. These two 
nominees have served the Air Force for over 55 years.
  I will be asking the Senate to confirm Calendar No. 88. These 10 
nominees have served over 288 years. Together, they have nearly 20,000 
flying hours of experience.
  I will be asking the Senate to confirm Calendar No. 89. This nominee 
is currently commanding the largest Army command in the Caribbean.
  I will be asking the Senate to confirm Calendar No. 91. This nominee 
is currently serving in Birmingham, AL, as Chief of Staff to the U.S. 
Army Reserve Deployment Support Command.
  I will be asking the Senate to confirm Calendar No. 92. This nominee 
is currently the Director for Joint Reserve Intelligence Support 
Element for Europe and Eurasia for the Defense Intelligence Agency, 
helping to make sure that Ukraine and our allies in Europe have the 
critical national security information they need so that they can 
compete on the battlefield.
  I will be asking the Senate to confirm Calendar No. 93. This nominee 
is currently the Deputy Commander for Support, providing security 
assistance to Ukraine.
  I will be asking the Senate to confirm Calendar No. 95. Collectively, 
these eight nominees have served in the Marine Corps for over 200 
years. They deserve their promotions.
  I will be asking the Senate to confirm Calendar No. 96. These 
nominees have served in the Navy for over 55 years. Both are currently 
serving in the Bureau of Medicine and Surgery, making them responsible 
for the health and safety of our sailors, marines, and their families.
  I will be asking the Senate to confirm Calendar No. 98. Collectively, 
these two nominees have served in the Navy for 55 years. I will be 
asking the Senate to confirm Calendar No. 99. These two have 
collectively served in the Navy for over 60 years, managing major 
weapons systems programs.
  I will be asking the Senate to confirm Calendar No. 100. This nominee 
is currently serving as the Director of Health and Training at the 
Defense Health Agency, and he is recognized as a Diplomate of the 
American Board of General Dentistry.
  I will be asking the Senate to confirm Calendar No. 101. This nominee 
will be the Commander of Naval Supply Systems Command, which makes sure 
the Navy has everything they need all around the world.

[[Page S1835]]

  I will be asking the Senate to confirm Calendar No. 102. These 13 
nominees collectively served in the Navy for over 400 years.
  I will be asking the Senate to confirm Calendar No. 103. This nominee 
is currently serving as the Executive Assistant for the Director of the 
Defense Intelligence Agency. We need people like this.
  I will be asking the Senate to confirm Calendar No. 104. These two 
nominees have collectively served the Navy for over 55 years, one 
currently serving as Information Warfare Commander.
  I will be asking the Senate to confirm Calendar No. 105. These four 
nominees have collectively served the Navy for over 100 years.
  I will be asking the Senate to confirm Calendar No. 106. These two 
nominees have served the Air Force for over 65 years. One of these 
nominees earned her nursing degree at Boston College and rose to become 
the chief nurse of the entire Air Force. She deserves her promotion.
  I will be asking the Senate to confirm Calendar No. 107, currently 
serving as the Commanding General for the Marine Corps forces in Japan.
  I will be asking the Senate to confirm Calendar No. 110. 
Collectively, these 23 nominees have over 620 years of service to the 
Air Force.
  I will be asking the Senate to confirm Calendar No. 111. This nominee 
would be the Deputy Commandant for Aviation for the Marine Corps, who 
advises the Marine Corps top officer of all aviation matters.
  I will be asking the Senate to confirm Calendar No. 205. This nominee 
would be the Commander of the 2nd Fleet and Joint Forces Command 
Norfolk--the only operational NATO command in North America, 
responsible for the North Atlantic and the Arctic. We need capable 
leaders like this.
  I will be asking the Senate to confirm Calendar No. 203. This pilot 
has flown more than 3,000 hours in the F-16 and the F-35. We need 
capable people like this.
  In a moment, I will be asking the Senate to confirm Calendar No. 202. 
This nominee will be the Director of the Naval Nuclear Propulsion 
Program.
  I will be asking the Senate to confirm Calendar No. 201. This nominee 
is an experienced information warfare officer. We need him in his post.
  I will be asking the Senate to confirm Calendar No. 200. This nominee 
is someone you can count on in a crisis. A native of San Juan, he was 
there to help his fellow Puerto Ricans after the earthquakes forced 
7,500 people to leave their homes. He has stepped up and stepped up 
again for people who need him.
  I will be asking the Senate to confirm Calendar No. 198. This nominee 
will be the Commander of Air Combat Command, which is the primary 
provider of air combat forces to U.S. war-fighting commands all around 
the world.
  I will be asking the Senate to confirm Calendar No. 197. This nominee 
would be the Deputy Chief of Naval Operations for War-Fighting 
Requirements and Capabilities.
  I will be asking the Senate to confirm Calendar No. 196. He will be 
the Deputy Commander for U.S. Central Command.
  I will be asking the Senate to confirm Calendar No. 195. He has 
logged more than 500 carrier-assisted landings and 2,800 flight hours 
in tactical aircraft. We need him.
  I will be asking the Senate to confirm Calendar No. 194. This nominee 
from Falmouth, MA, if confirmed, will be the Deputy Commander of the 
U.S. Fleet Forces Command, which is responsible for training and 
providing combat-ready Navy forces wherever combatant commanders need 
them, and we need him.
  I will be asking the Senate to confirm Calendar No. 193. This nominee 
will be the Commander of Naval Surface Forces and Commander of Naval 
Surface Forces, U.S. Pacific Fleet, where his mission will be to make 
sure the Navy has every capability we need for a force that is 
balanced, affordable, and resilient.
  I will be asking the Senate to consider Calendar No. 191. This 
nominee will be the Commanding General for the Marine Expeditionary 
Force in U.S. Marine Corps Forces Japan.
  I will be asking the Senate to confirm Calendar No. 190. This nominee 
will be Deputy Commanding General for Futures and Concepts at Army 
Futures Command.
  I will be asking the Senate to confirm Calendar No. 188. This nominee 
will be Commander of Pacific Air Forces, which integrates airspace and 
cyber space capabilities to keep the Indo-Pacific open and free. He has 
flown more than 4,000 flight hours and previously served as the 
Commander for U.S. Forces in Japan.
  I will be asking the Senate to confirm Calendar No. 189. As a leader, 
she sees that our power as a nation comes from our moral strength and 
standing up for what we know as right. This nominee would be Pacific 
Air Forces Deputy Commander, making her the No. 2 for the nominee I 
just spoke about.
  I will be asking the Senate to confirm Calendar No. 187. If 
confirmed, this nominee would be Deputy Commander of U.S. Forces Korea 
and the Commander of the 7th Air Force.
  I will be asking the Senate to confirm Calendar No. 186. This nominee 
will be Deputy Chief of Staff for Air Force Futures, which is charged 
with representing the voice of tomorrow's airmen to be ready to defeat 
any future threats and capabilities our enemies wield. We need this 
person.
  I will be asking the Senate to confirm Calendar No. 185. If 
confirmed, this nominee would be Military Deputy to the Assistant 
Secretary of the Air Force for Acquisition, Technology and Logistics, 
making him the primary military adviser for everything the Air Force 
buys to keep us safe.
  I will be asking the Senate to confirm Calendar No. 184. This nominee 
took his first flight at 2 weeks old and became a command pilot with 
more than 2,500 flying hours.
  I will be asking the Senate to confirm Calendar Nos. 182 and 183. 
This nominee will be the next Navy Surgeon General, making him the 
principal adviser to the Secretary of the Navy on medical matters.
  I will be asking the Senate to confirm Calendar No. 181. During his 
service, he has accumulated over 5,000 flight hours and over 1,100 
carrier-assisted landings. He was a Top Gun instructor and later the 
Commander for the Naval Aviation Warfighting Development Center. He is 
entitled to his promotion.
  I will be asking the Senate to confirm Calendar No. 180. This nominee 
is also a Top Gun graduate, completing eight carrier deployments in the 
Western, Pacific, North Atlantic, Mediterranean, and North Arabian 
Seas.
  I will be asking the Senate to confirm Calendar No. 112. He would be 
the Director of the Defense Contract Management Agency, which manages 
225,000 contracts valued at more than $3\1/2\ trillion and 15,000 
contractor locations worldwide.
  I don't know what to say except that we have more than 200 people 
here who have dedicated their lives to the United States. They have 
volunteered for military service. They are all career. They are in it 
all the way. They are capable. They are talented. They serve our 
country. And right now, they have become the political football for the 
Senator from Alabama, and that is wrong.
  These people deserve their promotions. They deserve to be treated 
with dignity and respect for the work they have put in for our Nation. 
It is the least we can do for them, for their families, and for the 
national security of the United States of America.
  We need these people. We don't need to tell them we don't care about 
them. We need them. We need to retain them. We need to promote them. We 
need to use their talents.
  Madam President, I renew my request with respect to each of the 
calendar numbers I have identified.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Alabama.
  Mr. TUBERVILLE. Reserving the right to object, my position continues 
to be, follow the law or change the law. For that reason, I object.
  The PRESIDING OFFICER. The objection is heard.
  Does the Senator from Massachusetts yield?
  Ms. WARREN. I will yield to the Senator from Utah.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Madam President, I want to be very clear about a couple 
things. No.

[[Page S1836]]

1, this is the law. It is not called the Hyde amendment. There is a 
thing called the Hyde amendment that applies elsewhere outside the 
military. The military, the Pentagon, has its own statutory provision. 
It is not the Hyde amendment; it is 10 U.S.C. section 1093, adopted in 
1984 as part of the Defense Authorization Act for Fiscal Year 1985. It 
has been the law ever since then.
  You can't use Pentagon money for this purpose, nor can you use 
Pentagon facilities for this purpose. Saying that you are not doing 
that even though you are paying people, you are giving them 3 weeks of 
paid leave time and paying all their travel expenses and their per diem 
in order to do this--that is openly flouting the spirit of the law, if 
not also the letter, in order to circumvent it.
  I will go back to the analogy I used earlier. You go up to a parking 
space, thinking you want to park there, but it is a handicap space. It 
is reserved for people with disabilities. You don't have the disability 
symbol on your car, so you park next to it, but you deliberately park 
so close to the line that you render that spot unusable for anyone with 
disabilities who should need access to it. It still has the same effect 
because you are openly flouting the law. You are doing it in a 
deliberate attempt to cause the very same harms that particular law was 
designed to prevent.
  Now, this is a policy choice, and it is a policy choice that Congress 
deliberately took away from the Department of Defense, deliberately 
took out of the hands of the Secretary of Defense. He seized that back.
  Senator Tuberville saw this coming. Back in December, he told 
Secretary Austin in no uncertain terms: You should not do this. This is 
in violation of the law, and if you do this, there will be problems. I 
will no longer cooperate with you if you try to seek unanimous consent 
to facilitate the confirmation of these flag officer promotions.
  He made that really clear.
  Secretary Austin made his choice the moment he decided to legislate 
from the E-ring of the Pentagon. He took on that risk, and now he has 
the audacity, through surrogates in the Senate, to come back to Senator 
Tuberville and say: I got what I wanted. I did so in violation of the 
law. I am openly flouting the law--its spirit if not also the letter--
and I also want you to cooperate with me, Senator Tuberville. I want 
you to do what I say because that is more convenient for me.
  That is not fair. That is not lawful. It is not legal. It is not 
kosher. It is not cool.
  Look, the fact is, we could end this right now. I would love to end 
it right now. I can't speak for Senator Tuberville, but I have a 
sneaking suspicion he would let these go right now. He would let you 
get every one of these men and women confirmed this very moment if you 
take this thing off the table. But Secretary Austin took this hostage. 
He took all of these men and women hostage the moment he did this, 
having been forewarned by Senator Tuberville. He can't now be heard to 
come back--having waived his right to do that--to come back and demand 
that Senator Tuberville be somehow shamed into cooperating, into 
facilitating.
  The other point here is, they can still get these people confirmed 
even without that compromise, which you could make tonight. If you put 
this thing off the table, you stop trying to achieve this through 
extortion, he will let them go right now. I am 99.99 percent sure of 
that, and that is pretty confident from me. He will do that right now. 
But even if you are not willing to do that, you could still get these 
people confirmed. You just don't want to do the hard work of doing it. 
It takes more time to do it without Senator Tuberville's full 
cooperation.
  So, look, if you really are serious about end-strength readiness, 
then that is what you would do. That is what someone would do if they 
were worried about end-strength readiness.
  Let's talk about that for a moment. End-strength readiness shouldn't 
be confused with flag officer promotions. It is not where we see end-
strength readiness, with flag officer promotions. It doesn't mean these 
men and women aren't deserving of their promotions or we wouldn't be 
willing and interested to see them confirmed so that they can have 
their promotions. But to say that it affects end-strength readiness 
disregards what flag officers are doing in the capacity they hold. I am 
not aware of any reason why that would affect our end-strength 
readiness, nor am I aware of any compelling reason why, without this 
policy--this policy that openly flouts the law--our military would 
suffer from an end-strength readiness problem. It is an absurd 
argument. In any event, it violates the law. They can't do this. It is 
the wrong branch of government. He doesn't have this power. He was 
forewarned, and he did the wrong thing anyway. We don't reward bad 
behavior that way. We certainly don't reward unlawful behavior.

  The PRESIDING OFFICER. The Senator from Massachusetts.
  Ms. WARREN. Madam President, the Senator from Utah and the Senator 
from Alabama have repeatedly said that the Department of Defense is 
somehow violating the law.
  Let's pull the statute out and just take a look at it. I want to read 
the words into the Record.
  Under part (a) 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.

  Period. That is it. It does not say that funds from the Department of 
Defense may not be used for travel. It does not say that people may not 
have time off. It does not say that people may not be allowed to travel 
out of State. It has exactly one thing that it prohibits Federal funds 
from being used, and that is ``may not be used to perform abortions.''
  Let me say again as clearly as I know how: The Department of 
Defense's rule clearly states that the servicemember will pay for her 
own medical services. It will not be the case that the Department of 
Defense will pay for abortion.
  If the Senator from Utah wants to change that law, he certainly can 
introduce an amendment to do that. The same with the Senator from 
Alabama. But right now, the Department of Defense is following the law 
in the United States.
  The Senator from Alabama's actions pose a grave threat to our 
national security and readiness. That is not just my view. It is the 
view of the Secretary of Defense and the former Secretaries of Defense 
serving in both Democratic and Republican administrations.
  If the Senator from Alabama stays on this path, his actions will soon 
endanger the nomination of the next Chairman of the Joint Chiefs, an 
action we have never seen in the history of our Nation. We have 221 
good people who have earned their promotions, who are ready to go to 
their next duty stations and serve their nation. They are being treated 
with disrespect; and this action is undermining our national defense.
  I urge the Senator from Alabama to release his holds immediately and 
allow these senior military officers to receive the promotions that 
they have earned.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. With great respect for my friend and colleague from 
Massachusetts, the Pentagon itself acknowledged that while military 
abortions had been counted at maybe 20 or 30 per year in the past, this 
policy, which funds abortion--it just does--has increased to about 
4,400 to maybe 4,500 a year. The causation and the number were 
estimated by the Pentagon itself based on this subsidy. This is a 
subsidy for abortion. They are, in fact, subsidizing abortion. The fact 
that they have engineered in a way that they think gets them around the 
technicalities of the law should mean very little to us as 
policymakers, as lawmakers, to the fact that they are openly flouting 
the law.
  They are going through this trickery only because they don't like the 
law. They hate the fact that this became law, so they are trying to 
find a way to get around it.
  They are, in fact, funding abortions. That is what you do when you 
pay somebody to travel, when you give them 3 weeks of paid leave to do 
something, when you fund their per diem--so you cover everything for 
them--you are funding abortion.

[[Page S1837]]

  If the only argument you are left with is ``we are not paying for the 
actual surgery itself; we are just paying for everything around it,'' 
when the value attached to the travel, to the per diem, to the paid 
leave time is a significant expense--an expense that I suspect in many, 
if not most, instances would well outpace the cost of the medical 
procedure itself--that's too cute by half. They are, in fact, funding 
abortion. That is what this does. It is done knowing, expecting, 
anticipating, and desiring that this would increase the number of 
abortions performed in the military every year to a significant degree. 
That is what they are doing, and it is wrong.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Ms. WARREN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  (Ms. BALDWIN assumed the Chair.)
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so 
ordered.

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