Can I lose my security clearance if I have an abortion? Wrong question.

Since the recent Supreme Court decision in Dobbs, overturning Roe v. Wade, we’ve seen a handful of discussions regarding whether a security clearance holder can lose their security clearance for obtaining an abortion in a state where it is illegal (generally citing Guideline J, “Criminal Conduct”). Despite the sensational headlines, this isn’t really a novel question—even after Roe, abortions at different stages of pregnancy have been illegal in various states for decades. Nevertheless, while in our practice we hear from security clearance holders and applicants regarding nearly every scenario imaginable—abortion is not one of them. Moreover, we searched every security clearance case published by the Defense Office of Hearings and Appeals (cases from 1992 to present). The number of published cases related to obtaining an abortion, legal or illegal? Zero.

How can that be? Most likely, in large part, because state laws criminalizing abortion typically have not criminalized obtaining an abortion—they penalized the person performing or aiding the procurement of an abortion

Now, we are not criminal attorneys, we understand that there are exceptions to this general rule, and the legal landscape is changing quickly. Anyone concerned about past, present, or future criminal activity should consult a criminal lawyer. Notably, the answer(s) will likely continue to change as states and the federal government grapple with these issues, but the most important questions when it comes to your clearance are what is the law right now and what is the federal government’s position?

Abortion and “Criminal Conduct” under Guideline J

State laws historically have not criminalized obtaining an abortion—they criminalize performing or aiding in the performance of an abortion.

State laws have historically not criminalized obtaining an abortion. Even the anti-abortion organizations pushing for changes to the law commonly view anti-abortion laws as protecting—and not punishing—pregnant people. Thus, at least in the past, the pool of people for whom abortion could likely be a clearance concern under Guideline J is much smaller than most seem to realize. (Keep reading for a discussion on abortion providers.)

That said, state laws are rapidly changing, and it is important to know the law in your state. Begin by asking “What is the law in my state and how does it apply to me?” If you need help with this, consult a criminal lawyer.

The Department of Defense supports employees (including clearance holders) who in the course of their duties perform abortions “in a manner authorized by federal law.”

On June 28, after Dobbs, the Department of Defense reaffirmed its position that “States generally may not impose criminal or civil liability on federal employees who perform their duties in a manner authorized by federal law” and committed to working with DOJ to provide access to counsel to those federal employees “as needed and appropriate.” Thus, at this time, employees who perform covered abortions, defined as “those performed where the mother’s life is in danger and in cases of rape or incest,” should not face concerns under Guideline J.

Even criminal conduct may be mitigated.

If you are concerned that you may have engaged in illegal activity related to abortion, you may want to consult a criminal lawyer and a security clearance lawyer to discuss your options, keeping in mind that even criminal conduct may be mitigated in certain circumstances. For example, one mitigating factor is whether the conduct “happened under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.” Most people should not assume they would be ineligible for a security clearance without speaking with someone who can advise them.

Abortion and “Personal Conduct” Under Guideline E

Of course, conduct does not need to be criminal to compromise one’s security clearance. Concerns under Guideline E, Personal Conduct, include conduct that, while not illegal, raises questions about one’s judgment, unwillingness to comply with rules and regulations, or creates a vulnerability to exploitation, manipulation, or duress. Thus, obtaining an abortion in a state where it is illegal could raise concerns under Guideline E, especially if the circumstances are such that it could make one susceptible to blackmail, such as a married man who aids his mistress in obtaining an abortion and hides the abortion from his wife.

When considering whether obtaining an abortion may raise concerns under Guideline E, the government’s position is relevant. After all, it is the federal government that decides who has access to classified information. Thus far, the federal government has been vocal in its support for reproductive health rights, albeit with limitations:

  • In April 2022, after a draft of the Supreme Court decision in Dobbs was leaked, the Army issued Army Directive 2022-06 (Parenthood, Pregnancy, and Postpartum) which makes abortion more accessible for service members, specifically providing that service members no longer need pre-approval from a commander for leave related to obtaining an abortion, and they are not required to disclose that the leave is related to abortion.
  • On June 24, 2022, Secretary of State Andrew Blinken issued a statement in support of reproductive health services.
  • On June 28, 2022, the Department of Defense confirmed that the recent Supreme Court decision will not interrupt covered abortion for Service members, dependents, other beneficiaries of DoD healthcare services, and civilian employees. Read more here.
  • On July 8, 2022, the President issued Executive Order 14076, “Protecting Access to Reproductive Healthcare Service.”
  • On Tuesday, July 14, 2022, the Department of Justice announced its Reproductive Rights Task Force.
  • The Department of Health and Human Services has taken two actions. First, it notified pharmacies of their obligation under federal law to provide medications prescribed by a physician, including those that may result in an abortion. Second, on July 11, 2022, it notified hospitals that receive federal assistance (e., most hospitals) of their obligation under federal law to provide emergency abortion services where the patient’s life is endangered by the pregnancy or the pregnancy is the result of rape or incest. (On July 14, 2022, Texas sued to block this requirement from taking effect.)

Ultimately, this is an issue that is rapidly evolving under both state and federal law and policy. Whether one’s security clearance may be impacted by involvement in abortion will require an individualized assessment at the relevant time. Readers who have concerns should consult a security clearance lawyer to discuss their options.

Elisabeth (Lisa) Baker-Pham is co-chair of Kalijarvi, Chuzi, Newman & Fitch, P.C.’s security clearance practice, advising applicants through the clearance process and representing federal employees and contractors whose clearances have been threatened or suspended, or whose suitability for federal employment has been challenged. Lisa contributed to the firm’s 2021 edition of “Security Clearance Law and Procedure.” If you have any concerns or questions regarding activities that may implicate a security clearance, the attorneys at KCNF are experienced in clearance matters and are available to assist.

This article also appeared in Westlaw Today on July 26, 2022. (PDF)