The Department of Veterans Affairs will begin offering abortions to pregnant veterans and VA beneficiaries for the first time in the agency’s history. However, the abortion services will only be offered “when the life or health of the pregnant Veteran would be endangered if the pregnancy were carried to term, or when the pregnancy is the result of rape or incest.”
The agency announced the new policy on abortion services in an interim final rule to be published in the Federal Register. The abortion services will be authorized immediately after the interim final rule is published, and the rule will be available for public comment for 30 days thereafter.
The rule is going into effect without the customary 30 day public comment period under order from the VA Secretary. The VA’s interim final rule states:
The Administrative Procedure Act (APA), codified in part at 5 U.S.C. 553, generally requires that agencies publish substantive rules in the Federal Register for notice and comment and provide a 30-day delay before the rules becomes effective. An agency may forgo notice if the agency for good cause finds that compliance would be impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). An agency may also bypass the APA’s 30-day delay requirement if good cause exists, 5 U.S.C. 553(d)(3), or if the rule “recognizes an exemption or relieves a restriction,” 5 U.S.C. 553(d)(1). The Secretary of Veterans Affairs finds that there is good cause under the provisions of 5 U.S.C. 553(b)(B) to publish this rule without prior opportunity for public comment because it would be impracticable and contrary to the public interest and finds that there is good cause under 5 U.S.C. 553(d)(3) to bypass the 30-day delay requirement. The Secretary also finds that the 30-day delay is inapplicable as this rule is removing restrictions on abortion, in certain, limited circumstances, and on abortion counseling. 5 U.S.C. 553(d)(1).
The abortions in the specified circumstances will be offered in all states regardless of whether or not they have been banned in a particular state. It noted specifically that federal employees who work at the agency “may provide authorized services regardless of state restrictions” when they are “working within the scope of their federal employment.” The interim final rule states:
This rulemaking serves as notice that all VA employees, including health care professionals who provide care and VA employees who facilitate that health care, such as VA employees in administrative positions that schedule abortion procedures and VA employees who provide transportation to the veteran or CHAMPVA beneficiary to the VA facility for reproductive health care, may not be held liable under State or local law or regulation for reasonably performing their Federal duties.
The VA said it made the decision to offer the abortion services for safety reasons.
“This is a patient safety decision,” said Denis McDonough, Secretary of Veterans Affairs. “Pregnant Veterans and VA beneficiaries deserve to have access to world-class reproductive care when they need it most. That’s what our nation owes them, and that’s what we at VA will deliver.”
Dr. Shereef Elnahal, VA’s Under Secretary for Health. added, “We came to this decision after listening to VA health care providers and Veterans across the country, who sounded the alarm that abortion restrictions are creating a medical emergency for those we serve. Offering this care will save Veterans’ health and lives, and there is nothing more important than that.”
The VA said that the decision to determine whether an abortion is medically necessary or not will be made on a case-by-case basis and added that it “will be the result of careful consultation between VA health care providers and the Veterans they serve.”
The VA also said that in cases involving rape or incest, “self-reporting from a Veteran or VA beneficiary will constitute sufficient evidence that an act of rape or incest occurred.”
Are Abortions Provided by the VA Legal?
As is often the case in politics, it depends on who you ask. According to some Democrats, the answer is yes, but at least one Republican contends this move by the VA is likely illegal.
In July, a group of 25 Senate Democrats sent a letter to VA Secretary Denis McDonough urging the agency to offer abortion services to veterans. In the letter, the Senators wrote:
Current regulations of the VA prohibit the Veterans Health Administration (VHA) from providing abortions and abortion counseling as part of the medical benefits package. Additionally, CHAMPVA, the VA’s insurance program for certain dependents and survivors of veterans, does not cover abortion services, unless the life of the mother is endangered.
We contend that the VA has the statutory authority and discretion to provide abortions and abortion-related services and resources. The VA’s authority to provide care to veterans is established in the Veterans Health Care Eligibility Reform Act of 1996. That statute provides that the VA Secretary “shall furnish hospital care and medical services which the Secretary determines to be needed” to certain veterans. Importantly, the VA has used its authority under the Veterans Health Care Eligibility Reform Act of 1996 to provide reproductive care such as pregnancy care and infertility services, even though such care was initially excluded from the health care packages allowed under the Veterans Health Care Act of 1992.
Moreover, we agree with your testimony to the House Veterans’ Affairs Committee stating that the VA has the power to offer abortion services and abortion counseling “as a regulatory matter.” As you explained last week, “[i]t is a long-held view of the VA general counsel that [the Department is] not statutorily prohibited from providing abortion counseling or abortion services.”
Finally, the VA has the authority to “provide medical care” to the dependents and survivors of veterans through CHAMPVA “in the same or similar manner” to dependents and survivors of service members.
In FY 2020, approximately 550,000 women veterans used VA health care, and over 400,000 dependents and survivors accessed care through the CHAMPVA program. The VA must do everything in its power to provide critical reproductive care to veterans and their dependents across the country.
We call on you to take swift and decisive action to ensure all of our veterans and CHAMPVA beneficiaries can access abortions and all abortion-related services.
However, Senator James Lankford (R-OK) sent his own letter in August to McDonough raising legal concerns about what the VA is doing regarding offering abortion services to veterans and beneficiaries. In the letter, Lankford writes:
…this step forward in the regulatory process raises significant concern due to statements made by you and other officials within the VA asserting that the agency is seeking to provide abortion services to veterans and their families, despite it being prohibited under federal law.
When recently asked whether the VA will provide abortions in states where it’s illegal you stated that “there are 300,000 women veterans of child bearing age who rely on us for their reproductive healthcare. We’re going to make sure that they have access to the full slate of that care (emphasis added) because that’s what we owe them… My preference is that they not face risk to their lives as a result of this decision from the Court. We are going to make sure we are in a position to take care of them.”
Current federal law and regulation, however, contradicts these statements and prohibits the VA from providing abortion services. Section 106 of the Veterans Health Care Act of 1992 directs the VA to provide women with “general reproductive health care … not including … abortions.”
He then adds:
Only Congress can change federal law, and Congress has held for the past 30 years that the VA is not permitted to offer abortion services. While activists and even my colleagues in Congress—including some who have written to you to encourage you to promote abortions in states where unborn children’s lives are protected, such as Oklahoma—may desire for you to use your authority to usurp Congress to allow the VA to provide, or even pay for abortions through rulemaking, that would be a direct violation of the laws you swore to uphold and follow. Additionally, such action would further erode the integrity of the rulemaking process.
Given the complexity, sensitivity and highly politicized nature of the issue, it is likely to be challenged going forward and may be something that is ultimately sorted out by the courts.
Full copies of both letters are included below for reference.
Senate Democrats’ Letter to VA Secretary Denis McDonough
July 28, 2022
Dear Secretary McDonough,
Last month’s disastrous Supreme Court decision in Dobbs v. Jackson Women’s Health Organization overturned the nearly fifty-year precedent established by Roe v. Wade and removed constitutional protection for abortion access from millions of individuals in this country, including an ever-growing number of veterans and dependents who are able to become pregnant. This decision makes it even more critical that veterans receive access to the reproductive care to which they are entitled. Thus, the Department of Veterans Affairs (VA) must urgently begin rulemaking to allow veterans and eligible dependents to receive abortions and all abortion-related services.
Current regulations of the VA prohibit the Veterans Health Administration (VHA) from providing abortions and abortion counseling as part of the medical benefits package. Additionally, CHAMPVA, the VA’s insurance program for certain dependents and survivors of veterans, does not cover abortion services, unless the life of the mother is endangered.
We contend that the VA has the statutory authority and discretion to provide abortions and abortion-related services and resources. The VA’s authority to provide care to veterans is established in the Veterans Health Care Eligibility Reform Act of 1996. That statute provides that the VA Secretary “shall furnish hospital care and medical services which the Secretary determines to be needed” to certain veterans. Importantly, the VA has used its authority under the Veterans Health Care Eligibility Reform Act of 1996 to provide reproductive care such as pregnancy care and infertility services, even though such care was initially excluded from the health care packages allowed under the Veterans Health Care Act of 1992.
Moreover, we agree with your testimony to the House Veterans’ Affairs Committee stating that the VA has the power to offer abortion services and abortion counseling “as a regulatory matter.” As you explained last week, “[i]t is a long-held view of the VA general counsel that [the Department is] not statutorily prohibited from providing abortion counseling or abortion services.”
Finally, the VA has the authority to “provide medical care” to the dependents and survivors of veterans through CHAMPVA “in the same or similar manner” to dependents and survivors of service members.
In FY 2020, approximately 550,000 women veterans used VA health care, and over 400,000 dependents and survivors accessed care through the CHAMPVA program. The VA must do everything in its power to provide critical reproductive care to veterans and their dependents across the country.
We call on you to take swift and decisive action to ensure all of our veterans and CHAMPVA beneficiaries can access abortions and all abortion-related services.
Sincerely,
Senators Dianne Feinstein (D-CA), Mazie Hirono (D-HI), Elizabeth Warren (D-MA), Tammy Baldwin (D-Wis.), Michael Bennet (D-Colo.), Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), Catherine Cortez Masto (D-Nev.), Tammy Duckworth (D-Ill.), Richard Durbin (D-Ill.), Kirsten Gillibrand (D-N.Y.), John Hickenlooper (D-Colo.), Angus King (I-Maine), Amy Klobuchar (D-Minn.), Edward J. Markey (D-Mass.), Patty Murray (D-Wash.), Alex Padilla (D-Calif.), Jack Reed (D-R.I.), Jacky Rosen (D-Nev.), Bernie Sanders (I-Vt.), Tina Smith (D-Minn.), Chris Van Hollen (D-Md.), Raphael Warnock (D-Ga.), Sheldon Whitehouse (D-R.I.) and Ron Wyden (D-Ore.)
Senator James Lankford’s Letter to VA Secretary Denis McDonough
August 26, 2002
Secretary McDonough,
As you are aware, on August 4, the Department of Veterans Affairs (VA) submitted an Interim Final Rule (IFR) to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) pertaining to “Reproductive Health Services.”
While the contents of the proposed IFR are not yet publicly available, this step forward in the regulatory process raises significant concern due to statements made by you and other officials within the VA asserting that the agency is seeking to provide abortion services to veterans and their families, despite it being prohibited under federal law.
When recently asked whether the VA will provide abortions in states where it’s illegal you stated that “there are 300,000 women veterans of child bearing age who rely on us for their reproductive healthcare. We’re going to make sure that they have access to the full slate of that care (emphasis added) because that’s what we owe them… My preference is that they not face risk to their lives as a result of this decision from the Court. We are going to make sure we are in a position to take care of them.”
Current federal law and regulation, however, contradicts these statements and prohibits the VA from providing abortion services. Section 106 of the Veterans Health Care Act of 1992 directs the VA to provide women with “general reproductive health care … not including … abortions.”
Despite constant attempts by President Biden and his Administration to promote and pay for abortions, I strongly urge you and all VA officials to ensure that any regulatory actions proposed or issued by your agency are consistent with laws enacted by Congress, including Section 106 of the Veterans Health Care Act of 1992.
Only Congress can change federal law, and Congress has held for the past 30 years that the VA is not permitted to offer abortion services. While activists and even my colleagues in Congress—including some who have written to you to encourage you to promote abortions in states where unborn children’s lives are protected, such as Oklahoma—may desire for you to use your authority to usurp Congress to allow the VA to provide, or even pay for abortions through rulemaking, that would be a direct violation of the laws you swore to uphold and follow. Additionally, such action would further erode the integrity of the rulemaking process.
Abortion is not and will never be healthcare. Healthcare protects life. Abortion takes life. Instead of promoting the taking of human life, I would challenge you, and others within the VA, to respect the dignity of our veterans and all of their family members, including unborn children, by ensuring services provided and funded by the VA are focused on true healthcare consistent with federal law.
In God We Trust,
Senator James Lankford (R-OK)
