Department of Veterans Affairs Rule Doubles Down on Abortion

On March 4, 2024, the Department of Veterans Affairs (VA) finalized “without changes” an interim final rule (IFR) entitled “Reproductive Health Services.” (You can read my summary of the IFR here.)

The IFR, issued on September 9, 2022, claimed “good cause” to immediately amend VA regulations to remove the longstanding abortion and abortion counseling exclusions from medical benefits packages for veterans and Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) beneficiaries.

Specifically, the VA amended 38 CFR 17.38(c)(1) and 38 CFR 17.272(a)(64) to clarify that medical benefits do not exclude abortion counseling or abortion when:

(i) The life or the health of the pregnant [veteran or beneficiary, respectively,] would be endangered if the pregnancy were carried to term; or

(ii) The pregnancy is the result of an act of rape or incest. Self-reporting from the pregnant [veteran or beneficiary, respectively,] constitutes sufficient evidence that an act of rape or incest occurred.

Whether an abortion satisfies these exceptions will be determined “by healthcare professionals on a case-by-case basis and be consistent with established standards of care.”

The VA promised that to the extent it can directly furnish and pay for such abortions, including travel, for a “pregnant individual”—a term used 41 times in the 24-page rule—“it will do so.” Since the IFR was published, the VA “has made efforts to ensure it has adequate capacity to provide abortion[s]” and abortion counseling at VA facilities, and that VA providers are able to provide abortions, including abortion drugs.

Response to Comments

Even though the Department issued the IFR less than three months after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and the “vast majority of the comments were a type of duplicated form response,” it took the Department almost a year and a half to finalize the rule.

According to the final rule, the VA received 57,901 comments on the IFR during the 30-day comment period. Strangely, lists 63,689 comments received, with 57,902 comments publicly posted. No explanation is provided for this discrepancy.

In its final rule, the VA addressed the following fifteen categories of comments:

  1. Comments That Asserted VA Does Not Have Authority To Promulgate or Implement the IFR
  2. Comments That Raised Concerns With VA’s Good Cause Analysis To Issue an IFR
  3. Comments Asserting That the IFR Is Too Broad
  4. Comments Related to the Exception for Abortion if the Life of the Pregnant Individual Would Be Endangered
  5. Comments Related to the Exception for Abortion if the Health of the Pregnant Individual Would Be Endangered
  6. Comments Related to the Exception for Abortions in Cases of Rape or Incest
  7. Availability of the Health Care Services Permitted Under the IFR to Non-Veterans and Non-CHAMPVA Beneficiaries
  8. Comments That Stated Abortion Was Not Health Care or Is Otherwise Harmful
  9. Comments Related to Employee Rights and Protections and Rights of the Public
  10. Comments Specifically Concerning Abortion Counseling
  11. Comments Specific to CHAMPVA
  12. Comments Related to Fatal Fetal Anomalies
  13. Comments Related to VA Mission and Funding
  14. Comments That VA Should Expand Access to Abortion
  15. Comments Outside the Scope of the IFR

For each category, the VA explained that it “does not make changes to the rule based on these comments.”

Good Cause

The VA claimed it had “good cause” to issue the IFR because, after Dobbs, “veterans living in States that ban or restrict abortions may no longer be able to receive [abortions] in their communities as a result of State restrictions.” The VA claimed that there were “urgent risks to the lives and health of pregnant veterans and CHAMPVA beneficiaries in those states” and that abortion access is “essential for the lives and health of our veterans.” “Allowing even one preventable death of a veteran or CHAMPVA beneficiary by limiting access to abortions is unacceptable.”

Multiple commenters pointed out that the VA’s good cause justification was overstated because the IFR merely speculated that abortion “may” be necessary, and no state abortion law prohibits abortion if necessary to save a mother’s life. Nevertheless, the VA doubled down, claiming “[e]ven one State presents enough risk to the lives and health of veterans and CHAMPVA beneficiaries to support VA’s good cause justification in the IFR.”

Commenters also pointed out that the VA failed to cite a single case of a woman facing such “urgent risks” who was unable to obtain an abortion and urged the VA to “conduct a more thorough analysis to more specifically identify those individuals.” The VA summarily stated, “[t]hose commenters are incorrect,” pointing to existing and proposed state abortion laws generally. In the final rule, the VA again failed to cite any specific case, even though the VA has been providing abortions under the IFR for nearly a year and a half.

According to the final rule, any assertions that the VA lacked good cause to issue an IFR are “overtaken” since the VA requested public comment on the IFR and issued a final rule.

Legal Authority

The heart of the VA’s argument is that the VA has federal statutory authority to provide medical services that the VA determines are “needed” for veterans under 38 U.S.C. § 1710 and “medically necessary and appropriate” for CHAMPVA beneficiaries under 38 U.S.C. § 1781. The VA doubled down on its position that abortion is “needed” and “medically necessary and appropriate.”

Perhaps the strongest argument against the VA’s purported statutory authority to provide abortions is that it is prohibited under Section 106 of the Veterans Health Care Act of 1992, which provides:

 In furnishing hospital care and medical services under chapter 17 of title 38, United States Code, the Secretary of Veterans Affairs may provide to women the following health care services:

. . .

(3) General reproductive health care, including the management of menopause, but not including under this section infertility services, abortions, or pregnancy care (including prenatal and delivery care), except for such care relating to a pregnancy that is complicated or in which the risks of complication are increased by a service-connected condition. . . .

The VA dismissed this limitation, claiming that the Veterans’ Health Care Eligibility Reform Act of 1996, which does not mention Section 106 or abortion, “effectively overtook” Section 106 “by establishing a new standard to focus on medical necessity as ‘the sole criterion of eligibility for VA hospital care and medical services.’”

“Effectively overtook” is a legal standard the Supreme Court has never endorsed, yet the Department of Justice’s Office of Legal Counsel (OLC) issued a post-IFR opinion agreeing with the VA’s novel legal standard.

The VA argues in the alternative that even if Section 106 is still in effect, the phrase “under this section” limits the abortion exclusion to health care service provided under Section 106, notwithstanding its prefatory language: “In furnishing hospital care and medical services under chapter 17 of title 38, United States Code.”

Arguments raised by commenters that other laws, such as the Assimilative Crimes Act and the Comstock Act, limit the VA’s authority to provide abortion were likewise dismissed by the VA. In support, the VA points to OLC’s conclusions issued in two post-Dobbs opinions (here and here). My Ethics and Public Policy Center colleague Ed Whelan has argued that OLC’s opinion on the Comstock Act is “poorly supported and unsound.”

The VA also dismissed concerns under the major questions doctrine, arguing that Congress directed the VA to provide medical services that it determines to be “needed,” and the VA determined abortion is needed. As such, “[t]he IFR is thus a traditional exercise of VA’s established authority to determine what medical services are ‘needed.’”

Scope of Abortion

The final rule reiterated that the VA “does not permit the provision and coverage of abortions in all circumstances.” But as many commenters pointed out, allowing abortions for undefined “health” reasons can functionally permit abortion on demand. Despite commenter requests for more clarity, the VA refused to define “abortion” and “health.” The VA did explain that “both physical and mental health are included in the meaning of the term ‘health’” and that, under 38 CFR 17.38(b), “VA health care professionals consider a veteran’s health in terms of the veteran’s ‘whole health.’”

Despite allowing abortion for broad and undefined “health” reasons, the VA claims that allowing abortions for life, rape, incest, and health is “similar” to the abortions provided by the Department of Defense (DOD) under TRICARE for life, rape, and incest, but not for health. (The VA is required to provide the “same or similar” benefits to CHAMPVA beneficiaries as the DOD provides under TRICARE.) As my colleague Natalie Dodson and I pointed out in our comment, allowing abortions for health reasons is “fundamentally different in kind”; to say otherwise would suggest that Idaho’s abortion law is similar to abortion laws in Maryland and Delaware.

Commenters raised concerns about the limits on what type of abortions the VA would provide. But the VA declined to prohibit any abortion method or impose a gestational age limit, contemplating that the VA could provide abortion well past viability up until birth. The VA, however, also declined to amend its regulations to provide benefits for abortion in the case of “fatal fetal anomalies,” indicating that, in the VA’s view, abortion for that reason by itself is not “needed” or “medically necessary and appropriate.”

Preemption of State Laws

The purported need addressed by the rulemaking is to ensure that veterans and CHAMPVA beneficiaries “can obtain abortion counseling and also obtain abortions, irrespective of what laws or policies States and localities may impose.”

Citing the Supremacy Clause, the VA claimed that state and local laws, rules, regulations, or requirements, “to the extent those laws unduly interfere with Federal operations and the performance of Federal duties” are “without any force or effect” and are “preempted.” Specifically, states may not restrict the VA and its employees “acting within the scope of their VA authority and employment” from providing abortion under the rule. The VA will determine whether a state abortion law “unduly interferes on a case-by-case basis.”

The VA explicitly contemplated that its rule could also preempt state health and safety regulations. Even if a state permits abortion similar to the VA, the VA said it may not comply with “additional restrictions” not adopted by the VA, “such as timeframe limitations, evidentiary requirements, or prerequisite procedures (such as mandatory waiting periods or required ultrasounds).”

In the rule, the VA claimed it can provide abortions on federal or state land, including at a VA facility at a state school, and that it can train medical students and residents to provide abortions under an affiliation agreement between an educational institution and a VA facility.

Conscience and Religious Freedom Rights

In the final rule, the VA stated that it adheres to all applicable federal laws relating to conscience and religious freedom protections for employees who object to abortion. The VA pointed to its reasonable accommodation policy “where employees may request to be excused from providing, participating in, or facilitating” abortion. Notably, this policy was issued on January 6, 2023, only after a VA nurse sued the VA to obtain an accommodation from the IFR’s requirements.

Regulatory Impact Analysis

The rule is a “significant regulatory action” requiring a regulatory impact analysis (RIA), which the VA provided in a separate seven-page document.

According to the RIA, “The non-financial benefits to veterans and CHAMPVA beneficiaries will be significant.” These benefits include access to abortion, which the VA determined was “needed” and “medically necessary and appropriate.” Providing abortion will “also promote clarity and parity across federal agencies by making VA’s policies more consistent with those of other federal providers that currently provide access to certain abortion services.”

The VA anticipates paying for or providing all abortions for veterans and CHAMPVA beneficiaries covered under the rule. The RIA estimates over 1,000 cases per year and anticipates that the cost for abortion and abortion counseling (including travel) will be $1.8 million in fiscal year 2023 and $9.5 million over five years. The RIA also estimates that “special mode travel” costs for a single veteran will be $50,000 on average.

Even though the number of abortions the VA provided the first year after the IFR was “significantly lower than the original estimate,” the VA did not specify the specific number of abortions and abortion counseling services it provided, or the actual costs for such services.

Despite commenters asking the VA to consider the harms to the unborn children that will die as a result of the rule, the final rule and the RIA failed to acknowledge the existence of, much less the harms to, those children.

Rachel Morrison


Ethics and Public Policy Center

Race & Sex

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the author(s). To join the debate, please email us at [email protected].

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