Department of Veterans Affairs Interim Final Rule on Abortion

Published October 18, 2022

The Federalist Society

Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, the Biden administration has been seeking ways to use the federal government to promote, provide, and pay for abortion. For example, using the Department of Veterans Affairs (VA) to provide taxpayer funded abortions for qualifying veterans and beneficiaries.

The VA’s new regulations

On September 9, 2022, the VA published an interim final rule (IFR) titled “Reproductive Health Services” to immediately amend its regulations to remove the exclusions on abortion and abortion counseling in veterans’ medical benefits packages and for Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) beneficiaries, which include certain spouses, children, survivors, and caregivers of veterans.

IFR’s are not commonly issued because they short-circuit the public notice and comment rulemaking process required by the Administrative Procedure Act (APA). But the APA permits an agency to forgo notice if the agency for “good cause” finds that compliance would be “impracticable, unnecessary, or contrary to the public interest.” Here, the VA found that the normal rulemaking process would be “impracticable and contrary to the public interest.”

The VA explained, “After Dobbs, certain States have begun to enforce existing abortion bans and restrictions on care, and are proposing and enacting new ones, creating urgent risks to the lives and health of pregnant veterans and CHAMPVA beneficiaries in these States.”

Prior to the IFR, VA veterans’ medical benefits regulations excluded abortion, while CHAMPVA regulations excluded abortion, except to preserve the woman’s life. Under the IFR, abortion and abortion counseling are covered medical benefits when the life or health of the woman would be endangered if the pregnancy were carried to term or when the pregnancy was the result of an act of rape or incest.

“Health” is not defined in the IFR but has historically been defined broadly. For example, in Doe v. Bolton (the companion case to Roe v. Wade), the Supreme Court defined health as including “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.” The IFR does not impose any gestational or other limits on access to abortion for the health of the woman, effectively allowing abortion on demand until birth.

Notably, no state prohibits abortion if necessary to preserve a woman’s life, and many allow abortion during early gestation and in the cases of rape or incest. Despite the VA’s claims that absent its rulemaking veterans and CHAMPVA beneficiaries will face “serious threats to their life and health,” the IFR fails to cite a single veteran or CHAMPVA beneficiary who has faced “serious threats” or “urgent risks” in the months since the Dobbs decision, undercutting the purported need and good cause justification for the IFR.

Conspicuously missing from the IFR is any discussion of the unborn child or the irreparable harm of the loss of life for those children as a result of abortion authorized and funded by the VA.

The VA’s legal authority

For veterans’ medical benefits, the VA pointed to the Secretary’s general treatment authority to furnish “needed” hospital care or medical services under 38 U.S.C. § 1710 and determined that abortions and abortion counseling are “needed” services when a health care professional approves such services as (a) “needed to promote, preserve, or restore the health of the individual,” and (b) “in accord with generally accepted standards of medical practice.”

For CHAMPVA, the VA also pointed to its authority under 38 U.S.C. § 1781(a), under which the VA is required to provide “medically necessary and appropriate” care to certain spouses, children, survivors, and caregivers of veterans “in the same or similar manner and subject to the same or similar limitations as medical care” provided by the Department of Defense under its TRICARE (Select) program. TRICARE only allows abortion and abortion counseling in limited circumstances where the life of the woman is in danger and in cases of rape and incest.

Despite these general authorities, Section 106 of the Veterans Health Care Act of 1992 provides an unequivocal and explicit abortion exclusion:

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 . . . abortions . . . 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 stated that Section 106’s abortion exclusion does not apply, claiming it is limited only to services provided under Section 106 because it mentions the phrase “under this section” before the abortion exclusion. But the VA ignored (and omitted from the IFR) the introductory phrase of Section 106, “In furnishing hospital care and medical services under chapter 17 of title 38,” which includes both 38 U.S.C. § 1710 (veterans) and 38 U.S.C. § 1781 (CHAMPVA beneficiaries).

The VA also claimed Section 106 was “effectively overt[aken]” by the Veterans’ Health Care Eligibility Reform Act of 1996 (VHCERA). Strikingly, the VA did not claim that Section 106 was repealed by Congress or that the VHCERA explicitly exempted application of Section 106.

Regarding similar coverage as TRICARE, the VA correctly noted that “similar” does not mean “identical,” but went on to equate abortion for broad and undefined “health” reasons with abortion in the cases of rape or incest. Neither abortion advocates nor those who are pro-life would view abortion access with and without a broad health exception as “similar.” And neither does the Department of Justice (DOJ), which sued Idaho over its abortion law that contains life, rape, and incest exceptions, alleging it violates the Emergency Medical Treatment and Labor Act. DOJ has brought no such lawsuit in Maryland, Delaware, or other states, which contain broad health exceptions for abortion.

Nevertheless, the DOJ Office for Legal Counsel (OLC) issued an opinion rubberstamping the VA’s IFR.

Preemption of state abortion laws

The IFR 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.

DOJ’s OLC opinion likewise concludes: “States may not impose criminal or civil liability on VA employees—including doctors, nurses, and administrative staff—who provide or facilitate abortions or related services in a manner authorized by federal law, including VA’s rule.” This conclusion raises serious legal questions under the Assimilative Crimes Act, which makes abortion a crime on federal property if it is a crime in the state where the property is located, and VA regulations governing its facilities across the U.S., which provide “State or local laws and regulations [are] applicable to the area in which the [VA] property is situated.”

Public response and potential litigation

While the IFR went into effect immediately, the public was permitted to submit written comments to the VA by October 11. The VA received just shy of 63,700 public comments, including comments from VA employees, veterans, Members of Congress, religious groups, and leading pro-life, legal, and policy organizations. The Ethics and Public Policy Center’s press release lists comments from many key groups.

Legal challenges to the IFR are possible, including on the grounds that the IFR exceeds the VA’s statutory authority and there is no “good cause” to issue an IFR and short-circuit the normal rulemaking process. Possible challengers could include states whose abortion laws the VA claims are preempted or VA doctors who will be forced to provide abortion or abortion counseling in violation of their conscience, religious beliefs, or best medical judgment.

Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

Image from Adam Bielawski on Wikimedia via Creative Commons 4.0

Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

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