VA Moves Ahead with Abortion Care as Lawsuits and Republican Opposition Loom

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Demonstrators protest about abortion outside the Supreme Court.
Demonstrators protest about abortion outside the Supreme Court in Washington, June 24, 2022. (AP Photo/Jacquelyn Martin)

The Department of Veterans Affairs on Friday plowed ahead with its plan to offer abortion counseling and services through its hospitals for the first time to veterans, spouses and dependents as abortion is being banned around the country and Republicans are vowing to block the move.

In an interim final rule published in the Federal Register, the department gave official notice that it will offer abortion services to those covered by its health care system in cases of rape, incest and danger to the life or health of the mother. VA Secretary Denis McDonough said abortion-related medical services would protect the lives and health of veterans.

The decision by the VA under the Biden administration comes amid a heated national debate over abortion rights following a landmark Supreme Court decision in June striking down Roe v. Wade. Republican-dominated state governments across the country have quickly moved to ban or curtail abortion rights available since the early 1970s under Roe, and Democrats are scrambling to shore up access to the medical care.

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"Unless VA removes its existing prohibitions on abortion-related care and makes clear that needed abortion-related care is authorized, these veterans will face serious threats to their life and health,” according to the published rule, which was signed by McDonough.

McDonough has said that the department is not prohibited by law from providing abortions, but has not offered the services only because they were not included in the department's medical benefits package published in 1999.

With the rule published, the VA plans to begin developing and implementing the benefit as soon as possible, officials said. This would include surveying its capabilities and training personnel.

"It is critical that this rule be published and be made effective immediately to ensure pregnant veterans and CHAMPVA beneficiaries have access to this important care," officials wrote in the notice.

The Hyde Amendment restricts federal funding for abortions for reasons other than rape, incest and harm to the life of the mother. Included in the funding bill for the Department of Health and Human Services each year, the restrictions apply to Medicare and Medicaid, as well as the Indian Health Service and Children's Health Insurance Program.

However, other federal programs, including Tricare, the Peace Corps and the Federal Employees Health Benefits Program, have instituted similar restrictions.

The VA maintains that it has no similar statutory requirement. According to the interim rule, the VA believes by law that the secretary can decide what care and medical services veterans need, and McDonough has determined that abortions and abortion counseling are within the standards of care.

Republicans have vowed to block the VA's new policy, arguing that the department is barred by law from covering abortions. Republicans cite the Veterans Health Care Act of 1992, which directed the VA to provide reproductive health care except for "infertility services, abortions or pregnancy care" unless that care is needed because of a service-connected condition.

It is unclear exactly what the GOP will do, with a spokesperson for House Veterans Affairs Committee ranking member Rep. Mike Bost, R-Ill., telling Military.com on Wednesday that he and his colleagues were "assessing [their] options – including legislative options – moving forward."

Separately, Alabama Attorney General Steve Marshall suggested this week he would prosecute VA doctors who perform abortions that conflict with state law. Alabama has banned almost all abortions, except for when the mother's life is in danger. The state has no exceptions for rape or incest.

"I have no intention of abdicating my duty to enforce the Unborn Life Protection Act against any practitioner who unlawfully conducts abortions in the state of Alabama," Marshall said in a statement to AL.com. "The power of states to protect unborn life is settled."

At least 14 states have banned or nearly banned abortion since the Supreme Court's decision in June, while another nine have moved to restrict abortion, but have been blocked by courts from enforcing the restrictions amid pending legal challenges.

Senate Veterans Committee Chairman Jon Tester, D-Mont., predicted a lawsuit could be filed against the new VA policy.

"I'm sure it'll be challenged in court, but hopefully it will be unsuccessful because, quite frankly, then what the VA would have to do is say, look, there's a medical procedure we can't use so you'll have to die," Tester told reporters Thursday.

Democrats in Congress back the VA's argument that it has authority to cover abortions under the Veterans Health Care Eligibility Reform Act of 1996, which says the VA secretary "shall furnish hospital care and medical services ... which the secretary determines to be needed."

"Women, not the government, should make their own decisions about their own bodies," Sen. Elizabeth Warren, D-Mass., said at a news conference Wednesday applauding the VA's move and condemning GOP opposition. "Women, not the government, should determine what is best for their families and their future. Abortion is health care, and that makes it a basic human right."

Warren and Sen. Mazie Hirono, D-Hawaii, organized a letter earlier this year signed by 23 other Senate Democrats that pushed McDonough to expand the VA's coverage to include abortions.

Pressed Wednesday whether Democrats are planning any legislation to codify the new VA policy or protect VA doctors in states where abortion is banned, Warren pointed to broader efforts to restore nationwide abortion rights through a bill called the Women's Health Protection Act, efforts that have stalled because of the Senate's 50-50 partisan split.

"If we can get two more Democratic senators here and hold onto the House, then Roe will be the law and this will no longer be a live issue," Warren said, alluding to the upcoming midterm elections. "In the meantime, we're asking that the law as it is written be enforced. In the 1990s, Congress passed two bills that make clear that the Veterans Administration is responsible for the health care of veterans. Abortion is health care."

-- Rebecca Kheel can be reached at Rebecca.Kheel@Military.com. Follow her on Twitter @reporterkheel.

-- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter @patriciakime

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