VA Staff Providing Abortions May Not Be Protected in Some States, Democratic Lawmakers Warn

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Rep. Julia Brownley (D-Calif.) meets with VA Houston health leaders.
Rep. Julia Brownley (D-Calif.) meets with VA Houston health leaders in August 2022. (Photo courtesy of House Veterans Affairs Committee Twitter page)

The Department of Veterans Affairs should do more to clarify legal protections for employees providing abortion care in states where the procedure is now illegal, House Veterans Affairs Committee Democrats said in a report released Monday.

The 21-page report, written by Democratic committee staff members, also called on Congress to codify the VA's ability to provide abortions, something that is unlikely with Democrats' current narrow majorities and the expectation that Republicans will win control of at least the House in Tuesday's midterm elections.

"More than two million living women veterans have fought for and defended our country's core founding principle: freedom," House Veterans Affairs Committee Chairman Mark Takano, D-Calif., said in a statement released with the report. "It is why they served, and it is why they continue to serve in greater numbers than ever before. There is no doubt women veterans deserve our nation's gratitude and appreciation, but more importantly, they deserve access to the comprehensive health care and benefits they've earned, including reproductive health care."

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The report's release comes a day before the midterm elections in which Democrats have campaigned heavily on abortion rights following the June Supreme Court decision in Dobbs v. Jackson Women's Health Organization that overturned nationwide abortion rights, leading to at least 14 conservative states banning or severely restricting abortion.

While the report does not mention the election, its timing suggests the recommendations for congressional action are an 11th-hour pitch to voters on what Democrats could do if they defy expectations and not only retain, but expand, their majorities.

Following the Supreme Court decision, the VA announced it would begin providing abortions for the first time in cases where the pregnancy is the result of rape or incest, or the life or health of the mother is at risk. The move drew praise from Democrats, but backlash from Republicans who question the VA's legal authority to provide the procedure and have vowed to "sanction" the department over the issue.

While the Justice Department issued a legal analysis in support of the VA policy that stressed federal law supersedes state law so local authorities cannot penalize VA doctors for performing abortions, states that have banned the procedure are vowing to enforce their laws, and concerns have been raised that the threat of prosecution could deter VA clinicians from providing abortions.

Democrats on the House Veterans Affairs Committee announced over the summer they were compiling information on reproductive health care at the VA in the wake of the Supreme Court ruling.

The report released Monday is based on visits to six VA facilities in Texas, Oklahoma, Arizona and Nevada that Takano; health subcommittee Chairwoman Julia Brownley, D-Calif.; and other committee members conducted in August and September, seven listening sessions committee members held with veterans in those states and New Mexico, and a public hearing the committee held in September.

During the site visits, lawmakers found it was unclear whether VA facilities will be able to protect their employees from prosecution or civil penalties in states where abortion has been outlawed, including protecting people from getting arrested on VA grounds.

Whether a VA facility falls exclusively under federal law enforcement jurisdiction depends on the circumstances under which the government first got the property or any subsequent agreement with state officials on jurisdiction, and in facilities where state and federal jurisdiction overlap, "state abortion laws could potentially be enforced," according to the report.

VA police generally have memoranda of understanding with local law enforcement agencies in facilities with overlapping jurisdictions, but the committee was not able to find any existing agreements that cover enforcement of state abortion laws. VA police chiefs told the committee that they would have to allow local law enforcement onto VA property if there's a valid arrest warrant but that, based on past experience, it's unlikely local police would show up unannounced, the report said.

"None of the VA medical facilities the committee visited had exclusive federal law enforcement jurisdiction, and it remains to be seen how this status will come into play in states that have enacted criminal laws or civil penalties related to abortion," the report said. "Because federal supremacy concepts have not yet been tested with regards to VA health care policies, none of the VA medical facilities were aware of the extent to which they could prevent employees from being targeted by local or state authorities seeking to enforce state laws, even if VA employees were involved in providing abortions within the scope of their federal employment."

To help address the uncertainty, the report recommends the VA's general counsel compile a comprehensive inventory of the law enforcement jurisdictional status of each VA medical facility, applicable state abortion laws, and existing memoranda of understanding with state and local enforcement agencies.

Employees at the VA facilities also told committee members that state-specific guidance from department headquarters on how to navigate a post-Dobbs world would be "invaluable," according to the report. As such, the report recommends the VA issue detailed guidance and "clearly communicate with employees -- including those who are indirectly involved in the delivery of abortion services -- about the extent to which they will be shielded from licensure or law enforcement actions."

In the listening sessions, which were held off VA property and without the involvement of VA officials in recruiting participants, lawmakers heard "widespread concerns" from female veterans that they are not being treated appropriately, both for reproductive care and more generally. The women also expressed concern about harassment from other, usually male, veterans in areas of VA facilities that aren't well-patrolled by staff or VA police, according to the report.

Many of the women at the listening sessions asked for more gender-specific treatment options and physical access points at VA medical facilities, the report said.

"The ongoing lack of basic parity between VA health care for men and women veterans is clear," the report said.

While Democrats believe the department already has the legal authority to provide abortions under a 1996 law that said the secretary "shall" provide "needed" medical care to veterans, the report said that passing a law that codifies the VA's new abortion policy would "remove any doubt that the department has the authority to provide abortion care to veterans."

The report also called on Congress to eliminate co-pays for contraception for veterans and expand veterans' eligibility for in vitro fertilization to any veteran who needs infertility care. Eligibility for in vitro fertilization covered by the VA is limited right now to married couples with a service-connected condition that causes infertility who can produce their own sperm and eggs, criteria so narrow the report says only 600 veterans have used the benefit since 2016.

"By expanding and strengthening veterans' access to reproductive health care at VA, we can ensure these veterans are seen, heard, and treated with the respect they have earned and deserve," the report said. "We also send a message to the women veterans, and girls who aspire to serve our country in the future, who are watching and listening that their service to our country is valued."

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

Related: VA Stepping Up Security as It Begins Providing Abortions

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