WASHINGTON — The VA has expanded its health services to include access to abortion counseling and, in limited cases, abortion to veterans and VA beneficiaries, even when restricted by state laws.
The new policy, which overturns decades of practice at the VA, was published as an interim final rule in the Federal Register this month.
“VA will be able to offer abortion counseling and abortions to pregnant veterans and VA beneficiaries in cases of rape, incest, or when the life or health of the veteran would be endangered if the pregnancy were carried to term—in accordance with generally accepted standards of medical practice,” said VA’s Under Secretary for Health Shereef Elnahal, MD.
Determination of risk to the veteran or beneficiary’s life or health will be made on an individual basis following consultation between VA healthcare providers and the veteran. A veteran or beneficiaries self-report of rape or incest will be considered sufficient evidence of those causes for pregnancy.
The VA already provides a wide range of reproductive health services, including fertility assessments and counseling, genetic testing and counseling, imaging, hormone therapies, infertility treatment, contraception and assisted reproductive technology for veterans with service-connected infertility. The U.S. has 2 million female veterans, and about 550,000 of them receive care through the VA.
“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,” Elnahal added. “Offering this care will save veterans’ health and lives, and there is nothing more important than that.”
While the public has 30 days from publication to comment on the interim rule, the VA is committed to acting immediately to provide the new services “in as many locations as possible,” the agency said. The services will also be available to beneficiaries enrolled in the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) for spouses and children of veterans with disabilities and dependents of veterans who have died.
“This is a patient safety decision,” said VA Secretary Denis McDonough. “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.”
The VA noted that research demonstrates that restrictions on access to abortion care increases the risk of loss of future fertility, significant morbidity and death. For veterans, the risks may be further elevated by their higher rates of chronic health issues.
McDonough took the unusual step of authorizing the services immediately after publication of the interim rule rather than waiting the typical 30 days for public comment. “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.”
Policy Mirrors DoD
The interim rule puts the VA in line with services provided by the DoD. “Service members can receive the same reproductive health care after Dobbs as they did before the ruling,” said DoD Undersecretary for Personnel and Readiness Gil Cisneros in testimony before a House Armed Services Committee in July. “Consistent with long-existing federal law, ‘covered abortions’—those cases that involve rape, incest or where the life of the mother would be endangered—will continue to be authorized to use federal funds and facilities. There is no interruption to this care.”
The DoD will be expanding access to contraception, which has previously been provided by just 18 military treatment facilities (MTFs). “We have expanded where we have military treatment contraceptive clinics — walk-in clinics,” said DoD Acting Secretary for Health Affairs Seileen Mullen in the hearing. “A woman or man could come up, get counseling, and decide what contraceptives they need that day.” The plan now is to provide contraception services at all MTFs.
In addition, the co-pay previously required for placement of intrauterine devices is being eliminated to increase access to this long-term, effective form of birth control. Other forms of contraception were already free within MTFs and DoD pharmacies for active duty service members.
Both the VA and DoD are able to offer abortion counseling and services even in states where such access is restricted or prohibited for federal employees covered under federal laws. In a less contentious example, federal advanced practice nurses and pharmacists often have much broader scope of practice than their colleagues who work for state governments and private enterprises.
“VA is taking steps to guarantee veterans and other VA beneficiaries abortion-related care anywhere in the country,” the VA said. “VA employees, when working within the scope of their federal employment, may provide authorized services regardless of state restrictions.”
The interim rule was more explicit: “This rule making 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.”
Both the VA and DoD policies seem likely to be challenged in court and debated in Congress. Prior to the issuance of the interim rule, 25 Senate Democrats sent a letter to McDonough urging him to allow the VA to provide abortion services. They argued that access could be provided under that Veterans Health Care Eligibility Reform Act of 1996 which allowed the department to “furnish hospital care and medical services which the Secretary determines to be needed.” Notably, that law was used to expand VA health services to include pregnancy care and infertility services, despite their exclusion under the Veterans Health Care Act of 1992.
In August, U.S. Sen. James Lankford, R-OK, wrote to McDonough expressing the opposite view: “Current federal law and regulation … 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.’”
