The Department of Veterans Affairs (VA) officially codified its policy of providing abortions for specific cases on Monday, including in states that ban the procedure.
The Biden administration’s VA has been providing veterans abortions under a temporary rule since September 2022 after the Supreme Court overturned Roe v. Wade that June, giving states the right to legislate independent abortion policies. Republicans fought unsuccessfully to overturn the rule that was published Monday without any changes, according to a posting in the federal register.
State abortion bans and restrictions “would have an immediate detrimental impact on the lives and health of veterans” and select beneficiaries “who are unable to receive the care that was available in the community before the Dobbs decision, especially as State laws prompted providers to cease offering abortion services altogether,” the VA wrote in the notice. (RELATED: Former Biden Pentagon Personnel Chief Says Abortion Policy Was Meant To Get Around Supreme Court ‘Error’)
Veterans and their covered dependents will be able to seek abortions in cases of rape, incest or where the life of the mother is at risk under the rule. It also allows VA counselors to provide abortion services to patients.
VA Secretary Denis McDonough announced the interim rule in 2022 to allow the VA to provide abortions in specific cases while the final policy underwent the drawn-out official rulemaking process, including giving the public opportunity to comment.
Many commenters argued that the VA does not have legal authority to implement the rule, “most of which provided few details to explain their assertions,” the VA wrote in the final rule.
Some said the rule violates longstanding VA policy against providing abortions, saying the VA doesn’t have the authority to remove the ban on abortion counseling and create exceptions for abortions, according to an explanation in the notice. Others asserted the VA failed to demonstrate a good enough reason to implement the rule.
The VA countered that its broad mandate is to provide specified veterans with “hospital care and medical services which the Secretary determines to be needed.”
McDonough determined abortions are a necessary service. Delaying the rule, including by not implementing it on an interim basis, would have left an estimated 53% of veterans of reproductive age potentially living in states that would partially or completely restrict abortions, the rule stated.
51-48: The Senate votes DOWN a GOP measure to overturn the Veterans Affairs Dept.’s policy of providing abortions in cases of rape or health/life of the woman.
Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) voted with Dems. Sen. Joe Manchin (D-WV) voted with Republicans. pic.twitter.com/o4OpBedOHi
— The Recount (@therecount) April 19, 2023
Other commenters said the rule violates state laws; the VA countered that the states should not be able to interfere with federal operations.
The VA’s lawyers determined that “states may not restrict VA and its employees acting within the scope of their federal authority from providing abortion services as authorized by federal law, including VA’s rule,” based on the Constitution’s supremacy clause.
In April, the Senate voted down 48 to 51 legislation introduced by Republican Senator Thomas Tuberville of Alabama that would have overturned the VA abortion policy. Similar efforts to block the policy through VA spending bills also failed.
The VA performed 88 abortions under the first year of the temporary policy, according to a letter obtained by Military.com.
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