VA to Offer Abortions in Limited Cases

The Veterans Affairs Department will soon begin offering abortion services in cases of rape, incest, or when the mother’s life is at risk, the agency announced on Friday, citing abortion restrictions going into place in states across the country to justify the change. 

Abortion opponents have disputed VA’s legal authority to provide abortions, but the Biden administration has maintained it would simply have to engage in a rulemaking process to reverse its current policy. Under the update, the department’s health care providers will offer abortion counseling and limited access to abortions for veterans and beneficiaries who qualify for care from its network. VA will early next week issue an interim rule to formally announce the policy, which will allow the department to immediately start providing the services. 

In June, the Supreme Court overturned Roe v. Wade, sparking a dozen states to fully ban abortions and several more to institute severe restrictions on the procedure. VA Secretary Denis McDonough quickly said he was “closely watching” the fallout from the decision to determine if the determine should respond to a “diminution in access to services.” VA will say in the forthcoming rule that new state laws are “creating urgent risks to the lives and health of pregnant veterans” and veterans’ beneficiaries. 

“In response, VA is acting to help to ensure that, irrespective of what laws or policies states may impose, veterans who receive the care set forth in the medical benefits package will be able to obtain abortions, if determined needed by a health care professional, when the life or the health of the pregnant veteran would be endangered if the pregnancy were carried to term or the pregnancy is the result of an act of rape or incest,” the department said. 

VA expressed confidence on Friday that its employees would be shielded from any legal repercussions for carrying out their duties. Attorney General Merrick Garland previously said the government would protect federal employees who provide reproductive health services as state law cannot prevent them from doing their jobs. 

“This is a patient safety decision,” McDonough said. “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.”

McDonough has said VA has not provided any abortions since at least 1989, but noted VA provides care to 300,000 child-bearing age female veterans. Some Republican lawmakers have noted the the 1992 Veterans Health Care Act appears to mostly ban abortions at VA. The law says VA may provide to women "general reproductive health care, including the management of menopause, but not including under this section infertility services, abortions, or pregnancy care" except in cases relating to pregnancy complications. Another statutory provision known as the Hyde Amendment has for decades prevented any federal funds from going toward abortions, though it allows for exceptions in cases of rape, incest and when the mother’s life is at risk. 

The department said the 1992 law prevented abortion services at VA only within the context of that statute, but did not limit its authorities “under any other statutory provision.” It added a 1996 update to that law has also provided it more leeway. 

“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,” said Shereef Elnahal, VA’s undersecretary for health. “Offering this care will save veterans’ health and lives, and there is nothing more important than that.”

VA doctors will make determinations of when expectant mothers’ lives are in danger on a case-by-case basis in consultation with their patients. Individuals who self-report their pregnancy is the result of rape or incest will qualify for abortion services. VA health care providers will offering counseling for abortions for both abortions the department can and cannot offer.