Soon pregnant veterans and CHAMPVA beneficiaries may be able to obtain an abortion at VA facilities and have them paid for as part of their medical benefits package.

According to the VA, when a recently submitted Interim Final Rule (IFR) is published, VA will be able to offer abortion counseling, and in certain cases, abortions to pregnant Veterans.

The VA indicates the move is in response to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which overruled Roe v. Wade (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). The VA holds that because certain states have begun to enforce existing abortion bans and restrictions on care, and are proposing and enacting new ones, this creates urgent risks to the lives and health of pregnant veterans and CHAMPVA beneficiaries in these states.

According the the VA, it is acting to help to ensure that, irrespective of what laws or policies states may impose, veterans who receive the care set forth in their 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 VA’s legal rationale seems to be centered around what care is “needed” and their authority to provide it. The language in the IFR supporting the decision includes quite a bit of reasoning, from their perspective, as to why abortions qualify as needed care and the legal basis for it. As was often the case throughout the country due to the Roe and Casey precedent, what constitutes “the health of the pregnant veteran would be endangered” is left deliberately vague and subjectively determined, leaving the door open for almost limitless abortions.

What is a threat to the health of the mother? It can include mental health and also stretches to include less-than-immediate health threats as well, according to the VA’s IFR, section IIA & section IIB. Per the example provided in the Rule, having Post Traumatic Stress Disorder (PTSD) may qualify for veterans, and given that standing rules require similar care to be offered to CHAMPVA beneficiaries, the argument goes, similar mental conditions and non-immediately threatening health conditions would qualify them for an abortion as well. As has been the case in the past, relying on “generally accepted standards of medical practice” to make such determinations has allowed for easy to rationalize and obtain abortions on a “health of the mother” basis. Nevermind the “health and life of the pre-born human being” are being willfully violated contrary to the same standards, but that is an argument for another time. A large part of the VA’s argument therefore rests on the notion that abortions have been performed based on certain justifications and definitions for quite awhile and since they have not been successfully challenged, they can therefore continue to be performed via similar justification under the VA’s jurisdiction too.

As for rape or incest, according to the VA, “In cases of rape or incest, self-reporting from a Veteran or VA beneficiary will constitute sufficient evidence that an act of rape or incest occurred.”

The IFR has its detractors. Senator James Lankford (R-OK), for example, sent a letter to Secretary of Veterans Affairs Denis McDonough to share his concerns that the IFR may attempt to usurp federal law and provide abortions at VA medical facilities contrary to Section 106 of the Veterans Health Care Act of 1992.

The Veterans Health Care Act of 1992 (Public Law 102-585 102d Congress), Section 106 – Health Care Services for Women, 38 USC 1710 (a) General Authority, states, “In furnishing hospital care and medical services under chapter 17 of title 38, United States Code, the Secretary of Veterans Affairs may provide to women the following health care services:
(1) Papanicolaou tests (pap smears).
(2) Breast examinations and mammography.
(3) General reproductive health care, including the management of menopause, but not including under this section infertility services, abortions, or pregnancy care (including pre-natal and delivery care), except for such care relating to a pregnancy that is complicated or in which the risks of complication are increased by a service-connected condition.”

Given the wording of this Act, we can see why the VA, already having concluded they wanted to provide the abortions, has to take such pains to find legal loopholes, fiddle around with definitions, portray any health condition as a “complication,” and try to connect as much as possible to the veteran’s service. Indeed, even in their IFR the VA states that the Veterans Health Care Act of 1992 was essentially voided by the more broad Veterans’ Health Care Eligibility Reform Act of 1996, however, this Act is primarily concerned with service-connected medical issues. It does grant the Secretary of the VA more authority to treat as “needed,” however it is on a more limited basis. The VA’s argument that this can completely overrule the plain wording of the 1992 Act that describes a clear prohibition on certain (most) abortions is questionable. Also, they argue the 1992 Act prohibits abortion under that Act, but not elsewhere.

As has so often been the case, this VA abortion expansion is another example of the danger of allowing administrative agencies broad authority to create rules that are essentially law. Prudence requires agencies to be able to create rules to administer the law as created by Congress, but when the rules blatantly run contrary to the law, contradict law, or render law impotent, there is an overstepping of authority and a legal challenge is warranted. Would the courts side with the VA on this point? Quite possibly, given their tendency to defer to administrative rulemakers in matters such as this, however sometimes the contradiction with established law and/or the liberty taken by administrative agencies is too great to accept.

Wondering how the VA, part of the Federal Government, can use federal funds to pay for abortions because of the Hyde Amendment? The Hyde Amendment does not generally apply to funding provided outside of the Departments of Labor, Health and Human Services, Education, and related agencies annual appropriations acts. This make the Department of Veterans Affairs healthcare system the perfect venue for pro-abortion bureaucrats to test out expanding federal government-provided abortions right now. Even if the Hyde Amendment applied to the VA, the language of the Hyde Amendment could also be exploited in a similar manner as it is in the VA’s IFR to take liberty with “life of the mother” and “rape and incest” exemptions. The scope of these exemptions and other key definitions appears to be where this specific legal fight, if any, will be found.