The Biden administration will begin offering “abortion counseling” and, in some cases, abortions to veterans through Department of Veterans Affairs (VA) hospitals — regardless of state law — in a move aimed at the Supreme Court decision overturning Roe v. Wade, the VA said Friday.
The rule says some state laws are “laws not founded in science or based on evidence,” and asserts that “State and local laws and regulations that would prevent VA health care professionals from providing needed abortion-related care, as permitted by this rule, are preempted.” In a statement, it said, “VA is taking steps to guarantee Veterans and other VA beneficiaries abortion-related care anywhere in the country.”
Since 1999, the VA has been banned from providing abortion or abortion counseling. The interim rule will become effective immediately, even though it has not completed the public-comment process, it said.
“As abortion bans come into force across the country, veterans in many States are no longer assured access to abortion services in their communities, even when those services are needed,” the rule says. “Unless VA removes its existing prohibitions on abortion-related care and makes clear that needed abortion-related care is authorized, these veterans will face serious threats to their life and health.”
The rule spends much of its 40 pages making a complicated legal argument that the Department does not need Congress’s authority to begin offering abortions. It also says the Hyde Amendment, which prohibits federal dollars from funding abortions, only applies to the Departments of Labor, Health and Human Services, and Education.
The rule says that abortion counseling will be provided in all cases, and that abortions will be provided only in certain circumstances, like where the “health” of the mother is jeopardized or the pregnancy is the result of rape.
However, the “rape and incest” terms will be broadly defined and enforced. “We are not requiring a veteran to present particular evidence such as a police report to qualify for this care,” it said.
The same goes for what constitutes impacting a woman’s health. “Individuals at risk of pregnancy complications who do not have access to contraception or abortion may experience conditions resulting from pregnancies that can leave them at risk for loss of future fertility,” the rule says. It also cites other conditions like preeclampsia and cardiac disease. “Assessment of the conditions, injuries, illness, or diseases that will qualify for this care will be made by appropriate health care professionals on a case-by-case basis,” it says.
Part of its justification for why it has the authority to make the change is that providing an exception for when the health of a mother could be impacted is “similar” to providing an exception for when her life is in danger, which is the standard for Department of Defense (DOD) care to active-duty military. It says VA health care must be “similar” to the DOD, which is not the same is “identical.”
The Department will also use federal funds to pay for veterans to get abortions elsewhere. “VA will pay for abortions from providers in the community, where available, in cases where the life or health of the Veteran is endangered if the pregnancy were carried to term, or in the case of pregnancy resulting from an act of rape or incest,” the Department said.
“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. Offering this care will save Veterans’ health and lives, and there is nothing more important than that,” Dr. Shereef Elnahal, VA’s Under Secretary for Health, said in a statement.
According to the rule, “Abortion counseling has three purposes: (1) to aid a pregnant individual in making a decision about an unwanted pregnancy, (2) to help the pregnant individual implement the decision, and (3) to assist the pregnant individual in controlling their future fertility.”