For the first time in its history, the U.S. Department of Veterans Affairs (VA) is now offering abortions to veterans and their families at VA hospitals, effective immediately.
The VA set aside traditional rulemaking procedures when it issued an interim final rule last week, citing an “immediate detrimental impact on the lives and health” of veterans and their families if they are not permitted to access abortion services from the VA.
Under these new rulemaking procedures, the interim final rule goes into effect right away while the VA accepts comments on this proposed rule change for 30 days. Following the 30-day comment period, the VA Secretary will review comments and announce a final rule that may or may not include changes based on comments submitted.
According to the rule, the VA will provide abortions to veterans and their family members if the mother’s health is at risk, the mother’s life is threatened, and in cases of rape or incest.
The 40-page rule is very clear that this policy change is a reaction to pro-life states moving to restrict abortion in the wake of the reversal of Roe by the U.S. Supreme Court.
Opponents of the rule argue that the action is illegal under current federal law and regulation. According to opponents, Section 106 of the Veterans Health Care Act of 1992 specifically states that the VA is not to provide abortion care to women, and only Congress can rewrite the law.
The VA maintains that Section 106 is not applicable, but even if it is, they have the authority to change or amend this federal law unilaterally.
The VA also contends that under federal law, the VA Secretary ultimately has a blank check to determine what care is “needed” and to provide it.
The rule declares that the VA Secretary “has determined that an abortion is ‘needed’ pursuant to 38 U.S.C. 1710, when sought by a veteran, if determined needed by a health care professional, when the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term or when the pregnancy is the result of an act of rape or incest.” And it contends that this logic is also applicable to families of veterans.
Exceptions for the “health” of the mother are generally used as a loophole that essentially makes abortion legal for almost any reason if it can be linked to the mother’s emotional health in some way.
Not surprisingly, the statutory and regulatory change, as well as strategy, was urged by many abortion-supporting U.S. senators back in July.
The new rule has also raised concerns about federal prohibitions on taxpayer money paying for abortion.
Under federal law, there are restrictions on taxpayer funded abortion. The Hyde Amendment, which is traditionally attached to the Departments of Labor, Health and Human Services, and Education appropriations bill, prohibits the use of federal tax dollars to pay for abortions except to save the life of the mother and in the cases of rape and incest.
The VA argues that this federal restriction on abortion funding does not apply to their department, and therefore they are not prohibited from using taxpayer dollars to pay for abortions.
The rule is expected to be challenged in court for the reasons stated above. And it should be. The actions taken by the VA appear to be an aggressive administrative overreach in an attempt to protect abortion access in states that are moving to preserve and protect life in the womb.
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