The 19th Explains: How pregnant veterans may access abortions despite state restrictions

For the first time in its history, the Department of Veterans Affairs will offer abortion services to veterans and their beneficiaries in cases of rape, incest and when the life of the pregnant person is endangered — even in states where the procedure is banned. The department said in a policy document rolled out on Monday that its action came in response to waves of bans and restrictions, which created “urgent risks to the lives and risks of pregnant veterans.” 

Before the announcement, the department had been prohibited from providing any abortion counseling or services. 

“This is a patient safety decision,” Denis McDonough, the secretary of Veterans Affairs (VA), said in a statement. “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.”

The department submitted an interim final ruling to the Federal Register on Friday, where it will be available for public comment for 30 days. Services will be authorized “provided in as many locations as possible” immediately after the final rule is published. 

But even so, there are limits to who can receive abortion services, and the move is already facing objections from some lawmakers. The 19th examines how this move is one of several recent efforts by the federal government to keep abortion access available, albeit under narrow circumstances. 

Who does this decision affect?

The department said it was taking action to “avert imminent and future harm.” More than two million women veterans, nearly half of which are considered of reproductive age, live in the United States, and they are the fastest-growing veteran group. In 2000, only 4 percent of the veteran population were women, but that number is projected to jump to 18 percent by 2040, according to 2020 department data. Of women who use the Veterans Health Administration, the country’s largest health care system, more than 40 percent are women of color. The VA did not start tracking nonbinary and other gender identifiers until December 2021. 

The decision will particularly impact veterans and their dependents in states that have enacted or are about to enact total abortion bans with no exceptions. According to Poynter, there are currently 15 states that fall under this category: Alabama, Arizona, Arkansas, Florida, Kentucky, Louisiana, Michigan, Missouri, Ohio, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin. 

Democratic Sen. Patty Murray of Washington, who has been pushing the Biden administration to protect abortion access, said she was grateful for the announcement. 

“This action by the Biden administration will make a real difference to veterans and their families,” Murray, a senior member of the Veterans’ Affairs Committee, said in a statement. “It’s a common-sense policy that will quite literally save lives. But we cannot stop here: I’ll keep fighting for abortion rights until everyone has full control over their own bodies, lives and futures.” 

At a news conference on Wednesday, Democratic Sen. Tammy Duckworth of Illinois said that military women and veterans are often applauded for the decisions they made to use their bodies to protect and defend the American people, and they shouldn’t have to give up their bodily autonomy after they return home from serving. Duckworth, an Iraq War veteran and Purple Heart recipient, said she was proud of the VA’s decision. 

“The question that I have is: When is it that American women have the right to bodily autonomy?” Duckworth said. “Apparently, I had the right to decide to use my body to fight wars in this country. It was okay for me to decide to use my body to fly a helicopter into combat, where it was also okay for me to lose my legs, parts of my body, in defense of this great nation. … Female veterans should not be limited by what part of the country they happen to be living in. They should have full control over their bodies — the way they did when they were carrying rucksacks and M4s.”

How does the policy apply in states with strict abortion laws?

The Department of Justice has long held that states cannot impose criminal or civil liability on federal employees who perform their duties in a manner authorized by federal law, and the VA’s new rule takes that approach with the abortion access that it is allowed to provide. The Biden administration has, through various cabinet-level departments, tried to preserve abortion as an emergency medical treatment, sued to delay the implementation of abortion bans and offered legal protection to people seeking abortions across state lines. 

The Department of Defense, bound by the funding restrictions of the Hyde Amendment, can cover abortions only for people whose pregnancies were the result of rape or incest or endanger the life of the pregnant person. Shortly after Roe fell, Gilbert Cisneros, Jr., the undersecretary of the Defense Department, told Pentagon leadership in a memo that there would be no interruption to covered abortion care for service members, their dependents and civilian department employees.

The VA, while not bound by the Hyde Amendment, has its own restrictions based on the Veterans Health Care Act of 1992. The VA’s policy change appears to fall more in line with the Department of Defense, which covers abortions that are the result of rape or incest or endanger the life of the pregnant person. In cases of rape, the VA said it is not requiring patients to present a police report or other evidence to qualify for care. According the VA, abortions and abortion counseling may now be provided if “an appropriate health care professional determines that such care is needed to promote, preserve or restore the health of the individual.” 

Why didn’t the VA provide abortion access before?

The Veterans Health Care Act of 1992 authorized the VA to provide preventive and general reproductive care, but not “infertility services, abortions or pregnancy care (with an exception).” It did not further explain what an exception might entail. The nonpartisan Congressional Research Service noted, though, that in the years since, the VA has included pregnancy care in its benefits, and that a health plan for veterans’ dependents, CHAMPVA, will cover abortion if it is needed to save the life of the pregnant person. 

Care is excluded from VA medical benefits packages if the secretary of Veterans Affairs determines it is not “needed,” which, up until this point, has included abortions and abortion counseling. The VA’s core medical benefits package was established in 1999, and the department recognized the need to regulate the services it provided — though it did not explain the rationale for excluding abortion services at the time. 

Last year, Secretary McDonough told the House Committee on Veterans’ Affairs that the VA had no plans to pursue public rulemaking to add abortion services to its medical benefits package — though he added it was possible to change that as a regulatory matter. More than 130 House Republicans applauded that assurance in a June 2021 letter and maintained that federal law prohibited the VA from providing abortions, citing the Veterans Health Care Act of 1992. 

After the Supreme Court overturned Roe in June, though — one year after the Republicans sent their letter — a group of Democrats wrote a letter of their own to McDonough to argue that the VA has “statutory authority and discretion” to provide abortions. 

In the letter, more than two dozen Democrats — including Sens. Duckworth, Mazie Hirono of Hawaii, Elizabeth Warren of Massachusetts and Patty Murray of Washington — argued that the VA’s authority to do so was established in the Veterans Health Care Eligibility Reform Act of 1996, which provides that the secretary will “furnish hospital care and medical services” deemed necessary. The statute has historically been used to provide care that was “initially excluded from the health care packages,” the lawmakers argued, including pregnancy care and infertility services. 

What challenges does this policy face?

The VA Secretary, a presidentially-nominated position, has the sole authority to determine what medical services are “needed” and available for veterans and their dependents— making it likely that the decision could be reversed under a Republican administration. 

Republican Rep. Mike Bost, the ranking member of the House Committee on Veterans’ Affairs, spoke out against the VA’s historic announcement. 

“Abortion is wrong, and Congress prohibited VA from providing it decades ago,” Bost said in a statement on Friday. “This proposal is contrary to longstanding, settled law and a complete administrative overreach. I oppose it and am already working to put a stop to it.” 

Steve Marshall, the Republican Attorney General of Alabama, on Wednesday told local media outlets that he would prosecute VA doctors who perform abortions, citing a state law that says doctors who perform illegal abortions face up to 99 years in prison. 

“It is our belief — and the law maintains — that VA must never use taxpayer dollars to provide abortions or abortion counseling to veterans,” Republican members of Congress said in the 2021 letter to McDonough. “To do so would be contrary to the God-given right to life, liberty and the pursuit of happiness that generations of veterans fought to defend.” 
And having a regulation on the books does not guarantee access. Veterans often face a patchwork of eligibility regulations when seeking health care, something acknowledged in the latest draft of the interim final rule. In that document, the VA argued that it maintains the authority to provide abortion services under some statutory provisions even if one statute prohibits the department from providing abortion or infertility services. For instance, the VA currently provides pap smears, breast exams, mammograms, other general reproductive health services and pregnancy or infertility services under one statute while another prohibits the same services.