FederalHealthcareStatewide NewsVeteran Affairs Expands Abortion Access to Beneficiaries Even in States With Bans, Restrictions

The rule expands abortion access to circumstances where the life or health of the pregnant beneficiary would be endangered and cases of rape and incest.
September 2, 2022
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On September 2, the Department of Veterans Affairs (VA) announced that it will perform abortions on pregnant veterans and VA beneficiaries, even in states with laws prohibiting the procedure.

Included in those who qualify are women who are enrolled in the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA).

“This is a patient safety decision. 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,” Secretary of Veterans Affairs Denis McDonough said in a statement on the matter.

VA Under Secretary of Health Dr. Shereef Elnahal addressed the rule, saying,  “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.”

The Texan Tumbler

Texas has three laws in effect that ban or restrict abortion. The first law is the so-called “trigger ban” which went into effect after the Dobbs decision. This law makes it a felony to perform or aid in getting an abortion, punishable by five to 99 years in prison, for everyone except the mother herself.  

The second law is the Heartbeat Law, which was passed last year. This law gives Texas citizens the authority to sue those involved with abortions up to $10,000 except the mother. 

The third is the pre-Roe abortion ban which laid dormant after Roe and went back into effect upon the Dobbs decision. This law is punishable by two to five years in prison. 

Texas and all other states with strict abortion statutes allow for abortions if the life of the mother is threatened or over risk of substantial bodily harm. 

However, this rule includes more circumstances where the procedure would be legal for VA beneficiaries and leaves the decision in the hands of the health provider involved.

The final rule submitted to the Federal Register will take effect immediately after the rule is published, which could occur within a week. At that point, VA members will have access to the procedure under certain circumstances.

According to the rule, abortions will be available if “(1) the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term; or (2) the pregnancy is the result of an act of rape or incest.”

“VA has also determined that abortion counseling is needed so that veterans can make informed decisions about their health care,” the document adds.

Regarding the legal foundation, the VA wrote, “VA has determined that such medical care is ‘needed’ within the meaning of VA’s general treatment authority, 38 U.S.C. 1710(a). This means that such care may be provided if an appropriate health care professional determines that such care is needed to promote, preserve, or restore the health of the individual and is in accord with generally accepted standards of medical practice.”

They also cite the Supremacy Clause of the United States Constitution which preempts state laws in conflict with federal statutes.

The rule will affect the nearly two million female veterans and around 500,000 CHAMPVA members.

This is also not the first attempt by a federal agency to override state abortion bans in the post-Dobbs world.

The Department of Defense (DOD) issued a similar proclamation to the VA, writing, “The recent Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization does not prohibit the Defense Department from continuing to provide essential women’s health care services to service members, dependents, other beneficiaries and DOD civilian employees.”

Last week, a federal judge issued an injunction on Health and Human Services (HHS) Guidlines that attempted to expand abortion rights beyond the strict Texas law.

The judge in this case ruled that the HHS’s purported legal foundation, the Emergency Medical Treatment and Labor Act (EMTALA), did not merit the guidance from HHS. 

Paxton accused the federal government of attempting to use “HHS regs to transform every emergency room in the country into a walk-in abortion clinic.”

Democrats seeking local, statewide, and federal office representing Texas have made abortion a centerpiece of their campaigns in the wake of the state’s abortion trigger ban going into effect.

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Hudson Callender

Hudson Callender is a reporter for The Texan and a lifelong resident of San Antonio, Texas. Hudson recently graduated cum laude from Trinity University with majors in Economics and Political Science, and loves to study ancient history. Hudson is also an avid mountaineer, backpacker, and paddler, often leading trips to remote wilderness areas. Outside of his love for nature, history, and Lone Star beer, Hudson spends his weekends arguing with his friends about football, and will always stick up for the Baylor Bears, Dallas Cowboys, and San Antonio Spurs.