[Federal Register Volume 87, Number 174 (Friday, September 9, 2022)]
[Rules and Regulations]
[Pages 55287-55296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19239]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AR57
Reproductive Health Services
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Department of Veterans Affairs (VA) amends its medical
regulations to remove the exclusion on abortion counseling and
establish exceptions to the exclusion on abortions in the medical
benefits package for veterans who receive care set forth in that
package, and to remove the exclusion on abortion counseling and expand
the exceptions to the exclusion on abortions for Civilian Health and
Medical Program of the Department of Veterans Affairs (CHAMPVA)
beneficiaries.
DATES:
Effective date: This interim final rule is September 9, 2022.
Comment date: Comments must be received on or before October 11,
2022.
ADDRESSES: Comments may be submitted through www.regulations.gov.
Except as provided below, comments received before the close of the
comment period will be available at www.regulations.gov for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
the following website as soon as possible after they have been
received: http://www.regulations.gov. VA will not post on
Regulations.gov public comments that make threats to individuals or
institutions or suggest that the individual will take actions to harm
the individual. VA encourages individuals not to submit duplicative
comments. We will post acceptable comments from multiple unique
commenters even if the content is identical or nearly identical to
other comments.
FOR FURTHER INFORMATION CONTACT: Dr. Shereef Elnahal, Under Secretary
for Health, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (202) 461-7671.
SUPPLEMENTARY INFORMATION:
I. Background
A. Brief Summary of this Interim Final Rule
On June 24, 2022, the Supreme Court in Dobbs v. Jackson Women's
Health
[[Page 55288]]
Organization, 142 S. Ct. 2228 (2022), overruled Roe v. Wade, 410 U.S.
113 (1973), and Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833 (1992). Dobbs, 142 S. Ct. at 2279. After Dobbs,
certain States have begun to enforce existing abortion bans and
restrictions on care, and are proposing and enacting new ones, creating
urgent risks to the lives and health of pregnant veterans and CHAMPVA
beneficiaries in these States. In response, VA is acting to help to
ensure that, irrespective of what laws or policies States may impose,
veterans who receive the care set forth in the 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. Similarly, VA is acting to
ensure CHAMPVA beneficiaries will be able to obtain abortions, if
determined medically necessary and appropriate, when the health of the
pregnant CHAMPVA beneficiary would be endangered if the pregnancy were
carried to term or the pregnancy is the result of an act of rape or
incest.
VA is taking this action because it has determined that providing
access to abortion-related medical services is needed to protect the
lives and health of veterans. See section 1710 of title 38, United
States Code (U.S.C.); Sec. 17.38(b) of title 38, Code of Federal
Regulations (CFR). 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. VA
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. 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.
Similarly, VA has determined that providing access to abortion-
related medical services is medically necessary and appropriate to
protect the health of CHAMPVA beneficiaries. See 38 U.S.C. 1781; 38 CFR
17.270(b) (defining ``CHAMPVA-covered services and supplies'' as
``those medical services and supplies that are medically necessary and
appropriate for the treatment of a condition and that are not
specifically excluded under [38 CFR 17.272(a)(1)] through (84)'').
CHAMPVA beneficiaries in many States are also no longer assured access
to abortion services in their communities. Unless VA removes existing
prohibitions on abortion-related care and makes clear that medically
necessary and appropriate abortion-related care is authorized, these
CHAMPVA beneficiaries will face serious threats to their health.
VA is therefore taking this action to avert imminent and future
harm to the veterans and CHAMPVA beneficiaries whose interests Congress
entrusted VA to serve.
B. VA Authority To Provide Abortions and Abortion Counseling Under 38
U.S.C. 1710 (Medical Benefits Package)
Pursuant to VA's general treatment authority for veterans, VA
``shall furnish'' specified veterans with ``hospital care and medical
services which the Secretary determines to be needed.'' 38 U.S.C.
1710(a)(1)-(2). For veterans not described in paragraphs (1) and (2),
the Secretary ``may,'' subject to certain limitations, ``furnish
hospital care'' and ``medical services . . . which the Secretary
determines to be needed.'' 38 U.S.C. 1710(a)(3). As relevant here, such
``medical services'' include ``medical examination, treatment,''
``[s]urgical services,'' and ``[p]reventive health services.'' 38
U.S.C. 1701(6).
VA implements its general treatment authority, and the Secretary
determines what care is ``needed,'' 38 U.S.C. 1710(a)(1)-(3), by
regulation through VA's medical benefits package. 38 CFR 17.38. The
medical benefits package consists of a wide range of basic and
preventive care, including inpatient and outpatient medical and
surgical care, prescription drugs, emergency care (as authorized by
statute and regulation), pregnancy and delivery services (to the extent
authorized by law),\1\ and periodic medical exams. 38 CFR 17.38(a).
Care included in the medical benefits package is ``provided to
individuals only if it is determined by appropriate health care
professionals that the care is needed to promote, preserve, or restore
the health of the individual and is in accord with generally accepted
standards of medical practice.'' 38 CFR 17.38(b).
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\1\ The language ``to the extent authorized by law'' in 38 CFR
17.38 means to the extent VA has legal authority to provide such
services under 38 U.S.C.1710. 64 FR 54210 (Nov. 10, 1999).
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Some care is specifically excluded from the medical benefits
package because the Secretary has determined it is not ``needed''
within the meaning of 38 U.S.C. 1710(a)(1)-(3). 38 CFR 17.38(c); 64 FR
54207, 54210 (Oct. 6, 1999). Among other services, ``[a]bortions and
abortion counseling'' are currently excluded from the medical benefits
package, with no exceptions. 38 CFR 17.38(c)(1).
VA first established the medical benefits package in 1999. 64 FR
54217. The Veterans' Health Care Eligibility Reform Act of 1996, Public
Law 104-262, 10 Stat. 3177, mandated that VA implement a national
enrollment system to manage the delivery of health care services to
eligible veterans. When VA developed regulations to implement this
national enrollment system, VA recognized the need to also regulate the
health care services it provided. 64 FR 54210. VA did not explain the
rationale behind the exclusion of abortions and abortion counseling
from the medical benefits package when it was established in 1999. At
the time, Roe had been reaffirmed in relevant part by Casey, and VA was
aware that veterans of reproductive age enrolled in its health care
system could access abortion services in their communities.
After the Dobbs decision, however, veterans living in States that
ban or restrict abortion services may no longer be able to receive such
medical services in their communities, including in States that now
restrict access to abortion even in cases of rape or incest or where
the health of the pregnant individual is in danger. It is thus
essential for the lives and health of our veterans that abortions be
made available if determined needed by a health care professional when:
(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.
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. 38 CFR 17.38(b)(1)-(3). VA can
therefore provide abortion counseling and covered abortions pursuant to
38 U.S.C. 1710 and 38 CFR 17.38.
The Veterans Health Care Act of 1992, Public Law 102-585, 106 Stat.
4943 (VHCA), does not prohibit VA's amendment of its medical benefits
package in this manner. When that law
[[Page 55289]]
was enacted in 1992, prior to the 1996 enactment of the Veterans'
Health Care Eligibility Reform Act, VA health care was subject to a
patchwork of eligibility criteria, and care was largely linked only to
service-connected conditions. See 38 U.S.C. 1710 (Supp. I 1994)
(authority under which hospital and nursing home care were provided
prior to 1996); 38 U.S.C. 1712 (Supp. I 1994) (authority under which
medical services were provided prior to 1996). The VHCA, in relevant
part, was designed to improve the health care services available to
women veterans.\2\ Section 106(a) of the VHCA stated that VA could
provide ``women'' with ``[p]apanicolaou tests (pap smears),''
``[b]reast examinations and mammography,'' and ``[g]eneral reproductive
health care . . . , but not including under this section infertility
services, abortions, or pregnancy care (including prenatal 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.'' Public Law 102-585, sec. 106(a).\3\
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\2\ 102 Cong. Rec. 32,367 (1992).
\3\ Prior to the enactment of section 106(a), VA provided
gynecology services, including mammograms and screening for cervical
cancer, under the Department's authority to provide preventative
health services pursuant to 38 U.S.C. 1762. General Accounting
Office (GAO)/Human Resources Division (HRD)-92-23 VA Health Care for
Women: Despite Progress, Improvements needed (January 1992) p. 3
(https://www.gao.gov/assets/hrd-92-23.pdf). However, the legislative
history of the VHCA generally, and section 106 specifically,
indicates that Congress sought to provide statutory support for the
services VA already provided pursuant to its existing authority.
Senate Report No. 102-409, p. 40 (1992) (discussing the intent
behind S. 2973, section 201, Well-women care services, ``The
Committee expects that providing explicit authority to furnish
cancer-screening procedures will lead VA to redouble its efforts in
this critical area. The Committee believes that these services are
not only vital to women veterans, but they are also in line with
VA's goal to emphasize preventative health-care services within the
system.''); see also 102 Congressional Record 34,299 (1992) (``The
measure also incorporates the exception to the bar on furnishing
pregnancy care reflected in VA regulations (at 39 CFR 17.48(h)
[sic]) associated with care relating to a complicated pregnancy, as
well as the instance in which the risks of complication are
increased by a service-connected condition.'').
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Section 106 did not limit VA's authority to provide care under any
other provision of law. The ``but not including'' language in section
106 of the VHCA limited only the services provided ``under this
section,'' meaning that while section 106 barred the provision of any
abortion or infertility service under section 106 of the VHCA, it did
not limit VA's authority to provide such services under any other
statutory provision such as 38 U.S.C. 1710 or 38 U.S.C. 1712. Public
Law 102-585, sec. 106(a). Consequently, a veteran might have been
eligible for infertility services for a service-connected disability
under 38 U.S.C. 1712,\4\ even though that veteran would have been
ineligible for infertility services under section 106 because of that
section's exclusions. VA has consistently interpreted section 106 in
this fashion.\5\
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\4\ 102 Congressional Record 34,299 (1992).
\5\ Veterans Health Administration (VHA) Directive 10-93-151,
December 6, 1993; Letter from Secretary Denis McDonough to Senator
Jerry Moran, July 7, 2021.
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In 1996, the Veterans' Health Care Eligibility Reform Act made
major changes to eligibility for VA health care and, as noted above,
directed VA to establish a system of patient enrollment to manage the
provision of care. The purpose behind eligibility reform was to replace
the old system with a system where an enrolled veteran could receive
whatever medical care and services are deemed needed. See House of
Representatives Report No. 104-690, at 4 (1996) (``[The Act] would
substitute a single uniform eligibility standard for the complex array
of standards governing access to VA hospital and outpatient care. While
the new standard is a simple one, more importantly, it employed a
clinically appropriate `need for care' test, thereby ensuring that
medical judgment rather than legal criteria will determine when care
will be provided and the level at which that care will be
furnished.''); id. at 13 (``[The Act] would substitute a single,
streamlined eligibility provision--based on clinical need for care--for
the complex array of disparate rules currently governing veterans'
eligibility for hospital and outpatient care.''). The Veterans' Health
Care Eligibility Reform Act effectively overtook section 106 of the
VHCA.\6\ For example, a veteran in 1992 was only eligible for pregnancy
and delivery care under section 106 if the pregnancy was complicated or
the risks of complication were increased by a service-connected
condition. Public Law 102-585, sec. 106(a). In contrast, general
pregnancy and delivery services were included in the medical benefits
package when it was established in 1999 pursuant to VA's authority in
38 U.S.C. 1710. 64 FR 54210; 38 CFR 17.38(a)(1)(xiii). Moreover, while
section 106 of the VHCA provided that infertility services could not be
provided under that section, infertility services (with the exception
of in vitro fertilization) were also included in the medical benefits
package pursuant to VA's authority under 38 U.S.C. 1710. Id.
Consequently, for decades, VA has offered general pregnancy care and
certain infertility services under 38 U.S.C. 1710. Id. VA no longer
relies on section 106 of the VHCA to provide such services or any other
services.
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\6\ As detailed above, section 106 of the VHCA was intended to
reinforce VA's existing authority to provide preventative health
care services to women veterans. See 38 U.S.C. 1762; 38 CFR
17.30(m)(1); Public Law 102-585, sec. 513. The subsequent 1996
amendments to 38 U.S.C. 1710 and the 1999 rulemaking establishing
the medical benefits package overtook VA's need to rely on section
106 to provide certain women's health care to women veterans.
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Congress has ratified VA's interpretation that section 106 of the
VHCA does not limit the medical care that the VA may provide pursuant
to its authority under 38 U.S.C. 1710. Most recently, when Congress
enacted the Deborah Sampson Act of 2020, Public Law 116-315, tit. V
(2021), it created a central office to, inter alia, ``monitor[ ] and
encourag[e] the activities of the Veterans Health Administration with
respect to the provision, evaluation, and improvement of health care
services provided to women veterans by the Department.'' 38 U.S.C.
7310(b)(1). Congress defined ``health care'' for these purposes as
``the health care and services included in the medical benefits package
provided by the Department as in effect on the day before the date of
the enactment of this Act [Jan. 5, 2021].'' 38 U.S.C. 7310 note.\7\
Given that VA's medical benefits package as of that date included
services that were excluded from the coverage of Section 106 of the
VHCA, Congress ratified VA's interpretation that it may provide for
these services pursuant to its authority under 38 U.S.C. 1710,
notwithstanding section 106. Indeed, the fact that the Deborah Sampson
Act of 2020 did not reference section 106 of the VHCA and only
referenced VA's medical benefits package shows that Congress did not
interpret section 106 of the VHCA as a limitation on VA's authority to
provide care to ``women veterans.'' \8\
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\7\ 38 U.S.C. 7310(b)(6) authorizes the Office of Women's Health
to ``promote the expansion and inclusion of clinical . . .
activities of [VHA].'' Additionally, subsection (b)(9) authorizes
the Office to ``carry out such other duties as the Under Secretary
for Health may require.'' Thus, the Office of Women's Health can
address health care and services that were not included in the
medical benefits package on the day before the date of enactment of
the Deborah Sampson Act of 2020.
\8\ Letter to Denis McDonough from 24 U.S. Senators, July 28,
2022.
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Furthermore, the fact that VA does not rely on section 106 of the
VHCA and instead relies on 38 U.S.C. 1710(a)(1)-(3) to provide pap
smears, breast exams and mammography, or general reproductive health
services, pregnancy or infertility services confirms that
[[Page 55290]]
section 106's prohibition on providing certain services ``under this
section'' simply is no longer operative.
VA's authority under 38 U.S.C. 1710 is different from authorities
governing the provision of health care by other Federal agencies.
Pursuant to the 1996 amendment, by statute, VA ``shall'' (and, for some
categories of veterans, ``may'') furnish care that ``the Secretary
determines to be needed'' to veterans, with no exclusion for abortion.
38 U.S.C. 1710(a)(1)-(3). Other Federal agencies, by contrast, are
subject to underlying statutory restrictions or restrictions in their
appropriations acts concerning certain abortions. For instance, Federal
funds available to the Departments of Labor, Health and Human Services,
and Education are subject to an appropriations restriction known as the
``Hyde Amendment.'' Congress has included the Hyde Amendment in those
agencies' annual appropriations legislation for more than forty years.
In its current form, the Hyde Amendment provides that no covered funds
``shall be expended for any abortion'' or ``for health benefits
coverage that includes coverage of abortion,'' except ``if the
pregnancy is the result of an act of rape or incest; or . . . in the
case where a woman suffers from a physical disorder, physical injury,
or physical illness, including a life-endangering physical condition
caused by or arising from the pregnancy itself, that would, as
certified by a physician, place the woman in danger of death unless an
abortion is performed.'' Consolidated Appropriations Act, 2022, Public
Law 117-103, Div. H, secs. 506-07, 136 Stat. 49. The breadth of the
Hyde Amendment's exception has varied over the years, but since fiscal
year 1994, the Hyde Amendment has included an exception for the life of
the woman and for pregnancies resulting from acts of rape or incest.
See, e.g., Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act, 1994, Public Law
103-112, Sec. 509, 107 Stat. 1082, 1113 (1993). No similar statutory
restriction applies to VA.
C. VA Authority To Provide Abortions and Abortion Counseling for
CHAMPVA Beneficiaries
By statute, VA's ``Secretary is authorized to provide'' specified
``medical care'' to certain spouses, children, survivors, and
caregivers of veterans who meet specific eligibility criteria. 38
U.S.C. 1781(a). This health benefits program is known as CHAMPVA. VA
must provide ``for medical care'' under CHAMPVA ``in the same or
similar manner and subject to the same or similar limitations as
medical care is'' provided by the Department of Defense to active-duty
family members, retired service members and their families, and others
under the TRICARE (Select) program. 38 U.S.C. 1781(b); see 32 CFR
199.1(r), 199.17(a)(6)(ii)(D). VA has regulated services covered by
CHAMPVA to mean those medical services that are medically necessary and
appropriate for the treatment of a condition and that are not
specifically excluded. 38 CFR 17.270(b).
The current CHAMPVA regulations exclude coverage for abortions,
except when a physician certifies that the abortion was performed
because the life of the woman would be endangered if the fetus were
carried to term, 38 CFR 17.272(a)(64), and also exclude coverage for
abortion counseling, 38 CFR 17.272(a)(65). The current CHAMPVA
regulations do not include coverage for abortions when the pregnancy is
the result of an act of rape or incest.
In contrast, TRICARE (Select) provides coverage for abortions when
the pregnancy is the result of an act of rape or incest, or when a
physician certifies that the life of the woman would be endangered if
the fetus were carried to term, and it provides coverage for counseling
for covered abortions.\9\
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\9\ Covered Services, Abortions, TRICARE, http://tricare.mil/CoveredServices/IsItCovered/Abortions (last visited Aug. 22, 2022).
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In this rule, VA amends its CHAMPVA regulations by removing the
exclusion for abortion counseling and permitting abortions when the
health of the pregnant beneficiary would be endangered if the pregnancy
were carried to term, or when the pregnancy is the result of an act of
rape or incest. This amendment will better align coverage under CHAMPVA
with coverage under TRICARE (Select).
Coverage under CHAMPVA will deviate from coverage under TRICARE
(Select) because CHAMPVA will cover abortions when the health of the
CHAMPVA beneficiary is at risk and will cover abortion counseling for
non-covered abortions. VA, however, has determined that, overall, the
relevant care provided under CHAMPVA will still be sufficiently
``similar'' to that provided under TRICARE (Select). 38 U.S.C. 1781(b).
Section 1781(b) does not require CHAMPVA and TRICARE (Select) to be
administered identically. Rather, by referring to care that is
``similar,'' the statute permits VA flexibility to administer the
program for CHAMPVA beneficiaries. For this reason, not every aspect of
CHAMPVA will find a corollary in TRICARE (Select).
VA has previously deviated from TRICARE (Select) in amending its
CHAMPVA regulations to provide care that goes beyond the benefits
offered by TRICARE (Select). Generally, VA determined that these
deviations were necessary to best provide services to the CHAMPVA
population while remaining ``similar'' to TRICARE (Select). For
example, TRICARE (Select) does not include an annual physical exam
benefit for all TRICARE (Select) beneficiaries; instead, that benefit
is limited to certain circumstances.\10\ VA has exercised its
discretion to deviate from TRICARE (Select) and provide annual physical
exams to all CHAMPVA beneficiaries. 38 CFR 17.272(30)(xiii). VA did not
believe that limiting the provision of annual exams was appropriate
from a clinical perspective. 83 FR 2396, 2401 (Jan. 17, 2018). Annual
physical exams are beneficial for both CHAMPVA beneficiaries and VA
because they may identify serious medical issues before they progress.
Id. Additionally, TRICARE (Select) does not waive beneficiary costs
associated with preventive services for TRICARE (Select) beneficiaries
who are Medicare-eligible in cases in which those services are not
covered by Medicare. VA's CHAMPVA regulations, however, do waive cost-
sharing requirements for preventive services for Medicare-eligible
beneficiaries. VA determined that enforcing cost-sharing requirements
for Medicare-eligible beneficiaries for preventive services would
unfairly disadvantage them as compared to CHAMPVA beneficiaries with
other health insurance. 83 FR 2404.
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\10\ Covered Services, Physicals, TRICARE, http://tricare.mil/CoveredServices/IsItCovered/Physicals (last visited Aug. 22, 2022).
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Thus, VA has previously regulated to provide CHAMPVA benefits
beyond those benefits offered by TRICARE (Select) if providing such
health care would better promote the long-term health of CHAMPVA
beneficiaries. In so doing, VA is still providing for health care in a
manner similar to TRICARE (Select), but the care is being provided in a
manner that best serves the CHAMPVA population. Similarly, here, VA is
aligning CHAMPVA benefits with TRICARE (Select) benefits in certain
ways, VA is also providing benefits beyond those offered by TRICARE
(Select) in order to better promote the long-term health of CHAMPVA
beneficiaries. For the reasons discussed further below, VA finds that
allowing abortions for CHAMPVA beneficiaries when there is a risk to
the CHAMPVA
[[Page 55291]]
beneficiary's health and providing abortion counseling for both covered
and noncovered abortions is both medically necessary and appropriate to
promote the long-term health of CHAMPVA beneficiaries.
II. Abortions in Limited Circumstances Under 38 U.S.C. 1710 and 1781
A. Abortions When the Life or Health of the Pregnant Veteran Would Be
Endangered if the Pregnancy Is Carried to Term Are Needed
VA has determined that access to abortions is ``needed,'' 38 U.S.C.
1710(a)(1)-(3), and such care may be provided to veterans when 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,'' 38 CFR 17.38(b), when the life or health of the pregnant
veteran would be endangered if the pregnancy were carried to term.
Abundant evidence supports VA's determination.
Research has shown that while most pregnancies progress without
incident, pregnancy and childbirth in the United States can result in
physical harm and even death for certain pregnant individuals. From
1998 to 2005, the U.S. mortality rate associated with live births was
8.8 deaths per 100,000 live births, and maternal mortality rates have
increased staggeringly since then.\11\ A 2019 study reviewed mortality
data from 2007 to 2015 from the National Association for Public Health
Statistics and Information Systems, which includes information on all
deaths in the 50 States and the District of Columbia (DC). The data
showed that, during this time, within 38 States and DC, the maternal
mortality rate rose to 17.9 deaths of individuals per 100,000 live
births. This study identified the factors that likely contributed to
this rising maternal mortality rate, including reduced access to family
planning and reproductive health services through abortion clinic
closures and legislation restricting abortions based on gestational
age.\12\
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\11\ Elizabeth G. Raymond & David A. Grimes, The Comparative
Safety of Legal Induced Abortion and Childbirth in the United
States, 119 Obstetrics & Gynecology 215, 216 (2012); see also Marian
F. MacDorman et al., Recent Increases in the U.S. Maternal Mortality
Rate: Disentangling Trends from Measurement Issues, 128 Obstetrics &
Gynecology 447 (2016) (finding a 26.6 percent increase in maternal
mortality rates between 2000 and 2014).
\12\ Summer Shelburne Hawkins et al., Impact of State-Level
Changes on Maternal Mortality: A Population-Based, Quasi-
Experimental Study, Am. Journal of Preventive Medicine. 85(2): 165-
74 (2019).
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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, significant morbidity, or death. According to the American
College of Obstetricians and Gynecologists (ACOG) and Physicians for
Reproductive Health, there are situations when pregnancy termination,
in the form of treatment that may be considered to be an abortion, is
the only medical intervention that can preserve a patient's health or
save their life.\13\ Pregnancy poses significant physiological changes
on an individual's body, which can exacerbate underlying or preexisting
conditions, like renal or cardiac disease, and can severely compromise
health or even cause death.\14\ During pregnancies, individuals may
suffer from life-threatening conditions such as severe preeclampsia,
newly diagnosed cancer requiring prompt treatment, and intrauterine
infections.\15\ Preeclampsia is a disorder associated with new-onset
hypertension that can result in blood pressure swings, liver issues,
and seizures, among other conditions.\16\
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\13\ Abortion Can Be Medically Necessary, Am. College of
Obstetricians and Gynecologists, Sep. 25, 2019. http://www.acog.org/news/news-releases/2019/09/abortion-can-be-medically-necessary (last
visited Aug. 22, 2022).
\14\ Victoria L. Meah, et al., Cardiac output and related
haemodynamics during pregnancy: a series of meta-analyses, Heart J.,
102:518-526 (2016).
\15\ Abortions later in Pregnancy, Kaiser Family Foundation,
Dec. 5, 2019. http://www.kff.org/womens-health-policy/fact-sheet/abortions-later-in-pregnancy/ (last visited Aug. 22, 2022).
\16\ ACOG Practice Bulletin No. 222, Gestational Hypertension
and Preeclampsia, Am. College of Obstetricians and Gynecologists
(Dec. 2018).
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Some pregnant veterans may be at heightened risk for other
pregnancy complications including hemorrhage, placenta accreta
spectrum, and peripartum hysterectomy, among others.\17\ Notably, the
need for peripartum hysterectomy in such instances would cause not only
morbidity, but loss of future fertility. Pregnancy-related
complications may endanger the pregnant veteran's life or health.
Abortion may be needed to protect the life or health of the pregnant
veteran in these and other circumstances.
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\17\ ACOG Practice Bulletin No. 183, Postpartum Hemorrhage, Am.
College of Obstetricians and Gynecologists (Oct. 2017); ACOG
Obstetric Care Consensus, Placenta Accreta Spectrum (July 2012,
reaff'd 2021); ACOG Practice Bulletin No. 198, Prevention and
Management of Obstetric Lacerations at Vaginal Delivery, Am. College
of Obstetricians and Gynecologists (Sept. 2018); ACOG Clinical
Consensus No. 1, Pharmacologic Stepwise Multimodal Approach for
Postpartum Pain Management, Am. College of Obstetricians and
Gynecologists (Sept. 2021).
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Veterans of reproductive age, in particular, have high rates of
chronic medical and mental health conditions that may increase the
risks associated with pregnancy.\18\ Such conditions include chronic
post-traumatic stress disorder, severe hypertension, and chronic renal
disease.\19\ When a health care professional determines that these
conditions (potentially in combination with other factors) render an
abortion needed to preserve the health of a veteran, access to an
abortion is essential health care.
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\18\ Joan L. Combellick, et al., Severe Maternal Morbidity Among
a Cohort of Post-9/11 Women Veterans, J Women's Health, 29(4):577-84
(Apr. 2020).
\19\ Jonathan Shaw, et al., Post-traumatic Stress Disorder and
Antepartum Complications: a Novel Risk Factor for Gestational
Diabetes and Preeclampsia, Paediatr Perinat Epidemiol. 31(3):185-194
(May 2017); David Jones & John P. Hayslett, Outcome of pregnancy in
women with moderate or severe renal insufficiency, N Engl J Med.
25;335(4):226-32 (Jul. 1996).
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For all of the reasons discussed above, research supports the
conclusion that an abortion may be needed to save the life or preserve
the health of a veteran. 38 CFR 17.38(b). Therefore, VA is revising the
medical benefits package to allow the provision of abortions in such
circumstances.
B. Abortions When the Health of the Pregnant CHAMPVA Beneficiary Would
Be Endangered if the Pregnancy Is Carried to Term Are Medically
Necessary and Appropriate
Currently, abortions for CHAMPVA beneficiaries are excluded
``except when a physician certifies that the life of the mother would
be endangered if the fetus were carried to term.'' 38 CFR
17.272(a)(64). VA has determined that when the health of the pregnant
CHAMPVA beneficiary would be endangered if the pregnancy were carried
to term, access to abortions is also medically necessary and
appropriate and such abortions should be covered CHAMPVA services. As
explained above, VA is required to provide medically necessary and
appropriate care under CHAMPVA to certain spouses, children, survivors,
and caregivers of veterans who meet specific eligibility criteria. 38
U.S.C. 1781(a); 38 CFR 17.270 et seq. While this care must be ``in the
same or similar manner and subject to the same or similar limitations
as medical care is'' provided by the Department of Defense under
TRICARE (Select), 38 U.S.C. 1781(b), VA has consistently maintained
that ``similar'' does not mean ``identical.'' VA requires that such
care be medically
[[Page 55292]]
necessary and appropriate for the treatment of a condition and not be
specifically excluded under the CHAMPVA regulations. See 38 CFR
17.270(b) (defining CHAMPVA-covered services and supplies).
As discussed in the prior section, an abortion may be medically
necessary and appropriate to protect a pregnant individual's health.
Pregnancy can exacerbate underlying or preexisting conditions, like
renal or cardiac disease, in such a way as to severely compromise the
health of an individual.\20\ Additionally, pregnant individuals may
have their health endangered due to severe preeclampsia, newly
diagnosed cancer requiring prompt treatment, and intrauterine
infections.\21\ In those circumstances, an abortion may be the only
treatment available to protect the health of the pregnant CHAMPVA
beneficiary. Thus, there may be instances when an abortion may be
medically necessary and appropriate to prevent a pregnant CHAMPVA
beneficiary's health from being endangered if the pregnancy was carried
to term, and VA finds it necessary to deviate from TRICARE (Select) to
provide abortions in these circumstances.
---------------------------------------------------------------------------
\20\ Victoria L. Meah, et al., Cardiac output and related
haemodynamics during pregnancy: a series of meta-analyses, HEART J.,
102:518-526 (2016).
\21\ Abortions later in Pregnancy, Kaiser Family Foundation,
Dec. 5, 2019. http://www.kff.org/womens-health-policy/fact-sheet/abortions-later-in-pregnancy/ (last visited Aug. 22, 2022).
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Accordingly, consistent with VA's regulatory requirements in 38 CFR
17.270(b), VA is revising the CHAMPVA regulations to allow the
provision of abortions in such circumstances.
C. Abortions for Veterans When the Pregnancy Is the Result of an Act of
Rape or Incest Are Needed
VA has also determined that access to abortions is ``needed,'' 38
U.S.C. 1710(a)(1)-(3), and such care may be provided in accordance with
38 CFR 17.38(b), when the pregnancy is the result of an act of rape or
incest.
There are severe health consequences associated with being forced
to carry a pregnancy that is the result of rape or incest to term,
including constant exposure to the violation committed against the
individual which can cause serious traumatic stress and a risk of long-
lasting psychological conditions such as anxiety and depression.\22\
Those mental health consequences have a unique impact on veterans, who
report higher rates of sexual trauma compared to their civilian
peers.\23\ Moreover, veterans are also more likely to have preexisting
mental health conditions that would be compounded by the mental health
consequences of being forced to carry a pregnancy to term if that
pregnancy is the result of rape or incest. Thus, abortion access is
critical to protect the lives and health of pregnant veterans whose
pregnancy is the result of an act of rape or incest.
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\22\ Concluding observations of the Committee against Torture,
United Nations Committee Against Torture, 47th Sess., Oct. 31, 2011-
Nov. 25, 2011 CAT/C/PRY/CO/4-6; Paraguay, p. 9, paragraph 22.
https://www2.ohchr.org/english/bodies/cat/docs/CAT.C.PRY.CO.4-6_en.pdf.
\23\ Carey Pulverman & Suzannah Creech, The Impact of Sexual
Trauma on the Sexual Health of Women Veterans: A Comprehensive
Review, Trauma Violence Abuse. 22(4): 656-671 (Oct. 2021). doi:
10.1177/1524838019870912.
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As discussed above, even where Congress has restricted the
circumstances in which other Federal agencies may provide abortions,
Congress has allowed funding when the pregnancy is the result of an act
of rape or incest. VA agrees that abortions for pregnancies resulting
from rape or incest are, where sought by the pregnant veteran, needed
to protect the life and the health of the veteran consistent with the
terms of 38 U.S.C. 1710. VA further expects that, in all but the most
unusual circumstances, an individual's access to abortion in cases of
pregnancy resulting from rape or incest would be ``needed to promote,
preserve, or restore the health of the individual'' and would be ``in
accord with generally accepted standards of medical practice.'' 38 CFR
17.38(b).
D. Abortions for CHAMPVA Beneficiaries When Pregnancy Is the Result of
an Act of Rape or Incest Are Medically Necessary and Appropriate
For similar reasons as discussed above, VA has determined that
access to abortion when the pregnancy is the result of an act of rape
or incest is medically necessary and appropriate and must be available
to CHAMPVA beneficiaries. Allowing abortions in these circumstances
better aligns with TRICARE (Select), which also allows abortions when
the pregnancy is the result of an act of rape or incest.\24\
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\24\ See Covered Services, Abortions, TRICARE, https://tricare.mil/CoveredServices/IsItCovered/Abortions (last visited Aug.
22, 2022).; 38 U.S.C. 1781(b); and 32 CFR 199.1(r),
199.17(a)(6)(ii)(D).
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VA has determined that this change will provide CHAMPVA
beneficiaries with care that is medically necessary and appropriate.
III. Abortion Counseling Under 38 U.S.C. 1710 and 1781
A. Abortion Counseling Is Needed Care for Veterans
Through this rulemaking, VA will remove the exclusion on abortion
counseling in the medical benefits package from 38 CFR 17.38(c)(1).
Abortion counseling is a part of pregnancy options counseling and is a
component of comprehensive, patient-centered, high quality reproductive
health care both as a responsibility of the provider and a right of the
pregnant veteran. 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.\25\
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\25\ Asher, J.D., Abortion counseling. American Journal of
Public Health,63(5):686-8 (May 1972). https://pubmed.ncbi.nlm.nih.gov/5024296/.
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Removing the exclusion on abortion counseling from 38 CFR
17.38(c)(1) will allow VA to provide abortion counseling services to
veterans who receive the care set forth in the medical benefits
package. Such counseling is essential to ensure that veterans may make
informed decisions about their care. Studies have shown that
individuals have limited knowledge about the safety and risks of
abortion.\26\ Providing veterans with accurate information about
abortions is needed to ensure that they can make informed decisions
about their health care. See also 38 U.S.C. 7331; 38 CFR 17.32.
---------------------------------------------------------------------------
\26\ Ellen Weibe., et al., Knowledge and Attitudes about
Contraception and Abortion in Canada, US, UK, France and Australia,
Gynecology & Obstetrics, 5(9) (2015), http://www.longdom.org/open-access/knowledge-and-attitudes-about-contraception-and-abortion-in-canada-us-uk-france-and-australia-40135.html.
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Abortion counseling should no longer be excluded from the medical
benefits package. The provision of abortion counseling will enable a
pregnant veteran to make a fully informed health care decision, just as
counseling is offered or covered by VA regarding any other health care
decision. As such, abortion counseling will be provided as part of
conversations a veteran has with their provider related to pregnancy
options care, when appropriate.
B. Abortion Counseling Is Medically Necessary and Appropriate for
CHAMPVA Beneficiaries
Through this rulemaking, VA will remove the exclusion of abortion
counseling from 38 CFR 17.272(a)(65). This will authorize the provision
of abortion counseling for both covered
[[Page 55293]]
and noncovered abortions to CHAMPVA beneficiaries. We acknowledge that
this is broader than the abortion counseling provided under TRICARE
(Select). However, the relevant care provided under CHAMPVA will still
be sufficiently ``similar'' to that provided under TRICARE (Select). 38
U.S.C. 1781(b). As explained previously, 38 U.S.C. 1781(b) does not
require CHAMPVA and TRICARE (Select) to be administered identically.
Rather, by referring to care that is ``similar,'' the statute permits
VA flexibility to administer the program for CHAMPVA beneficiaries. For
this reason, not every aspect of CHAMPVA will find a corollary in
TRICARE (Select).
Indeed, as addressed throughout this rule, VA has previously
provided CHAMPVA beneficiaries with health care services that exceed
those services offered by TRICARE (Select). As discussed in the section
above, abortion counseling will enable a pregnant CHAMPVA beneficiary
to make a fully informed health care decision, just as counseling is
offered or covered by VA when medically necessary and appropriate to
make any other health care decision. Because providing CHAMPVA
beneficiaries with accurate information about abortions is medically
necessary to ensure that they can make informed decisions about their
health and the care will be similar to that provided under TRICARE
(Select), we believe it is appropriate to revise the CHAMPVA
regulations to authorize the provision of abortion counseling for both
covered and noncovered abortions to CHAMPVA beneficiaries.
Thus, VA finds that abortion counseling is beneficial for all
CHAMPVA beneficiaries to receive accurate information about abortions.
Therefore, we are including abortion counseling as a covered medical
service under CHAMPVA.
IV. These Changes Will Promote Clarity and Parity Across Federal
Agencies
VA believes it is important to provide at least the same
reproductive health care services that other Federal agencies provide
their beneficiaries. Many veterans and VA beneficiaries previously
received health care from other Federal agencies, such as the
Department of Defense, and those beneficiaries should have the same or
greater access to services that they had previously and came to expect
under other agency policies. This is particularly true for our veteran
patients who earned their VA health care benefits through their
military service and sacrifice to this country. It is unconscionable
that they would not have access to at least these same critical
services following their transition to civilian life.
As a result of this rulemaking, VA will also provide abortions when
the health of the pregnant veteran or CHAMPVA beneficiary is endangered
in addition to when the pregnancy threatens their life. This difference
is due to VA's particular statutory authority in 38 U.S.C. 1710 to
provide needed health care for veterans and VA's flexibility in
administering the CHAMPVA program under 38 U.S.C. 1781, as discussed
throughout. In contrast, other Federal agencies have different
statutory authorities and additional limitations concerning the
services they provide, such as the Hyde Amendment discussed above.
In addition, some post-Dobbs State and local laws purport to impose
criminal liability or threaten suspension of the medical licenses of
providers who perform abortions without authorization.\27\ In the
absence of clarity as to exactly what care is covered, this may result
in a chilling effect on the provision of care, including abortions, to
veterans and CHAMPVA beneficiaries. Denial of care because of
uncertainty about the scope of changing State laws has already been
evidenced outside of the Federal health system in certain States.\28\
ACOG warns that the full scope of abortion restrictions' effects
includes how physicians' ethical obligations to their patients and to
the practice of medicine may be reshaped, redirected, or even
contradicted by the threat posed by laws not founded in science or
based on evidence.\29\
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\27\ See e.g., Ark. Code Ann. sec. 5-61-404 (making abortion an
unclassified felony); Idaho Code Ann. sec. 18-622 (making abortion a
felony and requiring suspension of medical license); La. Rev. Stat.
Ann. sec. 40:1061 (making abortion a criminal act and basis for
professional disciplinary action); Tenn. Code Ann. sec. 39-15-216
(2019) (making abortion a felony); Tex. Health & Safety Code Ann.
sec. 170A.004-05 (making abortion a felony and subject to a civil
penalty).
\28\ See, e.g., Pam Belluck, They Had Miscarriages, and New
Abortion Laws Obstructed Treatment, N.Y. Times, July 21, 2022,
https://www.nytimes.com/2022/07/17/health/abortion-miscarriage-treatment.html (last visited Aug. 23, 2022).
\29\ Breaking the Law or Breaking the Oath? How Abortion Bans
Betray America's Patients and Physicians, Am. College of
Obstetricians and Gynecologists, http://www.acog.org/education-and-events/webinars/acog-nyu-how-abortion-bans-betray-americas-patients-physicians (last visited Aug. 22, 2022).
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Consequently, VA is revising its medical benefits package and
CHAMPVA regulations to promote clarity.
V. Preemption and Related Principles
As previously described, as a result of Dobbs, States and
localities have begun to enforce existing abortion bans and
restrictions on care, and are proposing and enacting new bans or
restrictions, creating urgent risks to the lives and health of pregnant
veterans and the health of pregnant CHAMPVA beneficiaries in those
States. Such State and local bans and restrictions on care chill the
provision of needed care for veterans and medically necessary and
appropriate care for CHAMPVA beneficiaries. For instance, the Texas
Medical Association sent a letter to the Texas Medical Board, seeking
clarity on the Texas abortion restrictions as it received complaints
that in some health care settings, physicians have been prohibited from
providing medically appropriate care to women with ectopic pregnancies
and other complications.\30\ As reported even before the Dobbs
decision, there is a climate of fear created by these abortion
restrictions that has resulted not only in patients not having access
to needed care but also in patients receiving medically inappropriate
care.\31\
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\30\ Allie Morris, Texas Hospitals Fearing Abortion Law Delay
Pregnant Women's Care, Medical Association Says, Dallas News, July
14, 2022, http://www.dallasnews.com/news/politics/2022/07/14/texas-hospitals-fearing-abortion-law-delay-pregnant-womens-care-medical-association-says (last visited Aug. 22, 2022).
\31\ Whitney Arey, et al., A Preview of the Dangerous Future of
Abortion Bans--Texas Senate Bill 8, N Engl J Med; 387:388-390
(2022), http://www.nejm.org/doi/full/10.1056/NEJMp2207423 (last
visited Aug 22, 2022).
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Accordingly, VA clarifies 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. VA
previously issued a regulation, 38 CFR 17.419, in which VA confirmed
the ability of VA health care professionals to practice their health
care profession consistent with the scope and requirements of their VA
employment, notwithstanding any State license, registration,
certification, or other requirements that unduly interfere with their
practice. The regulation provides that, in order to ``provide the same
complete health care and hospital services to beneficiaries in all
States . . . conflicting State laws, rules, regulations, or
requirements pursuant to such laws are without any force or effect, and
State governments have no legal authority to enforce them in relation
to actions by health care professionals within the scope of their VA
employment.'' 38 CFR 17.419(c). Consistent with Sec. 17.419, VA has
[[Page 55294]]
determined that State and local laws, rules, regulations, or
requirements that restrict, limit, otherwise impede access to, or
regulate the provision of health care provided by VA pursuant to
Federal law, would ``unduly interfere[] with VA health care
professionals' practice within the scope of VA employment.'' 38 CFR
17.419(b)(1). Accordingly, consistent with Sec. 17.419, this
rulemaking confirms that a State or local civil or criminal law that
restricts, limits, or otherwise impedes a VA professional's provision
of care permitted by this regulation would be preempted.
In addition, ``[t]he Constitution's Supremacy Clause generally
immunizes the Federal Government from State laws that directly regulate
or discriminate against it,'' unless federal law authorizes such State
regulation. United States v. Washington, 142 S. Ct. 1976, 1982 (2022).
Therefore, States generally may not impose criminal or civil liability
on VA employees who perform their duties in a manner authorized by
federal law. See, e.g., In re Neagle, 135 U.S. 1, 62 (1890). This
rulemaking serves as notice that all VA employees, including health
care professionals who provide care and VA employees who facilitate
that health care, such as VA employees in administrative positions that
schedule abortion procedures and VA employees who provide
transportation to the veteran or CHAMPVA beneficiary to the VA facility
for reproductive health care, may not be held liable under State or
local law or regulation for reasonably performing their Federal duties.
VI. Changes to 38 CFR 17.38(c)(1)
Based on the rationale described above, we remove the exclusion on
abortion counseling from Sec. 17.38(c)(1). We revise Sec. 17.38(c)(1)
by adding paragraphs (c)(1)(i) and (ii) to state that the medical
benefits package includes abortions in certain circumstances.
Section 17.38(c)(1)(i) permits abortions when the life or health of
the pregnant veteran would be endangered if the pregnancy is carried to
term. 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. As appropriate, VA may issue
supplemental guidance to inform these decisions.
Section 17.38(c)(1)(ii) permits abortions when the pregnancy is the
result of an act of rape or incest. We are not requiring a veteran to
present particular evidence such as a police report to qualify for this
care. This is consistent with longstanding VA policy to treat eligible
individuals who experienced military sexual trauma without evidence of
the trauma. This approach, similar to in the context of military sexual
trauma, removes barriers to providing care. Therefore, the regulation
will provide that self-reporting from the pregnant veteran constitutes
sufficient evidence.
VII. Changes to 38 CFR 17.272
Based on the rationale described above, we amend the CHAMPVA
regulations at 38 CFR 17.272. We remove Sec. 17.272(a)(65) that
excludes abortion counseling from the CHAMPVA program. We revise
current Sec. 17.272(a)(64), which excludes abortions except when a
physician certifies that the life of the pregnant beneficiary would be
endangered if the fetus were carried to term, and we add Sec.
17.272(a)(64)(i) and (ii).
Section 17.272(a)(64)(i) permits abortions when the life or health
of the CHAMPVA beneficiary would be endangered if the pregnancy is
carried to term. Assessment of the conditions, injuries, illnesses, or
diseases that will qualify for this care will be made by appropriate
health care professionals on a case-by-case basis. As appropriate, VA
may issue supplemental guidance to inform these decisions.
Section 17.272(a)(64)(ii) permits abortions when the pregnancy is
the result of an act of rape or incest. We are not requiring the
CHAMPVA beneficiary to present particular evidence such as a police
report to qualify for this care. This approach, as discussed above,
removes barriers to providing care. Therefore, the regulation will
provide that self-reporting from the pregnant CHAMPVA beneficiary
constitutes sufficient evidence.
VIII. Regulatory Requirements
A. Executive Order 13132, Federalism
Executive Order 13132 establishes principles for preemption of
State laws when those laws are implicated in rulemaking or proposed
legislation. The order provides that, where a Federal statute does not
expressly preempt State law, agencies shall construe any authorization
in the statute for the issuance of regulations as authorizing
preemption of State law by rulemaking only when the exercise of State
authority directly conflicts with the exercise of Federal authority or
there is clear evidence to conclude that the Congress intended the
agency to have the authority to preempt State law.
As discussed above, consistent with 38 CFR 17.419, State and local
laws, rules, regulations, or requirements are preempted to the extent
those laws unduly interfere with Federal operations and the performance
of Federal duties. That includes laws that States and localities might
attempt to enforce in civil, criminal, or administrative matters
against VA health care professionals acting in the scope of their VA
authority and employment and that would prevent those individuals from
providing care authorized by 38 U.S.C. 1701, 1710, 1781, 1784A, 7301,
and 7310, and VA's implementing regulations. State and local laws,
rules, regulations, or requirements are therefore without any force or
effect to the extent of the conflict with Federal law, and State and
local governments have no legal authority to enforce them in relation
to actions by VA employees acting within the scope of their VA
authority and employment.
Because all State and local laws, rules, regulations, or
requirements that unduly interfere with VA's provision of reproductive
health care have no force or effect, there are no actual or possible
violations of such laws related to VA programs, operations, facilities,
contracts, or information technology systems that would necessitate
mandatory reporting by VA employees. 38 CFR 1.201-1.205. This
rulemaking confirms VA's authority and discretion to manage its
employees concerning the services that will be provided pursuant to
this rulemaking.
Next, Executive Order 13132 requires that any regulatory preemption
of State law must be restricted to the minimum level necessary to
achieve the objectives of the statute pursuant to which the regulations
that are promulgated. Under VA's regulations, State and local laws,
rules, regulations, or other requirements are preempted only to the
extent they unduly interfere with the ability of VA employees to
furnish reproductive health care while acting within the scope of their
VA authority and employment. Therefore, VA believes that the rulemaking
is restricted to the minimum level necessary to achieve the objectives
of the Federal statutes.
B. Administrative Procedure Act
The Administrative Procedure Act (APA), codified in part at 5
U.S.C. 553, generally requires that agencies publish substantive rules
in the Federal Register for notice and comment and provide a 30-day
delay before the rules becomes effective. An agency may forgo notice if
the agency for good cause finds that compliance would be impracticable,
unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). An
agency may also bypass the APA's 30-day delay requirement if good cause
exists, 5
[[Page 55295]]
U.S.C. 553(d)(3), or if the rule ``recognizes an exemption or relieves
a restriction,'' 5 U.S.C. 553(d)(1). The Secretary of Veterans Affairs
finds that there is good cause under the provisions of 5 U.S.C.
553(b)(B) to publish this rule without prior opportunity for public
comment because it would be impracticable and contrary to the public
interest and finds that there is good cause under 5 U.S.C. 553(d)(3) to
bypass the 30-day delay requirement. The Secretary also finds that the
30-day delay is inapplicable as this rule is removing restrictions on
abortion, in certain, limited circumstances, and on abortion
counseling. 5 U.S.C. 553(d)(1).
As discussed at length above, leaving veterans and CHAMPVA
beneficiaries without access to abortions and abortion counseling puts
their health and lives at risk. Pregnancy and childbirth in the United
States can result in physical harm or death to certain pregnant
individuals,\32\ as pregnant individuals may suffer from life-
threatening conditions such as severe preeclampsia, newly diagnosed
cancer requiring prompt treatment, and intrauterine infections,\33\ and
may have pre-existing conditions exacerbated by continuing the
pregnancy.\34\ In such cases, an abortion may be the only treatment
available to save the health or life of the pregnant individual.\35\
This is especially relevant because VA serves a population that is
particularly vulnerable to adverse pregnancy outcomes. Pregnant
veterans and CHAMPVA beneficiaries may be at heightened risk for
pregnancy complications including hemorrhage, placenta accreta
spectrum, and peripartum hysterectomy, among others.\36\ Veterans of
reproductive age, in particular, have high rates of chronic medical and
mental health conditions that may increase the risks associated with
pregnancy.\37\ As lack of access to abortions can result in loss of
future fertility, significant morbidity, or death, it is critical that
veterans and CHAMPVA beneficiaries have access to abortions that are
needed to save their lives and preserve their health. It is, without
exception, an urgent and tragic event when pregnant veterans and VA
beneficiaries face pregnancy-related complications that put their
health or lives at risk. In such cases, the veterans, VA beneficiaries,
and their families must be confident that their health care providers
can and will take swift and decisive action to provide needed health
care.
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\32\ Elizabeth G. Raymond & David A. Grimes, The Comparative
Safety of Legal Induced Abortion and Childbirth in the United
States, 119 Obstetrics & Gynecology 215, 216 (2012); see also Marian
F. MacDorman et al., Recent Increases in the U.S. Maternal Mortality
Rate: Disentangling Trends from Measurement Issues 128 Obstetrics &
Gynecology 447 (2016) (finding a 26.6 percent increase in maternal
mortality rates between 2000 and 2014). Victoria L. Meah, et al.,
Cardiac output and related haemodynamics during pregnancy: a series
of meta-analyses, Heart J., 102:518-526 (2016).
\33\ Abortions later in Pregnancy, Kaiser Family Foundation,
Dec. 5, 2019. http://www.kff.org/womens-health-policy/fact-sheet/abortions-later-in-pregnancy/ (last visited Aug. 22, 2022).
\34\ Victoria L. Meah, et al., Cardiac output and related
haemodynamics during pregnancy: a series of meta-analyses, Heart J.,
102:518-526 (2016).
\35\ Abortion Can Be Medically Necessary, Am. College of
Obstetricians and Gynecologists, Sep. 25, 2019. http://www.acog.org/news/news-releases/2019/09/abortion-can-be-medically-necessary (last
visited Aug. 22, 2022).
\36\ ACOG Practice Bulletin No. 183, Postpartum Hemorrhage, Am.
College of Obstetricians and Gynecologists (Oct. 2017); ACOG
Obstetric Care Consensus, Placenta Accreta Spectrum (July 2012,
reaff'd 2021); ACOG Practice Bulletin No. 198, Prevention and
Management of Obstetric Lacerations at Vaginal Delivery, Am. College
of Obstetricians and Gynecologists (Sept. 2018); ACOG Clinical
Consensus No. 1, Pharmacologic Stepwise Multimodal Approach for
Postpartum Pain Management, Am. College of Obstetricians and
Gynecologists (Sept. 2021).
\37\ Joan L. Combellick, et al., Severe Maternal Morbidity Among
a Cohort of Post-9/11 Women Veterans, J Women's Health, 29(4):577-84
(Apr. 2020).
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The ability of veterans and CHAMPVA beneficiaries to receive
abortions through VA is especially critical following State attempts to
further ban abortion, which put the health and lives of veterans and
CHAMPVA beneficiaries at risk.
When VA implemented the exclusion on abortions in the medical
benefits package in 1999, veterans and other CHAMPVA beneficiaries had
access to abortions in their communities. However, in Dobbs, the
Supreme Court overruled the constitutional protections recognized in
Roe and Casey. Dobbs has had an immediate or near-immediate effect
because several States had laws banning abortion that were triggered
upon the overruling of Roe. Dobbs has also led States and localities to
consider new restrictions on abortion. As of August 2022, many States
appear to be enforcing bans on abortion that do not include, or have
limited, exceptions for when the pregnancy is due to rape or incest.
Other States have bans on abortions with limited exceptions that are
poised to take effect imminently. Additional State legislatures are
introducing bans on abortion with limited exceptions. While some State
courts have temporarily blocked the implementation of abortion bans,
litigation in those States remains ongoing and other State courts have
declined to enjoin their State's abortion ban.\38\ These developments
have made it, and will likely continue to make it, very difficult for
many veterans and CHAMPVA beneficiaries to receive needed abortions in
their communities. Additionally, ongoing litigation challenging
individual State abortion bans causes confusion about where abortion
remains legally accessible.\39\
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\38\ See, e.g., Katie Shepherd, Rachel Roubein, and Caroline
Kitchener, 1 in 3 American women have already lost abortion access.
More restrictive laws are coming., Wash. Post (Aug. 22, 2022, 3:36
p.m.), http://www.washingtonpost.com/nation/2022/08/22/more-trigger-bans-loom-1-3-women-lose-most-abortion-access-post-roe/; see also,
e.g., Idaho Code Ann. sec. 18-622, 18-622(3)(a)(ii) (prohibiting
abortion in all instances, only providing affirmative defenses in
case of life or health of pregnant individual); La. Rev. Stat. Ann.
sec. 40:1061 (providing limited exception for life or health to
abortion prohibition).
\39\ See, e.g., Ava Sasani and Emily Cochrane, `I'm Carrying
This Baby Just to Bury It': The Struggle to Decode Abortion Laws,
N.Y. Times (Aug. 19, 2022), http://www.nytimes.com/2022/08/19/us/politics/louisiana-abortion-law.html.
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Thousands of veterans and CHAMPVA beneficiaries are or may be
impacted by abortion bans and the state of confusion related to where
abortion remains legal. According to the National Partnership for Women
& Families, it is estimated that up to 53 percent of veterans of
reproductive age may be living in States that have already banned or
are likely to soon ban abortion following the Dobbs decision.\40\ VA
estimates that over 155,000 veterans ages 18 through 49 are potentially
capable of pregnancy, enrolled in VA health care, and live in States
that have enacted abortion bans or restrictions. Additionally, VA
estimates there are more veterans who may be capable of pregnancy who
are eligible for, but are not currently enrolled in or using, VA health
care who could also be impacted by current and future abortion bans and
restrictions imposed by the State in which they live. Additionally,
based on VA data, almost 50,000 CHAMPVA beneficiaries may similarly be
impacted.
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\40\ Issue Brief: State Abortion Bans Could Harm Nearly 15
Million Women of Color Nat'l Partnership for Women & Families (Jul.
2022), http://www.nationalpartnership.org/our-work/economic-justice/reports/state-abortion-bans-harm-woc.html.
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Thus, State bans and restrictions on abortion present a serious
threat to the health and lives of over one hundred thousand veterans
and CHAMPVA beneficiaries who currently rely, or may rely in the
future, on VA health care. These State laws will have an immediate
detrimental impact on the lives and health of veterans and CHAMPVA
beneficiaries who are unable to receive the care that was available
before State restrictions following the Dobbs decision. This
detrimental impact is underscored by the potential harmful effects
associated with being denied an abortion, when an abortion is needed to
protect the life or
[[Page 55296]]
health of the pregnant individual, or in cases of rape or incest--as
described in prior portions of this preamble.
It is critical that this rule be published and be made effective
immediately to ensure pregnant veterans and CHAMPVA beneficiaries have
access to this important care. Indeed, delaying the issuance of this
rule would increase the risk to their health and lives and put care out
of reach for some pregnant veterans and CHAMPVA beneficiaries entirely.
Time is also of the essence because, after the Dobbs decision, many
State laws have prompted providers to cease offering abortion services
altogether; thus, many veterans and CHAMPVA beneficiaries would face
delays (including travel and wait times) if they were required to
obtain, outside the VA, the treatment permitted under this rule. Each
day, pregnant patients in the United States, some of whom are veterans
or CHAMPVA beneficiaries, find themselves in need of abortion services
in accord with generally accepted standards of medical practice.
Delaying that care for the time required for notice and comment
rulemaking would result in substantial health deterioration and risk
the lives of some pregnant veterans and CHAMPVA beneficiaries. Allowing
even one preventable death of a veteran or CHAMPVA beneficiary by
limiting access to abortions is unacceptable.
For these reasons, the Secretary has concluded that ordinary notice
and comment procedures would be impracticable and contrary to the
public interest and there is good cause to issue this interim final
rule with an immediate effective date. Accordingly, VA is issuing this
rule as an interim final rule with an immediate effective date. As
noted above, this interim final rule will have a 30-day comment period,
after which the Secretary will consider and address the comments
received in a subsequent Federal Register document announcing a final
rule incorporating any changes made in response to the public comments.
C. Executive Orders 12866 and 13563
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. The Office of Information and Regulatory
Affairs has determined that this rule is a significant regulatory
action under Executive Order 12866. The Regulatory Impact Analysis
associated with this rulemaking can be found as a supporting document
at http://www.regulations.gov.
D. Regulatory Flexibility Act
The Secretary hereby certifies that this rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-12.
This is because the rule does not directly regulate or impose costs on
small entities and because any effects on small entities will be
indirect. On this basis, the Secretary certifies that the adoption of
this rule will not have a significant economic impact on a substantial
number of small entities as they are defined in the Regulatory
Flexibility Act. Therefore, pursuant to 5 U.S.C. 605(b), the initial
and final regulatory flexibility analysis requirements of 5 U.S.C. 603
and 604 do not apply to this rule.
E. Unfunded Mandates
The Unfunded Mandates Reform Act of 1995, see 2 U.S.C. 1532,
requires that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This rule will have no such effect on
State, local, and tribal governments, or on the private sector.
F. Paperwork Reduction Act
This rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
21.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs--health, Grant programs--veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing homes, Philippines, Reporting
and recordkeeping requirements, Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on August 29, 2022, and authorized the undersigned to sign and
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Michael P. Shores,
Director, Office of Regulation Policy & Management, Office of General
Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 17 as follows:
PART 17--MEDICAL
0
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
0
2. Amend Sec. 17.38 by revising paragraph (c)(1) to read as follows:
Sec. 17.38 Medical benefits package.
* * * * *
(c) * * *
(1) Abortions, except when:
(i) The life or the health of the pregnant veteran would be
endangered if the pregnancy were carried to term; or
(ii) The pregnancy is the result of an act of rape or incest. Self-
reporting from the pregnant veteran constitutes sufficient evidence
that an act of rape or incest occurred.
* * * * *
0
3. Amend Sec. 17.272 by:
0
a. Revising paragraph (a)(64).
0
b. Removing paragraph (a)(65).
0
c. Redesignating current paragraphs (a)(66) through (84) as paragraphs
(a)(65) through (83).
The revision reads as follows:
Sec. 17.272 Benefits limitations/exclusions.
(a) * * *
(64) Abortions, except when:
(i) The life or the health of the pregnant beneficiary would be
endangered if the pregnancy were carried to term; or
(ii) The pregnancy is the result of an act of rape or incest. Self-
reporting from the pregnant beneficiary constitutes sufficient evidence
that an act of rape or incest occurred.
* * * * *
[FR Doc. 2022-19239 Filed 9-8-22; 8:45 am]
BILLING CODE 8320-01-P