[Federal Register Volume 89, Number 43 (Monday, March 4, 2024)]
[Rules and Regulations]
[Pages 15451-15474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04275]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AR57
Reproductive Health Services
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is finalizing, without
changes, an interim final rule that amended VA's medical regulations to
remove the exclusion on abortion counseling in the medical benefits
package; establish exceptions to the exclusion on abortions for
veterans who
[[Page 15452]]
receive care set forth in that package; and 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: This rule is effective April 3, 2024.
FOR FURTHER INFORMATION CONTACT: Dr. Shereef Elnahal, Under Secretary
for Health, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (202) 461-0373.
SUPPLEMENTARY INFORMATION: In an interim final rule (IFR) published in
the Federal Register (FR), VA amended its medical regulations to remove
the exclusion on abortion counseling in the medical benefits package;
establish exceptions to the exclusion on abortions for veterans who
receive care set forth in that package; and 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. 87 FR 55287 (September 9,
2022).
VA provided a 30-day comment period on the IFR, which ended on
October 11, 2022. VA received 57,901 comments, many of which were
supportive of the IFR. The vast majority of the comments were a type of
duplicated form response, where some requested clarifications or
suggested changes to the IFR, and others merely expressed support or
requested the IFR be rescinded without suggested clarifications or
changes. VA summarizes and addresses all topics raised in relevant and
significant comments below, but VA does not address any supportive
comments below that did not also request clarifications or suggest
substantive revisions.
I. Comments That Asserted VA Does Not Have Authority To Promulgate or
Implement the IFR
Many commenters asserted that VA does not have the legal authority
to promulgate or implement the IFR, most of which provided few details
to explain their assertions. Other commenters cited to specific laws
that they asserted conflicted with VA's provision of the health care
services permitted by the IFR. VA addresses these comments below.
A. General Assertions of Lack of Authority
Many comments asserted that VA should rescind the IFR because VA
has a longstanding policy regarding abortion and does not have the
authority to impose the IFR in a manner that violates this policy.
These comments generally assert that VA does not have authority to
either promulgate or implement the IFR to remove the restriction on
abortion counseling and create exceptions for abortions in certain
circumstances in Sec. Sec. 17.38 and 17.272 of title 38, Code of
Federal Regulations (CFR).
VA does not make any changes to the rule and does not rescind the
IFR based on these comments. As indicated in the IFR (see 87 FR 55288-
55290), 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.'' Section
1710(a)(1)-(2) of title 38, United States Code (U.S.C.). 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). 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. 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). VA has
determined that the health care services permitted under the IFR are
``needed'' within the meaning of VA's general treatment authority, 38
U.S.C. 1710, 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). Although VA previously did not have
any exceptions to the exclusion on abortion in the medical benefits
package, VA's authority as described above permits it to amend the
medical benefits package through regulation. VA can therefore provide
the health care services permitted under the IFR to veterans pursuant
to 38 U.S.C. 1710 and 38 CFR 17.38. Similarly, VA has determined that
providing access to such care 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)'').
Several commenters suggested that the IFR usurps Congressional
authority. Other commenters stated that VA is unable to provide the
health care services permitted under the IFR because Congress has not
funded them specifically, or that VA should not use taxpayer money to
provide the health care services permitted under the IFR because VA
does not have the legal right to do so, and it is contrary to the
wishes of taxpayers. VA does not make changes to the rule based on
these comments. The IFR did not usurp Congressional authority. VA,
similar to other agencies in the Executive Branch, has the authority to
promulgate regulations to interpret and implement laws passed by
Congress, and such regulations may have the force and effect of law. In
this instance, the IFR was promulgated and implemented pursuant to
statute. 38 U.S.C. 1710, 1781; see also id. 501. VA does not receive
separate appropriations for individual medical services, but instead
receives appropriations generally for authorized services. While some
taxpayers may disagree with this use of Federal funds, VA is authorized
to provide and pay for care that is needed for veterans and medically
necessary and appropriate for CHAMPVA beneficiaries.
B. Specific Assertions of Lack of Authority or Conflicting Authority
1. Lack of Authority Under 38 U.S.C. 1710
Commenters asserted that VA's interpretation of 38 U.S.C. 1710 to
provide access to health care services permitted under the IFR was
unsupported because the text of 38 U.S.C. 1710 does not expressly
include these services and because VA has not previously invoked or
construed 38 U.S.C. 1710 as authority for provision of these services.
VA does not make changes to the rule based on these comments. The
commenters' assertions regarding the text of 38 U.S.C. 1710 overlook
that the terms ``hospital care'' and ``medical services'' as used in 38
U.S.C. 1710 are further defined in 38 U.S.C. 1701(5) and (6). As
relevant here, ``hospital care'' is defined to include ``medical
services rendered in the
[[Page 15453]]
course of hospitalization of any veteran'' and ``medical services'' is
defined to include ``medical examination, treatment, and rehabilitative
services,'' ``[s]urgical services,'' and ``[p]reventive health
services'' (38 U.S.C. 1701(5) and (6)). The definitions of ``hospital
care'' and ``medical services'' in 38 U.S.C. 1701(5) and (6) do not
list more specific types of care or services. And, in describing
categories of hospital care and medical services, 38 U.S.C. 1701 and
1710 do not enumerate every conceivable or commonly prescribed care or
service, whether such care or service involves specific care or
services such as abortion, prescription drugs, or completion of
specific medical forms such as life insurance applications. Rather,
such care and services are generally described in the VA medical
benefits package codified in 38 CFR 17.38(a).
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, pregnancy and
delivery services, and periodic medical exams. 38 CFR 17.38(a). Whether
hospital care or medical services under the medical benefits package
are considered needed are determinations that 38 U.S.C. 1701 and 1710
leave to the Secretary's discretion. See 38 U.S.C. 1710(a)(1) (``The
Secretary . . . shall furnish hospital care and medical services which
the Secretary determines to be needed[.]''). The Secretary can include
or exclude care in the medical benefits package based on whether the
Secretary determines that care is ``needed'' within the meaning of 38
U.S.C. 1710(a)(1)-(3). 38 CFR 17.38(c).
After the Supreme Court issued its decision in Dobbs v. Jackson
Women's Health Organization, 142 S. Ct. 2228 (2022), veterans living in
States that ban or restrict abortions may no longer be able to receive
needed medical services in their communities as a result of State
restrictions. 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.
Additionally, the commenters' assertions that VA has never
previously invoked its authority under 38 U.S.C. 1710 to authorize the
provision of abortions are incorrect. Before the regulatory
promulgation of the medical benefits package in 1999, which excluded
the health care services permitted under the IFR, VA policy authorized
the provision of certain abortions. VHA Policy, Manual M-2,
Professional Services Part XIV, Surgical Service, Change 27, paragraph
9.02a (July 26, 1977, partial rescission, expired on Jan. 7, 1999)
(authorizing ``therapeutic . . . abortion as a proper treatment'' in
some circumstances pursuant to the procedures described therein). This
was permitted under VA's authority to provide hospital care and medical
services under 38 U.S.C. 1710 and 38 U.S.C. 1712 (former medical
services authority), respectively. As explained in the IFR, 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, but at the time, Roe v. Wade, 410 U.S. 113 (1973) had been
reaffirmed in relevant part by Casey, and VA was aware that veterans
could access abortions in their communities. 87 FR 55288. Following the
Dobbs decision, States began to ban or restrict abortion services and
veterans living in those States were losing access to such medical
care. Id. Thus, VA explained in the IFR that this policy change was
essential for the lives and health of the veterans that VA serves. Id.
VA makes no changes to the rule based on the assertions raised in
these comments, as discussed above.
In support of the claim that 38 U.S.C. 1710 does not authorize VA's
provision of the health care services permitted under the IFR, some
commenters cited to testimony presented during a June 2022 legislative
hearing before the House of Representatives Veterans Affairs Committee
Subcommittee on Health and minutes from an August 2019 meeting of the
Advisory Committee on Women Veterans. VA makes no changes to the rule
based on this comment.
Neither the testimony presented during the June 2022 legislative
hearing before the House of Representatives Veterans Affairs Committee
Subcommittee on Health nor the minutes from the August 2019 meeting of
the Advisory Committee on Women Veterans suggests that VA lacks
authority under 38 U.S.C. 1710 to provide the health care services
permitted under the IFR. The passage that the commenter cites from the
Advisory Committee on Women Veterans meeting minutes refers to language
from page 20 of the August 2019 Advisory Committee on Women Veterans
meeting minutes, which refers to an update on the Committee's
recommendation that VA pursue a regulatory change to remove the
exclusion of abortions in cases of threat to the life of the mother,
sexual assault, and incest from the medical benefits package. The
minutes state:
VA has declined the ACWV's recommendation and will not change
the medical benefits package regulations to remove the exclusion of
abortions and abortion counseling services. VA believes that
Congress, as the representatives of the will of the American people,
must take the lead on this sensitive and divisive issue. VA will
take no further action on the matter without a legal mandate, and
will work with the House Veterans Affairs Committee to provide
technical assistance on related legislation.
VA has never indicated that it lacks statutory authority to include
abortion counseling and abortions in its medical benefits package in a
circumstance in which the VA Secretary determined that such care was
needed. And notably, VA made this statement in response to ACWV's
recommendations before the Supreme Court issued its decision in Dobbs.
In addition, during the June 2022 legislative hearing, VA was
discussing a single, standalone bill, H.R. 345, that would have
overridden VA's regulatory exclusion of abortion counseling by
requiring the Department to provide this service to a veteran as
appropriate. VA stated, ``[T]he bill would not authorize VA to provide
abortions; it would only allow VA to provide patient education.'' This
statement does not mean that VA otherwise lacks authority to provide
abortions, merely that VA was providing testimony on a legislative
measure that, if enacted, would have only overridden VA's then-
exclusion of abortion counseling codified in VA regulations. VA also
notes that such legislative discussions in 2022 do not provide a basis
to narrowly construe the scope of VA's pre-existing statutory
authority. See, e.g., Bostock v. Clayton Cnty., Georgia, 140 S. Ct.
1731, 1747 (2020) (``[S]peculation about why a later Congress declined
to adopt new legislation offers a `particularly dangerous' basis on
which to rest an interpretation of an existing law a different and
earlier Congress did adopt.'' (citing Pension Benefit Guaranty
Corporation v. LTV Corp., 496 U.S. 633, 650 (1990))).
One commenter, in further support of the assertion that VA did not
have legal authority to issue the IFR, cited recent Supreme Court case
law to argue that Federal agencies exceed their statutory authorities
when they purport to find novel powers in long extant Federal statutes.
West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587
(2022); National Federation of Independent Business v. Dept. of Labor,
[[Page 15454]]
142 S. Ct. 661 (2022). But those cases are inapposite because, as
discussed, clear statutory authority supports this rulemaking. Pursuant
to VA's general treatment authority provided by Congress, 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 other veterans, 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). VA
issued the IFR because the Secretary determined that it is ``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.'' 87 FR 55288. The Secretary also determined
that ``abortion counseling is needed so that veterans can make informed
decisions about their health care.'' Id. at 55292. The Secretary thus
``determined that such medical care is `needed' within the meaning of
VA's general treatment authority,'' which ``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.'' Id. at 55288. See also 38 U.S.C. 1781(a); 38 CFR
17.270(b); 87 FR 55290-92 (discussing the VA Secretary's authority and
determinations regarding CHAMPVA beneficiaries).
The Secretary has previously exercised authority under 38 U.S.C.
1710 to amend 38 CFR 17.38 to add new services to the medical benefits
package services. For example, VA added to the medical benefits package
pregnancy and delivery services to the extent authorized by Federal
law. See 64 FR 54217. VA also added newborn care as a service provided
under the medical benefits package. See 76 FR 78569. Such care was
authorized pursuant to 38 U.S.C. 1710 and 1786.
The decisions the commenter cites also are distinguishable because,
as discussed above, this is not the first time that VA has relied on
relevant statutory authority in this manner. As stated before, VA
policy authorized the provision of certain abortions. VHA Policy,
Manual M-2, Professional Services Part XIV, Surgical Service, Change
27, paragraph 9.02a. (July 26, 1977, partial rescission, expired on
Jan. 7, 1999)) (authorizing ``therapeutic . . . abortion as a proper
treatment'' in some circumstances pursuant to the procedures described
therein).
The determination not to continue this medical service when the
medical benefits package regulation was established in 1999 was based
on a VA policy decision, not because VA's general treatment authority
did not cover this medical service. Indeed, the fact that abortion was
specifically excluded from the medical benefits package under 38 CFR
17.38(c) makes clear that VA has long held the position that abortion
and abortion counseling is medical care that the Secretary is
statutorily authorized, pursuant to his discretion, to include in the
medical benefits package under Sec. 17.38(a). Although VA maintained
the exclusion on abortion care starting from the effective date of the
medical benefits package in 1999 until 2022, as stated in the preamble
to the IFR, Congress has authorized VA to amend its medical benefits
package when the Secretary determines such change is warranted.
Contrary to the commenter's assertion, VA's reading of 38 U.S.C. 1710
is not novel but supported by past readings of VA's medical care
treatment authority; the commenter's cited case law is thus not
applicable to this rulemaking. VA makes no changes to the rule based on
this comment.
2. Conflict With Section 106 of the Veterans Health Care Act of 1992
Many commenters generally stated that the IFR violates section 106
of the Veterans Health Care Act of 1992 (VHCA), Public Law (Pub. L.)
102-585, 106 Stat. 4943, and that therefore VA should rescind the IFR.
VA does not make any changes to the rule or rescind the IFR based on
these comments. As explained in the preamble to the IFR, the VHCA
barred the provision of abortion, infertility, and much of prenatal and
delivery care but only 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). See 87 FR 55288-289. Moreover, in 1996, the Veterans'
Health Care Eligibility Reform Act effectively overtook section 106 of
the VHCA by enacting major changes to eligibility for VA health care,
including by amending 38 U.S.C. 1710, and directing VA to establish a
system of patient enrollment to manage the provision of care. See 87 FR
55289. 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). Consequently, for
decades, VA has offered general pregnancy care and certain infertility
services under 38 U.S.C. 1710, despite the VHCA's prohibition on
providing such services under section 106. Id. VA has not relied on
section 106 of the VHCA to provide such services or any other services.
Other commenters more specifically asserted that section 106 of the
VHCA was still operable to prohibit abortion in VA health care
programs, and provided more specific supporting rationale, as addressed
below.
a. General Versus Specific Canon of Statutory Construction
Some commenters asserted that, under traditional rules of statutory
construction, the more specific and targeted treatment of abortion in
section 106 of the VHCA governs over the more general treatment of
health care in the Veterans Health Care Eligibility Reform Act of 1996
and 38 U.S.C. 1710. As further explained below, this canon of
construction is applicable when two statutory provisions are in
conflict, but section 106 does not conflict with VA's authority to
provide abortions under other statutory provisions such as 38 U.S.C.
1710 and 1712 (former medical services authority). Consequently, the
focus of commenters on the general versus specific canon is mistaken,
and VA does not make changes to the rule based on these comments.
By its plain terms, section 106 of the VHCA does not circumscribe
the Secretary's authority to determine what hospital care and medical
services are needed under 38 U.S.C. 1710. Section 106 affirmatively
authorized VA to provide certain healthcare services to women,
including ``[g]eneral reproductive health care,'' but provided that
this authorization for general reproductive health care did ``not
includ[e] 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.''
(emphasis added). The phrase ``under this section'' means that while
section 106 bars the provision of any abortion or infertility or
general pregnancy services under section 106 of the VHCA, it does not
limit VA's authority to provide such services under any other statutory
provision, such as VA's general treatment authority, 38 U.S.C. 1710.
See, e.g., Intergovernmental Immunity for the Department of Veterans
Affairs and Its Employees
[[Page 15455]]
When Providing Certain Abortion Services, 46 Op. O.L.C., _, at *1, 7-8
(Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf (noting that the IFR represented
a reasonable exercise of the VA Secretary's discretion to provide
medical services).
Accordingly, the commenters' reliance on the ``general/specific
canon'' is misplaced. Moreover, as the Supreme Court has acknowledged,
the general/specific canon is not an absolute rule and can be overcome
by textual indications that point to the general and specific
provisions coexisting, rather than the specific governing the general.
See RadLAX Gateway Hotel v. Amalgamated Bank, 566 U.S. 639, 646 (2012).
In this case, section 106 specifies that abortions cannot be provided
``under this section'' of the VHCA, but it does not prohibit VA from
providing abortions under other statutory provisions such as 38 U.S.C.
1710 and 1712 (former medical services authority).
VA's interpretation of section 106 in this respect has been long-
standing. VA has never interpreted section 106 to prohibit the
Department from providing health care under other statutory
authorities. For example, as discussed above, VA continued to provide
certain abortions as well as therapeutic surgical sterilizations, a
type of infertility treatment, after the passage of section 106 and
until promulgation of the final rule establishing VA's medical benefits
package in October of 1999. See VHA Policy, Manual M-2, Professional
Services Part XIV, Surgical Service, Change 27, paragraph 9.02a. (July
26, 1977, partial rescission, expired on Jan. 7, 1999) (authorizing
``therapeutic . . . abortion as a proper treatment'' in some
circumstances pursuant to the procedures described therein).
A VA policy published in 1993 also demonstrates this long-standing
interpretation of section 106. With VA's increased focus on health
services available for women veterans, VA published VHA Directive 10-
93-151, Health Care Services for Women Including General Reproductive
Health Care for Women Veterans under the Women Veterans Health Program
Act of 1992 (Pub. L. 102-585) (dated Dec. 6, 1993, rescinded Dec. 29,
1994). In para. 2.b. of this 1993 policy, VA squarely addressed section
106's relation to other treatment laws. Specifically, VA explained that
the exclusions from ``general reproductive healthcare'' (set forth in
section 106(a)(3)) ``do not constitute a ban on the Secretary's
authority to provide infertility or abortion services as otherwise
authorized under 38 United States Code (U.S.C.) Chapter 17.'' It also
explained how the authorities granted in section 106 ``are not new,''
as VA medical centers ``have provided cancer screening to women for
some time,'' and it further described how ``general reproductive health
care'' is ``within the purview of gynecology.'' To this point, when
later issuing the medical benefits package, VA included, within covered
basic care, infertility services (such as reverse voluntary
sterilization and infertility services other than in vitro
fertilization) because they meet the criteria for inclusion, i.e.,
``care that is determined by appropriate healthcare professionals to be
needed to promote, preserve, or restore the health of the individual
and to be in accord with generally accepted standards of medical
practice.'' 64 FR 54207, 54210.
Similarly, VA has provided some infertility services (excluding in
vitro fertilization (IVF) pursuant to 38 CFR 17.38(c)(2)) and
pregnancy-related services under 38 U.S.C. 1710 for decades. See 87 FR
55289; see also 64 FR 54210; VHA Directive 10-93-151, December 6, 1993.
Section 106 excludes ``infertility services'' and ``pregnancy care'' in
addition to ``abortion'' from care provided under section 106. (We note
that section 106 does not further define these terms.) Commenters'
reliance on section 106 to object to VA's addition of abortion to care
provided under 38 U.S.C. 1710 overlooks VA's longstanding provision of
infertility services (excluding IVF) and pregnancy-related services
under 38 U.S.C. 1710, which shows that section 106 does not limit VA's
other healthcare authorities. And VA has long recognized that a veteran
could be eligible for certain infertility services (excluding IVF) for
a service-connected disability under (former) 38 U.S.C. 1712 (former
authority under which outpatient medical services were provided prior
to 1996), even though that veteran would have been ineligible for
infertility services under section 106 of the VHCA. 87 FR 55289.
The IFR explained that Congress enacted the VHCA at a time when
``VA health care was subject to a patchwork of eligibility criteria,
and care was largely linked only to service-connected conditions,'' and
how ``[t]he VHCA, in relevant part, was designed to improve the health
care services available to women veterans.'' 87 FR 55288-89. Section
106 of the VHCA, however, was effectively overtaken by a subsequent
statutory and regulatory overhaul of VA's medical benefits system,
which extended eligibility for hospital care and medical services. The
Veterans' Health Care Eligibility Reform Act of 1996 established a
system in which an eligible veteran could receive whatever medical care
and services the Secretary determines are ``needed.'' 38 U.S.C. 1710;
see, e.g., H.R. Rep. No. 104-690, at 4 (1996); see also id. (``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.''). As explained in the
IFR, ``[t]he Veterans' Health Care Eligibility Reform Act effectively
overtook section 106 of the VHCA,'' and ``section 106's prohibition on
providing certain services `under this section' simply is no longer
operative.'' 87 FR 55289-90.
b. VA's Interpretation of the Phrase ``But Not Including Under This
Section'' in Section 106 of VHCA
Some commenters further asserted that VA's interpretation of the
phrase ``but not including under this section'' in section 106 of the
VHCA, as reiterated in the IFR (87 FR 55289), was invalid, arguing that
such language does not limit abortion restrictions to only that
healthcare for women veterans that was provided under section 106. In
support of this assertion, the commenters proffered that certain
prefatory language in section 106(a) qualifies the ``under this
section'' language in section 106(a)(3) such that the exclusion on
abortions there must be read to apply to all hospital care and medical
services under chapter 17 of title 38.
VA does not make changes to the rule based on these comments, which
misunderstand VA's statutory authority. The VHCA, in relevant part, was
designed to improve the health care services available to women
veterans. 102 Cong. Rec. 32,367 (1992). Section 106(a) of the VHCA
stated that ``[i]n furnishing hospital care and medical services under
chapter 17 of title 38, United States Code,''--prefatory language
applicable to all of section 106--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
[[Page 15456]]
(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).
As explained above, the VHCA has been effectively overtaken by laws
that Congress has subsequently enacted. But even taking section 106 on
its own terms, the commenters' interpretation of section 106(a)'s
prefatory language would render the important ``under this section''
qualifier in section 106(a)(3) a nullity, contrary to longstanding
precedent. Nat'l Ass'n of Mfrs. v. Dep't of Def., 583 U.S. 109, 128-29
(2018) (``As this Court has noted time and time again, the Court is
`obliged to give effect, if possible, to every word Congress used.' ''
(quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)). If
section 106(a)'s prefatory language precluded VA from providing
abortion care under its other statutory authorities, then section
106(a)(3)'s ``under this section'' qualifier would be ``a dead
letter.'' United States v. Atl. Rsch. Corp., 551 U.S. 128, 137 (2007).
By contrast, VA's longstanding interpretation of section 106 faithfully
reads the statute `` `as a whole.' '' Id. at 135 (quoting King v. St.
Vincent's Hospital, 502 U.S. 215, 221 (1991)). In addition, VA finds
support for this in the legislative history accompanying the enactment
of section 106. See Joint Explanatory Statement on H.R. 5193, 1992
U.S.C.C.A.N. 4186, 4189-90 (noting ``[t]he inclusion of the phrase
`under this section' underscores the intent of the Committees not to
limit such authority as the Secretary may have to provide any
infertility services under Chapter 17.''). As explained, moreover, the
commenters' interpretation is inconsistent with the plain meaning (and
VA's decades-long interpretation) of the phrase ``under this section.''
c. VA's Furnishing of In-Vitro Fertilization Services
Commenters asserted that section 106 of the VHCA remains in effect
to prohibit VA from furnishing the health care services permitted under
the IFR, citing as evidence the proposition that VA required a special
amendment, the ``Murray Amendment,'' to carve out an exception from
section 106 of the VHCA so that VA could provide IVF services. The
Murray Amendment is a reference to section 260 of Public Law 114-223,
Division A, title II, enacted on September 29, 2016, and renewed in
subsequent fiscal years. Section 260(a)(1) of Public Law 114-223
provides, notwithstanding any other provision of law, that the amounts
appropriated or otherwise made available to VA for the Medical Services
account may be used to provide fertility counseling and treatment using
assisted reproductive technology to a covered veteran or the spouse of
a covered veteran, subject to certain statutory and regulatory
limitations.
VA does not make changes to the rule based on these comments. VA
disagrees with the commenters' assertion that independent authority to
provide IVF care was needed to supersede section 106. The Murray
Amendment established new authority to provide fertility counseling and
treatment using assisted reproductive technology not only to a covered
veteran but also to the spouse of a covered veteran. It was needed
because 38 U.S.C. 1710 does not extend, and never has extended, to a
veteran's spouse. See 38 U.S.C. 1710 (referring only to veterans) and
38 U.S.C. 1781 through 1789 (VA's statutory authorities to provide
health care to persons other than veterans, which do not extend IVF
care to non-veterans). Independent authority was needed to authorize VA
to also include the spouses of covered veterans in the VA-furnished IVF
episode of care. But the Murray Amendment was not necessary to enable
VA to provide infertility services to the veterans themselves under 38
U.S.C. 1710. And as explained above, section 106 has no impact on VA's
authority to provide medical services pursuant to section 1710 or any
statutory authority other than section 106 itself. In short, the Murray
Amendment did not and does not implicate section 106 of the VHCA.
d. Effect of Deborah Sampson Act of 2020
Some commenters asserted that section 106 of the VHCA must prohibit
VA from furnishing the health care services permitted under the IFR
because the Deborah Sampson Act of 2020 (Pub. L. 116-315, title V,
subtitle A) defined ``health care'' as ``the health care and services
included in the medical benefits package provided by the Department
before January 5, 2021,'' sec. 5101 of Public Law 116-315, and on
January 4, 2021, the health care and services included in the medical
benefits package provided by the Department did not include abortion or
abortion counseling. The commenters argued that Congress thus approved
of the exclusion of abortion and abortion counseling.
VA does not make changes to the rule based on these comments. The
IFR explained that the Deborah Sampson Act of 2020, Public Law 116-315,
title V, section 5001 (2021) ``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.' '' 87 FR 55289 (quoting 38 U.S.C. 7310(b)(1)) (alterations
in original). 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].'' Id. (quoting 38 U.S.C. 7310
note). At the time, the medical benefits package included (and still
includes) care that would have been excluded under the commenters'
interpretation of section 106 of the VHCA, such as prenatal and
delivery services.
The IFR stated that ``[g]iven 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.' '' 87 FR 55289.
Contrary to the commenter's assertion, the fact that VA had not, in
its discretion, exercised its authority at the time of the Act to
provide abortions or make exceptions to the regulatory exclusion on
abortion does not mean that VA lacks statutory authority under 38
U.S.C. 1710 to determine that abortions in some cases constitute needed
care and to accordingly amend its exclusion by regulation. As VA
explained in the IFR, the Deborah Sampson Act of 2020 recognized 38
U.S.C. 1710 as a separate treatment authority unaffected and not
limited by section 106. In fact, the terms of 38 U.S.C. 7310A(g)(2) as
added by the Deborah Sampson Act of 2020 define, for purposes of VA's
annual reporting requirement, gender-specific services to include:
``mammography, obstetric care, gynecological care, and such other
services as the Secretary determines appropriate,'' some of which VA
would not have authority to provide ``under the commenters'
interpretation of section 106. See also supra I.B.2. Thus, section 106
and its limits on certain care under section 106 of Public Law 102-
[[Page 15457]]
585 were clearly not seen by Congress in promulgating the Deborah
Sampson Act of 2020 as having any effect on VA's exercise of authority
under 38 U.S.C. 1710.
Nothing in the Deborah Sampson Act of 2020 prohibits VA from
removing exclusions from the medical benefits package under 38 U.S.C.
1710. VA recognizes that 38 U.S.C. 7310, Note, (Pub. L. 116-315, title
V, section 5101(b)(2)) provides that: ``The references to health care
and the references to services in sections 7310 and 7310A of title 38,
United States Code, as added by paragraph (1), are references to 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].'' Congress did not, through
that language, freeze in place the types of medical services that VA is
authorized to provide under its general treatment authorities. Section
7310 of title 38, U.S.C. relates to the establishment of the Office of
Women's Health within VHA and its mission, and 38 U.S.C. 7310A relates
to annual reports on Women's Health to be submitted to Congress.
Nothing in either statute prohibits VA from expanding the medical
benefits package or services or from providing additional information
beyond what is required under 38 U.S.C. 7310 and 7310A. And these
sections impose no limits on VA's general treatment authority in 38
U.S.C. 1710.
To the contrary, some of the functions of the Office of Women's
Health set forth in 38 U.S.C. 7310(b) are to promote the expansion and
improvement of clinical activities of VHA with respect to the health
care of women veterans and to carry out such other duties as the Under
Secretary for Health may require. On its face, the function of the
Office to ``expand and improve'' clinical activities of VHA
contemplates VA's authority to modify the medical benefits package to
include additional services with respect to the health care of women
veterans.
e. Repeal of Section 106 of the VHCA
Some commenters asserted that section 106 has not been expressly
repealed and further that repeals by implication are not favored,
citing Branch v. Smith, 538 U.S. 254, 273 (2003), and Posadas v.
National City Bank, 296 U.S. 497 (1936). VA does not make any changes
to the rule based on these comments.
At the outset, VA notes that this issue is immaterial because, even
if section 106 remained in force, it would not constrain VA's authority
to provide services (whether abortions, prenatal care, or other
services) limited under section 106 but authorized under other
statutory provisions such as 38 U.S.C. 1710 and former 38 U.S.C. 1712.
Rather, the limitation in section 106 regarding care ``under this
section'' applies only to section 106.
Regardless, VA disagrees with commenters that section 106 remains
in force. As discussed above and in the preamble to the IFR, the
Veterans' Health Care Eligibility Reform Act effectively overtook
section 106 of the VHCA by establishing a new standard to focus on
medical necessity as ``the sole criterion of eligibility for VA
hospital care and medical services.'' \1\ The ``need for care'' test
was meant to ensure ``that medical judgment rather than legal criteria
will determine when care will be provided and the level at which that
care will be furnished.'' \2\ To the extent the commenters would
construe section 106 of the VHCA to restrict VA's authority to provide
a specific type of health care or service under separate statutory
authorities, regardless of a finding of medical need, that restriction
would irreconcilably conflict with VA's furnishing of any needed health
care or services under 38 U.S.C. 1710. Indeed, for decades, VA has
offered general pregnancy care and certain infertility services under
38 U.S.C. 1710 and has not relied on section 106 of the VHCA to provide
such services or any other services.
---------------------------------------------------------------------------
\1\ H.R. REP. NO. 104-690, at 11.
\2\ Id. at 4.
---------------------------------------------------------------------------
3. Conflict With State Laws
Many commenters generally opined that the IFR violates State laws.
VA does not make changes to the rule based on these comments.
The Supremacy Clause of the U.S. Constitution, U.S. Const. art. VI,
cl. 2., generally prohibits States from interfering with or controlling
the operations of the Federal government, and therefore immunizes the
Federal government from State laws that directly regulate it. ``[W]hen
a federal agency `perform[s] a federal function pursuant to a law
validly enacted by Congress[,] . . . under the Supremacy Clause, the
states may not prohibit or, by regulation, significantly burden the
manner of its execution without the consent of the United States.' ''
Intergovernmental Immunity for the Department of Veterans Affairs and
Its Employees When Providing Certain Abortion Services, 46 Op. O.L.C.,
_, at *4 (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf. Applying this principle to
VA's IFR, the Department of Justice's Office of Legal Counsel concluded
that ``states may not restrict VA and its employees acting within the
scope of their federal authority from providing abortion services as
authorized by federal law, including VA's rule.'' Id. at *10.
Moreover, VA promulgated a regulation at 38 CFR 17.419 that
explicitly preempts any State laws, rules, regulations, or requirements
that conflict with a VA health care professional's practice within the
scope of their VA employment. As explained in the IFR, consistent with
Sec. 17.419, VA has determined that State and local laws, rules,
regulations, or requirements, to the extent those laws unduly interfere
with Federal operations and the performance of Federal duties, are
preempted. That includes laws that States and localities might attempt
to enforce in civil, criminal, or administrative matters against VA
employees. State and local governments lack legal authority to enforce
such laws, rules, regulations, or requirements in relation to health
care and medical services provided by VA employees acting within the
scope of their VA authority and employment.
One commenter asserted that VA has no basis in Federal law to claim
``blanket preemption'' in States that prohibit or restrict abortion,
and other commenters relatedly stated that VA must be specific with
regards to its claim of Federal supremacy. Such comments noted specific
kinds of State laws that they asserted VA must either adhere to or
demonstrate are explicitly preempted. Other commenters stated that
Federal agencies cannot preempt State law unless an explicit conflict
exists.
VA does not make changes to the rule based on these comments. It is
not clear what the commenter meant by ``blanket preemption.'' VA has
been specific as to the scope of preemption; as VA previously confirmed
in 38 CFR 17.419, and reiterated in the IFR, VA health care
professionals may practice their health care profession consistent with
the scope and requirements of their VA employment, notwithstanding any
State law or license, registration, certification, or other
requirements that unduly interfere with their practice. VA's regulation
provides that, in order to ``provide the same complete health care and
hospital service to beneficiaries in all States as required by 38
U.S.C. 7301, 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
[[Page 15458]]
enforce them in relation to actions by health care professionals within
the scope of their VA employment.'' 38 CFR 17.419. Consistent with the
Supremacy Clause and Sec. 17.419, the IFR further explained that a
State or local civil or criminal law that restricts, limits, or
otherwise impedes a VA professional's provision of needed medical care
within the scope of their VA employment, including the health care
services permitted under the IFR, would be preempted. VA employees,
including health care professionals who provide care and VA employees
who facilitate that health care, such as VA employees in administrative
positions who 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.
In response to comments that raised specific State requirements
related to abortion, and further suggested that VA must show whether
such requirements are specifically preempted, we do not make changes.
As a general matter, VA determines whether a State law ``unduly
interferes on a case-by-case basis.'' See Authority of VA Professionals
to Practice Health Care, 85 FR 71838, 71842 (Nov. 12, 2020);
Intergovernmental Immunity for the Department of Veterans Affairs and
Its Employees When Providing Certain Abortion Services, 46 Op. O.L.C.,
_, at *10 (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf. Accordingly, consistent with
VA's existing regulations and the authorities discussed above, any
State and local laws and regulations that VA determines would prevent
or unduly interfere with VA health care professionals providing needed
care as permitted by this rule, would be preempted.
Several commenters referenced a court case related to HHS's
interpretation of the Emergency Medical Treatment and Labor Act
(EMTALA), which VA believes meant to reference an injunction issued by
the U.S. District Court for the Northern District of Texas, Texas v.
Becerra, 623 F. Supp. 3d 696 (N.D. Tex. 2022), aff'd, 89 F.4th 529 (5th
Cir. 2024), where the district court was interpreting the specific
language of this different statute that applies to certain hospitals
that receive Medicare funding. The court was not interpreting VA's
statutory authority, or related statutory language applicable here, and
its decision and reasoning are not applicable to VA's IFR.
One commenter asserted, without any supporting authority, that VA
is required to show a compelling interest to preempt State laws. As VA
explained in the IFR, pursuant to its authorities in 38 U.S.C. 1710 and
1781, VA implemented the IFR to avert imminent and future harm to
veterans and CHAMPVA beneficiaries whose interests Congress entrusted
VA to serve. As explained above, 38 CFR 17.419(c) preempts
``conflicting State laws, rules, regulations, or requirements pursuant
to such laws'' to the extent the State law unduly interferes with VA's
ability ``provide the same complete health care and hospital services
to beneficiaries in all States'' including, but not limited to,
abortion. VA takes no action based on this comment.
4. Conflict With the Holding in Dobbs and the Tenth Amendment
Some commenters stated that the Dobbs decision delegated abortion
matters to States rather than the Federal government, and further that
the Tenth Amendment of the United States Constitution limits VA's
authority to preempt State law. VA takes no action based on these
comments. The Dobbs decision overturned Roe v. Wade, 410 U.S. 113
(1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992), and in no way affects VA's Federal statutory
authority to develop regulations and policy related to the agency's own
provision of needed medical care, including the health care services
permitted under the IFR. VA furnishes hospital care and medical
services determined to be needed pursuant to VA's general treatment
authority for veterans (38 U.S.C. 1710), and pursuant to regulation
through VA's medical benefits package (38 CFR 17.38). VA has determined
that the health care services permitted by the IFR are needed.
Similarly, VA has determined that providing access to such care 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)''). As explained above, the
Supremacy Clause of the United States Constitution prohibits states
from restricting Federal agencies and their employees acting within the
scope of their Federal authority from providing abortion services. See
generally Intergovernmental Immunity for the Department of Veterans
Affairs and Its Employees When Providing Certain Abortion Services, 46
Op. O.L.C., _, (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf.
The Tenth Amendment of the United States Constitution provides that
the powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people. VA is a Federal health care system, the
operations of which are governed by Federal law, consistent with title
38, United States Code. VA's authority to furnish health care to
veterans and CHAMPVA beneficiaries has been granted by Federal statute
as described above. VA's issuing of the IFR does not encroach on any
rights reserved to the States or to the people and is not a violation
of the Tenth Amendment to the United States Constitution. The statement
of preemption of conflicting State law under the IFR is consistent with
38 CFR 17.419(c) and lawful pursuant to the Supremacy Clause, U.S.
Const. art. VI, cl. 2.
5. Conflict With Department of Defense Authorities
Commenters alleged that this rule violates 10 U.S.C. 1093 and that
VA cannot or should not provide broader access to abortion counseling
and abortions than DoD. Multiple of these commenters further asserted
that it is hard to imagine that Congress intended for former members of
the armed services and their dependents to have access to abortion
under VA programs when current service members do not have such access
under DoD programs, and one commenter incorrectly stated that VA
Medical Centers are facilities within the control of DoD. VA does not
make changes to the rule based on these comments.
Section 1093 of title 10 of the U.S. Code establishes that DoD may
not use funds or facilities ``to perform abortions except where the
life of the mother would be endangered if the fetus were carried to
term or in a case in which the pregnancy is the result of an act of
rape or incest.'' Section 1093 applies only to the use of DoD funds and
facilities, not to VA funds and facilities. VA notes, however, that the
terms of 10 U.S.C. 1093 conflict with the assertions made by some
commenters that active-duty members of the armed services can never
receive abortions under DoD programs.
[[Page 15459]]
To the extent that some of these commenters raised the issue of
dependents of service members having access to services in VA programs
that they would not have under DoD programs for dependents, the statute
governing VA's coverage for CHAMPVA beneficiaries specifically
recognizes the possibility of differences in what care is covered under
this VA program as opposed to the care covered under the similar DoD
program, i.e., TRICARE (Select). Congress did not require that VA
furnish identical medical benefits to those not eligible for TRICARE
(Select). Rather, the law directs VA to provide CHAMPVA beneficiaries
with medical care ``in the same or similar manner and subject to the
same or similar limitations as medical care'' furnished to DoD TRICARE
Select beneficiaries. 38 U.S.C. 1781(b) (emphases added). Indeed, prior
to the IFR, CHAMPVA was not identical to TRICARE (Select). See, e.g.,
87 FR 55290. For example, the former did not include access to
abortions in cases of rape or incest, while the latter did. The IFR
brought CHAMPVA more in line with TRICARE (Select) in this regard. The
commenter does not address the statute's repeated use of the phrase
``or similar.'' That text recognizes differences may exist between the
two programs' respective beneficiary populations and their needs. As VA
explained in the IFR, 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. 87 FR 55290. Further, CHAMPVA beneficiaries (unlike
TRICARE (Select) beneficiaries) include family caregivers of veterans,
not just eligible dependents. 38 U.S.C. 1720G(a)(3)(A)(ii)(IV).
Consistent with the statute's plain meaning, VA provides CHAMPVA
beneficiaries certain care that is ``similar,'' but not necessarily
identical, to care provided to beneficiaries of TRICARE (Select). See,
e.g., 73 FR 65552 (November 4, 2008) (adding coverage for medically
necessary prostheses because of significant conditions and removing
exclusion of enuretic devices despite each not being covered by TRICARE
(Select)); 87 FR 41594 (July 13, 2022) (providing coverage for annual
physical exams, even though excluded in TRICARE (Select)).
6. Conflict With the Antideficiency Act
Commenters stated that VA is barred from providing or paying for
abortion or abortion counseling pursuant to the Antideficiency Act. VA
does not make changes to the rule based on these comments. The
Antideficiency Act, 31 U.S.C. 1341(a), generally prohibits Federal
agencies from making expenditures in excess of available appropriations
or in advance of appropriations. Per 31 U.S.C. 1349(a) and 1350, there
are penalties associated with violations of the Antideficiency Act.
In this case, the Antideficiency Act is not implicated because
Congress appropriated funds to VA to perform authorized services. Per
title II of division J of the Consolidated Appropriations Act, 2021
(Pub. L. 116-260), title II of division J of the Consolidated
Appropriations Act, 2022 (Pub. L. 117-103) and title II of division J
of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), funds
appropriated for fiscal years 2022, 2023, and 2024 to the Medical
Services appropriations account have been made available ``[f]or
necessary expenses for furnishing, as authorized by law, inpatient and
outpatient care and treatment to beneficiaries of the Department of
Veterans Affairs and veterans described in section 1705(a) of title 38,
United States Code, including care and treatment in facilities not
under the jurisdiction of the Department.'' The Medical Community Care
appropriations account for fiscal years 2022, 2023, and 2024, has been
made available ``[f]or necessary expenses for furnishing health care to
individuals pursuant to chapter 17 of title 38, United States Code, at
non-Department facilities.'' Title II, Division J, Consolidated
Appropriations Act, 2021 (Pub. L. 116-260); Title II, Division J,
Consolidated Appropriations Act, 2022 (Pub. L. 117-103); Title II,
Division J, Consolidated Appropriations Act, 2023 (Pub. L. 117-328).
More specifically, the Medical Services appropriation is for necessary
expenses of inpatient and outpatient VA beneficiary care provided by VA
at VA facilities and Government facilities for which VA contracts. The
Medical Community Care appropriation is for necessary expenses of
providing healthcare to VA beneficiaries in the community--facilities
other than VA facilities and Government facilities for which VA
contracts.
As explained, an abortion is authorized care under 38 U.S.C. 1710,
the IFR, and the medical benefits package when a health care
professional determines it to be needed and in accord with generally
accepted standards of medical practice and: (1) the life or the 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. Expenditures associated with such authorized care may be
made from VA's Medical Services and--when appropriate--Medical
Community Care accounts.
The IFR also authorizes the provision of medically necessary
abortions and abortion counseling under VA's CHAMPVA program, 38 U.S.C.
1781, under the circumstances described in the rule. Medical Services
and Medical Community Care account funds are used for the CHAMPVA
program and may therefore be used for authorized counseling and care.
Such expenditures are proper and do not violate VA's appropriations act
or the Antideficiency Act.
7. Conflict With the Hyde Amendment
Some commenters stated that VA is barred from providing or paying
for the health care services permitted under the IFR pursuant to what
is referred to as the Hyde Amendment. VA does not make changes to the
rule based on these comments.
VA is not subject to the Hyde Amendment, which addresses Federal
funds available to the Departments of Labor, Health and Human Services,
and Education in legislation on annual appropriations. Division H of
Public Law 117-328; see also 87 FR 55290. Accordingly, VA is not barred
by the Hyde Amendment from spending its funds to provide authorized
health care services permitted by the IFR.
8. Conflict With the Assimilative Crimes Act and VA-Related Regulation
Some commenters asserted that the IFR violates the Assimilative
Crimes Act, 18 U.S.C. 13, which allows the Federal government to
prosecute a State crime as a Federal offense in limited circumstances
when such offense has been committed on an area within the jurisdiction
of the United States known as a Federal enclave and is not otherwise a
Federal offense. These commenters appeared to assert that if a State
makes it a crime to perform an abortion, any abortion performed in that
State, in the absence of a Federal law prohibiting such performing of
an abortion, would be unlawful under 18 U.S.C. 13 if performed on
Federal property. Relatedly, one commenter alleged that the rule
conflicts with 38 CFR 1.218(c)(3), which states that nothing contained
in the rules and regulations set forth under 38 CFR 1.218(a) shall be
construed to abrogate any other Federal laws or regulations, including
assimilated offenses under 18 U.S.C. 13, or any State or local laws and
regulations applicable to the area in which the property is situated.
[[Page 15460]]
VA does not make changes to the rule based on these comments. As
some of these commenters acknowledged, the Department of Justice's
Office of Legal Counsel (OLC) has examined whether the Assimilative
Crimes Act would apply to Federal employees performing their duties in
a manner authorized by Federal law, while on a Federal enclave, which
may include VA hospitals. OLC concluded that Federal employees engaging
in such conduct would not violate that statute and could not be
prosecuted by the Federal government under that law. Application of the
Assimilative Crimes Act to Conduct of Federal Employees Authorized by
Federal Law, 46 Op. O.L.C. _ (Aug. 12, 2022), https://www.justice.gov/olc/file/1527726/download. The reasoning in that opinion applies to VA
employees on Federal enclaves who are providing care in accordance with
their Federal duties authorized under the IFR. The commenter did not
provide any response to this analysis, other than to reiterate the
commenter's view that Federal law ``places significant limitations on
abortions in VA programs.'' As explained, however, VA has statutory
authority to provide the health care services permitted under the IFR.
Furthermore, the IFR is not in conflict with 38 CFR 1.218(c)(3),
which provides, ``Nothing contained in the rules and regulations set
forth in paragraph (a) of this section shall be construed to abrogate
any other Federal laws or regulations, including assimilated offenses
under 18 U.S.C. 13 or any State or local laws and regulations
applicable to the area in which the property is situated.'' Paragraph
(a) of such section describes rules and regulations that apply at a
property under the charge and control of VA, and to persons entering
such property, including, for example, conduct related to gambling, use
of service animals, creation of disturbances, and vehicular and
pedestrian traffic. 38 CFR 1.218(a). This provision is unrelated to
matters of medical practice or the provision of medical benefits. It
does not subject VA and its employees to State or other local
restrictions on any form of medical care that VA staff are authorized
to furnish, including VA's provision of health care services permitted
under the IFR. Additionally, because the Assimilative Crimes Act has no
application to VA employees practicing within the scope of their VA
practice, as explained above, the portion of 38 CFR 1.218(c)(3)
referring to the Act has no application to care provided under the IFR.
9. Conflict With Interstate Prohibitions Under 18 U.S.C. 1461 and 1462
Commenters alleged that the IFR violates 18 U.S.C. 1461 and 1462.
Section 1461, in pertinent part, prohibits the mailing of ``[e]very
article or thing designed, adapted, or intended for producing abortion,
or for any indecent or immoral use'' and ``[e]very article, instrument,
substance, drug, medicine, or thing which is advertised or described in
a manner calculated to lead another to use or apply it for producing
abortion, or for any indecent or immoral purpose.'' Section 1462, in
pertinent part, prohibits the knowing use of ``any express company or
other common carrier or interactive computer service'' for
transportation across State lines of ``any drug, medicine, article, or
thing designed, adapted, or intended for producing abortion, or for any
indecent or immoral use[.]'' These commenters also alleged that
violation of these laws then support offenses under 18 U.S.C.
1961(1)(B) and 18 U.S.C. 552 (prohibiting Federal employees from aiding
and abetting persons engaged in violation of laws prohibiting dealing
in, among other things, the means for procuring abortion).
VA does not make changes to the rule based on these comments
because the IFR is consistent with 18 U.S.C. 1461. In December 2022,
OLC concluded that 18 U.S.C. 1461 does not prohibit the mailing of
certain drugs that can be used to perform abortions where the sender
lacks the intent that the recipient of the drugs will use them
unlawfully. Because there are manifold ways in which recipients in
every State may lawfully use such drugs, the mere mailing of such drugs
to a particular jurisdiction is an insufficient basis for concluding
that the sender intends them to be used unlawfully. See Application of
the Comstock Act to the Mailing of Prescription Drugs That Can Be Used
for Abortions, 46 Op. O.L.C., _, at 1 (Dec. 23, 2022), https://www.justice.gov/d9/opinions/attachments/2023/01/03/2022-12-23_-_comstock_act_1.pdf. In support of this conclusion, the OLC opinion
explains that there are uses of these medications that State law does
not prohibit, including mailing of abortion medications intended, for
example, to be used pursuant to Federal authorities. Federal agencies,
including VA, provide lawful abortions pursuant to their Federal
authorities; therefore the mailing of abortion medications intended to
be used lawfully pursuant to those authorities would not violate 18
U.S.C. 1461. This opinion further explains that the same analysis is
applicable to the cognate provision 18 U.S.C. 1462. Id. at 2 n.3.
Because any mailing or other transporting across State lines of certain
medications or items under the IFR would not violate 18 U.S.C. 1461 or
1462, there is no subsequent potential offense under 18 U.S.C.
1961(1)(B) and 18 U.S.C. 552.
10. Conflict With the Major Questions Doctrine
Commenters alleged that this rule violates the major questions
doctrine, referencing West Virginia v. Environmental Protection Agency,
142 S. Ct. 2587 (2022). Under such doctrine, an agency must identify
clear congressional authorization for its exercise of authority in ``
`extraordinary cases' in which the `history and the breadth of the
authority that [the agency] has asserted,' and the `economic and
political significance' of that assertion, provide a `reason to
hesitate before concluding that Congress' meant to confer such
authority.'' Id. at 2608 [alterations in original]. VA does not make
changes to the rule based on these comments. As explained above, VA has
not found ``a newfound power'' in an ``ancillary provision'' of the
Veterans' Health Care Eligibility Reform Act of 1996, as the Supreme
Court found the Environmental Protection Agency had done with the Clean
Power Plan. West Virginia, 142 S. Ct. at 2602, 2610. Congress expressly
delegated to the Secretary of Veterans Affairs the authority to
``furnish hospital care [and] medical services . . . which the
Secretary determines to be needed.'' 38 U.S.C. 1710(a)(1)-(3).
Identifying the medical services ``determine[d] to be needed'' for
veterans is clearly within VA's authority. As discussed above, prior to
promulgation of the final rule establishing VA's medical benefits
package in October of 1999, VHA Policy, Manual M-2, Professional
Services Part XIV, Surgical Service, Change 27, paragraph 9.02a. (July
26, 1977, partial rescission, expired on Jan. 7, 1999), recognized the
need for and authorized the provision of a ``therapeutic . . . abortion
as a proper treatment'' in some circumstances pursuant to the
procedures described therein. The IFR is thus a traditional exercise of
VA's established authority to determine what medical services are
``needed'' and, therefore, to decide what specific medical services VA
will cover or provide under the medical benefits package.
Additionally, Congress has directed VA to 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 under TRICARE
(Select). As
[[Page 15461]]
explained in the IFR, VA has previously deviated from TRICARE (Select)
in amending its CHAMPVA regulations to provide services that best
promote the long-term health of CHAMPVA beneficiaries while remaining
sufficiently ``similar'' to TRICARE (Select). 87 FR 55290-55291. Thus,
this IFR is also a traditional exercise of VA's authority to administer
CHAMPVA and decide what medical services are medically necessary and
appropriate for CHAMPVA coverage while remaining sufficiently
``similar'' to TRICARE (Select).
11. The Born Alive Infants Protection Act
One commenter inquired what VA will do to comply with its
obligations under the Born Alive Infants Protection Act of 2002, and
further stated that VA fails to explain what policies and procedures
are in place to ensure that any children born alive after attempted
abortions are given appropriate medical care in the same manner as
other children born alive. The Born-Alive Infants Protection Act of
2002, Public Law 107-207, was enacted August 5, 2002, and is codified
at 1 U.S.C. 8. The Act clarifies that, for purposes of any Act of
Congress or any ruling, regulation, or interpretation of the various
Federal agencies, the meaning of the words ``person,'' ``human being,''
``child,'' or ``individual'' ``shall include any infant member of the
species homo sapiens who is born alive at any stage of development.''
VA is subject to, and will continue to comply with, the provisions
found in 1 U.S.C. 8. Additionally, VA is authorized to provide certain
health care services to a newborn child of a woman veteran receiving
care from VA. 38 U.S.C. 1784A and 1786. VA does not make changes to the
rule based on this comment.
II. Comments That Raised Concerns With VA's Good Cause Analysis To
Issue an IFR
VA issued an IFR, in which the changes to 38 CFR 17.38 and 17.272,
were effective immediately upon publication, and the public comment
period began on the date of publication. 87 FR 55287. VA found that
good cause justified forgoing advance notice for public comment and a
delayed effective date. 5 U.S.C. 553(b)(B), (d)(3). VA cited its urgent
need to provide access to abortion counseling and to abortions in cases
of rape or incest or where the life or health of the pregnant
individual is in danger following Dobbs. After Dobbs, some States had
begun to enforce existing abortion bans and restrictions on care and
were proposing and enacting new bans and restrictions containing
limited exceptions for medical necessity; some also included exceptions
for pregnancy that is the result of rape or incest. These measures were
creating urgent risks to the lives and health of pregnant veterans and
CHAMPVA beneficiaries in those States. 87 FR 55294. VA received
comments that opposed VA's issuance of an IFR based on general
assertions that VA's good cause justification was insufficient,
although only some of these comments directly addressed VA's good
cause. VA notes at the outset that our request for comment in the IFR
and issuance of this final rule have overtaken any assertions
concerning a lack of good cause. In any event, VA addresses below the
comments it received concerning VA's good cause for making the IFR
effective immediately.
A. General Assertions That Good Cause Was Not Established
Some commenters asserted that VA's good cause justification was
insufficient for general reasons unrelated to VA's rationales
supporting good cause. Many of the duplicated form responses that VA
received as comments asserted that the IFR violated the Administrative
Procedure Act (APA) and stated that the APA requires that the public
have an opportunity to provide comment on matters of public interest
before a rule is effective. VA does not change course based on these
comments. The 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 at least a 30-day delay before the rules
become effective. 5 U.S.C. 553(b), (d). However, an agency may forgo
prior 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)) and may also bypass the APA's 30-day delayed
effective date requirement if good cause exists (5 U.S.C. 553(d)(3)),
or if the rule ``grants or recognizes an exemption or relieves a
restriction'' (5 U.S.C. 553(d)(1)). VA found good cause under 5 U.S.C.
553(b)(B), ((d)(3), and also explained that the IFR removed certain
restrictions (see 87 FR 55294-96), and therefore did not violate the
APA in issuing the IFR.
Other commenters asserted that although a Federal agency is allowed
to publish an IFR, VA did not demonstrate that it had good cause to do
so. Because these commenters did not specifically assert or explain why
they believed VA did not demonstrate good cause, VA does not change
course based on these comments. As VA explained in the IFR, VA had good
cause to make the IFR effective immediately because delaying its
effectiveness would leave many veterans and CHAMPVA beneficiaries
without access to needed and medically necessary and appropriate health
care--abortions and abortion counseling that VA is able to provide
under the IFR--thus putting their health and lives at risk. 87 FR
55295-96. Immediate effectiveness was critical following State actions
to further ban or restrict abortion post-Dobbs. Id. These State bans
and restrictions on abortion presented a serious threat to the health
and lives of over one hundred thousand veterans and CHAMPVA
beneficiaries who relied, or may rely in the future, on VA health care.
Id. VA determined that such bans and restrictions would 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 in the community before the Dobbs decision, especially as
State laws prompted providers to cease offering abortion services
altogether. 87 FR 55295-55296. 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 health of
the pregnant individual or when the pregnancy is the result of an act
of rape or incest. Id. As noted in the IFR, it was estimated that up to
53 percent of veterans of reproductive age may be living in States that
either had already banned abortions or were soon expected to ban
abortions, following Dobbs. 87 FR 55295. VA also estimated that nearly
50,000 CHAMPVA beneficiaries could have been impacted by such those
then-current or expected bans. Id.
Some commenters asserted that the substantive provisions of the IFR
were generally not in the public interest or in States' interests (for
those States that have instituted more stringent restrictions on
abortions or more burdensome requirements on abortion counseling), and
therefore VA could not have provided adequate good cause. These
commenters did not offer specific reasons why VA did not have good
cause to issue the IFR; rather, they seemed to assert that because they
deemed a substantive provision of an IFR to generally be against the
public or States' interests, then a good cause justification must
necessarily fail. In invoking the public interest prong of the good
cause exemption, the question is not whether a substantive provision of
a rule, itself, would be contrary to public interest in the minds of
some, but
[[Page 15462]]
whether following ``ordinary procedures--generally presumed to serve
the public interest--would in fact harm that interest.'' Mack Trucks,
Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012). For the reasons
explained in the IFR, VA provided good cause for why providing advance
notice and comment would be contrary to public interest. See, e.g., 87
FR 55294-96.
B. Specific Assertions That Good Cause Was Not Established
Some commenters asserted that VA's good cause justification was
insufficient for reasons more directly related to the reasons VA stated
in finding good cause. These commenters did not agree with VA's
statement of urgent need to provide access to the health care services
permitted under the IFR following the ruling in Dobbs, which resulted
in some States severely restricting and banning abortion. VA groups and
summarizes such comments below.
Some commenters asserted that the IFR was not urgently needed
because every, or nearly every, State that restricts abortion permits
exceptions when the life of the pregnant individual would be endangered
were the pregnancy carried to term, and further that some of those
States also permit exceptions where the pregnancy was the result of
rape or incest. These commenters generally seemed to assert that if
many or enough of the States had similar exceptions for abortions as
the IFR, then there could not be sufficient need among veterans to
access the health care services permitted under the IFR from VA to
support good cause.
VA does not change course based on these comments. The fact that
some, but not all, States might permit similar access to care as VA is
not sufficient to prevent endangerment to the life or health of
pregnant individuals that VA serves. See 87 FR 55288 (concluding that
care available under the IFR is needed and medically necessary and
appropriate). In fact, even though some States may allow an abortion to
prevent the endangerment to the life of a pregnant individual, they may
not allow an abortion to prevent the endangerment to the health of a
pregnant individual. When pregnant veterans and CHAMPVA beneficiaries
face pregnancy-related complications that their VA health care
providers have determined are putting their health or lives at risk or
are pregnant due to an act of rape or incest, they must be confident
that their providers can take the clinically necessary action to
provide needed and medically necessary and appropriate health care. And
even in States that restrict abortions subject to exceptions similar to
VA's, abortion access is often subject to additional restrictions that
VA, on the basis of its authorities and obligations, has not adopted,
such as timeframe limitations, evidentiary requirements, or
prerequisite procedures (such as mandatory waiting periods or required
ultrasounds), which could delay delivery of care that is often time
sensitive. VA must always ensure it can consistently meet the medical
needs of veterans and CHAMPVA beneficiaries across its healthcare
system. Even one State presents enough risk to the lives and health of
veterans and CHAMPVA beneficiaries to support VA's good cause
justification in the IFR. As the IFR states, ``[a]llowing even one
preventable death of a veteran or CHAMPVA beneficiary by limiting
access to abortions is unacceptable.'' 87 FR at 55296.
Commenters further asserted that VA's statements of good cause were
not substantiated because VA did not cite specific cases where needed
and medically necessary and appropriate care would not be permitted. In
so doing, commenters argued that VA must conduct a more thorough
analysis to more specifically identify those individuals who cannot get
the care VA has found to be needed and medically necessary and
appropriate. Those commenters are incorrect. VA explained that
``certain States have begun to enforce abortion bans and restrictions
on care, and are proposing and enacting new ones.'' Id. at 55288; see
also id. at 55293, 55295 (citing examples and describing the evolving
legal landscape). VA also documented the pressing need to ensure that
all of the veterans and CHAMPVA beneficiaries for which VA provides
healthcare have access to needed and medically necessary and
appropriate care. Id. at 55291-92.
Other commenters asserted that VA has not issued statements
regarding, or otherwise does not have, a clear plan to implement the
provisions of the IFR despite asserting an emergency to support good
cause. These commenters seemed to argue that there can be no need to
forgo notice and comment procedures and dispense with a delayed
effective date if VA is not yet ready to implement the IFR on a large-
scale level. That is incorrect: VA was prepared to offer health care
services permitted under the IFR on the day the IFR was published.
To the extent commenters posit that abortion is harmful to patients
or is never necessary--that abortions are, essentially, illegitimate
medical services, thereby negating VA's good cause argument and grounds
for publishing the IFR--the commenters failed to provide a rationale
for, and to demonstrate the basis for, this position. The VA Secretary
has determined that the health care services permitted under the IFR
are needed pursuant to 38 U.S.C. 1710 and are medically necessary and
appropriate pursuant to 38 U.S.C. 1781, as implemented by 38 CFR 17.270
et seq., and VA has authority to provide these services under the terms
of the IFR, as explained there. As non-exhaustive examples, the IFR
identified conditions such as ``severe preeclampsia, newly diagnosed
cancer requiring prompt treatment, and intrauterine infections, and . .
. pre-existing conditions exacerbated by continuing the pregnancy,''
for which pregnancy termination ``may be the only treatment available
to save the health or life of the pregnant individual.'' 87 FR 55295.
In States that restrict access to abortion services, treatment delayed
so VA could seek prior public comment would have been treatment denied.
Other commenters asserted that the timing of VA's publication of
the IFR, being two months after publication of the Dobbs decision (and
four months after such decision ``leaked'' as stated in the comments)
was too late to justify VA's statement of need in support of its good
cause. In support of this assertion, these commenters proffered that
because VA was aware that the Supreme Court could overturn Roe, prior
to the Dobbs decision, and because some States had taken anticipatory
action prior to the Dobbs decision, VA would have issued the IFR sooner
if there were an actual emergent need. VA does not change course based
on these comments. The administrative process for VA to weigh policy,
make decisions, draft a rulemaking, and have that rulemaking clear all
required reviews prior to publication in the Federal Register can
routinely take substantial effort and time. Indeed, the Supreme Court
has found that an agency taking two months to prepare a 73-page rule
did not constitute ``delay'' inconsistent with the Secretary's finding
of good cause. Missouri, 142 S. Ct. at 654. Here, the publication of
the IFR was completed at the earliest possible time and ensures that,
irrespective of contrary State laws post-Dobbs, veterans and CHAMPVA
beneficiaries can receive access to the needed and medically necessary
and appropriate health care services permitted under the IFR.
One commenter opined that the IFR lacked good cause because VA has
always provided care to pregnant individuals in life-threatening
[[Page 15463]]
circumstances, including treatment for ectopic pregnancies or
miscarriages, which were covered under VA's medical benefits package
prior to the IFR. In support, the commenter cited to Veterans Health
Administration (VHA) Directive 1330.03, titled Maternity Health Care
and Coordination, dated November 3, 2020. The commenter further stated
that providing such lifesaving care to a pregnant individual is not an
abortion and is already allowed. This commenter seemed to assert that
because VA provided some lifesaving treatment to manage certain
complications associated with pregnancy prior to the IFR, that there
could not have been an emergency to warrant VA's issuance of the IFR.
While VA agrees that the care identified by the commenter has been
lawfully provided, as discussed herein and in the IFR (for example, see
87 FR 55291), there are many life- and health-endangering complications
of pregnancy other than ectopic pregnancies and miscarriages where
abortion would be the needed or necessary treatment, and prior to the
IFR, VA's medical benefits package did not provide access to care in
such circumstances.
One commenter opined that the IFR did not have good cause since it
undermines what the commenter described as the ``pro-life policy
stance'' of Congress and further disregards governmental interests,
including ``interest in safeguarding preborn human life''. VA disagrees
with the commenter's assertion and implemented the IFR pursuant to the
authority Congress granted VA to furnish eligible veterans and CHAMPVA
beneficiaries with medical services that VA determines to be needed and
medically necessary and appropriate. 38 U.S.C. 1710, 1781; 87 FR 55291-
55293. The changes made by the IFR were within the scope of the
authority Congress has provided to VA.
III. Comments Asserting That the IFR Is Too Broad
Commenters raised concerns with various aspects of the IFR being
overly broad so as to allow for abortions for reasons beyond the
circumstances stated in the IFR. VA summarizes and addresses those
comments below.
A. Lack of Definition of Abortion
One commenter opined that the IFR avoided clarity by not defining
abortion. VA does not make changes to the rule based on this comment.
VA does not specifically define in its regulations the other various
types of care provided under the medical benefits package or covered by
CHAMPVA. As the medical field is constantly evolving, attempting to
define medical terms in regulation could be arbitrary or outdated based
on evolving standards of practice and thus could result in unintended
limitations on the provision of life and health-saving care. Therefore,
and consistent with other treatments listed in such regulations, VA
does not find it appropriate to define the term abortion in regulation.
B. The Term ``Health'' Is Too Broad or Not Defined
Several commenters asserted that the term ``health,'' in the
context of the exception permitting abortion if a health care provider
determines that the ``health'' of the pregnant individual would be
endangered were the fetus carried to term, was too broad in scope. Some
asserted that the lack of definition for the term ``health'' means VA
will provide abortions in all circumstances, or, essentially, allow for
``elective abortions.'' Other commenters more specifically asserted
that the Supreme Court broadly defined ``health'' for purposes of
abortion as ``physical, emotional, psychological, familial, and the
woman's age--relevant to the wellbeing of the patient. All these
factors may relate to health.'' Doe v. Bolton, 410 U.S. 179, 192
(1973). These commenters argue that a rule permitting abortion for
reasons of health without further qualification or limitation could be
interpreted in a way that increases access to abortions beyond the
scope stated in the IFR.
VA does not make changes to the term ``health'' or further define
or characterize it in regulation based on these comments. VA has
existing statutory and regulatory authorities that establish when
needed care provided under the medical benefits package may be provided
to an individual veteran and when medically necessary services are
covered by CHAMPVA.
As explained in the IFR, VA's general treatment authority requires
the Secretary to determine what ``hospital care and medical services''
are ``needed.'' 38 U.S.C. 1710. Consistent with this authority and
under the IFR, VA provides an abortion to a veteran only if an
appropriate health care professional determines that such care is in
accord with generally accepted standards of medical practice and is
needed to promote, preserve, or restore the health of the individual,
consistent with the definitions set forth by existing VA regulations.
38 CFR 17.38(b).
With respect to CHAMPVA, VA provides beneficiaries with medical
services and supplies if the services and supplies are ``medically
necessary and appropriate for the treatment of a condition'' and ``not
specifically excluded from program coverage.'' See 38 CFR 17.272(a).
With respect to abortions, VA would provide or reimburse for the care
only if the life or the health of the pregnant beneficiary would be
endangered if the pregnancy were carried to term or if the pregnancy is
the result of an act of rape or incest. See id. at Sec. 17.272(a)(64).
Because determining whether a pregnant individual's health is
endangered necessarily requires an individualized assessment by a
health professional, VA does not believe it is appropriate to define
the term ``health'' in regulation. Attempting to define every single
condition, illness, and other circumstance (and combination of such
circumstances) that could be included under such a definition would
likely be arbitrary and incomplete and thus could result in veterans
and CHAMPVA beneficiaries not receiving needed and medically necessary
and appropriate care.
C. Breadth of Determinations by, or Qualifications of, Health Care
Professionals
One commenter asserted ``the phrase `if determined to be needed by'
a medical professional . . . allows abortion on demand'' because it
generally allows a provider to say such care is ``needed for mental
anguish or anxiety''. VA does not make changes to the rule based on
this comment. As stated above, the IFR does not allow for abortions in
all circumstances; rather, it allows only those permitted under the
circumstances described in the IFR when the life or health of the
individual would be endangered if the pregnancy were carried to term or
when the pregnancy is the result of rape or incest. The decision of
whether a veteran's health is endangered is a clinical decision made on
an individual, case-by-case basis using the standard provided in 38 CFR
17.38(b) for the provision of health care to veterans. VA health care
professionals consider a veteran's health in terms of the veteran's
whole health when determining if care is needed to promote, preserve,
or restore the health of the individual and is also in accord with
generally accepted standards of medical practice, pursuant to 38 CFR
17.38(b). As to CHAMPVA beneficiaries, a determination is likewise
performed on a case-by-case basis, with the health care provider
determining if the care is medically necessary and appropriate for the
treatment of a condition and not specifically excluded from program
coverage. See 38 CFR 17.272(a).
[[Page 15464]]
Multiple commenters raised concerns that VA did not indicate in the
IFR the qualifications or professional competence required for VA
health care professionals to furnish the health care services permitted
under the IFR. One commenter more specifically alleged that, to merely
permit a ``health care professional'' (as that term was used in the
preamble of the IFR) to determine the clinical need for an abortion
would allow for personnel without any gynecological or obstetrical
skill or experience to make such determination. One commenter more
generally raised concerns about who determines whether the life of the
pregnant individual is at risk and at what degree, and other commenters
specifically requested that VA ensure only physician-led teams are
making these clinical eligibility decisions.
VA does not make changes to the rule based on these comments. As a
preliminary matter, VA regulations specify that care in the medical
benefits package will only be provided if an ``appropriate health care
professional[ ]'' determines that it is needed. 38 CFR 17.38(b)
(emphasis added). VA health care professionals are not permitted to
provide any medical care, including making determinations about needed
care, beyond the scope of their VA practice, training, expertise, and
demonstrated skills and abilities. 38 U.S.C. 7402 and 38 CFR 17.419.
Regarding the expressed concerns about the term ``health care
professional,'' or the lack of defined qualifications or occupations in
the IFR to designate that a ``health care professional'' is permitted
to determine whether an abortion is medically necessary, VA notes that
the regulations revised by the IFR (38 CFR 17.38 and 38 CFR 17.272)
only address the coverage of health care and not the provision of
health care by a ``health care professional'' or the training or
credentials they must possess. Therefore, this final rule will not
specify particular occupations or qualifications for a VA health care
professional to provide either abortion counseling or abortions under
the circumstances identified through this rule. VA reiterates that only
an appropriate health care professional can make determinations about
what care is needed. A VA health care professional is not and will not
be permitted to provide any medical care beyond the scope of their VA
practice, training, expertise, and demonstrated skills and abilities in
any context, including if providing either abortion counseling or
abortions.
Regarding the comment that inquired about the degree of risk to
life to be ascertained when determining whether an abortion is
medically necessary, that determination is made by the appropriate
health care professional on a case-by-case basis; VA will not establish
a threshold degree of risk to life that is required before an
individual is determined eligible for an abortion through VA because
every case is clinically distinct. Regarding the requests that VA only
permit decisions about the provision of abortions to be made by
physician-led teams, VA restates from above that this final rule will
not specify particular occupations or qualifications for a VA health
care professional to provide either abortion counseling or abortions.
VA does not intend for any occupation to perform clinical duties beyond
their occupational training and expertise, and their practice will be
consistent with generally accepted standards of care.
One commenter stated that the regulations were vague and can leave
room for interpretation, and further suggested that VA have a service
that would allow doctors or staff the ability to get a second opinion,
feedback, and ability for quick determinations or assistance. VA does
not make changes to the rule based on this comment. The IFR does not
restrict VA health care professionals' ability to seek consultations
for assistance with determinations of clinical necessity for any health
care or service provided, to include the health care services permitted
by the IFR.
D. Lack of Gestational Limits
Commenters raised concerns that the IFR did not establish
gestational age limits beyond which an abortion would not be permitted,
which they asserted will authorize VA to provide abortions for reasons
beyond the circumstances permitted in the IFR. Most of these commenters
did not offer specific support for this concern. Other commenters
asserted that an abortion is only necessary up to a certain gestational
age. One commenter specifically inquired about a gestational age limit
for pregnancies that were the result of rape or incest, and relatedly
other comments stated that some States that permit abortion in cases
where the pregnancy is the result of rape or incest also have
gestational age limits for such abortions. VA does not make changes to
the rule based on these comments. As explained, the IFR does not permit
the provision and coverage of abortions in all circumstances. The
preamble to the IFR explains that VA has authority under 38 U.S.C. 1710
to furnish veterans with hospital care and medical services that the
Secretary determines to be needed. 87 FR 55288. Consistent with this
authority, VA would provide an abortion to a veteran only 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.
This means that in either case such care may be provided only 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).
Additionally, VA has authority under 38 U.S.C. 1781 to provide
CHAMPVA beneficiaries with medical care. 87 FR 55290. Pursuant to 38
CFR 17.270(b), VA provides those medical services that are medically
necessary and appropriate for the treatment of a condition and that are
not specifically excluded. Consistent with these authorities, VA would
provide an abortion to a CHAMPVA beneficiary only if such care is
medically necessary and appropriate when (1) the life or health of the
pregnant beneficiary would be endangered if the pregnancy were carried
to term; or (2) the pregnancy is the result of an act of rape or
incest. 38 CFR 17.272(a)(64).
The decision about whether a pregnancy endangers the veteran's or
CHAMPVA beneficiary's life or health, and the needed care or medically
necessary and appropriate treatment, must be made on a case-by-case
basis by appropriate healthcare professionals consistent with 38 CFR
17.38 and 17.270(b). As life and health endangering pregnancy
complications can arise throughout a pregnancy, imposing a time limit
after which VA could not provide needed or medically necessary and
appropriate care could be potentially dangerous to veterans and CHAMPVA
beneficiaries and would be inconsistent with VA's authority to provide
needed health care to veterans and medically necessary and appropriate
health care to CHAMPVA beneficiaries and contrary to VHA's primary
function to provide a complete medical and hospital service for the
medical care and treatment of veterans. 38 U.S.C. 1710, 38 CFR 17.38;
38 U.S.C. 7301(b); 38 U.S.C. 1781; 38 CFR 17.270(b). Each patient's
situation is different, and the decision about whether to continue a
pregnancy that endangers the veteran or CHAMPVA beneficiary's life or
health must be made on a case-by-case basis by the pregnant patient in
consultation with appropriate health care professionals based on the
[[Page 15465]]
best medical evidence and accepted standards of medical practice. As to
comments that specifically inquired about gestational age limits in
cases where pregnancies are the result of rape or incest, we reiterate
the statements above that establishing limits would be inconsistent
with VA's authority to provide needed health care to veterans and
medically necessary and appropriate health care to CHAMPVA
beneficiaries and contrary to VHA's primary function to provide a
complete medical and hospital service for the medical care and
treatment of veterans. 38 U.S.C. 1710, 38 CFR 17.38, 38 U.S.C. 7301(b),
38 U.S.C. 1781, 38 CFR 17.270(b).
IV. Comments Related to the Exception for Abortion if the Life of the
Pregnant Individual Would Be Endangered
The IFR revised 38 CFR 17.38(c)(1) to establish an exception for an
abortion if the life of the pregnant veteran would be endangered if the
pregnancy were carried to term. Below VA summarizes comments that
specifically raised concerns with this exception, other than those
already addressed in this rulemaking.
Commenters who opposed the IFR generally stated that it is rare
that the life of a pregnant individual is truly threatened by pregnancy
or delivery. VA does not make changes to the rule based on these
comments as VA disagrees. Endangerment to even one veteran's life would
be sufficient, and regardless, VA refers commenters to the discussion
in the IFR that details how pregnant individuals may face life-
threatening conditions, and abortion may be the only medical
intervention available that can preserve their life. See 87 FR 55291.
As noted in the IFR, while research has shown most pregnancies progress
without incident, from 1998 to 2005, the U.S. maternal mortality rate
associated with live births was 8.8 deaths per 100,000 live births, and
maternal mortality rates have increased staggeringly since then. Id. 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). Id. 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. Id. Additionally, in 2020 and
2021, maternal mortality rates increased to 23.8 and 32.9 deaths per
100,000 live births, respectively. Id. The study identified abortion
clinic closures and legislation restricting access to abortion as
factors that likely contributed to this rise in maternal mortality
rates. Id.
One commenter more specifically stated that the presence of
underlying health conditions prior to pregnancy does not mean a
patient's life is in danger when they are pregnant, and further
asserted that such cases merely require more skill and attentiveness by
a provider that specializes in obstetrics and gynecology. VA does not
make changes to the rule based on this comment, which seems to be
stating that a pregnancy can always be carried to term without the
pregnant veteran's life ever being endangered by either preexisting
health conditions or health conditions arising during pregnancy, if and
when a correct approach is used by providers. This assertion is
incorrect. As VA described in the IFR, there are circumstances in which
abortion may be the only medical intervention available that can
preserve a pregnant veteran's life. See 87 FR 55291. VA has amended the
medical benefits package to allow VA to provide abortions in certain
circumstances, including when an appropriate healthcare professional
determines that such care is needed to save a pregnant veteran's life,
which is critical now that some States are enforcing and enacting
abortion restrictions that could result in the delay or denial of such
life-saving treatment.
Relatedly, other commenters stated that the presence of health
conditions (such as preeclampsia, as noted in one comment) in pregnant
individuals are not life threatening as they can be resolved by the
induction of labor or the performance of a c-section, and therefore an
abortion is not necessary to preserve the pregnant individual's health
or life. One commenter further asserted that a fetus is viable at
approximately 24 weeks gestational age, and if the health of the
pregnant patient was a concern, birth could be induced, or a cesarean
section (c-section) performed, to save the life of both the pregnant
patient and the child. VA does not make changes to the rule based on
these comments. Similar to our response to related comments above, VA
recognizes that there are circumstances in which abortion may be the
only medical intervention available that can preserve a pregnant
veteran's life, and the decision about the needed care or medically
necessary treatment must be made on a case-by-case basis by appropriate
healthcare professionals consistent with 38 CFR 17.38 and applying the
applicable clinical standards discussed throughout this preamble.
V. Comments Related to the Exception for Abortion if the Health of the
Pregnant Individual Would Be Endangered
Several commenters raised concerns about the exception for an
abortion if the health of the pregnant individual would be endangered
if the pregnancy were carried to term. Below VA summarizes comments
that specifically raised concerns with this exception, other than as
already addressed in this rulemaking.
One commenter suggested that VA revise the regulatory text in Sec.
17.38(c)(1) to additionally include ``wellbeing'' because the addition
of ``wellbeing'' would encompass mental and emotional health. This
commenter raised concerns that the rule was not clear that mental
health was included in the consideration of the ``health'' of the
pregnant veteran as opposed to applying solely to physical health.
Another commenter asked that VA acknowledge in the text of the rule
that the exception for abortions for the health of the pregnant
beneficiary includes mental health in addition to physical health. VA
does not make any changes to the rule based on these comments. Both
physical and mental health are included in the meaning of the term
``health'' under 38 CFR 17.38 and 38 CFR 17.272. See also 87 FR 55291
(explaining that both chronic medical and mental health conditions
increase risks associated with pregnancy, and health care professionals
may determine ``that these conditions (potentially in combination with
other factors) render an abortion needed to preserve the health of a
veteran[.]''). VA therefore does not believe it is necessary to revise
the regulatory text as the commenters suggest. See also supra Part
III.B above.
One commenter asserted the IFR implied that all pregnancies
threaten the health of the pregnant individual, and that abortions
would be permitted in all circumstances based on the threat to the
pregnant individual's health. The commenter states that authorizing
abortions when there is a threat to health is an ``ideological''
statement and not a medical determination. The commenter further
requests that VA enumerate these ``threats to their health'' in
writing. VA makes no changes to the rule based on this comment. See
Section III.B. above. VA has determined that abortions may be
authorized when carrying the pregnancy to term endangers the health of
the pregnant individual and VA has authority to provide these services
under the terms of the IFR, as explained in the IFR and herein.
Further, medical
[[Page 15466]]
determinations regarding threats to health must be made by healthcare
professionals on a case-by-case basis and be consistent with
established standards of care.
VI. Comments Related to the Exception for Abortions in Cases of Rape or
Incest
The IFR revised 38 CFR 17.38(c)(1) and 38 CFR 17.272(a) to
establish an exception for an abortion if the pregnancy were the result
of rape or incest. Below VA summarizes comments that specifically
raised concerns with this exception other than as already addressed in
this rulemaking.
A. Evidence of the Incident of Rape or Incest
Several commenters alleged that a person's statement that a
pregnancy resulted from rape or incest is not sufficient evidence to
support the provision of abortion, particularly as a provider has no
obligation to confirm such statement.
VA does not make changes to the rule based on these comments. As VA
explained in the IFR, the self-reporting from the pregnant veteran
constitutes sufficient evidence, and the rule does not require a
veteran or CHAMPVA beneficiary to present particular evidence such as a
police report to qualify for this care. 87 FR 55294. This is consistent
with longstanding VA policy to treat eligible individuals who
experienced military sexual trauma without additional evidence of the
trauma. Id. This approach is appropriate as it removes barriers to
providing needed or medically necessary and appropriate care. Id. VA
does not believe it is appropriate to require a provider to separately
investigate or confirm the veteran or CHAMPVA beneficiary's self-
reporting that an act of rape or incest occurred. Requiring such proof
or confirmation could harm the provider-patient relationship, and it is
unnecessary.
It is a part of routine practice for VA providers to take and rely
on many types of patient-reported information (family, trauma, work,
medical, legal, and other histories, for instance), as part of their
clinical evaluations and assessments. For instance, VA providers make a
clinical eligibility determination as to whether an individual is
eligible for military sexual trauma-related treatment under 38 U.S.C.
1720D without requiring additional proof that this experience occurred,
as already stated herein. See VHA Directive 1115(1), Military Sexual
Trauma (MST) Program.
The comments misunderstand the function of the rape or incest
exception. By operation of the IFR, patient self-reports of rape or
incest constitute sufficient evidence for the VA provider to establish
and document that this exception is met. 38 CFR 17.38(c)(1)(ii),
17.272(a)(64)(ii). There is no reason to treat these patient self-
reports differently from self-reports supporting other sought-after
medical care; nor do these comments provide any rationale for doing so.
In any case where the rape or incest exception applies, the VA provider
must still determine that an abortion meets the clinical standard set
forth in 38 CFR 17.38(b) or 17.272(a), as applicable.
B. Assertions That Rape or Incest Exception Is Not Medically Necessary
One commenter opined that in the case of a pregnancy that is the
result of rape or incest, an abortion can never be ``needed'' or
``medically necessary and appropriate'' and that patients who
experience mental health issues following acts of rape or incest should
be provided counseling and support, not abortions. VA does not make
changes to the rule based on this comment. As VA explained in the IFR,
VA has determined that abortions for pregnancies resulting from rape or
incest, when sought by a pregnant veteran and clinically determined to
be needed to promote, preserve, or restore the health of the veteran
and in accord with generally accepted standards of medical practice,
are needed consistent with the terms of 38 U.S.C. 1710. As noted in the
IFR, 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. 87 FR 55292. Such consequences can
have a particular impact on veterans, who report higher rates of sexual
trauma compared with civilian peers. Id. In addition, veterans are 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.
Id. In addition, for similar reasons to those discussed above and in
the IFR, and because it is ``similar'' to the care offered under
TRICARE (Select), see 38 U.S.C. 1781(b), VA has also determined, for
purposes of 38 CFR 17.272(a), that access to abortion when the
pregnancy is the result of an act of rape or incest is medically
necessary and appropriate and so must be available to CHAMPVA
beneficiaries. 87 FR 55292.
C. Investigation or Reporting
Commenters raised concerns about whether evidence of sexual abuse
will be investigated or reported. To the extent these commenters might
want VA to regulate such investigation or reporting for purposes of
providing the health care services permitted under the IFR, VA does not
make changes to the rule. For the reasons already explained herein,
self-reports are sufficient to establish that an act of rape or incest
occurred. Further, this approach is similar to how VA providers, who
are not investigators, consider other types of patient self-reported
information such as military sexual trauma; other trauma; and medical,
personal, health information and history. VA will investigate claims of
rape or incest to the extent they occurred on VA property or involved a
VA employee, consistent with VHA Directive 5019.02, which relates to
reporting of harassment, sexual assault, and other public safety
incidents in VHA. Additionally, consistent with VHA Directive 1199(2),
VA providers will report claims of abuse, as necessary and required by
Federal law.
VII. Availability of the Health Care Services Permitted Under the IFR
to Non-Veterans and Non-CHAMPVA Beneficiaries
A. Spina Bifida Health Care Benefits Program
One commenter inquired into whether the health care services
permitted under the IFR will be available to beneficiaries in VA's
Spina Bifida Health Care Benefits Program. VA considers this comment
outside the scope of the rulemaking as VA did not amend the regulations
for such program; only the regulations for the medical benefits package
and CHAMPVA were amended by the IFR. VA makes no changes to the rule
based on this comment.
B. Nonveterans
This same commenter inquired into whether the health care services
permitted under the IFR will be available to nonveterans for emergency
services on a humanitarian basis. VA is authorized to provide
humanitarian care under 38 U.S.C. 1784 and medical screening and
stabilization for an emergency medical condition under 38 U.S.C. 1784A,
but VA considers this comment to be outside the scope of the rulemaking
as VA only amended the regulations for the medical benefits
[[Page 15467]]
package and CHAMPVA, which determine care for veterans and CHAMPVA
beneficiaries, respectively. VA makes no changes to the rule based on
this comment.
C. ``Wives of Military Members''
Another commenter inquired whether ``wives of military members''
will be eligible for the health care services permitted under the IFR.
To the extent such individuals have veteran status and are receiving
their medical care through VA (specifically care included in the
medical benefits package), or else are CHAMPVA beneficiaries, then they
would be eligible for health care services in the circumstances
permitted by the IFR. However, to the extent the commenter is referring
to individuals who do not have veteran status or are not CHAMPVA
beneficiaries, these individuals are not covered by the amendments made
by the IFR. VA makes no changes to the rule based on this comment.
VIII. Comments That Stated Abortion Was Not Health Care or Is Otherwise
Harmful
Many commenters stated that abortion is not health care. Some of
these commenters did not provide any supporting rationale for this
statement, while others asserted that abortion could not be health care
because the practice of medicine is supposed to preserve life, not end
life. VA does not make changes to the rule based on these comments. As
VA explained in the IFR and herein, abortions are health care and may
be needed to preserve the life or health of a pregnant individual.
Pregnant individuals may face life and health-threatening conditions,
where abortion may be the only medical intervention available that can
preserve their health or life.\3\ See 87 FR 55291.
---------------------------------------------------------------------------
\3\ Martha B. Kole, Jennifer Villavicencio, and Erika G. Werner,
Reproductive services for the patient at increased risk for
morbidity and mortality during the second trimester. Semin
Perinatol, 44 (5), 151270 (2020).
---------------------------------------------------------------------------
Many commenters opposed VA providing access to abortions because
they asserted that abortions can be harmful to pregnant individuals.
Some commenters stated that abortions can result in emotional harm or
complications for pregnant individuals but did not offer support,
evidence, or a rationale for such assertions. Some commenters asserted
similar opinions but posited distinct harms and cited certain
literature. VA does not make changes to the rule based on these
comments.
All medical care may pose a risk of complications to some patients.
In every instance of care, medical practice requires practitioners to
balance the risks of providing needed or medically necessary and
appropriate care with the risks of not doing so, a calculation guided
by clinical standards and informed by reliable data. The patient must
then also balance the risks of receiving needed or medically necessary
and appropriate care with the risks of not doing so, and VA obtains
informed consent for any medical care pursuant to its existing informed
consent requirements set forth in 38 CFR 17.32 (implementing 38 U.S.C.
7331). As explained in the IFR (87 FR 55291) and herein, 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 pregnant individuals.\4\ Without access to comprehensive
reproductive health care, including abortion, such individuals may
experience conditions resulting from their pregnancy that can leave
them at risk for loss of future fertility, significant morbidity, or
death. In such instances, an abortion may be the only medical
intervention that can preserve that individual's health or save their
life.\5\
---------------------------------------------------------------------------
\4\ 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).
\5\ 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).
---------------------------------------------------------------------------
The health care profession understands that abortions are safe
medical interventions.\6\ A study available to the public and cited in
the IFR addressed the rate of abortion complications and concluded
that, contrary to the unsupported assertion by commenters, the most
common type of complications from abortions are minor and treatable.\7\
The scientific evidence also shows that the risk of complication or
mortality from abortion is less than the risk of complication or
mortality from other common clinical procedures.\8\
---------------------------------------------------------------------------
\6\ Abortion Access Fact Sheet. The American College of
Obstetrics and Gynecology. 2023. https://www.acog.org/advocacy/abortion-is-essential/come-prepared/abortion-access-fact-sheet (last
visited May 15, 2023).
\7\ Desai Upadhyay, et al. Incidence of emergency department
visits and complications after abortion, Obstet Gynecol; 125(1):175-
183 (2105).
\8\ Abortion Access Fact Sheet. The American College of
Obstetrics and Gynecology. 2023. https://www.acog.org/advocacy/abortion-is-essential/come-prepared/abortion-access-fact-sheet (last
visited May 15, 2023).
---------------------------------------------------------------------------
A 2018 consensus study report from the National Academy of Medicine
(National Academies of Sciences, Engineering, and Medicine (NASEM))
reviewed the then available evidence on the safety and quality of legal
abortions in the United States and concluded that having an abortion
does not increase an individual's risk of secondary infertility,
pregnancy-related hypertensive disorders, abnormal placentation,
preterm birth, or breast cancer.\9\ This review by NASEM also found
that having an abortion does not increase a person's risk of
depression, anxiety, or posttraumatic stress disorder.\10\
---------------------------------------------------------------------------
\9\ The Safety and Quality of Abortion Care in the United
States. National Academies of Sciences, Engineering, and Medicine
(Mar. 2018), https://nap.nationalacademies.org/catalog/24950/the-safety-and-quality-of-abortion-care-in-the-united-states.
\10\ Id.
---------------------------------------------------------------------------
One commenter opined that allowing access to abortion counseling or
abortions via telehealth is harmful. The commenter provides no evidence
or rationale for this assertion. VA makes no changes to the rule based
on this comment. Telehealth is widely implemented at VA to provide
high-quality care to veterans and eligible beneficiaries, enhancing
access to care in appropriate cases. See 38 U.S.C. 1730C. Abortion
counseling as well as some abortions can be provided through telehealth
in accord with generally accepted standards of medical practice. VA
will only provide medical care, whether in-person or through
telehealth, that is consistent with generally accepted standards of
care.
Commenters also raised concerns that the rule did not include
informed consent or standards for medical evaluations to ensure that an
abortion would not lead to further medical complications or harm for
women. VA does not make changes to the rule based on these comments. In
determining whether to recommend any treatment or procedure, VA
providers take into consideration all relevant clinical factors, that
is, they conduct a medical evaluation based on a number of clinical
factors. Decisions as to which treatment or procedures to recommend are
clinical judgments made in accord with generally accepted standards of
care. Informed consent is not required as part of the provider's
individual undertaking of a differential diagnosis or decision process
as to available and recommended treatment options. These clinical
evaluation steps occur before the provider's professional
recommendation is decided. Informed consent only applies to the receipt
of
[[Page 15468]]
VA recommended treatment or procedures, which the patient can then
decide to reject or accept. No medical treatment or procedure may be
performed without the prior, voluntary, and fully informed consent of
the patient. 38 CFR 17.32(b). 38 U.S.C. 7331; 38 CFR 17.32. As part of
informed consent discussion, the practitioner must explain in plain
language understandable to the patient the nature of the proposed
procedure or treatment; expected benefits; reasonably foreseeable
associated risks, complications, side effects; reasonable and available
alternatives; and anticipated result if nothing is done, among other
information. See 38 CFR 17.32(c)(2).
IX. Comments Related to Employee Rights and Protections and Rights of
the Public
Commenters raised concerns related to employees' religious and
conscience-based protections, including under the First Amendment, the
Religious Freedom Restoration Act, the Public Health Service Act
(including the Coats-Snowe Amendment), and Title VII of the Civil
Rights Act of 1964. Commenters further asserted that VA is forcing VA
employees to provide abortions that may be criminal offenses under
State or local law, and one commenter specifically inquired whether any
or all VA employees will be responsible for assisting with ``emergency
abortions.'' VA does not make any changes to the rule based on these
comments. In implementing the IFR and this rule, VA adheres to all
applicable Federal laws relating to employee rights and protections,
including protections based on an employee's religious or conscience-
based objection to abortion. VA has a policy in place for reasonable
accommodation requests, where employees may request to be excused from
providing, participating in, or facilitating an aspect of clinical
care, including reproductive health clinical care authorized by this
rule. See, AUSHO Memorandum, Processing Employee Requests to be Excused
from Aspects of the Provision of Reproductive Health Care within the
Veterans Health Administration (Jan. 6, 2023). Pursuant to that policy,
VA health care professionals that object to furnishing the care covered
by this rulemaking to veterans or CHAMPVA beneficiaries may request to
be excused from that care and such requests will be individually
assessed under the applicable Federal law. If excusal is requested,
supervisors should grant interim excusal for employees from duties or
training regarding reproductive health care while requests are being
processed.
Commenters also raised concerns regarding whether those providing
the health care services permitted under the IFR, including VA
employees and non-VA providers, would be protected by VA against State
action, such as potential enforcement of State criminal, civil, or
administrative penalties related to the provision of the health care
services permitted under the IFR. To the extent a VA employee provides
the health care services permitted under the IFR within the scope of
their VA employment as authorized by Federal law, they could not
legally be subject to adverse State actions. As described above, State
and local laws, rules, regulations, and requirements that unduly
interfere with health care professionals' practice will have no force
or effect when such professionals are practicing health care while
working within the scope of their VA employment. 38 CFR 17.419.
Moreover, as further described above, in circumstances where there
is a conflict between Federal and State law, Federal law would prevail
in accordance with the Supremacy Clause under Article VI, clause 2, of
the U.S. Constitution. The Department of Justice's Office of Legal
Counsel has issued an opinion confirming that States may not impose
criminal or civil liability on VA employees who provide or facilitate
abortions or related services in a manner authorized by Federal law,
including this rule. See 46 Op. O.L.C. _ (Sept. 21, 2022);
www.justice.gov/olc/opinion/intergovernmental-immunity-department-veterans-affairs-and-its-employees-when-providing. If States attempt to
subject VA employees to legal action for appropriately carrying out
their Federal duties the Department of Justice will support and provide
representation to those employees.
Several commenters additionally asserted that performing an
abortion would violate a VA health care professional's Hippocratic
oath, where some of these comments further noted that this oath
requires individuals who take it to ``do no harm'' in the practice of
medicine. VA does not make changes to the rule based on these comments.
An abortion would be provided pursuant to the rule to veterans only
when determined by appropriate healthcare professionals to be needed to
promote, preserve, or restore the health of the individual and to be in
accord with generally accepted standards of medical practice; and to
CHAMPVA beneficiaries when medically necessary and appropriate.
Some commenters appeared to allege that the IFR violates their
First Amendment rights and religious freedoms as members of the public,
without providing rationale or support for such statements. Unlike the
comments above that raised specific First Amendment and religious
freedom concerns for VA health care professionals, these comments did
not assert or explain why they believed the IFR violated their First
Amendment rights or religious freedoms as members of the public. VA's
IFR authorizes the provision of abortions and abortion counseling to
veterans and CHAMPVA beneficiaries in certain circumstances. It does
not limit the First Amendment rights or religious freedoms of the
public.
X. Comments Specifically Concerning Abortion Counseling
The IFR revised 38 CFR 17.38(c)(1) and 17.272(a) to remove a
prohibition on VA providing access to abortion counseling. Below VA
summarizes comments that specifically raised concerns with this
revision, other than as already addressed in this rulemaking.
A. Provision of Abortion Counseling
Multiple commenters raised various concerns about VA's provision of
abortion counseling. The commenters stated that abortion counseling
should be unbiased, and that VA should not ``direct'' pregnant
individuals to have an abortion. The commenters further suggested that
abortion counseling should include discussion of options other than
abortion and should also include information about the negative effects
of abortion. One commenter further implied that VA is not providing
counseling about options other than abortion specifically for victims
of rape or incest.
VA does not make changes to the rule based on these comments. Prior
to the IFR, VA could not discuss abortion as an option with pregnant
patients, but VA has always provided counseling to pregnant patients
about pregnancy options such as carrying the pregnancy to term and
adoption. Under the IFR, VA now provides the full range of pregnancy
options counseling to individuals who are pregnant, which includes all
options related to that individual's pregnancy and is not limited to
discussing only the option of abortion. This is consistent with Centers
for Disease Control and Prevention guidance.\11\ As explained in the
IFR,
[[Page 15469]]
abortion counseling is part of pregnancy options counseling and is a
component of comprehensive, patient-centered, high-quality reproductive
health care, and is needed care for veterans, and medically necessary
and appropriate for CHAMPVA beneficiaries, because such counseling will
enable a pregnant individual to make a fully informed health care
decision, just as counseling offered or covered by VA regarding other
health care treatments enables the patient to make an informed
decision. See 87 FR 55292-93. Such pregnancy options counseling is
provided in a neutral, non-directive, and unbiased manner to ensure
patients receive the most complete and accurate information regarding
available treatment options. VA does not direct a patient towards a
specific option when it conducts pregnancy options counseling. The rule
also makes clear that VA's determinations that such counseling is
needed care (as to veterans) and medically necessary and appropriate
(as to CHAMPVA beneficiaries)--and the accompanying regulatory
amendments--were not limited to instances in which the pregnancy is the
result of rape or incest. See, e.g., id at 55293-94.
---------------------------------------------------------------------------
\11\ Providing Quality Family Planning Services: Recommendations
of CDC and the U.S. Office of Population Affairs. Centers for
Disease Control and Prevention. April 25, 2014. https://www.cdc.gov/mmwr/preview/mmwrhtml/rr6304a1.htm?s_cid=rr6304a1_w (last visited
December 6, 2023).
---------------------------------------------------------------------------
B. Post-Abortion Counseling
Another commenter suggested VA provide post-abortion counseling and
support for the pregnant individual and their spouse. VA does not make
changes to the rule based on this comment. To the extent a veteran
requests counseling or mental health support from VA after an abortion
or any other type of medical service, such care is available to
veterans as part of the medical benefits package. VA would also cover
such counseling and mental health support for CHAMPVA beneficiaries.
However, and as explained herein, VA does not have authority to provide
such counseling under the medical benefits package or CHAMPVA to non-
veterans and non-VA beneficiaries, respectively.
XI. Comments Specific to CHAMPVA
Prior to the IFR, the CHAMPVA program at 38 CFR 17.272(a)(64)
covered abortions for beneficiaries when the life of the beneficiary
would be endangered if the pregnancy were carried to term. The IFR
revised Sec. 17.272(a)(64) to: (i) expand the exception on the
exclusion of abortion to cover cases where the health of the pregnant
CHAMPVA beneficiary would be endangered if the pregnancy were carried
to term; and (ii) to establish an exception to the exclusion of
abortion to cover cases where the pregnancy of the CHAMPVA beneficiary
is the result of an act of rape or incest. Below VA addresses comments
that specifically raised concerns with these changes to CHAMPVA, other
than as already addressed in this rulemaking.
A. CHAMPVA and TRICARE
One commenter stated that VA does not have authority to provide
medical care under the CHAMPVA program in the same manner as under the
TRICARE program because TRICARE and CHAMPVA are separate programs and
CHAMPVA covers medical care only to those specifically identified at 38
U.S.C. 1781(a). The commenter further stated that VA does not
effectively argue that CHAMPVA and TRICARE coverage should be aligned.
VA does not make any changes to the rule based on this comment. It
appears that the commenter may misunderstand the CHAMPVA authority. VA
has authority to furnish medical care to CHAMPVA beneficiaries pursuant
to 38 U.S.C. 1781. Section 1781(b) establishes that VA must provide
such care ``in the same or similar manner and subject to the same or
similar limitations as medical care'' is provided by DoD under the
TRICARE program.
Other commenters asserted that the IFR's changes to the CHAMPVA
regulations were not the same or similar to what is permitted under
TRICARE. Specifically, these comments noted that the exclusion to
provide abortions if the health of an individual were endangered, as
well as furnishing abortion counseling for any reason (and not just in
those cases for which abortions would be covered by TRICARE), were too
broad to be considered the same or similar to what is permitted under
TRICARE. Notably, these comments also incorrectly argued that the
CHAMPVA exception to protect the health of the pregnant individual
without further qualification or limitation could be interpreted in a
way that increases access to abortion services beyond the scope stated
in the IFR.
VA does not make changes to the rule based on these comments. As
explained in the IFR and herein, 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 pregnancy were carried to term. 87 FR 55290. CHAMPVA
regulations previously allowed for abortions only when a physician
certifies that the abortion was performed because the life of the woman
would be endangered if the pregnancy were carried to term. See 38 CFR
17.272(a)(64); 87 FR 55290. Pursuant to VA's authority in 38 U.S.C.
1781, VA amended the CHAMPVA regulations to better align coverage under
CHAMPVA with coverage under TRICARE (Select). In this regard, VA
amended its regulations to additionally provide coverage of abortions
when the pregnancy is the result of an act of rape or incest. Although
VA also revised the regulations to cover abortions when the health of
the CHAMPVA beneficiary would be endangered if the pregnancy were
carried to term, in contrast with coverage under TRICARE (Select),
coverage under CHAMPVA must be provided in the ``same or similar''
manner and subject to the ``same or similar'' limitations as TRICARE
(Select). 38 U.S.C. 1781(b); see 87 FR 55290. By referring to care that
is ``similar,'' the statute permits VA flexibility to administer the
program for CHAMPVA beneficiaries. If Congress had intended for VA to
administer the program for CHAMPVA beneficiaries in a manner equivalent
to TRICARE (Select), 38 U.S.C. 1781(b) simply could have required VA
provide ``the same'' care in ``the same'' manner as TRICARE (Select);
however, the statute recognizes that there will be differences in how
VA administers CHAMPVA. VA determined that the care provided under this
rule is similar to that provided by DOD under TRICARE (Select), which
covers abortions to beneficiaries when there is a medical risk to the
pregnant individual if the pregnancy were carried to term or if the
pregnancy is the result of an act of rape or incest. Id. The
flexibility to administer CHAMPVA in a manner ``similar'' to TRICARE
(Select) also recognizes that VA serves a different population than
TRICARE under a different authority. Section 1781(b) of 38 U.S.C.
authorizes VA to provide care directly to CHAMPVA beneficiaries through
VA facilities, and beneficiaries who receive care at a VA facility are
eligible for the same medical services as a veteran. In exercising our
discretion to provide care in a ``similar'' manner to TRICARE (Select),
we have concluded it lies within our discretion to determine that
abortions in the circumstances authorized by the IFR should be made
available to all CHAMPVA beneficiaries, not just those who receive
their care through VA facilities. As explained, it is important to
provide medically necessary and appropriate abortion care when the
health of the pregnant individual is endangered, as determined by an
appropriate medical professional under
[[Page 15470]]
generally accepted standards of care, to better promote the long-term
health of CHAMPVA beneficiaries, which is consistent with VA's past
practices related to implementing CHAMPVA.
Regarding the portion of these comments related to VA furnishing
abortion counseling under CHAMPVA for any beneficiary and not just in
those cases for which an abortion would be covered by TRICARE, we
reiterate from above that VA finds this more comprehensive abortion
counseling to be sufficiently similar to that under TRICARE (Select).
VA's broader coverage may deviate for purposes of promoting the long-
term health of CHAMPVA beneficiaries by covering the most complete and
accurate information available regarding various pregnancy and health
care options, regardless of whether CHAMPVA would cover any such
abortion the beneficiary receives. See also 87 FR 55292-93.
B. CHAMPVA Care at VA Facilities
One commenter stated that 38 U.S.C. 1781 authorizes, but does not
mandate, the provision of CHAMPVA care at VA facilities through the
CHAMPVA In-House Treatment Initiative (CITI). The commenter suggested
that VA ensure that VA facilities provide access to abortion to CHAMPVA
beneficiaries through the CITI program, particularly in localities
where abortions are banned or restricted. VA does not make changes to
the rule based on this comment. The provision of CHAMPVA care at VA
facilities through the CITI program is permissible under 38 U.S.C.
1781(b), which provides that those VA medical facilities that are
equipped to provide CHAMPVA beneficiaries care may do so only to the
extent they are not being utilized for the care of eligible veterans.
Because the capacity, projected demands, and care needs of veterans at
each VA Medical Center can fluctuate, VA cannot ensure that a certain
number of VA facilities or facilities in any particular State or region
will participate in the CITI program at any given time. However, where
a VA facility operates a CITI program, it will provide the health care
services permitted by the IFR to CHAMPVA beneficiaries who are eligible
to receive care through CITI consistent with the IFR and to the extent
that facility's resources are not being utilized for the care of
eligible veterans. Further, it remains the case that the CITI program
may expand to additional VA facilities if such facilities are equipped
to provide the care and treatment and are not being utilized for the
care of eligible veterans, without any revisions to VA regulations.
C. Provision of Abortions and Abortion Counseling to Those Under Age 18
One commenter asserted that VA should clarify that it is not
requiring its health care professionals to perform any abortions on
those under the age of 18, and that parental notification and consent
is required for any abortion. Another commenter similarly stated that
it was unclear what protocols will be put in place to ensure that
children of veterans who may be eligible to receive abortions through
the VA have received proper parental consent. VA makes no changes to
the rule based on these comments.
In accordance with VHA Directive 1004.01, dated December 12, 2023,
it is VA policy that if a patient is considered a minor under State law
in the jurisdiction where the VA facility is located, then that patient
is not presumed to have decision-making capacity for giving informed
consent. As a result, for patients considered minors, consent would be
obtained from the patient's parent or legal guardian, except as
otherwise provided by law. And as also consistent with this VA policy,
if the patient is not considered a minor under State law, for example,
by virtue of a State court order awarding emancipation to the minor or
automatic emancipation under State law based on certain events,
parental notification and consent would not be required.
XII. Comments Related to Fatal Fetal Anomalies
One commenter recommends VA revise the rule to include an exception
to allow abortions for fatal fetal anomalies. VA makes no changes based
on this comment. The commenter provides no rationale for the proposal
that abortions be provided absent the circumstances identified in the
rule, or for a finding that the proposed expansion would constitute
needed care (for veterans) or medically necessary and appropriate care
(for CHAMPVA beneficiaries) under 38 U.S.C. 1710 and 1781. As explained
herein and in the IFR, VA has determined that abortions are needed or
medically necessary and appropriate care, as required under VA's
statutory authorities, when the life or health of the pregnant veteran
or CHAMPVA 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. It is up to the provider to determine if the specific
clinical facts of the individual case establish that the carrying to
term of a fetus with a fatal fetal anomaly would endanger the life or
health of a pregnant veteran or CHAMPVA beneficiary. That is, it would
be up to the provider to make the necessary clinical determination.
XIII. Comments Related to VA Mission and Funding
Several commenters opined that VA should not use its limited
resources for abortion as VA facilities are for veteran care. These
commenters expressed concerns regarding the impact of the health care
services permitted under the IFR on VA's provision of other needed
care. VA makes no changes to the rule based on these comments. As
explained in the IFR and throughout this final rule, abortions can also
be needed health care for veterans and medically necessary and
appropriate for CHAMPVA beneficiaries. Pursuant to authorized
appropriations, detailed above, VA receives and uses funding to furnish
medical care authorized under the medical benefits package, which now
includes abortions in certain circumstances and abortion counseling.
VA's provision of the health care services permitted under the IFR does
not impact or preclude VA's provision of all other needed health care.
XIV. Comments That VA Should Expand Access to Abortion
Several commenters opined that VA should permit access to abortions
for any reason, not just in the circumstances identified in the IFR.
One of these commenters asserted that VA's statutory authority permits
abortion care in all circumstances, not just in cases where the life or
health of the pregnant patient would be endangered if the pregnancy
were carried to term, or when the pregnancy is the result of rape or
incest. Consistent with its authorities, and as discussed throughout
this rule and the IFR, VA has removed exclusions for certain care that
VA has, at this time, determined to be ``needed'' (for veterans) and
``medically necessary and appropriate'' (for CHAMPVA beneficiaries). We
decline to change course based on these comments.
Some commenters supported a legislative change to permit VA to
provide access to abortions for any reason. Those comments regarding
Congress's ability to amend VA's statutory authority are outside the
scope of this rulemaking.
Some commenters otherwise asserted that the IFR's framing of VA's
regulatory changes as prohibitions on abortion with exceptions could be
confusing, perhaps to the detriment of veterans or CHAMPVA
beneficiaries. As discussed, given VA's statutory authorities and
regulations concerning determinations that care is ``needed'' or
``medically
[[Page 15471]]
necessary and appropriate''--as well as a preexisting prohibition with
``exceptions'' for abortion care under VA's implementing regulations
for CHAMPVA (38 CFR 17.272)--it was appropriate to regulate in this
consistent manner. VA has and will continue to issue appropriate
guidance to ensure that VA health care professionals understand that
abortion is permitted under the exceptions as outlined in the IFR, and
again directs veterans, CHAMPVA beneficiaries, and external
stakeholders to VA's public-facing websites for clarifying information:
www.womenshealth.va.gov/WOMENSHEALTH/topics/abortion-services.asp.
XV. Comments Outside the Scope of the IFR
Many commenters raised concerns that were outside the scope of the
rulemaking, in addition to those noted above. VA has briefly summarized
those concerns below; VA does not make any changes to the rule based on
them.
A. Mandated Provision of Abortion or Any Related Reproductive Health
Services
One commenter suggested VA clarify that ``the rule cannot mandate
coverage for abortion or situationally for any related reproductive
health services.'' To the extent the comment was simply asking VA to
clarify this point, we reiterate that the covered health care and
services permitted under the IFR are available to veterans and CHAMPVA
beneficiaries when their health care provider determines they are
needed or medically necessary and appropriate. The decision to pursue a
particular course of treatment is the pregnant individual's decision,
made in consultation with a provider, VA does not make that decision
for the individual.
B. VA's Implementation of the IFR
Multiple commenters made statements or asked questions about VA's
implementation plan(s) related to the IFR. VA finds comments related to
VA's implementation beyond the scope of the IFR as these are
administrative matters not controlled by the regulations that were
revised by the IFR. Nonetheless, VA provides summaries and responses
below for the purposes of transparency and as appropriate.
One commenter opined that VA must make explicit its plan to
implement the rule. VA has made relevant information available on its
website. See www.womenshealth.va.gov/WOMENSHEALTH/topics/abortion-services.asp. As stated there, VA is taking steps to guarantee veterans
and CHAMPVA beneficiaries have access to abortion-related care, as
authorized by this rule, anywhere in the country.
One commenter stated that a VHA website related to community care
provisions (https://www.va.gov/communitycare/programs/veterans/general_care.asp) provided that VA facilities do not provide maternity
care which suggests that veterans can only receive medical care related
to pregnancy (and therefore abortions) through VA's community care
providers. The commenter raised a concern about how eligible veterans
would be able to access the health care services permitted under the
IFR if they were solely available in the community and those community
providers would be required to adhere to State law requirements.
Relatedly, another commenter inquired whether VA will be providing the
health care services permitted under the IFR within its VA medical
facilities or referring individuals out to the community in other
States.
VA does provide some maternity care services to veterans in VA
medical facilities, and to the extent that VA can furnish the health
care services permitted by the IFR directly, it will do so. Since the
IFR published and became effective, VA has made efforts to ensure it
has adequate capacity to provide abortion care at VA facilities,
including abortion counseling. Regarding needed health care services
permitted by the IFR that cannot be furnished in VA facilities (due to
lack of resources such as staff or equipment, for instance), VA may
refer such care to VA community care providers where that health care
is available, consistent with existing VA regulations (see, for
instance, 38 CFR 17.4000 et seq.).
Several commenters raised concerns that the IFR does not explain
the types of abortion methods that will be permitted or prohibited by
VA. As noted above, VA does not generally find it appropriate to
regulate the types of methods of care or procedures that are permitted
or prohibited. Doing so could unnecessarily restrict the provision of
care, including abortions, and result in negative impact or harm to our
patients. The type of abortion provided will vary on a case-to-case
basis, and appropriate VA medical professionals must be able to
determine, in accord with generally accepted standards of medical
practice, how best to treat all individuals.
One commenter opined that VA should clarify in guidance that no
additional administrative barriers should delay or impede access to the
health care services permitted under the IFR determined to be
appropriate by a health care professional. Neither the IFR nor this
final rule adds administrative barriers to delay or impede access to
the health care services permitted under the IFR. VA will ensure its
health care professionals furnish this care consistent with the manner
in which they furnish all other authorized health care.
One commenter inquired as to whether VA will have funding for the
provision of this care, if VA will provide medication abortion, and if
VA will have necessary providers available to provide this care. VA is
using and will continue to use its current funding for the provision of
health care authorized under 38 U.S.C. 1710 and 1781 to provide health
care services in the circumstances permitted under the IFR. VA will
ensure that experienced and trained VA providers are available to
provide abortions, including medication abortion. Another commenter
relatedly recommended that VA equip its pharmacists with the authority
and infrastructure to support mail dispensary of medication abortion
drugs. VA pharmacists do have the authority to mail medications.
Another commenter urged VA to include virtual counseling and
medication abortion as part of the care authorized under the IFR. As
explained previously in this rule, abortion counseling may be provided
virtually through telehealth in accord with generally accepted
standards of care. VA will provide medication abortions when needed and
medically appropriate and in a manner consistent with Federal law.
Another commenter suggested that VA clarify that sexual assault
survivors can receive the full range of health care without barriers,
especially as the majority of sexual assaults are not reported, and
survivors may distrust the police or fear retaliation from a known
perpetrator. Veterans who are eligible for VA health care and CHAMPVA
beneficiaries are able to receive the full range of health care
authorized under the medical benefits package and CHAMPVA,
respectively, regardless of whether they are a sexual assault survivor.
VA notes that it has military sexual trauma coordinators at every VA
medical facility that can further assist eligible individuals in
accessing needed military sexual trauma care. For additional
information, please see www.va.gov/health-care/health-needs-conditions/military-sexual-trauma/.
One commenter appeared to support VA's training of medical students
and residents to provide the health care services permitted under the
IFR.
[[Page 15472]]
Similar to the provision of all other health care provided by VA,
medical students and residents may receive training from VA regarding
the provision of the health care services permitted under the IFR. Such
training would be conducted pursuant to an affiliation agreement
between an educational institution and a VA facility, and under the
clinical supervision of an appropriate health care professional.
One commenter stated that not all VA facilities are located on
exclusive Federal property, and therefore it would seem necessary to
alert individuals seeking an abortion at such a VA facility that VA
cannot guarantee that such individuals would not be prosecuted under
State law even though the VA medical provider would appear to be
protected. The commenter further stated that a better option would be
to have VA authorize transport at government expense of such an
individual to a VA facility in a State that does not criminalize
abortion. Relatedly, commenters inquired how VA will address State
action concerns because not all veterans live in areas that permit
abortion counseling or services and that there should be measures to
ensure travel across State lines if necessary, and generally noted that
VA needs to ensure that veterans feel safe in accessing abortion care.
For the portions of these comments that assert or question VA's
jurisdiction or control of its facilities, any care or services
furnished by VA in a manner authorized by Federal law, including by
this rule, would preempt conflicting State law that would penalize VA
employees for performing their Federal functions, regardless of any
specific land ownership or leasing arrangements (for instance, such as
if a VA facility is co-located to a State-sponsored academic
institution).
To the extent these comments may raise concerns that needed
abortion counseling or abortions cannot be furnished in VA facilities
(due to lack of resources such as staff or equipment, for instance), VA
reiterates from earlier in this discussion that VA may refer such care
to VA community care providers where available.
Insofar as some comments concerned potential travel needed to
obtain the health care services permitted under the IFR, veterans would
have access to both Beneficiary Travel and Veterans Transportation
Program benefits if so eligible under VA regulations at 38 CFR part 70.
Finally, insofar as commenters suggested that VA alert certain
individuals seeking abortions that VA cannot guarantee that such
individuals would not be prosecuted under State law, VA is a health
care provider, and VA attorneys have no authority to provide any legal
advice to veterans or CHAMPVA beneficiaries.
C. Suggested Alternatives to VA Providing Access to Abortion
Commenters asserted that instead of access to the health care
services permitted under the IFR they believed pregnant individuals
should be given the option of emotional and physical support throughout
their pregnancies and post-partum experiences, specifically including
prenatal medical attention. Other commenters similarly indicated that
instead of providing access to abortions, VA should direct pregnant
individuals to support groups that are available and, if such
individuals do not wish to keep a child after giving birth, to help
them through the adoption process. As with all comments discussed in
this section, VA finds these comments to be beyond the scope of the
IFR.
These commenters seem to assert that abortion would not be
necessary if pregnant individuals were given more support during
prenatal, pregnancy, or postpartum stages, or offered choices beyond
abortion, which seems to assume that VA is providing access to abortion
procedures for reasons other than medical necessity. However, the IFR
permits abortions to be provided only when the life or health of the
pregnant individual would be endangered if the pregnancy were carried
to term or when the pregnancy is the result of an act of rape or
incest. VA provides care to veterans when such care is determined by an
appropriate health care professional to be needed to promote, preserve,
or restore the health of the veteran and is in accord with generally
accepted standards of medical practice, and provides care for CHAMPVA
beneficiaries that is medically necessary and appropriate. The need for
health care services permitted under the IFR would not be prevented by
increased access to support groups or to a particular level of
maternity care services. Moreover, VA's pregnancy options counseling,
discussed above, includes abortion counseling and all other pregnancy
options. The course of treatment is the pregnant individual's decision,
made in consultation with a provider, and nothing in the IFR changes
this.
To the extent the commenters might be expressing that lack of
maternity care services could endanger a pregnant individual's life or
health if the pregnancy were carried to term, maternity care services
provided by VA include comprehensive pre- and post-partum care and
services. VA will continue to provide comprehensive maternity care in
addition to the health care services permitted by the IFR in the
circumstances stated in the rule.
Regarding the request in the comments that VA assist pregnant
individuals with the adoption process if they did not want to keep a
child after giving birth, VA does provide pregnancy options counseling
as part of its furnishing of maternity care services, and this
pregnancy options counseling includes providing information on
adoption.
Severability
The purpose of this section is to clarify VA's intent with respect
to the severability of provisions of this rule. Each provision and
portion of this rule is capable of operating independently. If any
provision or portion of this rule is determined by judicial review or
operation of law to be invalid, that partial invalidation will not
render the remainder of this rule invalid. As explained in the IFR and
above, VA amended its regulations because it determined that providing
access to abortion-related medical care is needed to protect the lives
and health of veterans and is medically necessary and appropriate care
for CHAMPVA beneficiaries. For those same reasons, VA intends each
aspect of the rule to operate and ensure that such care is available,
even if one portion of the rule is invalidated. For example, if a
provision of the rule concerning benefits for CHAMPVA beneficiaries
were held invalid, other provisions concerning CHAMPVA beneficiaries,
and provisions concerning the care available to Veterans under the
medical benefits package, could and should continue to operate
independently. The provisions authorizing abortions in cases where the
life or health of the pregnant veteran or CHAMPVA beneficiary would be
endangered if the pregnancy were carried to term could operate
independently should the provision authorizing abortions in cases where
the pregnancy is due to an act of rape or incest be held invalid, and
vice versa. The provisions authorizing VA to provide abortions could
continue to operate should the provisions authorizing VA to provide
abortion counseling be held invalid. We emphasize that this is a non-
exhaustive list of examples. Likewise, if the application of any
portion of this rule to a particular circumstance is determined to be
invalid, the agency intends that
[[Page 15473]]
the rule remain applicable to all other circumstances.
Administrative Procedure Act
VA has considered all relevant input and information contained in
the comments submitted in response to the IFR (87 FR 55287) and, for
the reasons set forth in the foregoing responses to those comments, has
concluded that changes to the IFR are not warranted. Accordingly, based
upon the authorities and reasons set forth in issuing the IFR (87 FR
55287), as supplemented by the additional reasons provided in this
document in response to comments received, VA is adopting the
provisions of the IFR as a final rule without changes.
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 in the IFR, 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 or the
performance of Federal duties. 87 FR 55293-55294. 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 have no force or effect to the extent that 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, 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
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
needed or medically necessary and appropriate health care to veterans
and CHAMPVA beneficiaries 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.
Executive Orders 12866, 13563, and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
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 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 14094 (Executive order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rule is a significant regulatory action under Executive Order 12866, as
amended by Executive Order 14094. The Regulatory Impact Analysis
associated with this rulemaking can be found as a supporting document
at https://www.regulations.gov.
Regulatory Flexibility Act
The Secretary hereby certifies that this final 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-
612). This final rule will not have a significant impact on a
substantial number of small entities because the final rule does not
directly regulate or impose costs on small entities and any effects
will be indirect. 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.
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.
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.
Congressional Review Act
Pursuant to the Subtitle E of the Small Business Regulatory
Enforcement Fairness Act of 1996 (known as the Congressional Review
Act) (5 U.S.C. 801 et seq.), the Office of Information and Regulatory
Affairs designated this rule as not satisfying the criteria under 5
U.S.C. 804(2).
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Claims, Health care, Health
facilities, Health professions, Health records, Medical devices,
Medical research, Mental health programs, Veterans.
0
For the reasons stated in the preamble, the interim final rule amending
38 CFR part 17, which was published at 87 FR 55287 on September 9,
2022, is adopted as final.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on February 26, 2024, and authorized the undersigned to
sign and submit the document to the Office of the Federal Register for
publication
[[Page 15474]]
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.
[FR Doc. 2024-04275 Filed 3-1-24; 8:45 am]
BILLING CODE 8320-01-P