[Federal Register Volume 90, Number 147 (Monday, August 4, 2025)]
[Proposed Rules]
[Pages 36415-36417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-14687]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AS31
Reproductive Health Services
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to
reinstate the full exclusion on abortions and abortion counseling from
the medical benefits package, which was removed in 2022. Before that
time, this exclusion had been firmly in place since the medical
benefits package was first established in 1999. VA is also proposing to
reinstate the exclusions on abortion and abortion counseling for
Civilian Health and Medical Program of the Department of Veterans
Affairs (CHAMPVA) that were removed in 2022. We take this action to
ensure that VA provides only needed medical services to our nation's
heroes and their families.
DATES: Comments must be received on or before September 3, 2025.
ADDRESSES: Comments must be submitted through www.regulations.gov.
Except as provided below, comments received before the close of the
comment period will be available at www.regulations.gov for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
www.regulations.gov as soon as possible after they have been received.
VA will not post on Regulations.gov public comments that make threats
to individuals or institutions or suggest that the commenter will take
actions to harm an individual. VA encourages individuals not to submit
duplicative comments; however, we will post comments from multiple
unique commenters even if the content is identical or nearly identical
to other comments. Any public comment received after the comment
period's closing date is considered late and will not be considered in
the final rulemaking. A plain language summary (not more than 100 words
in length) of this rule is available at www.regulations.gov, under RIN
2900-AS31.
FOR FURTHER INFORMATION CONTACT: Dr. Steven L. Lieberman, Acting Under
Secretary for Health, Department of Veterans Affairs, 810 Vermont
Avenue NW, Washington, DC 20420, (202) 461-0373. (This is not a toll-
free telephone number.)
SUPPLEMENTARY INFORMATION: Today, VA is proposing to return VA's
medical package and CHAMPVA benefits to where they were on September 8,
2022, before VA issued an interim final rule that removed long-standing
restrictions against abortions.
From 1999, when VA established the medical benefits package in
17.38 of title 38, Code of Federal Regulations (CFR) until September 8,
2022, VA's ``medical benefits package'' did not authorize abortion
services because they were not ``needed'' medical services under
section 1710 of title 38 of the United States Code (U.S.C.). For
decades, VA had consistently interpreted abortion services as not
[[Page 36416]]
``needed'' medical services and therefore not covered by the medical
benefits package.\1\
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\1\ The medical benefits package was established in 1999 based
on the comprehensive Veterans Benefits Act of 1997, which
established, inter alia, 38 U.S.C. 1710. Until 2022, VA had never
interpreted its authority under the 1999 extensive revisions to
title 38 as allowing abortions.
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As a matter of law, it is without question that VA has the
authority to bar provision of abortion services through the VA medical
benefits package to veterans. From 1999 until 2022 that is in fact what
VA did. It was not until 2022 when the VA Secretary reversed this
course. The stated reason for doing so was a reaction to a Supreme
Court decision, Dobbs v. Jackson Women's Health Organization, 142 S.
Ct. 2228 (2022), that itself was intended to prevent federal overreach
and return to States control over the provision of abortion services.
Yet, the last administration used Dobbs to do the exact opposite of
preventing overreach, creating a purported Federal entitlement to
abortion for veterans where none had existed before and without regard
to State law. In doing so, the administration predicted a high demand
for VA abortions that never materialized.\2\
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\2\ As part of the September 9, 2022 IFR and March 4, 2024 final
rule, VA estimated that VA would provide abortions to more than
1,000 veterans and CHAMPVA beneficiaries per year. See Regulatory
Impact Analysis for Interim Final Rule (2900-AR57) published
September 9, 2022, and Final Rule (2900-AR57) published March 4,
2024. Regulations.gov. https://www.regulations.gov (last visited
July 14, 2025). However, the average number of veterans who receive
abortions from VA is 100 per year, and the average number of CHAMPVA
beneficiaries who receive abortions from VA is 40 per year, which
are significantly lower than the more than 1,000 per year VA
previously projected. See the Regulatory Impact Analysis for this
proposed rule. Regulations.gov. https://www.regulations.gov.
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The regulatory determination that abortion is not a ``needed''
service for veterans was accepted by every Secretary and Presidential
administration for over 20 years. The stated basis for determination
that abortions were now a needed service was an anticipated rise in
demand as a result of the Dobbs decision.
But this conclusion contradicted decades of Federal policy against
forced taxpayer funding for abortion. Considerations about whether
abortion is ``needed'' for purposes of VA-provided services necessarily
involves the question of whether taxpayers should pay for abortion. For
nearly fifty years, and across a slew of Federal programs, including
Medicaid, the Child Health Insurance Program, TriCare, Federal Employee
Health Benefits Program, and others, Congress has consistently drawn a
bright line between elective abortion and health care services that
taxpayers would support.
VA has never understood this policy to prohibit providing care to
pregnant women in life-threatening circumstances, including treatment
for ectopic pregnancies or miscarriages, which were covered under the
VA's medical benefits package prior to the 2022 IFR.\3\ For the
avoidance of doubt, the proposed rule would make clear that the
exclusion for abortion does not apply ``when a physician certifies that
the life of the mother would be endangered if the fetus were carried to
term.'' This is also consistent with the pre-2022 regulations for the
CHAMPVA program.
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\3\ Maternity Health Care and Coordination, VHA Directive
1330.03 (November 3, 2020) available at https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=9095. See also Secretary
Denis McDonough, Press Conference, (July 20, 2022), available at
https://www.youtube.com/watch?v=UpFKk5NFhF0 at 52:00:000.
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No State law prohibits treatment for ectopic pregnancies or
miscarriages to save the life of a mother.\4\
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\4\ https://www.justia.com/constitutional-law/50-state-survey-on-abortion-laws/.
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Taken together, claims in the prior administration's rule that
abortions throughout pregnancy are needed to save the lives of pregnant
women are incorrect. The lives of pregnant women will continue to be
protected without regard for the previous administration's rule. Thus,
prior Administrations recognized that lifesaving procedures would still
be performed under the medical benefits package, and this was explicit
in the prior versions of the CHAMPVA regulation.
We now turn to address VA's legal authority in more depth.
VA's exclusion against abortion was legally established in 1999 and
existed until the 2022 revisions. Under 38 U.S.C. 1710(a)(1) through
(3), VA is authorized to furnish hospital care and medical services
that the Secretary determines to be needed. VA implements this general
treatment authority and the Secretary determines what care is needed by
regulation through VA's medical benefits package. See 64 Federal
Register (FR) 54207, 54217 (October 6, 1999); 38 CFR 17.38. Prior to
September 9, 2022, abortions and abortion counseling were excluded from
the medical benefits package, with no exceptions. 87 FR 55288
(September 9, 2022).
We believe the 2022 interim final rule was not only inappropriate
as a matter of fact but also was legally questionable. The only time
Congress has specifically addressed VA's authority to provide abortions
was in 1992 in section 106 of the Veterans Health Care Act of 1992
(VHCA), Public Law 102-585, which authorized VA to provide under
chapter 17 of title 38, U.S.C., ``[p]apanicolaou tests (pap smears),''
``[b]reast examinations and mammography,'' and ``[g]eneral reproductive
health care'' but excluded ``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.''
In 1996, Congress extensively revised Chapter 17. The specific
statute, 38 U.S.C. 1710, was changed to cover eligibility for hospital
care and medical services, whereas in 1992 it had solely covered
hospital and nursing home care. While it is possible that Congress
intended the 1992 restriction to continue to apply after the dramatic
revisions of 1996, it is also possible to conclude that Congress'
intent in 1996 was to provide a new, full, and expansive set of laws
governing authorization for VA care.
While the wholesale revision of Chapter 17 in 1996 and the specific
limitations of section 106 may limit the continued force and effect of
section 106 (as VA argued in 2022, see 87 FR 55289), we need not reach
that decision today as our actions fully comply with its abortion
exclusion. We discuss these competing legal provisions only to
demonstrate that VA's authority to provide abortions is, at least,
dubious and, at most, nonexistent. Our decision to restore VA's medical
benefits package to its pre-2022 state is consistent with VA's decades-
long interpretation of the law, the reversal of which served only to
unnecessarily redefine VA's medical benefits package based on politics
instead of science. This proposed rule restores VA to its proper role
as the United States' provider of needed medical services to those who
served, delivered on behalf of a grateful nation.
We now turn to the CHAMPVA health benefits program, which provides
medical care to eligible spouses, children, survivors, and caregivers
of veterans. Prior to September 9, 2022, CHAMPVA coverage excluded
abortions except when a physician certified that the abortion was
performed because the life of the mother would be endangered if the
fetus were carried to term. These exclusions were previously codified
in 38 CFR 17.272(a)(64) and (65). On September 9, 2022, as part of the
IFR discussed above that amended VA's
[[Page 36417]]
medical benefits package, VA amended the exclusion on abortion and
abortion counseling for CHAMPVA to include the rape, incest, and health
of the mother exceptions that VA also then authorized under its medical
benefits package. In addition, the IFR authorized abortion counseling
under CHAMPVA.
VA now proposes to restore the pre-September 9, 2022, abortion
restrictions within the CHAMPVA program, just as we are proposing to
restore the long-standing restrictions to the medical benefits package.
Under 38 U.S.C. 1781(a), CHAMPVA benefits are provided ``in the
same or similar manner and subject to the same or similar limitations
as medical care is'' provided by the Department of Defense through its
TRICARE (Select) program. 87 FR 55290; 89 FR 15459; 38 U.S.C. 1781(b);
see 32 CFR 199.1(r), 199.17(a)(6)(ii)(D). VA has established its own
specific coverage for CHAMPVA that is similar, but not identical, to
TRICARE. See 38 CFR 17.270(b) (defining CHAMPVA-covered services and
supplies) and 17.272 (setting forth benefits limitations and
exclusions). VA has consistently maintained that ``similar'' does not
mean ``identical''. 87 FR 55291; 89 FR 15459. Moreover, the medical
care provided under CHAMPVA would be consistent with the care that was
provided to CHAMPVA beneficiaries prior to the September 9, 2022, IFR,
which VA had long understood and interpreted to be the same or similar
care as the care provided under TRICARE (Select).
VA's regulations for CHAMPVA coverage allow medical services that
are medically necessary and appropriate for the treatment of a
condition and that are not specifically excluded. 38 CFR 17.270(b).
This language, while not identical to the ``needed'' requirement for
veteran coverage under VA's medical benefits package, is not different
in any meaningful way. In short, abortion is not a ``needed'' VA
service for the same reasons that it is not ``medically necessary and
appropriate for the treatment of a condition'' under CHAMPVA. The
changes made by the September 2022 IFR to the CHAMPVA regulation were
not medically necessary or appropriate pursuant to 38 U.S.C. 1781(a)
and 38 CFR 17.270(b) and must be undone.
VA's legal authority to ``un-do'' the changes made in September
2022 is beyond doubt. This proposal will restore VA's medical benefits
package and the CHAMPVA program to their proper, long-standing
positions.
Executive Orders 12866, 13563, and 14192
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).
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 14192 (Unleashing Prosperity Through Deregulation) promotes
prudent financial management and alleviates unnecessary regulatory
burdens. The Office of Information and Regulatory Affairs has
determined that this rulemaking would be a significant regulatory
action under Executive Order 12866 and would be a regulatory action
under Executive Order 14192. The Regulatory Impact Analysis associated
with this rulemaking can be found as a supporting document at
www.regulations.gov.
Regulatory Flexibility Act (RFA)
The Secretary hereby certifies that this proposed rule would 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 proposed rule would only impact veterans and
CHAMPVA beneficiaries, who are not small entities. 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 requires, at 2 U.S.C.
1532, 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 proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act (PRA)
This proposed rule contains no provisions constituting a collection
of information under the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3521).
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.
Signing Authority
Douglas A. Collins, Secretary of Veterans Affairs, approved this
document on July 24, 2025, and authorized the undersigned to sign and
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Jennifer Williams,
Alternate Federal Register Liaison Officer, Department of Veterans
Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 17 as set forth below:
PART 17--MEDICAL
0
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
0
2. Amend Sec. 17.38 by revising paragraph (c)(1) and removing
paragraphs (c)(1)(i) and (ii) to read as follows:
Sec. 17.38 Medical Benefits Package.
* * * * *
(c) * * *
(1) Abortions and abortion counseling.
* * * * *
0
3. Amend Sec. 17.272 by:
0
a. Revising paragraph (a)(58).
0
b. Removing paragraphs (a)(58)(i) and (ii).
0
c. Adding paragraph (a)(78).
The revision and addition read as follows:
Sec. 17.272 Benefits limitations/exclusions.
* * * * *
(a) * * *
(58) Abortions, except when a physician certifies that the life of
the mother would be endangered if the fetus were carried to term.
* * * * *
(78) Abortion counseling.
* * * * *
[FR Doc. 2025-14687 Filed 8-1-25; 4:00 pm]
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