[Federal Register Volume 90, Number 247 (Wednesday, December 31, 2025)]
[Rules and Regulations]
[Pages 61310-61328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-24061]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

[Docket No. VA-2025-VHA-0073]
RIN 2900-AS31


Reproductive Health Services

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, 
without changes, a proposed rule to reinstate the exclusions on 
abortions and abortion counseling from the medical benefits package, 
which were removed in 2022. Before 2022, these exclusions had been 
firmly in place since the medical benefits package was first 
established in 1999. VA is also adopting as final, without changes, the 
reinstatement of exclusions on abortion and abortion counseling for the 
Civilian Health and Medical Program of the Department of Veterans 
Affairs (CHAMPVA) that were also removed in 2022. VA takes this action 
to ensure that VA provides only needed and medically necessary and 
appropriate care to our nation's heroes and CHAMPVA beneficiaries.

DATES: Effective Date: This rule is effective January 30, 2026.

FOR FURTHER INFORMATION CONTACT: John Figueroa, Senior Advisor to the 
Secretary of Veterans Affairs performing the duties of Under Secretary 
for Health, (202) 461-0373.

SUPPLEMENTARY INFORMATION: Today, VA finalizes its proposed rule 
published in the Federal Register (FR) on August 4, 2025. 90 FR 36415. 
In that proposed rule, VA proposed to return VA's medical benefits 
package and CHAMPVA coverage to where they were on September 8, 2022, 
before VA issued an interim final rule (IFR) that removed long-standing 
restrictions against abortions. Id.
    As explained in the proposed rule, it was VA's long-standing 
interpretation that abortions were not ``needed'' under section 1710 of 
title 38 of the United States Code (U.S.C.) and thus were excluded from 
the medical benefits package for veterans. 90 FR 36416. This 
determination was accepted by every Secretary and Presidential 
administration for over 20 years. Id. This determination did not 
prohibit providing life-saving care to pregnant veterans. Id. 
Similarly, it was VA's long-standing interpretation that abortions were 
not medically necessary and appropriate for CHAMPVA beneficiaries 
except when a physician certifies that the life of the mother would be 
endangered if the child were carried to term. 90 FR 36416-36417.
    Congress has never mandated or legislated that VA provide 
abortions. Instead, Congress gave the Secretary discretion to determine 
what care may be furnished to veterans (under 38 U.S.C. 1710) and 
CHAMPVA beneficiaries (under 38 U.S.C. 1781). If Congress intended for 
VA to provide abortions in a manner other than VA's long-standing 
regulatory position, it could have amended VA's authorities. However, 
it never has, even though Congress has done so for other Federal 
agencies.
    Since publication of our proposed rule, the Department of Justice's 
Office of Legal Counsel (OLC) issued a formal opinion concluding that 
VA does not have statutory authority to provide abortion or abortion 
counseling under 38 U.S.C. 1710. See Reconsidering the Authority of the 
Department of Veterans Affairs to Provide Abortion Services, 49 Op. 
O.L.C._(Dec. 18. 2025) (hereinafter referred to as ``DOJ Opinion''), 
https://

[[Page 61311]]

www.justice.gov/olc/media/1421726/dl?inline. The DOJ Opinion explains 
that section 106 of the Veterans Health Care Act of 1992 (VHCA), Public 
Law (Pub. L.) 102-585, expressly prohibits VA from furnishing abortion 
when providing hospital care and medical services under Chapter 17 of 
Title 38. Id.
    The DOJ Opinion further clarifies that procedures necessary to save 
the life of the pregnant veteran (such as treatment for ectopic 
pregnancies or miscarriages) are not considered ``abortions'' within 
the meaning of section 106 and therefore remain permissible. VA has 
historically interpreted its authority in this manner, and the DOJ 
Opinion affirms that such life-saving care is consistent with federal 
law.
    As a Federal agency, VA is bound by the DOJ Opinion and relies on 
it as the primary legal basis for this final rule. Accordingly, this 
rule reinstates the longstanding exclusion of abortion and abortion 
counseling from VA's medical benefits package and CHAMPVA coverage, 
consistent with the statutory limitations imposed by section 106.
    In addition to section 106, VA previously relied on its 
discretionary authority under 38 U.S.C. 1710 and 1781 to justify the 
provision of abortion services. In light of the DOJ Opinion, VA now 
recognizes that this discretionary authority is constrained by section 
106 and cannot be exercised to override the statutory prohibition. 
Nevertheless, VA addresses VA's discretionary authority as a supporting 
and additional rationale for this rulemaking. Even if such discretion 
were available, the Secretary has determined that VA will not provide 
abortion or abortion counseling under that authority.
    If VA's authority under sections 1710 and 1781 remained the primary 
basis for this rule, the absence of clear congressional direction 
regarding abortion is particularly relevant in light of the major 
questions doctrine. That doctrine, as articulated in West Virginia v. 
EPA, 597 U.S. 697 (2022), instructs that agencies must identify clear 
statutory authority before regulating in areas of profound political 
consequence. Abortion is one of the most politically divisive and 
morally charged issues in American public life, a fact the Supreme 
Court recognized in Dobbs v. Jackson Women's Health Organization, 142 
S. Ct. 2228 (2022), which returned the issue to the people and their 
elected representatives. In this context, VA's decision to return to 
its prior regulatory position reflects a cautious and legally grounded 
exercise of discretion; not an expansion of authority. VA did not in 
its proposed rulemaking, does not now, and has never interpreted the 
regulatory bar against abortions to be a bar against providing life-
saving treatment. VA has simply never used the term ``abortion'' to 
refer to life-saving treatment provided to a pregnant woman. VA's 
proposal and final action today do not change this long-standing 
understanding of the difference between an abortion and a medical 
intervention necessary to save the life of a pregnant woman.
    After publishing the proposed rule on August 4, 2025, VA provided a 
30-day comment period, which ended on September 3, 2025. VA received 
20,984 document submissions, which included approximately 24,333 total 
comments. The vast majority of comments were duplicated form responses. 
This final rule addresses all relevant and significant comments 
received, regardless of how many individuals submitted the same (or 
even identical) comment. Some commenters solely expressed support or 
opposition or made comments that were beyond the scope of the proposed 
rule. These comments are not addressed in this final rule, except to 
the extent that they also requested clarifications or suggested 
substantive revisions.
    Section I. below addresses comments that generally challenged the 
proposed rule related to the medical benefits package or CHAMPVA. This 
section also includes comments that may not have specifically mentioned 
either program but that expressed general opposition to all changes in 
the proposed rule.
    Section II. below addresses comments that specifically challenged 
VA's rationale in the proposed rule. This section addresses VA's more 
specific rationale related to the number of abortions provided by VA, 
comparison to other Federal laws related to abortion, and VA's legal 
authorities.
    Section III. below addresses comments that raised other legal 
issues, to include assertions that the proposed rule did not meet 
certain administrative law standards.
    Sections IV. through VIII. below address all other comments.

I. Comments That Generally Challenged the Proposed Rule

A. Comments That Asserted Abortions Were Needed Medical Services for 
Veterans or Were Medically Necessary and Appropriate Treatment for 
CHAMPVA Beneficiaries

    VA proposed to remove the exceptions to the general exclusion of 
abortions in Sec.  17.38(c)(1)(i) and (ii) of title 38, Code of Federal 
Regulations (CFR), that, pursuant to an IFR published on September 9, 
2022 (see 87 FR 55296) and a final rule published on March 4, 2024 (see 
89 FR 15473), established that abortions could be provided when: (i) 
the life or the health of the pregnant veteran would be endangered if 
the pregnancy were carried to term; or (ii) the pregnancy was the 
result of an act of rape or incest. Part of the rationale in the 
proposed rule for removing these exceptions to the general exclusion of 
abortions was that they are not needed and, as to the first exception, 
from 1999 through 2022, VA had never understood the exclusion of 
abortions to prohibit VA from providing care to pregnant women in life-
threatening circumstances. 90 FR 36416. Since the creation of the 
medical benefits package and for nearly 23 years, VA had consistently 
interpreted that abortions were not needed medical services under 38 
U.S.C. 1710 and furnished care in life-threatening circumstances to 
pregnant veterans as a needed medical service. Moreover, the DOJ 
Opinion concludes that VA lacks statutory authority to exercise 
discretion to provide abortion services under 38 U.S.C. 1710, thereby 
foreclosing reliance on discretionary judgment to justify the 
exceptions previously established in 38 CFR17.38(c)(1)(i) and (ii).
    VA also proposed to revise the exceptions to the general exclusion 
of abortions in CHAMPVA in 38 CFR 17.272(a)(58) to similarly revert 
back to regulatory language in existence prior to September 9, 2022, so 
that there would be a single exception for abortion for CHAMPVA 
beneficiaries in cases when a physician certifies that the life of the 
mother would be endangered if the fetus were carried to term, versus 
broader exceptions in cases of life or health endangerment or when the 
pregnancy is the result of rape or incest. VA's rationale for these 
proposed changes in CHAMPVA was that abortions were not ``medically 
necessary and appropriate for the treatment of a condition'' (pursuant 
to the definition of CHAMPVA-covered services and supplies in 38 CFR 
17.270(b)) under the broader exceptions for the same reasons that 
abortions were not ``needed'' (pursuant to 38 U.S.C. 1710(a)(1)-(3)) in 
the veteran's program. 90 FR 36417. VA notes that for the comment 
summaries and responses that follow and for the remainder of the 
discussion in the final rule, it will use the shorthand of ``needed'' 
care in the context of 38 U.S.C. 1710, and ``medically necessary and 
appropriate'' care in the context of 38 U.S.C. 1781 (as interpreted in 
38 CFR 17.270(b)). Again, the DOJ Opinion

[[Page 61312]]

concludes that VA lacks statutory authority to exercise discretion on 
this issue, but for the purposes of addressing comments, VA provides 
analysis under section 1710 as a secondary basis for our rulemaking.
    Multiple commenters asserted that abortion was a needed medical 
service, or that the broader exceptions to permit abortion were 
medically necessary and appropriate for the treatment of a condition 
for CHAMPVA beneficiaries. Many of these commenters made general 
statements that abortion was evidence-based and part of medically 
accepted standards of care for pregnant women and therefore was needed 
or medically necessary and appropriate. Some of these commenters 
referenced publications from medical or other organizations to support 
these statements or further provided examples of specific procedures 
that could be considered needed or medically necessary and appropriate 
in particular circumstances.
    Other commenters generally challenged the proposed rule by 
asserting that abortion bans or abortion restrictions were harmful to 
pregnant women. Many of these commenters referenced publications from 
medical or other organizations that indicate increased maternal and 
infant mortality rates or other worsened physical and mental health 
outcomes of pregnant women in states with restrictive abortion laws. As 
stated in comments, these publications suggest that states with 
restrictive laws create uncertainty for healthcare providers, a 
chilling effect for fear of legal consequences for abortion providers 
and pregnant women, or additional administrative requirements to 
furnish or receive care, all of which can result in delays in or denial 
of abortion. Additionally, these commenters referenced publications 
showing that bans could have negative, non-medical impacts, such as 
long-term economic hardship and financial harm to women and their 
children and that it may encourage women to stay with abusive partners. 
These commenters also claimed that bans can disproportionately impact 
women veterans, who are particularly vulnerable due to unique issues 
they may face (such as a history of military sexual trauma and 
increased risks for certain health conditions), which is even more 
pronounced among various groups of veterans, such as women of color and 
women in rural areas.
    VA does not make changes from the proposed rule based on these 
comments. The DOJ Opinion addresses all comments referencing VA's 
authority to provide abortions. See Reconsidering the Authority of the 
Department of Veterans Affairs to Provide Abortion Services, 49 Op. 
O.L.C._(Dec. 18. 2025), https://www.justice.gov/olc/media/1421726/dl?inline. Given that VA lacks statutory authority to provide abortion 
services, policy arguments that VA should have that authority are 
inapposite. In addition, under 38 U.S.C. 1710(a)(1), the Secretary has 
discretion to determine what hospital care and medical services are 
needed. As stated in the proposed rule, the regulatory determination 
that abortion is not a ``needed'' service for veterans was accepted by 
every VA Secretary and Presidential administration for over 20 years, 
under the recognition that VA was not prohibited from providing care to 
pregnant women in life-threatening circumstances under the medical 
benefits package. 90 FR 36416. Therefore, separate and apart from DOJ's 
opinion that VA lacks statutory authority, the Secretary is exercising 
discretion under 38 U.S.C.1710(a)(1) to reaffirm VA's longstanding 
determination that abortion is not a ``needed'' service.
    Consistent with such determination, care to pregnant women in life-
threatening circumstances will continue to be covered under the medical 
benefits package. Subject to the DOJ Opinion, VA similarly has 
discretion under 38 U.S.C. 1781 (as interpreted in 38 CFR 17.270(b)) to 
determine what is ``medically necessary and appropriate for the 
treatment of a condition'' in CHAMPVA and finds that the single 
exception for life endangerment when certified by a physician meets 
that standard.
    VA will publish additional guidance regarding care that is not 
barred by this rule. VA will also ensure its health care providers are 
trained to provide life-saving care. Such guidance is consistent with 
both the DOJ Opinion and the Secretary's discretionary authority.

B. Comments That Asserted Exceptions for Abortions Were Needed or Were 
Medically Necessary and Appropriate in Cases of Health Endangerment or 
When the Pregnancy Is the Result of Rape or Incest

    Some commenters asserted that abortions were needed or were 
medically necessary and appropriate not only when a pregnant individual 
might experience life-threatening or endangering circumstances, but 
also when such an individual's health may be threatened or endangered, 
or in any case when such an individual was pregnant as a result of rape 
or incest. Particularly, multiple commenters acknowledged VA's 
continued ability to furnish care in life-threatening circumstances 
without an explicit exception to the abortion exclusion in 38 CFR 
17.38(c)(1), or with the limited exception for life endangerment in 
Sec.  17.272(a)(58) as proposed, but additionally asserted that 
abortion can be needed to preserve health, not solely to prevent 
imminent death. Some of these commenters referenced publications from 
medical or other organizations to support these assertions or provided 
examples of serious but not immediately fatal medical conditions that a 
pregnant woman may have--such as severe preeclampsia, certain cardiac 
diseases, or cancers requiring urgent treatment--that could require an 
abortion to avoid additional harm to the pregnant woman as the 
pregnancy develops.
    Other commenters stated more generally that restricting care to 
life-endangering or life-threatening circumstances would force delays, 
increase complications, and endanger the long-term health of a pregnant 
individual. Some of these commenters raised concerns that there is a 
lack of clarity regarding when there is life-endangering and life-
threatening circumstances versus endangerment or threat to health, as 
there is not necessarily a bright line when a condition is health-
threatening or endangering versus life-threatening or endangering. In 
those cases, these commenters noted that a patient's condition can 
deteriorate quickly, and clinicians rely on their medical training, 
judgment, and expertise to determine when to intervene, which is 
typically before a condition becomes life-threatening or endangering. 
Some commenters provided examples of conditions in which a patient's 
life may not be considered endangered or threatened in the short term, 
but their health is. Some commenters also referenced publications to 
show how a lack of clarity in states with similar restrictions impacts 
health care providers and pregnant women.
    Some commenters asserted that health care providers will hesitate 
to rely on their expertise, training, and medical judgment to make any 
required certifications and provide care, even when permitted under 
this rule.
    Lastly, a commenter noted that the medical benefits package 
included services recognized as needed health care (such as bereavement 
counseling, prosthetics, and a wide range of outpatient care and 
prescription drugs) that have an impact on the quality of life of 
patients but in many cases the life of the patient would not be at risk 
without them. This commenter noted that

[[Page 61313]]

restricting abortion to life-threatening circumstances, but not health-
threatening circumstances, is therefore inconsistent with VA's 
interpretation of needed care by comparison.
    VA does not make changes based on these comments. The DOJ Opinion 
renders any discussion of medical necessity moot. If VA did have 
discretion, VA still would not address every specific potential medical 
condition a pregnant woman may have or complication that could be 
experienced during pregnancy or otherwise further delineate the 
conditions under which care may be provided or allowed pursuant to this 
rulemaking. These are clinical matters that will need to be determined 
by health care providers with their patients, and VA will issue further 
related guidance. As such guidance is more appropriate for elaborating 
VA policy, VA does not make changes to its regulations based on these 
comments.
    VA notes that there are other medical interventions that can be 
used to preserve the life of the mother in a life-threatening or 
endangering circumstance, which would be available under the medical 
benefits package. There is a subspecialty of obstetrics and gynecology, 
maternal-fetal medicine, that focuses on managing risk to the life of 
the mother before, during, and after pregnancy. These services are and 
will continue to be provided to veterans and CHAMPVA beneficiaries.
    VA also does not make changes based on concerns that other services 
included in the medical benefits package do not have a threshold to be 
life-threatening to be considered needed. VA acknowledges that 38 
U.S.C. 1710 allows the Secretary to provide care in other-than-life-
threatening situations and that from the time that the medical benefits 
package was originally promulgated in 1999 and through the 2022 IFR, 
abortions were excluded generally while these other services were 
included, without any inherent conflict. VA is merely returning to that 
longstanding regulatory framework. VA is not establishing a threshold 
of life-threatening for services to be considered ``needed'' to be 
included in the medical benefits package.

C. Exception To Permit Abortion When the Life of Mother Would Be 
Endangered if the Fetus Were Carried to Term

    In the context of discussing whether care is needed under 38 U.S.C. 
1710, the proposed rule explained that VA had never understood its 
policy prior to September 9, 2022, to prohibit providing care to 
pregnant veterans in life-threatening circumstances, including 
treatment for ectopic pregnancies or miscarriages, which were covered 
under VA's medical benefits package prior to the 2022 IFR. 90 FR 36416. 
The DOJ Opinion reached the same conclusion.
    The proposed rule further stated ``[f]or 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'.'' Id. VA clarifies 
today that this statement in the proposed rule referred to the language 
related to CHAMPVA and not to the medical benefits package. It was not 
intended to convey that a life endangerment exception for abortion 
would be expressly codified in the medical benefits package. The 
comment summaries and responses below address concerns and issues 
raised in these comments, distinct from some similar comments in 
section III.F. of this final rule as related to allegations of 
Administrative Procedure Act (APA) violations.
1. Confusion if Exception for Life of Mother Is Not Codified for 
Veterans in the Medical Benefits Package Regulation
    Some commenters stated that the proposed rule was not clear as to 
whether there would be an express exclusion in the medical benefits 
package to permit abortion if the life of the mother would be 
endangered if the child were carried to term, and that there would be 
confusion among patients and health care providers by not including 
such an exception in the medical benefits package. Some commenters 
opined that such confusion could lead to delayed or denied care, with 
commenters referencing publications regarding abortion exceptions for 
life of the mother in states such as Texas. Some commenters further 
explained that VA providers may hesitate to provide care if the 
exception is not codified in the medical benefits package regulation 
because the regulatory text, not the preamble, controls. Many of these 
commenters further suggested that VA codify the life exception in the 
medical benefits package to avoid these issues.
    VA makes no changes based on these comments. As explained in the 
proposed rule, VA is returning to pre-September 9, 2022 position. VA is 
reverting the regulatory text of 38 CFR 17.38 to the same language that 
was in place at that time. Although some commenters may have been 
confused by the language in the preamble, the amendatory text of the 
proposed rule clearly indicated that the explicit exception was 
included only in the regulatory section that related to CHAMPVA, 
consistent with the language of that regulatory text prior to September 
9, 2022. That pre-September 9, 2022 language was applied to allow for 
life-saving procedures that resulted in termination of a pregnancy, and 
there is no reason to believe that it will be hard for VA providers to 
apply that language now just as they did for over 20 years before the 
September 9, 2022 change.
2. Difference Between the Medical Benefits Package and CHAMPVA
    Some commenters raised concerns that the regulations for the 
medical benefits package would not include an express exception to 
permit abortion if the life of the mother would be endangered if the 
child were carried to term while the CHAMPVA regulations would include 
such an exception. Commenters were concerned that this could result in 
ambiguity and confusion, leading to delayed or denied care. One 
commenter asserted that VA failed to provide any explanation for the 
difference between the changes being made to the medical benefits 
package and CHAMPVA regulations, since the former does not codify a 
life endangerment exception.
    VA makes no changes based on these comments. As explained in the 
proposed rule, VA is reverting the regulatory text of 38 CFR 17.38 and 
17.272 back to the same language that was in place prior to September 
9, 2022. Moreover, the CHAMPVA and medical benefits package authorities 
apply to wholly different groups of beneficiaries and are 
operationalized in entirely different contexts. The differences between 
these regulations did not cause confusion before September 9, 2022, and 
will not now.

II. Comments That Specifically Challenged the Rationale in the Proposed 
Rule

A. Number of Abortions Provided by VA

    The proposed rule explained that the exceptions to VA's 
longstanding general exclusion of abortions (as created by the 2022 and 
2024 rulemakings) were a reaction to Dobbs, which itself was intended 
to prevent Federal overreach and return to States control over the 
provision of abortions. 90 FR 36416. The proposed rule further 
explained that the 2022 and 2024 rulemakings did the opposite of 
preventing such overreach and instead created a Federal entitlement 
based in part on an anticipated high demand for VA abortions that never 
materialized. Id.

[[Page 61314]]

These statements in the proposed rule highlight the flawed reasoning in 
the 2022 and 2024 rulemakings in the post-Dobbs context that supported 
those rulemakings.
    Some commenters challenged what they perceived to be VA's premise 
that the low volume of abortions provided by VA actually reflects a low 
demand for veterans or CHAMPVA beneficiaries to receive these services 
from VA. These comments offered that such low volume could instead 
indicate barriers to accessing abortions (such as excessive travel from 
states with restrictive abortion laws, the chilling effect of 
restrictive State laws on VA provider decision making, or lack of 
knowledge that these services are available from VA) or could be due to 
a delayed ramp up inherent in the nature of VA offering new services. 
Other commenters challenged what they perceived to be VA's assertion 
that low demand supports the Secretary's determination that services 
are not needed or are not medically necessary and appropriate, 
correctly stating that low need is irrelevant as other medical services 
covered by VA do not have any threshold of utilization to be considered 
needed under 38 U.S.C. 1710 or medically necessary and appropriate 
under 38 U.S.C. 1781 (as interpreted in 38 CFR 17.270(b)). Lastly, some 
commenters more generally stated that the low volume of abortions 
furnished by VA supports that such services were only offered within 
the confines of the exceptions created and finalized in the 2022 and 
2024 rulemakings, and as such, demonstrates that abortions were needed 
or were medically necessary and appropriate and otherwise do not 
constitute overreach.
    VA does not make changes based on these comments. VA's proposed 
rule did not rely on the low volume of abortions as a justification for 
rescinding the 2022 and 2024 rulemakings, and neither does this final 
rule. VA agrees that low volume of provision of a medical service 
should not be a basis to exclude such service; indeed, some veterans 
sustain significant and unique injuries during their service, and VA 
would not deny them medical procedures to treat such injuries even if 
most other veterans do not sustain such injuries. Rather, in the 
proposed rule, VA cited the low demand for abortions to point out the 
flawed reasoning in the 2022 and 2024 rulemakings regarding the post-
Dobbs landscape. The 2022 and 2024 rulemakings provided that it was 
critical to change VA's long-standing policies because the demand for 
abortions would be high. However, the low utilization demonstrates that 
the reasoning was flawed. They also highlight the relatively small 
impact of the proposed rule, which addresses comments that this final 
rule would have significant or broad impacts on society. In short, the 
2022 and 2024 predictions of high demand reflect the overall flawed 
reasoning of that rulemaking, which unnecessarily reversed more than 20 
years of settled regulatory policy.

B. Comparison to Other Federal Programs and the Hyde Amendment

    Commenters raised concerns that the proposed rule referenced other 
Federal programs, including Medicaid, the Children's Health Insurance 
Program (CHIP), TRICARE, and the Federal Employee Health Benefits 
(FEHB), to demonstrate that Congress generally does not favor the use 
of Federal funds to furnish abortions without also recognizing that 
these same programs use Federal funding for some abortions. Multiple 
commenters asserted that these statements from the proposed rule either 
misinterpret or misapply the laws regarding the funding under these 
other programs, noting that each of the programs provides broader 
exceptions than the proposed rule to furnish abortions. Particularly, 
commenters asserted that Medicaid and CHIP are both subject to the Hyde 
Amendment, and that the Hyde Amendment has exceptions for abortions 
when the life of the pregnant patient is in danger and in cases of rape 
and incest. Relatedly, some commenters incorrectly asserted that VA is 
subject to the Hyde Amendment.
    Commenters also asserted that the TRICARE program and the FEHB 
program both include abortion coverage bans with the same exceptions as 
the Hyde Amendment. Some commenters were also concerned that 
servicemembers who transition from active-duty service to civilian life 
would not be eligible for, and receive from VA, the same benefits they 
were previously eligible for under the Department of Defense (DoD).
    While not addressed in the proposed rule, some commenters further 
asserted that individuals in Federal prisons have access to care 
veterans will be ineligible for under this rulemaking.
    Some commenters construed the proposed rule to say that 
consideration of whether abortion is ``needed'' necessarily involves 
the question of whether taxpayers should pay for abortion. These 
commenters asserted that whether taxpayers should fund certain care for 
veterans is irrelevant to whether such care is considered needed, or 
otherwise stated that there is no support in either the statutory text 
of 38 U.S.C. 1710 or in VA's previous interpretations of section 1710 
to suggest that taxpayer funding has been the basis for determining 
health care that is provided by VA.
    VA does not make changes based on these comments. The statements in 
the proposed rule related to Congressional expressions of intent for 
funding of abortions, and taxpayer funding of abortions, to demonstrate 
that Congress has repeatedly articulated restrictions on abortion and 
VA's actions to restrict abortion are consistent with the fact that 
other Federal programs restrict abortions. This rationale similarly 
applies to the regulatory restriction under CHAMPVA. The statements 
were not intended to suggest that VA is bound by those non-VA 
restrictive authorities, or that VA should emulate them. Rather, VA 
must apply the specifically applicable authorities in title 38, U.S.C.
    VA's provision of health care to veterans and CHAMPVA beneficiaries 
is governed by 38 U.S.C. 1710 and 1781, respectively. Pursuant to these 
authorities, the Secretary has discretion to determine what care is 
needed or medically necessary and appropriate. VA is not subject to the 
same statutory authorities as other Federal agencies programs, such as 
CHIP, Medicare, Bureau of Prisons, the FEHB Program, and TRICARE. For 
example, Federal funds available to the Departments of Labor, Health 
and Human Services, and Education are subject to the Hyde Amendment. 
Congress has included the Hyde Amendment in those agencies' annual 
appropriations legislation for more than forty years, but Congress has 
not subjected VA to the Hyde Amendment. VA is, however, subject to the 
conclusion in the DOJ Opinion that it may not provide abortions.
    VA also recognizes that, like VA, some agencies are also not 
subject to the Hyde Amendment, and such agencies have different 
statutory authorities than VA. For example, DoD is subject to 10 U.S.C. 
1093, which 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.''
    To the extent commenters asserted that servicemembers who 
transition from active-duty service to civilian life would not be 
eligible for, and receive from VA, the same benefits they were 
previously eligible for DoD, VA acknowledges that veterans would not be 
eligible for, or receive, the same benefits relating to abortions and 
abortion counseling. As explained above, DoD and VA are subject to

[[Page 61315]]

different statutory authorities. VA also reiterates the point made 
earlier that veterans and CHAMPVA beneficiaries may seek care outside 
of the VA system, and would be subject to different authorities in 
those circumstances as well. This rulemaking impacts only the 
furnishing of VA care to veterans and CHAMPVA beneficiaries. VA is not 
regulating the care provided or funded by other Federal agencies and 
other health care, through private insurance or otherwise, that is 
available outside of that provided by, and through, VA.
    VA also acknowledges that having an explicit exception for ``life'' 
in the Hyde Amendment and other statutory authorities but not in VA's 
regulations might lead to the (inaccurate) conclusion that VA intends 
to bar life-saving procedures that result in a termination of 
pregnancy. VA recognizes that there may be a semantic aspect to 
exempting life-saving procedures by not calling them ``abortions.'' 
However, the opposite is also true, i.e., that allowing ``abortions'' 
in some cases can lead to broader interpretations of what is intended 
to be authorized by VA as needed care. Moreover, VA is reestablishing 
regulatory language that directed Department practice for decades. VA 
has been abundantly clear in the proposed rule and this final rule that 
the bar against abortions does not apply to life-saving procedures that 
could result in the termination of a pregnancy and any arguments that 
VA's providers will read the regulation differently are hypothetical 
and without factual basis. If such misapplications of regulation occur, 
VA will address them through training and management of its workforce--
not by changing the language of the regulation. Thus, to the extent 
that VA's discretionary authorities apply in light of the DOJ Opinion, 
VA's final rule is appropriate and consistent with such discretion.

C. Competing Provisions of Section 106 of VHCA and 38 U.S.C. 1710

    The proposed rule explained that VA's exclusion against abortions 
was legally established in 1999 and was observed until the 2022 
revisions, and further that the 2022 IFR was legally questionable given 
that Congress has only specifically addressed VA's authority to provide 
abortions in section 106 of VHCA, 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.'' 90 FR 36416. As explained in the proposed rule, Congress 
extensively revised chapter 17 in 1996, but also did not expressly 
repeal section 106. Id. The proposed rule discussed these competing 
legal provisions to demonstrate that VA's authority to provide 
abortions is, at least, dubious and, at most, nonexistent; and, that 
VA's determination to restore the abortion exclusion was in any case 
consistent with VA's decades-long interpretation of the applicable law. 
Id. VA did not intend to interpret or opine on the continuing authority 
of section 106 because VA decided to bar abortions under 38 U.S.C. 1710 
and 1781. Notwithstanding the DOJ Opinion, which concludes that VA 
lacks discretion in this area, VA would still decline to provide 
abortions under that discretionary authority.
    Multiple commenters challenged VA's statements in the proposed rule 
regarding the potential competing authorities of section 106 of the 
VHCA and 38 U.S.C. 1710. These commenters generally stated that, 
although the proposed rule did not take a position on the force or 
effect of section 106 of the VHCA, the proposed rule relied on section 
106 to introduce that there was uncertainty as to the authority of VA 
to furnish abortions, despite the analysis VA put forward in the prior 
2022 and 2024 rulemakings to support that section 106 and the 
limitations therein were legally inoperable. Some commenters further 
asserted that the proposed rule's failure to specifically address any 
potential change in analysis from these past rulemakings regarding the 
effect of section 106 was grounds to find the proposed rule arbitrary 
and capricious. Lastly, some commenters additionally asserted that VA's 
acknowledgement in the proposed rule that there could be uncertainty 
regarding the interpretation of applicable authority related to VA's 
provision of an abortion was similar grounds to find that the proposed 
rule was arbitrary and capricious, or otherwise grounds to find that 
the proposed rule did not meet requirements under the APA to provide a 
reasoned basis explaining the proposed regulatory revisions.
    VA does not make changes from the proposed rule based on these 
comments. Since the publication of the proposed rule, the DOJ Opinion 
has clarified this issue. Moreover, to the extent that VA's authority 
under section 1710 serves as a secondary basis for this rule, the major 
questions doctrine provides an alternative framework for evaluating the 
limits of agency discretion in areas of significant political and moral 
consequence. As articulated in West Virginia v. EPA, the doctrine 
requires agencies to identify clear congressional authorization before 
regulating in domains of extraordinary national importance. If, as some 
commenters suggest, the provision of abortion services exceeds the 
scope of VA's delegated authority, then any such limitation must arise 
from statute--not from medical or ethical arguments advanced in the 
public comments. In this context, the only specific statutory provision 
addressing abortion is section 106 of the VHCA, which broadly prohibits 
it. Thus, even under a major questions analysis, the result would not 
be to expand abortion access based on medical discretion, but to apply 
the statutory constraint and return to the prior observation of the 
prohibition. In this context, VA's return to its long-standing 
exclusion of abortion services is not only consistent with the DOJ 
Opinion and its statutory mandate under 38 U.S.C. 1710 and 1781, but 
also reflects a prudent exercise of discretion that respects the 
constitutional separation of powers and the limits of agency authority 
under administrative law. Furthermore, as reflected throughout this 
final rule, VA does not consider this ban to bar the provision of life-
saving treatment to pregnant women.

D. Determination of ``Needed'' Under 38 U.S.C. 1710 and the Promote, 
Preserve, or Restore Standard in 38 CFR 17.38(b)

    The proposed rule explained that from 1999, when VA established the 
medical benefits package in 38 CFR 17.38, until September 8, 2022, 
abortions were excluded because they were not ``needed'' medical 
services under 38 U.S.C. 1710--that for decades, VA had consistently 
interpreted abortions as not ``needed'' medical services and therefore 
they were not covered by the medical benefits package. 90 FR 36415-
36416. Multiple commenters asserted that the Secretary's discretion to 
determine what care is needed under 38 U.S.C. 1710 must be based on 
medical standards and judgment and a clinical need for care. Some 
supported these assertions by citing Congressional reports related to 
the passage of the law that became section 1710 (Pub. L. 104-262). 
These commenters primarily referenced language from H.R. Rep. No. 104-
690 as indicating legislative intent that a singular clinical need for 
care standard would replace the multiple legal

[[Page 61316]]

eligibility standards when determining those veterans who would receive 
care and what care would be furnished. Some of these commenters further 
cited VA's IFR and final rules from 2022 and 2024 to demonstrate that 
VA at one point determined that abortions could be considered needed 
under section 1710, and stated that the proposed rule did not establish 
how abortions were not clinically needed. Ultimately, these commenters 
concluded that VA could not reasonably determine that abortions were 
not needed under section 1710 as a matter of statutory interpretation, 
given Congressional intent and VA's own statements in prior 
rulemakings.
    Other commenters asserted that the criteria for furnishing care 
under the medical benefits package in 38 CFR 17.38(b), if such care is 
determined by appropriate health care professionals ``to promote, 
preserve, or restore the health of the individual,'' were 
Congressionally mandated standards that are separate from and replace 
the Congressionally mandated requirement that the Secretary must 
determine that care is needed under 38 U.S.C. 1710. Others fell short 
of alleging that the promote, preserve, or restore criteria were 
Congressionally mandated, but nonetheless asserted that these criteria 
articulated how VA as a matter of practice assesses whether care is 
needed and should be used to decide whether care is included in the 
medical benefits package.
    All of the above-described comments generally concluded that 
abortions must be included in the medical benefits package because 
abortions could be found by VA to promote, preserve, or restore the 
health of an individual.
    VA does not make changes from the proposed rule based on these 
comments. VA first clarifies that the promote, preserve, or restore 
criteria in 38 CFR 17.38 are regulatory only; these criteria are not 
present in 38 U.S.C. 1710. Regarding comments about the Congressional 
intent behind section 1710, VA agrees that section 1710 was intended to 
streamline care decisions based on clinical need for care in place of 
formerly stratified legal criteria for different types of care that 
existed before the enactment of section 1710. However, to the extent 
commenters assert that this focus on clinical need means the Secretary 
cannot reevaluate an interpretation of what is needed under section 
1710, VA disagrees. The text of section 1710 does not mandate the 
perpetual approval of any care that VA at one time found to be needed. 
Further, the text of section 1710 does not prohibit the Secretary from 
establishing limitations and exclusions as to whether care is needed 
under section 1710.
    Regarding the comments related to the promote, preserve, or restore 
criteria in 38 CFR 17.38(b), VA did express in the original 
promulgation of its medical benefits package that ``[t]he Secretary has 
authority to provide healthcare as determined to be medically needed. 
In our view, medically needed constitutes 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. The care included in 
the medical benefits package is intended to meet these criteria.'' 64 
FR 54207, at 54210. However, VA does not believe this statement from 
VA, or the criteria in 38 CFR 17.38(b), apply to Secretarial 
determinations of ``needed'' care under 38 U.S.C. 1710. Rather, the 
promote, preserve, or restore criteria were put in place by the 
Secretary to govern how VA providers make individualized clinical 
determinations of care; those individualized determinations can only 
provide care that the Secretary has already determined to be needed 
under section 1710. This is evidenced in the regulation at 38 CFR 
17.38(b), which states that ``care referred to in the medical benefits 
package will be 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.'' In 
fact, adopting the commenters' position would seem to undercut the 
Secretary's authority to restrict any care at all, and the medical 
benefits package contains both the above-quoted restriction in Sec.  
17.38(b) as well as other excluded types of care in Sec.  17.38(c). 
These cannot be authorized even if a provider determines that they 
might promote, preserve, or restore health.
    Therefore, to the extent that VA's discretionary authorities apply 
in light of the DOJ Opinion, VA makes no changes based on these 
comments.

III. Comments That Raised Other Legal Concerns

A. Compliance With State Laws Post-Dobbs

    Several commenters raised concerns that post-Dobbs, VA must or 
should follow state laws regarding abortion, particularly in states 
where abortion is legal or less restrictive than the proposed rule. 
Some commenters were concerned that the proposed rule would negate or 
violate states' rights and that VA should not restrict women's ability 
to access abortions at VA in states that do not have restrictions or 
bans on abortions. Some commenters specifically asserted that veterans 
and CHAMPVA beneficiaries should have the same right to an abortion as 
other women in their same state and other citizens, generally.
    VA makes no changes based on these comments. There is no Federal 
law that guarantees a right to abortion. In Dobbs, the U.S. Supreme 
Court concluded that there is no constitutional right to abortion and 
returned the issue to the states to decide. 142 S. Ct. 2228.
    As a Federal agency, VA must follow Federal laws, such as 38 U.S.C. 
1710 and 1781, which provide it with the authority and discretion to 
determine the care that may be furnished to veterans and CHAMPVA 
beneficiaries. 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. As such, VA is not subject to state laws that 
purport to regulate, prohibit, or burden VA's furnishing of needed or 
medically necessary and appropriate care.
    Furthermore, VA has consistently asserted such supremacy in its 
provision of health care to beneficiaries in all states. In 38 CFR 
17.419, VA 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. Similarly, in Sec.  
17.417, implementing 38 U.S.C. 1730C, VA explicitly preempts any state 
laws, rules, regulations, or requirements that conflict with a VA 
health care professional's practice of telehealth within the scope of 
their VA employment. In both regards, VA is able to establish a uniform 
approach to the provision of VA health care by its health care 
professionals. VA has an interest in ensuring that it provides 
consistent and equitable care and services to its beneficiaries in all 
states regardless of where they may receive care or reside. See 38 CFR 
17.417(c) and 17.419(c).
    VA's rule is no more restrictive than the state laws that permit an 
abortion to save the mother's life. As explained in the proposed rule, 
no state law entirely bans abortions, as exceptions to preserve the 
life of the mother exist in all 50 states.\1\
---------------------------------------------------------------------------

    \1\ https://www.justia.com/constitutional-law/50-state-survey-on-abortion-laws/.

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[[Page 61317]]

    To the extent that VA's rulemaking is in direct conflict with state 
laws, rules, regulations, or requirements, such laws, rules, 
regulations, or requirements are without any force or effect pursuant 
to the Supremacy Clause of the U.S. Constitution and 38 CFR 17.419 and 
17.417. As explained previously, VA, as a Federal health care system, 
has an interest in ensuring that it provides consistent and equitable 
care and services to all veterans and CHAMPVA beneficiaries in all 
states regardless of where they may receive care or reside. See 38 CFR 
17.419(c). This rulemaking ensures that veterans and CHAMPVA 
beneficiaries continue to receive the same care in all states.
    To the extent that commenters contend that veterans and CHAMPVA 
beneficiaries should receive the same care as other citizens or women 
in their state, VA notes that pursuant to 38 U.S.C. 1710 and 1781, VA 
is required to furnish care to veterans and CHAMPVA beneficiaries, 
respectively. That care is not required to be the same as that 
available to any other citizen or woman in their state. For example, VA 
does not provide certain elective procedures that may be widely 
available in the private sector unless they are medically necessary or 
connected to a service-related condition. VA is subject to a unique set 
of laws enacted by Congress and carried out by the Secretary, who has 
the authority and discretion to determine what care VA will provide.

B. Delegation

    One commenter asserted that the proposed rule allows state laws to 
determine whether veterans and CHAMPVA beneficiaries can receive 
abortions, which is an inappropriate delegation for a Federal program. 
This commenter asserted that because Congress instructed VA to provide 
coverage to veterans and CHAMPVA beneficiaries based on clinical 
necessity, VA cannot delegate this responsibility to the most 
restrictive state law.
    Pursuant to 38 U.S.C. 1710 and 1781, Congress appropriately 
delegated to the Secretary the discretion to determine what care may be 
furnished to veterans and CHAMPVA beneficiaries, respectively. To the 
extent that the Secretary retains discretionary authority on the issue 
of abortion, the Secretary's exercise of that discretion would not be a 
delegation of his authority and responsibility pursuant to section 1710 
and 1781 to states, even if it superficially coincides with certain 
state laws. However, VA acknowledges that VA's rule is generally 
consistent with those state laws, or sections of state laws, that 
permit abortion to save the mother's life. As explained in the proposed 
rule, no state entirely bans abortions, as exceptions to preserve the 
life of the mother exist in all 50 states.\2\ VA makes no changes based 
on this comment.
---------------------------------------------------------------------------

    \2\ https://www.justia.com/constitutional-law/50-state-survey-on-abortion-laws/.
---------------------------------------------------------------------------

C. Emergency Medical Treatment and Labor Act (EMTALA) and 38 U.S.C. 
1784A

    Several commenters raised concerns about the proposed rule in light 
of the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. 
1395dd, and VA's related authority, 38 U.S.C. 1784A. In particular, 
some commenters were concerned whether VA would meet requirements under 
EMTALA and 38 U.S.C. 1784A because they stated that the Federal 
government refuses to enforce EMTALA and has rescinded related 
guidance. Other commenters equated the proposed rule with eliminating 
VA's obligations under EMTALA and 38 U.S.C. 1784A, especially as 
commenters opined that EMTALA and 38 U.S.C. 1784A require the provision 
of stabilizing care, which may include an abortion, to a pregnant 
patient whose health is in serious jeopardy.
    VA makes no changes based on these comments. VA is not subject to 
EMTALA, but has adopted some of its requirements through policy. 
Instead, VA has its own similar authority. Section 1784A of title 38 
U.S.C. requires that in the case of a VA hospital with an emergency 
department, if any individual comes to the hospital or its campus and a 
request is made on behalf of the individual for examination or 
treatment for a medical condition, the hospital must provide for an 
appropriate medical screening examination within the capability of the 
emergency department, including ancillary services routinely available 
to the emergency department, to determine whether or not an emergency 
medical condition exists. It further requires that if any such 
individual has an emergency medical condition, the VA hospital must 
provide medical examination and treatment required to stabilize the 
medical condition or transfer the individual to another medical 
facility in accordance with specified requirements. VA complies with 
these requirements of 38 U.S.C. 1784A and will continue to do so. This 
rule will not impact VA's responsibilities and obligations under 
section 1784A. Furthermore, as explained in the proposed rule, VA will 
continue to provide care to pregnant women in life-threatening 
circumstances under the medical benefits package. 90 FR 36416-17.

D. Sex or Gender Discrimination

    Commenters asserted that the proposed removal of the exceptions to 
furnish abortions amounted to gender or sex discrimination as such 
changes necessarily only affect veterans that can get pregnant, or 
women veterans. Other commenters alleged that the proposed removal of 
the abortion exceptions was discriminatory because VA would still 
provide all reproductive care for veterans who were men; particularly, 
some of these commenters noted that VA would still provide male 
veterans medication to treat erectile dysfunction, or would still 
perform vasectomies for male veterans, despite these services not being 
needed to save the lives of male veterans. Lastly, some comments more 
specifically opined that removal of the exceptions to furnish abortions 
would potentially violate specific laws related to preventing sex 
discrimination (i.e., Title IX of the Education Amendments of 1972, or 
section 1557 of the Affordable Care Act), or otherwise would conflict 
with Congressional intent to ensure equality in the provision of health 
services to women veterans under the Deborah Sampson Act of 2020, Title 
V of Public Law 116-315.
    VA does not make changes from the proposed rule based on these 
comments. VA's interpretation in the proposed rule and as made final in 
this rule is that abortions are not needed care in general, and that VA 
is not prohibited from providing care to pregnant women in life-
threatening circumstances (under the medical benefits package), even if 
such treatment may result in the termination of a pregnancy. Standards 
of medical care and treatment, including with respect to reproductive 
health care, necessarily involve different protocols based on the 
clinical needs and biology of the individual patient, including their 
sex. That this regulatory change necessarily impacts the care and 
services available to veterans and CHAMPVA beneficiaries who are women 
does not alone amount to discrimination on the basis of sex or gender.
    To the extent section 1557 of the ACA applies to VA, it does not 
require VA to maintain the abortion exclusions established by VA in the 
2022 and 2024 rulemakings. Section 1303(c)(2) of the ACA specifically 
states that ``[n]othing in this Act shall be construed to have any 
effect on Federal laws regarding . . . willingness or refusal to 
provide abortion [or] discrimination on the basis of the willingness or 
refusal to provide,

[[Page 61318]]

pay for, cover, or refer for abortion or to provide or participate in 
training to provide abortion.'' In its regulations implementing section 
1557, the Department of Health and Human Services (HHS) emphasized this 
point, stating that ``nothing in section 1557 shall be construed to 
have any effect on Federal laws regarding . . . willingness or refusal 
to provide abortion . . . and discrimination on the basis of the 
willingness or refusal to provide, pay for, cover, or refer for 
abortion or to provide or participate in training to provide 
abortion.'' 45 CFR 92.3(c). Although not applicable to VA, HHS's 
regulation informs VA's interpretation of section 1557 and its 
inapplicability to abortion as a form of discrimination.
    Finally, title IX is inapplicable in this context because title IX 
was enacted to prevent discrimination on the basis of sex in 
educational programs and activities that receive Federal financial 
assistance. See 20 U.S.C. 1681(a). To the extent title IX would apply 
to health programs, title IX also contains an abortion neutrality 
provision, where ``nothing in this chapter shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion.'' 20 U.S.C. 1688. Accordingly, VA disagrees 
with commenters' assertions that VA's proposed changes violate section 
1557 or title IX.

E. Constitutional Rights

    Commenters alleged that the proposed rule violates multiple Federal 
Constitutional rights. These commenters stated that removing the 
exceptions to furnish abortion in certain circumstances imposes 
specific moral and religious views on all veterans, violating religious 
freedom protections under the First Amendment; deprives individuals of 
life, liberty, or property, violating due process protections under the 
Fifth Amendment; or otherwise violates fundamental bodily autonomy 
rights. Other commenters alleged that the proposed rule violated the 
Ninth or the Fourteenth Amendments without further explanation, and one 
commenter alleged a violation of the Fourth Amendment because medical 
history should be private.
    VA does not make changes from the proposed rule based on these 
comments. In Dobbs, the Supreme Court determined that there is no 
Constitutional right to abortion, and VA's removal of exceptions to 
furnish abortion in certain circumstances is therefore not violative of 
any Constitutional right. Further, removal of the exceptions is not 
based on religious ideology, and it will not endanger the lives of 
veterans and CHAMPVA beneficiaries as VA will continue to furnish 
needed and medically necessary and appropriate care to a veteran or 
CHAMPVA beneficiary, respectively, even if such care might result in 
the termination of a pregnancy.

F. APA Violations

    Multiple commenters alleged that the proposed rule failed to 
provide a reasonable explanation that considered prior evidence and 
consequences of policy reversal, and reliance interests in removing the 
exceptions to furnish abortions and abortion counseling, and that the 
rule if finalized as proposed would therefore be arbitrary and 
capricious under administrative law standards under the APA. Some of 
these commenters more specifically asserted that portions of the 
rationale in the proposed rule were confusing or presented flawed 
reasoning to also allege that the rule if finalized as proposed would 
be arbitrary and capricious. VA addresses these comments below as 
applying to both the medical benefits package as well as CHAMPVA, 
unless otherwise indicated.
1. Consideration of Prior Evidence Related to Whether Abortions Are 
Needed or Medically Necessary and Appropriate, and Consequence of 
Policy Reversal
    Commenters asserted that the proposed rule fails to address the 
facts and circumstances presented in VA's 2022 IFR, and that rule's 
prior conclusion that abortions were needed or medically necessary and 
appropriate when the life or health of the pregnant veteran is at risk 
or in cases of rape and incest. Commenters stated that the proposed 
rule mischaracterized the 2022 IFR's rationale as only relating to an 
anticipated rise in demand for abortion as a result of the Dobbs 
decision, although the 2022 IFR and 2024 final rule were additionally 
based on evidence regarding the health consequences of carrying certain 
pregnancies to term. Commenters further asserted that the proposed rule 
did not address documented evidence of harm that results from abortion 
bans or restrictive abortion laws, and therefore that VA did not 
conduct the required consideration of harmful consequences in reversing 
policy from the 2022 and 2024 rules. Many of these commenters cited 
multiple medical or scientific studies or other publications which show 
increased maternal mortality rates or other worsened physical and 
mental health outcomes of pregnant individuals in states with 
restrictive abortion laws. Commenters asserted that these studies 
suggest that states with restrictive laws create uncertainty for 
healthcare providers, a chilling effect for fear of legal consequences 
for healthcare providers and pregnant individuals, or additional 
administrative requirements to furnish or receive care, all of which 
can result in delays in or lack of needed care being furnished. 
Commenters further stated that the proposed rule did not present any 
evidence to rebut or undercut the studies on which VA previously 
relied, or the factual findings that it made, in 2022 and reaffirmed in 
2024. Commenters ultimately opined that because the proposed rule 
disregards VA's previous factual findings, any final rule that would 
also do so would be arbitrary and capricious.
    VA does not make changes from the proposed rule based on these 
comments. The APA change-in-position doctrine states that ``agencies 
are free to change their existing policies as long as they provide a 
reasoned explanation for the change,'' ``display awareness that [they 
are] changing position,'' and consider ``serious reliance interests.'' 
Encino Motorcars, LLC. v. Navarro, 579 U.S. 211, 221-222 (2016); FCC v. 
Fox Television Stations, Inc., 556 U.S. 502, 515-516 (2009). Change in 
position doctrine asks (1) whether agency changed its existing policy, 
and (2) whether the agency displayed awareness that it is changing its 
policy and offered good reasons for the new policy. FDA v. Wages & 
White Lion Invs., LLC, 604 U.S. 542, 569-570 (2025).
    The standard described above does not require VA to respond to 
every factual consideration made in its prior rulemaking or show ``that 
the reasons for the new policy are better than the reasons for the old 
one.'' See Fox Television, 556 U.S. at 515. VA explained in its 
proposed rule that it was rescinding the 2022 and 2024 rules pursuant 
to its authority in 38 U.S.C. 1710 to furnish hospital care and medical 
services that the Secretary determines to be needed and to restore VA's 
medical benefits package to its pre-September 9, 2022 state. Similarly, 
VA explained in its proposed rule that it was rescinding the 2022 and 
2024 rules pursuant to its authority in 38 U.S.C. 1781 and to restore 
its CHAMPVA coverage to its pre-September 9, 2022 state. This rationale 
provided for these proposed changes to the medical benefits package and 
CHAMPVA conforms to the standard under which an agency may subsequently 
change its position on prior rulemakings. See Motor Vehicle Mfrs. Ass'n 
of the U.S.,

[[Page 61319]]

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (an 
agency's rule may not be set aside if it is ``rational, based on 
consideration of the relevant factors and within the scope of the 
authority delegated to the agency by the statute.'') Moreover, the DOJ 
Opinion is controlling legal authority for VA and forecloses 
discretionary authority in this area.
2. Reliance Interests
    Some commenters raised concerns that the proposed rule disregarded 
reliance interests from VA's prior policy. In particular, some 
commenters noted that agencies are required to assess whether there are 
reliance interests in its existing policy, whether they are 
significant, and weigh any such interests against competing policy 
concerns.
    VA makes no changes based on these comments. VA acknowledges that 
when an agency changes course, it must be cognizant that longstanding 
policies may have engendered serious reliance interests that must be 
taken into account. See Dep't of Homeland Sec. v. Regents of the Univ. 
of Cal., 591 U.S. 1, 30 (2020). For purposes of abortions when the 
health of the pregnant mother would be endangered if the pregnancy were 
carried to term, in the case of rape or incest, and for abortion 
counseling provided to veterans under the medical benefits package and 
to CHAMPVA beneficiaries, VA has concluded there are no serious 
reliance interests because such services have been available for a 
short period of time (that is, only since September 9, 2022). 
Additionally, VA has concluded there are no serious reliance interests 
because very few veterans and CHAMPVA beneficiaries have been provided 
such services by VA, as explained in the proposed rule. Further, as 
explained in Dobbs, traditional reliance interests are lacking when it 
comes to abortion. Dobbs, 597 U.S. at 287-91.\3\ Moreover, Dobbs made 
clear that there is no Federal constitutional right to abortion and no 
compelling government interest in promoting abortion.\4\ Thus, VA finds 
that veterans and CHAMPVA beneficiaries will not have serious reliance 
interests that must be taken into account as part of this rulemaking. 
VA further acknowledges that this rulemaking is a two-stage rulemaking 
that had a proposed rule that, once final, will have a 30-day delayed 
effective date, which have provided veterans and CHAMPVA beneficiaries 
advance notice and sufficient time to identify other sources available 
for these services. Moreover, the DOJ Opinion governs VA's 
interpretation of applicable law and forecloses discretionary authority 
in this area.
---------------------------------------------------------------------------

    \3\ In Dobbs, the U.S. Supreme Court concluded that there is no 
constitutional right to abortion and found that there are no serious 
reliance issues for such a constitutional right, stating 
``Traditional reliance interests arise `where advance planning of 
great precision is most obviously a necessity.' Casey, 505 U.S. at 
856 (joint opinion); see also Payne, 501 U.S. at 828. In Casey, the 
controlling opinion conceded that those traditional reliance 
interests were not implicated because getting an abortion is 
generally `unplanned activity,' and `reproductive planning could 
take virtually immediate account of any sudden restoration of state 
authority to ban abortions.' 505 U.S. at 856. For these reasons, we 
agree with the Casey plurality that conventional, concrete reliance 
interests are not present here.'' Dobbs, 597 U.S. at 287-88.
    \4\ Before Dobbs, even during the entire time when the U.S. 
Supreme Court recognized a fundamental right to abortion, the U.S. 
government was under no obligation to subsidize or to facilitate 
abortion. See Harris v. McRae, 448 U.S. 297, 326 (1980) (``[W]e hold 
that a State that participates in the Medicaid program is not 
obligated under Title XIX to continue to fund those medically 
necessary abortions for which federal reimbursement is unavailable 
under the Hyde Amendment.'').
---------------------------------------------------------------------------

3. Other Administrative Law Issues
    Commenters asserted that the proposed rule's failure to 
specifically address any change in analysis from the 2022 and 2024 
rulemakings regarding the effect of section 106 was grounds to find the 
proposed rule arbitrary and capricious. Some commenters further 
asserted that VA's mere acknowledgement in the proposed rule that there 
could be uncertainty regarding the applicable authority related to VA's 
provision of abortions was itself grounds to find that the proposed 
rule was arbitrary and capricious.
    VA makes no changes based on these comments. Even if the DOJ 
Opinion did not overrule any exercise of discretion to allow abortion, 
VA would rely on the determination that abortions are not needed under 
38 U.S.C. 1710. Acknowledging uncertainty about the applicability of a 
separate authority not relied on to promulgate a regulation change does 
not render a rule arbitrary and capricious. Instead, it reflects 
consideration of both the legal and policy context behind developing 
the rule. Under the arbitrary and capricious standard, as traditionally 
interpreted, a reviewing court would consider whether the agency 
``relied on factors which Congress has not intended it to consider, 
entirely failed to consider an important aspect of the problem, offered 
an explanation for the decision that runs counter to the evidence 
before the agency, or is so implausible that it could not be ascribed 
to a difference in view or the product of agency expertise.'' State 
Farm, 463 U.S. at 43. The proposed rule was not arbitrary and 
capricious since the discussion of section 106 did none of these 
things. Moreover, VA's decision to bar abortion but continue to provide 
life-saving care is consistent with section 106 and the DOJ Opinion.
    Some commenters asserted that although the preamble of the proposed 
rule stated that, ``[f]or 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,' '' the proposed amendment to the 
medical benefits package does not include any such language, making it 
unclear whether a life endangerment exception exists for veterans in 
the medical benefits package. One commenter stated that because the 
preamble does not have the force of law, the exception for life of the 
mother for the medical benefits package appears to be illusory, and 
that this inconsistency itself renders the rule arbitrary and 
capricious. Another commenter noted that the preamble of the proposed 
rule as referenced above incorrectly describes the text of the rule 
with regards to the medical benefits package, and the preamble is 
insufficient assurance that such a life endangerment exception exists 
to adequately justify the proposed change. Lastly, multiple commenters 
opined that the proposed rule failed to explain why CHAMPVA would have 
a life endangerment exception in regulatory text while the medical 
benefits package would not, where one of these comments more 
specifically asserted that the rule if finalized as proposed will be 
arbitrary and capricious for failing to provide a reasoned explanation 
for where the life endangerment exception applies.
    VA makes no changes based on these comments. The proposed rule 
repeatedly stated that VA was returning to its pre-September 9, 2022, 
restrictions on abortion within the medical benefits package and 
CHAMPVA. The regulatory revisions previously proposed and now finalized 
within this rule reinstates the prior restrictions on abortion within 
the medical benefits package as well as CHAMPVA, and the interpretation 
of that language, as it was applied by VA before September 9, 2022. The 
preamble of the proposed rule explained how the regulatory text was 
interpreted and will be interpreted once finalized through this 
rulemaking. As VA's statutory authorities for the medical benefits 
package and CHAMPVA are 38 U.S.C. 1710 and 1781, respectively, pursuant 
to such authorities, VA may determine

[[Page 61320]]

which exceptions to abortion are appropriate for each program 
independently based on applicable law and programmatic objectives--
subject to the limitations articulated in the DOJ Opinion. The absence 
of a life endangerment exception in the regulatory text for the medical 
benefits package, while included in CHAMPVA, does not render the 
proposed rule arbitrary and capricious.
    Furthermore, in the case of CHAMPVA, allowing abortions when a 
physician certifies the life of the mother would be endangered if the 
child were carried to term aligns with the requirement under 38 U.S.C. 
1781(b) to provide CHAMPVA benefits in a similar manner as TRICARE. The 
rescission of the 2022 and 2024 rulemakings restores both the medical 
benefits package and CHAMPVA to its pre-September 9, 2022 policy, in 
which CHAMPVA had an explicit life endangerment exception while the 
medical benefits package did not. As such, the differential treatment 
is merely a return to the regulations that were in place prior to 
September 9, 2022, and satisfies the APA's requirements for reasoned 
decision making.
    One commenter asserted that the proposed rule fails to adequately 
explain how VA is changing course, which the commenter stated requires 
clearer statements of VA's understanding of both the status quo and the 
changes that would be made by the proposed rule. This commenter offered 
that the proposed rule framed the exceptions to furnish abortion (the 
status quo at the time the proposed rule was published) as permitting 
elective abortion, by way of VA's reference to other Federal programs 
as evidence that Congress does not fund elective abortion, and opined 
that this was a misrepresentation of the status quo and therefore VA 
could not properly explain the effect of the changes in the proposed 
rule, making the rule arbitrary and capricious.
    VA makes no changes based on this comment. Consistent with the 
requirements of the APA, the proposed rule clearly articulated both the 
prior rule and the reasons underlying its decision to rescind the rule. 
The preamble identified the relevant provisions of 38 CFR 17.38(c)(1) 
and 17.272(a)(58) and explained how the proposed rule would restore 
VA's regulations to its pre-September 9, 2022, regulatory text. The 
discussion of other Federal programs provided context and a point of 
comparison. VA's explanation accurately reflected the status quo and 
the rationale for its proposed change. Accordingly, the proposed rule 
satisfied VA's legal obligation to provide a reasonable explanation for 
its change in position and is not arbitrary and capricious.
    One commenter asserted that VA's interpretation in the proposed 
rule of ``similar, not identical'' in relation to CHAMPVA coverage for 
abortion being different from TRICARE was arbitrary and capricious 
because deviations from TRICARE should be based on the needs of the 
CHAMPVA population and medically necessity, and VA provides no evidence 
that offering coverage more similar to TRICARE is harmful or 
unnecessary.
    VA makes no changes based on this comment. As previously stated, 
and discussed in more detail below, CHAMPVA benefits should be similar 
to, but not necessarily identical to, those provided under TRICARE. VA 
is afforded discretion to determine the extent to which it aligns 
CHAMPVA with TRICARE benefits, subject to its policy determinations and 
program objectives. VA is not required to justify deviations from 
TRICARE solely by referring to medical necessity or demonstrable harm 
to CHAMPVA beneficiaries. VA may adopt distinctions that reflect its 
own administrative considerations or differences in program purpose or 
population. Adopting such distinctions does not make the rule arbitrary 
and capricious. For a more detailed discussion of ``same or similar'' 
in relation to TRICARE, see further below.
    One commenter asserted that the proposed rule failed to provide a 
reasonable explanation for why only physicians can certify an exception 
to permit abortion versus other types of clinical providers in CHAMPVA 
and therefore introduces an administrative burden in an arbitrary and 
capricious manner.
    VA makes no changes based on this comment. Pursuant to 38 U.S.C. 
1781, VA has the authority to determine the scope of CHAMPVA benefits 
and to establish reasonable procedures for their administration. VA's 
requirement that only physicians certify an exception to permit 
abortion is a permissible exercise of this discretion. This physician 
certification requirement is a return to VA's pre-September 9, 2022 
regulatory text. This is not arbitrary and capricious as VA reasonably 
determined that physician certification ensures appropriate clinical 
oversight, is consistent with program objectives, and does not place an 
undue burden on CHAMPVA beneficiaries as it reinstates its former 
regulation.
    One commenter asserted that changes occurred to a comment 
submission feature on the General Services Administration's 
Regulations.gov website during the comment period for the proposed rule 
without adequate notice, which the commenter stated impinged the 
public's ability to comment. This commenter opined that this change was 
a violation of the spirit of the APA to permit the public a meaningful 
opportunity to comment, to render the rule if finalized as proposed to 
be arbitrary or capricious.
    VA makes no changes based on this comment. VA considers this 
outside the scope of the rulemaking since the General Services 
Administration (GSA), not VA, is responsible for regulations.gov.
4. Regulatory Impact Analysis (RIA) Insufficiencies
    Commenters asserted that the RIA that accompanied the proposed rule 
underestimates the cost to society because it fails to adequately 
assess the additional costs related to lack of access or delayed 
receipt of abortions caused by strict abortion laws in states. These 
commenters cited increased monetary costs of abortion procedures 
performed later in pregnancy, as well as increased costs to travel to 
states with less strict laws, or lost wages in taking leave from work. 
Other commenters alleged that the RIA underestimated the proposed 
rule's cost to society by not estimating the additional costs in care 
that can occur the longer an individual may have to wait to obtain an 
abortion, citing to increased costs of emergency care or other required 
critical care as health outcomes of a pregnant individual worsen. Some 
comments also stated more generally that some assumptions in the RIA 
were flawed or not supported, such as statements in the RIA as to the 
number of states that have restrictive abortion laws (or the types or 
impact of state restrictions), or the percentage of abortion procedures 
estimated in the RIA to be medication abortions, or the percentage of 
veterans that would use VA's maternity care benefits if VA did not 
provide an abortion procedure.
    VA is not making any changes to the rule or RIA based on these 
comments. VA developed the RIA in line with the Office of Management 
and Budget (OMB) Circular A-4 principles and applied methods consistent 
with OMB Circular A-4 and VA's RIA that accompanied the September 9, 
2022 IFR. The RIA follows current Circular A-4 guidelines as it 
identifies the impacted population of female veterans, applies the 
appropriate baseline, and demonstrates the segregation of transfers, 
costs, and reliably measurable

[[Page 61321]]

societal impacts. VA's assumptions are based upon impacts that are 
reasonably predictable and are supported by available data at the time 
the analysis was developed. While commenters favor wider ranges of 
estimates, the key elements highlighted in the RIA remain the same as 
were present in the IFR.
    The RIA relied on publicly available sources to characterize the 
state restrictions to develop the rulemaking's analytical baseline. 
While VA recognizes that state policies evolve and can be categorized 
in different ways, the RIA's baseline appropriately reflects the legal 
environment at the time the analysis was conducted, as required by 
Circular A-4. Alternative classifications of state restrictions 
examined during review do not alter the direction of findings and any 
quantitative differences lie within the qualitative bounds presented in 
the RIA. Additionally, the RIA used the best available published 
estimates at the time of drafting to allocate abortions between 
medication and procedural methods. VA acknowledges that these can vary 
over time and between jurisdictions. However, any variations in the 
method of abortion does not alter the policy conclusions of the 
analysis.
    The RIA qualitatively discussed access constraints and acknowledged 
that individuals in some jurisdictions may face longer travel and wait 
times for procedures or determinations. VA chose not to monetize these 
impacts due to the current data limitations at the veteran level, both 
enterprise-wide and within CHAMPVA, which would make any estimates on 
this cohort insufficiently reliable for specific monetization. For this 
reason, VA treated these impacts qualitatively. Consistent with 
Circular A-4, the RIA focused the measurable impacts on reasonably 
certain resource changes and treated broader incidence effects 
qualitatively, as is the case for all VA RIAs that are unable to 
provide reliable estimates.
    VA agrees with the commenters that any delays or reliance on later 
gestation care, including emergency care, can affect the type of care 
that may be provided to a veteran or beneficiary as well as increase 
the potential for financial impacts. The RIA discussed these concerns 
qualitatively and acknowledges the potential increases in utilization 
of this level of care. VA did not monetize these impacts in the RIA, 
both enterprise-wide and within CHAMPVA, because reliable specific 
probabilities and unit cost inputs are not currently available without 
imposing questionable assumptions that could greatly alter the 
estimates, either by under or over stating those impacts. The absence 
of the estimation of these impacts does not imply VA's belief that 
these impacts will not exist. Rather, it reflected consistent judgment 
to avoid speculative quantification in VA RIAs, as required by Circular 
A-4. Importantly, even if higher later gestation or emergency care 
costs were included in the RIA, they would not change the overall 
characterization or the necessity for the rulemaking.
    Some commenters questioned VA assumptions regarding the proportion 
of beneficiaries who would use VA maternity benefits if VA did not 
provide abortions. The RIA distinguished between the services furnished 
by VA, services obtained outside VA, and the potential of foregone 
care. In this instance, where shifts largely reflect payer transfers 
rather than new resource use, Circular A-4 directs agencies to present 
those effects transparently but not to treat them as social costs. VA 
followed this approach in the RIA and finds no basis to revise these 
assumptions.
    VA has carefully considered all comments on the RIA, and after a 
thorough review, has concluded that the existing RIA remains 
sufficiently informative and analytically sound based off the best 
available data.
5. Artificial Intelligence
    One commenter, relying on the APA for support, stated that VA must 
disclose information related to any use of artificial intelligence (AI) 
as part of this rulemaking (including developing substantive policy, 
producing supporting analysis, or responding to public comments). This 
commenter stated that under the APA, when an agency uses a computer 
model, it must explain the assumptions and methodology used in 
preparing the model. This commenter further stated that to the extent 
use of AI is significant, an agency must provide an additional 
opportunity for public comment.
    VA makes no changes based on this comment. There is no statutory or 
regulatory requirement under the APA that mandates such disclosure. 
While OMB guidance and Executive Order 14110 direct agencies to promote 
transparency and responsible artificial intelligence use, they do not 
impose a legal obligation to identify or describe the tools used during 
drafting or promulgating a rule.
    VA further notes that this comment relies on a misunderstanding of 
the usage of ``computer model'' in Owner-Operator Independent Drivers 
Ass'n v. Federal Motor Carrier Safety Administration, 494 F.3d 188 
(D.C. Cir. 2007). In Owner-Operator, the ``computer model'' at issue 
was used in determining the agency's cost-benefit analysis and was an 
integral component to its regulatory conclusions. Id. at 204-205. In 
its decision, the D.C. Circuit held that the Federal Motor Carrier 
Safety Administration erred in not explaining whole aspects of the use 
of this model in developing the methodology under which it created the 
rule. Id. at 205. In neither the proposed rule published on August 4, 
2025, nor this final rule was AI used to the degree described regarding 
the model in Owner-Operator; therefore, this principle does not apply, 
and no additional disclosure is required.

G. Deborah Sampson Act of 2020

    Some commenters opined that the Deborah Sampson Act of 2020 
prohibits VA from providing abortion and abortion counseling while 
other commenters disagreed. At least one commenter opined that such 
legislation was Congressional endorsement of VA's ability to provide 
care, including care that would save the life of a pregnant mother when 
endangered, that was in the medical benefits package at that time (that 
is, January 5, 2021) pursuant to 38 U.S.C. 1710 and without reference 
to section 106 of the VHCA.
    VA makes no changes based on these comments. As explained 
previously, the Secretary has discretion to determine what care is 
needed for veterans pursuant to 38 U.S.C. 1710. Prior to September 9, 
2022, VA consistently interpreted abortions to not be needed, but did 
not consider this policy to prohibit VA from providing care to pregnant 
women in life-threatening circumstances (and thus, such care was 
covered under the medical benefits package). 90 FR 36416. The Deborah 
Sampson Act of 2020 created a central office to monitor and encourage 
the activities of the Veterans Health Administration with respect to 
the provision, evaluation, and improvement of health care services 
provided to women veterans by the Department. 38 U.S.C. 7310(b)(1). As 
part of that Act, Congress defined ``health care'' 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 (that is, Jan. 5, 2021). 38 U.S.C. 7310 note.
    VA considers that Congress, through the Deborah Sampson Act of 
2020, ratified VA's policy and interpretation in place prior to 
September 9, 2022. This included VA's policy and interpretation that 
needed care in the medical benefits package included the

[[Page 61322]]

provision of care to pregnant women in life-threatening circumstances. 
Additionally, the Deborah Sampson Act of 2020 is further example of 
Congress's ratification of the bar against abortions affirmed by the 
DOJ Opinion (because it did not authorize the provision of abortions) 
and of the Secretary's discretion and authority under 38 U.S.C. 1710 to 
establish what care (other than abortions) is needed pursuant to such 
authority.

H. International Law

    Several commenters opined that access to abortion, especially in 
cases of rape and incest, is a basic human right as reflected by the 
United Nations and global human rights organizations. One commenter 
stated that the proposed rule is a de facto abortion ban, and as such, 
violates the United States' obligation as a State Party to the 
International Covenant on Civil and Political Rights.
    VA makes no changes based on these comments. International human 
rights organizations and global norms regarding abortion access do not 
impact VA's authority to provide health care under 38 U.S.C. 1710 or 
1781. The United States' participation as a State Party to the 
International Covenant on Civil and Political Rights does not create or 
impose binding obligations on domestic Federal agencies. As such, the 
referenced international standards are not controlling in this 
rulemaking.

IV. Comments Specific to CHAMPVA

A. Inconsistent With TRICARE (Select)

    Some commenters raised concerns that VA's rule would be 
inconsistent with, and stricter than, TRICARE by excluding abortions in 
cases of rape and incest and abortion counseling and would result in a 
difference in treatment for two classes of Federal beneficiaries. Some 
commenters expressed their belief that Congress intended for families 
of veterans to receive comparable care to families of active 
servicemembers; and that excluding rape and incest in CHAMPVA 
undermines that. One commenter urged VA to consider ``similar'' to mean 
comparable in scope and fairness and that VA could maintain or expand 
coverage since 10 U.S.C. 1093 limits TRICARE, but not VA. Some 
commenters acknowledged that while CHAMPVA coverage need not be 
identical to that offered under TRICARE, the proposed rule did not 
address or acknowledge the significant differences that would be 
created between these two programs.
    One commenter noted that TRICARE's limitation on abortion 
counseling is not a limitation on medical communication, but rather a 
limitation on billing, as abortion counseling in TRICARE is not 
reimbursed as a separate covered service unless medically necessary.
    VA makes no changes based on these comments. VA acknowledges that 
pursuant to this rulemaking, CHAMPVA coverage for abortion will differ 
from TRICARE, particularly as TRICARE allows abortions in cases of rape 
and incest. As previously explained in this rulemaking, TRICARE is 
subject to a different authority from VA (that is, 10 U.S.C. 1093). The 
DOJ Opinion clearly forecloses the provision of abortion in CHAMPVA. 
Moreover, pursuant to 38 U.S.C. 1781(a), VA is not required to provide 
identical coverage to TRICARE. 90 FR 36417; 87 FR 55290; 89 FR 15459; 
38 U.S.C. 1781(b); see 32 CFR 199.1(r), 199.17(a)(6)(ii)(D). Instead, 
VA provides similar coverage to TRICARE. See 38 CFR 17.270(b) (defining 
CHAMPVA-covered services and supplies) and 17.272 (setting forth 
benefits limitations and exclusions); 87 FR 55290; 89 FR 15459.
    As explained in the proposed rule, 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, and VA is restoring the 
pre-September 9, 2022, abortion restrictions within CHAMPVA, just as it 
proposed to restore the long-standing restrictions to the medical 
benefits package. 90 FR 36416-17.
    This language is consistent with the language VA promulgated in 
1998 for purposes of CHAMPVA. 63 FR 48102 (Sept. 9, 1998). On February 
10, 1996, 10 U.S.C. 1093 was amended by Congress to prohibit any DoD 
facility from performing an abortion 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. 
See section 738 of Public Law 104-106. Despite this amendment to 10 
U.S.C. 1093, when VA updated its CHAMPVA regulations in 1998, VA did 
not amend them to allow for abortions in situations involving rape or 
incest. Instead, VA continued to prohibit abortions except when a 
physician certifies that the life of the mother would be endangered if 
the fetus were carried to term and abortion counseling in 38 CFR 
17.272. Thus, VA's long-standing policy and practice was not identical 
to TRICARE in this regard, which continued to be VA's policy and 
practice until September 9, 2022. 63 FR 48102 (Sept. 9, 1998); 87 FR 
55296. As explained in the proposed rule and throughout this final 
rule, the Secretary has determined that, pursuant to 38 U.S.C. 1781 and 
38 CFR 17.270(b), VA will return to its pre-September 9, 2022 abortion 
and abortion counseling exclusions for purposes of CHAMPVA coverage.
    How TRICARE's limitation on abortion counseling is implemented is 
not relevant to this rule.

B. Other Care That Is Covered Under CHAMPVA

    One commenter raised concerns about VA determining abortions are 
not needed when VA provides other care that the commenter believes is 
not needed and further identified services and procedures provided 
under CHAMPVA that they consider not needed.
    VA makes no changes based on these comments. First, they are mooted 
by the DOJ Opinion. Second, VA understands that the commenter may 
consider certain care provided in CHAMPVA as not needed, but VA has 
determined such care was medically necessary and appropriate pursuant 
to its authority in 38 U.S.C. 1781 and 38 CFR 17.270(b). Section 1781, 
38 U.S.C. (as interpreted in 38 CFR 17.270(b)) provides the Secretary 
with the discretion to determine what care is medically necessary and 
appropriate for CHAMPVA beneficiaries. As explained in the proposed 
rule, the Secretary determined that it is not medically necessary and 
appropriate for abortions to be provided as part of CHAMPVA except when 
a physician certifies that the life of the mother would be endangered 
if the pregnancy were carried to term.

C. Suggested Changes to 38 CFR 17.272

    One commenter suggested VA revise the proposed language in Sec.  
17.272 regarding the certification by a physician that a mother's life 
would be endangered if the child were carried to term to refer to a 
qualified provider rather than a physician, as there may be instances 
where a patient is receiving treatment from a nurse practitioner or 
other qualified clinician, or a physician is not available; that 
limiting this to only physicians could lead to unnecessary delays in 
treatment that could jeopardize the life of the mother; and that this 
suggested change would be consistent with current VA guidance. Another 
commenter stated that other health care providers, such as physicians' 
assistants and nurse practitioners, should be included as providers 
that can make the certification required in the life endangerment 
exception because they provide care, including care covered under this 
rule.

[[Page 61323]]

Relatedly, other commenters suggested VA exclude the proposed exception 
for the mother's life in Sec.  17.272 because they opined that care 
covered under this rule is not an abortion. One of these commenters 
further stated that if VA includes this life endangerment language, 
then it should require that two physicians certify that a mother's life 
would be endangered if the child were carried to term, and mental 
health and stress-related concerns should not fall under this life 
endangerment exception.
    VA makes no changes based on these comments. As explained in the 
proposed rule, VA is returning to its pre-September 9, 2022 position, 
and VA is reverting the regulatory text of Sec.  17.272 in place at 
that time (that is, abortions are excluded from CHAMPVA, except when a 
physician certifies that the life of the mother would be endangered if 
the fetus were carried to term), which used the term physician and only 
requires certification from one physician. Consistent with that 
position, VA is not expanding to include health care providers other 
than physicians and is not requiring two physicians certify that a 
mother's life would be endangered if the child were carried to term.

V. Comments Specifically Concerning Abortion Counseling

    Many commenters opined that abortion counseling is needed or 
medically necessary and appropriate care for veterans and CHAMPVA 
beneficiaries, respectively, and should be provided by VA, including in 
instances when VA cannot provide an abortion itself. Reasons provided 
by commenters included that women should have access to all information 
regarding their options and associated risks; abortion counseling is a 
necessary part of comprehensive, evidence-based treatment; restricting 
abortion counseling impacts the patient-provider relationship by 
limiting what can be discussed, especially regarding potential and 
appropriate treatment options, and violates a health care provider's 
medical ethics and obligations; and abortion counseling is a necessary 
component of informed consent and informed decision-making. By not 
providing abortion counseling, these commenters opined that the lives 
and health of veterans and CHAMPVA beneficiaries will be put at risk, 
pregnant women will not receive necessary emotional support, there will 
be increased confusion about what can be discussed with a patient, 
there will be inequities in care outside VA, and trust with VA and 
health care providers will be eroded. Some commenters opined that 
removing abortion counseling replaces medical judgment with political 
ideology and allows the government to interfere with an individual's 
health care decisions. Some commenters further referred to cited 
studies or data to support these comments.
    VA makes no changes to the regulations based on these comments. As 
stated in the proposed rule, VA has the authority to determine what 
care is needed or medically necessary and appropriate for veterans and 
CHAMPVA beneficiaries, respectively. The Secretary has used his 
authority to determine that abortion counseling is not needed or 
medically necessary and appropriate for those reasons stated in the 
proposed rule. 90 FR 36416-17. However, VA acknowledges that informed 
consent is critical for veterans and CHAMPVA beneficiaries in obtaining 
needed and medically necessary and appropriate health care. This 
includes when such individuals are receiving care covered under this 
rule. As a result, VA will ensure that veterans and CHAMPVA 
beneficiaries receive information necessary to provide informed consent 
in such situations, as informed consent is a necessary component of 
receiving care, including care covered by this rulemaking.
    One commenter was particularly concerned about the impact of 
restricting abortion counseling on therapeutic dialogue, which could 
lead to fragmented care, undermining mental health outcomes, and 
conflict with trauma-informed care. This commenter opined that the lack 
of definition for abortion counseling in the proposed rule creates 
uncertainty regarding what discussions are permitted during therapy. 
Specifically, this commenter was concerned about whether patients can 
discuss incidents that occurred prior to military service and instances 
where a patient received reproductive health services outside of VA. 
This commenter suggested that abortion counseling should exclude 
general discussions of reproductive health as part of comprehensive 
mental health treatment, trauma-focused therapy that may include 
discussion of pregnancy resulting from assault, and post-abortion 
mental health care.
    VA makes no changes based on these comments. VA did not have a 
definition of abortion counseling prior to the September 2022 IFR and 
is not adopting one through this rulemaking. The ban on abortion 
counseling will not impact VA's provision of mental health care.
    Some commenters raised concerns that abortion counseling may not be 
provided in circumstances in which the life of the mother would be 
endangered if the child were carried to term or in life-threatening 
circumstances. These commenters were concerned that clinicians may 
provide abortions without discussion with their patients.
    VA makes no changes based on these comments. As explained above, VA 
will ensure that veterans and CHAMPVA beneficiaries receive information 
necessary to provide informed consent in such situations, as informed 
consent is a necessary component of receiving care, including care 
covered by this rulemaking.
    Some commenters opined that VA should be able to offer referrals to 
veterans and CHAMPVA beneficiaries for abortions outside VA and discuss 
options for care outside VA. These commenters were concerned the 
restriction on abortion counseling would limit such referrals and 
discussions.
    VA makes no changes based on these comments. As explained in this 
rule, VA can provide care to pregnant women in life-threatening 
circumstances under the medical benefits package, and allow abortions 
to CHAMPVA beneficiaries when a physician certifies that the life of 
the mother would be endangered if the fetus were carried to term. In 
all other circumstances, VA will not discuss options for abortions 
outside VA and will not refer veterans and CHAMPVA beneficiaries to 
abortions outside VA. Instead, VA will explain to such individuals that 
if they are interested in receiving more information about such care, 
they should seek such information and care outside of VA.
    One commenter found it notable that since September 9, 2022, there 
is no evidence of abuse or misconduct related to the provision of 
abortion counseling and referrals. Thus, this commenter stated that the 
abortion counseling ban serves no rationale purpose and is contrary to 
VA's patient-centered mission.
    VA makes no changes based on this comment. While it may be true 
that there is no evidence of abuse or misconduct related to the 
provision of abortion counseling and referrals, that is not the 
standard VA uses to determine whether to provide certain care to 
veterans and CHAMPVA beneficiaries. As stated in the proposed rule, VA 
has the authority to determine what care is needed or medically 
necessary and appropriate for veterans and CHAMPVA beneficiaries, 
respectively. Under VA's authorities, the Secretary has determined that 
abortion counseling is not needed or medically necessary and 
appropriate for those reasons stated in the proposed rule.

[[Page 61324]]

VI. Comments Related to VA Mission and Funding

    Some commenters opined that the proposed rule conflicts with VA's 
mission, commitment, and duty to serve veterans and other 
beneficiaries. One commenter opined that the Secretary's priority of 
suicide prevention is undermined by the proposed rule as they referred 
to a study that restricting abortion access is linked to increased 
suicide risk for women of reproductive age. Commenters also opined that 
it is appropriate for VA to use taxpayer funding to provide abortions 
while others disagreed.
    VA makes no changes to the regulations based on these comments. VA 
serves veterans and other beneficiaries, in part, by providing needed 
and medically necessary and appropriate care pursuant to its statutory 
authorities. As noted in the proposed rule with respect to other 
Federal health programs, ``. . .Congress has consistently drawn a 
bright line between elective abortion and health care services that 
taxpayers would support.'' 90 FR 36416. Pursuant to the DOJ Opinion and 
38 U.S.C. 1710, the Secretary has determined that abortions are 
unlawful and not needed. However, VA is not prohibited from providing 
care to pregnant women in life-threatening circumstances under the 
medical benefits package. Pursuant to 38 U.S.C. 1781 and 38 CFR 
17.270(b), the Secretary has determined that an abortion is only 
medically necessary and appropriate when a physician certifies the life 
of the mother would be endangered if the fetus were carried to term. 
Finalizing the proposed rule will restore VA's previous, longstanding 
scope of needed and medically necessary and appropriate care. This 
rulemaking thus aligns with VA's mission, duty, and responsibility to 
serve veterans and other beneficiaries. VA further notes that suicide 
prevention is VA's top clinical priority, and nothing in this 
rulemaking changes that.

VII. Rape and Incest Exception and Military Sexual Trauma

    Several commenters opposed removing the exception for abortion in 
cases of rape or incest, particularly as one-third of women veterans 
experience military sexual trauma and are at greater risk for sexual 
assault and domestic/intimate partner violence, with commenters 
providing related data and articles as support. Some of these 
commenters alleged that excluding an exception for rape or incest is 
cruel and will further harm these veterans who deal with related 
stigma, shame, and unnecessary barriers to care. Some of these 
commenters also raised concerns that military sexual trauma survivors 
will be forced to continue pregnancies resulting from sexual assault, 
which can exacerbate trauma and cause long-term health consequences. 
Some commenters provided data to support that women who are pregnant 
are significantly more likely to be killed by intimate partner 
violence, and an inability to obtain an abortion increases risk for 
domestic/intimate partner violence.
    VA makes no changes based on these comments. VA understands and 
acknowledges these concerns raised by the commenters. As explained 
previously in the proposed rule and throughout this final rule, VA is 
returning to its pre-September 9, 2022 position, which did not include 
an exception for rape or incest. VA will, as always, support veterans 
and CHAMPVA beneficiaries facing difficult circumstances in regard to 
pregnancy by ensuring such individuals receive needed and medically 
necessary and appropriate care through VA. VA provides treatment to 
those who may experience domestic/intimate partner violence and 
military sexual trauma. Nothing in this rulemaking impacts the care VA 
provides to those who experience domestic/intimate partner violence or 
military sexual trauma.

VIII. Other Matters

    For the comment summaries and responses below, VA notes that many 
commenters did not distinguish whether the issues they raised related 
to the provision of care to veterans under 38 CFR 17.38, or the 
provision of care to CHAMPVA beneficiaries under 38 CFR 17.272. Unless 
specifically indicated in the summaries and responses below, VA treated 
the issues raised in comments as related to both the medical benefits 
package and CHAMPVA.

A. Rule Would Limit Access to Care

    Some commenters asserted that the rulemaking will or may result in 
veterans
    and CHAMPVA beneficiaries no longer having access to abortion and 
abortion counseling, since such individuals may live in states with 
bans and restrictions on such care and, for various reasons (e.g., 
financial, geographic, logistical), may not be able to obtain such care 
from non-VA providers in states with less restrictions. Commenters were 
particularly concerned as such care is often time sensitive. Some 
commenters stated that for some women, VA may be their sole health care 
provider, and even that care can be limited in areas throughout the 
country (VA notes that all CHAMPVA beneficiaries receive care from non-
VA providers which is then reimbursed by VA, unless they receive care 
from a VA provider under the CHAMPVA In-house Treatment Initiative, 
(CITI)). Some commenters stated that such limitation on access can 
result in greater costs to these women, delays in receiving treatment, 
or foregoing treatment entirely. Commenters asserted that such effects 
would be more pronounced within certain groups of women veterans, such 
as those experiencing housing instability, those of color, those in 
underserved and rural communities, those with disabilities including 
mental health disorders, those with limited financial means, and 
survivors of military sexual trauma and sexual assault. Furthermore, 
these commenters asserted that women veterans face unique issues that 
make such limited access more detrimental. Some of these commenters 
cited studies or other publications to support their contentions.
    VA understands these concerns, but makes no changes based on these 
comments. As explained in the proposed rule and in this final rule, VA 
believes it is appropriate to return to its pre-September 9, 2022 
position. Pursuant to that position, veterans and CHAMPVA beneficiaries 
will be able to receive care covered by this rulemaking and any other 
care in the medical benefits package and under CHAMPVA from VA, but VA 
does not believe it is appropriate to continue the current policy that 
became effective on September 9, 2022. Moreover, to the extent 
commenters are concerned about limited access to this care, as 
explained previously in the proposed rule and in this final rule, this 
rulemaking is expected to have a relatively small impact given the low 
volume of abortions furnished by VA.

B. Effect on Care and Erosion of Trust in VA

    Some commenters asserted that the rulemaking will or may result in 
women leaving VA's health care system, which would fragment care and 
disrupt continuity of care; and prevent women from receiving care from 
familiar, trusted, and knowledgeable VA providers. Some of these 
commenters raised concerns that this rule will thus erode trust in VA.
    VA makes no changes based on these comments. VA will continue to 
provide veterans and CHAMPVA beneficiaries with needed and medically 
necessary and appropriate care, respectively. As VA is returning to its 
pre-September 9,

[[Page 61325]]

2022 position, VA will continue to provide care to veterans and CHAMPVA 
beneficiaries in the same manner as it did at that time. VA does not 
believe this rulemaking will result in fragmented care or disrupt 
continuity of care, particularly as VA had this same policy in place 
prior to September 9, 2022. VA notes that commenters did not provide 
data to show that the prior policy resulted in fragmented care or 
disrupted continuity of care for veterans or CHAMPVA beneficiaries. VA 
is and continues to be a trusted provider and payer of health care to 
veterans and CHAMPVA beneficiaries, and VA does not expect that to 
change as a result of this rulemaking.
    One commenter appeared to allege that since this rulemaking limits 
care classified as reproductive health care, other reproductive health 
care, such as cervical cancer screening, fertility treatments, and 
mammograms, could be restricted.
    VA makes no changes based on this comment. This rule does not 
address other reproductive health care and does not restrict or 
otherwise impact such care.

C. Life-Threatening or Life-Endangering Circumstances and Conditions

    Some commenters suggested VA clarify or define what is meant by 
``life-threatening,'' including describing what conditions or 
circumstances would fall under such language and creating a definition 
of ``life-threatening.'' Commenters identified various conditions, such 
severe preeclampsia, infections, certain cancers, lupus, depression, 
and heart disease, that could be emergency situations and exacerbated 
by pregnancy and suggested that VA include those conditions under a 
definition for life-threatening. Some commenters were concerned about 
having a list of life-threatening circumstances or a list of what would 
qualify under the life endangerment exception, as such list would be 
impossible to create, and suggested VA defer to health care providers' 
judgment. Some commenters were specifically concerned that the rule 
would remove or impede treatment for miscarriages and ectopic 
pregnancies. Some commenters urged VA to clarify that the care covered 
under this rule would not be limited to certain situations but rather 
all life-threatening medical emergency situations.
    VA makes no changes based on these comments. VA does not address 
every specific potential medical condition a pregnant individual may 
have that could be an emergency situation or exacerbated by pregnancy. 
As VA stated in the proposed rule and reiterated in this final rule, VA 
is not prohibited from providing care to veterans in life-threatening 
circumstances under the medical benefits package. 90 FR 36416. As 
stated in the proposed rule and reiterated in this final rule, VA will 
allow CHAMPVA beneficiaries to receive abortions when a physician 
certifies that the life of the mother would be endangered if the fetus 
were carried to term. Id. VA specifically referenced ectopic 
pregnancies and miscarriage in the rulemaking because treatment for 
these conditions is always required. Consistent with how VA addressed 
this care prior to September 9, 2022, VA is not regulating the 
conditions under which such care, as covered by this rule can be 
provided. Such matters require a clinical determination and are more 
appropriately addressed in policy. VA will publish guidance regarding 
the provision of care covered by this rule.

D. Medication as Part of Care Provided Under This Rule

    Commenters raised concerns that access to medication needed for 
other services could be affected, as certain medications may have 
multiple uses in addition to abortions, such as managing miscarriages 
or treating chronic diseases. A few commenters were particularly 
concerned by any restrictions on the use of mifepristone and 
misoprostol in managing miscarriages and providing needed and medically 
necessary and appropriate care to pregnant women. One of these 
commenters encouraged VA to formally recognize that such treatment will 
continue to be available to patients. Some commenters opposed VA 
providing any type of abortion, including through medication.
    VA makes no changes based on these comments. VA acknowledges the 
concerns expressed by commenters on the availability of specific 
medications based on this regulation. Neither this rulemaking nor the 
regulatory text stipulate any changes to the VA formulary. Currently 
available medications used for managing a variety of conditions 
including miscarriage and care as covered under this rule to pregnant 
women will remain available for use as clinically appropriate.

E. CHAMPVA Certification Requirement

    One commenter raised concerns that the requirement for 
certification that the life of the mother would be endangered if the 
child were carried to term runs contrary to procedures under the Hyde 
Amendment. Another commenter asserted that the certification 
requirement is more limiting than other similar exemptions, which can 
have a chilling effect on willingness to make such certification. Such 
commenter recommended VA grant deference to its health care providers.
    VA makes no changes based on these comments. These commenters did 
not necessarily distinguish between the care provided under the medical 
benefits package or the care allowed under CHAMPVA, as covered by this 
rule. Regardless of whether these commenters meant to refer to either 
or both programs, as explained previously in this rule, the Hyde 
Amendment does not apply to VA.
    With regards to the certification requirement, VA clarifies that 
the certification requirement is included in the life endangerment 
exception, which only applies to CHAMPVA as it is only explicitly 
stated in CHAMPVA regulations, as amended by this rule. VA does not 
intend the certification requirement under the life endangerment 
exception for CHAMPVA to be a burden on VA or authorized non-VA 
physicians, and VA notes that this certification requirement was in 
place prior to September 9, 2022 for CHAMPVA. VA will follow the same 
standards it had in place prior to September 9, 2022.
    One commenter suggested VA clarify in 38 CFR 17.272(a)(58), as 
proposed, whether the determination of when the life of the mother 
would be endangered if the child were carried to term is limited to 
only certain physicians (instead of the physician of the individual's 
choice).
    VA makes no changes based on this comment as VA does not find it 
appropriate to specify the type of physicians who may certify when the 
life of the mother would be endangered if the child were carried to 
term. However, VA acknowledges that it will be the treating physician 
or physicians that will certify this life endangerment exception.
    One commenter suggested VA allow veterans to receive abortions when 
a physician certifies that the fetus is not viable. Another commenter 
raised concerns that the rule did not include an exception for fatal 
fetal abnormality or fetal conditions that are catastrophic but not 
immediately fatal.
    VA makes no changes based on this comment. As previously explained, 
VA is returning to its pre-September 9, 2022 position. As such, VA will 
provide care to pregnant women in life-threatening circumstances under 
the medical benefits package, and will allow abortions under CHAMPVA 
when a physician certifies that the life of the

[[Page 61326]]

mother would be endangered if the fetus were carried to term. Such care 
may be provided even if it may require an intervention that would end a 
pregnancy. VA will, as always, support veterans and CHAMPVA 
beneficiaries facing difficult circumstances in regard to pregnancy 
complications by ensuring such individuals receive, through VA, needed 
and medically necessary and appropriate care.
    One commenter asserted that the proposed rule failed to articulate 
what is required for a physician to ``certify'' that an emergency 
pregnancy complication is sufficiently life threatening to permit an 
abortion, which this commenter contends will result in confusion and 
lead to delays in care.
    VA makes no changes based on this comment. This certification 
requirement only applies to CHAMPVA and acknowledges that it will be 
the treating physician or physicians that will make this certification.

F. Proposed Rule Undermines Patient-Provider Relationship and Violates 
Medical Ethics

    Several commenters raised concerns that the proposed rule 
undermines the patient-provider relationship by imposing non-medical 
restrictions on health care decisions. These commenters stated that 
this is a health care decision that should be made between a health 
care provider and their patient; not the government. Some commenters 
further alleged that the proposed rule is in direct violation of a 
health care provider's oath to do no harm and generally violates their 
responsibilities and medical ethics and obligations, particularly as 
they are required to ensure patients receive care that they need and 
provide informed consent for care. Commenters explained that the 
restrictions in the proposed rule can result in the health care 
provider's judgment being compromised and foster mistrust and confusion 
with their patient.
    Some commenters raised these concerns specifically with regards to 
the ban on abortion counseling. Such commenters stated that it is a 
violation of medical ethics to ban abortion counseling as that prevents 
health care providers from providing complete medical information, 
which can harm patients, and undermines informed consent, particularly 
as a patient will not be able to fully understand necessary medical 
information in life-threatening or life-endangering circumstances and 
make an informed decision about their care.
    VA makes no changes based on these comments. As stated in the 
proposed rule, VA has the authority to determine what care is needed or 
medically necessary and appropriate for veterans and CHAMPVA 
beneficiaries, respectively. Under this authority, the Secretary has 
determined that abortions and abortion counseling are not needed or 
medically necessary and appropriate for those reasons stated in the 
proposed rule. VA acknowledges that informed consent is critical for 
veterans and CHAMPVA beneficiaries in obtaining needed and medically 
necessary and appropriate health care. This includes when such 
individuals are receiving care covered by this rule. As a result, VA 
will help ensure that veterans and CHAMPVA beneficiaries receive 
information necessary to provide informed consent in such 
circumstances, as informed consent is a necessary component of 
receiving care, including care covered by this rulemaking.

G. Concerns Regarding Legal Ramifications and Risks to Health Care 
Providers, and Employee Protections

    Some commenters raised concerns that health care providers will 
prioritize considerations of criminal or civil penalties over patient 
health, which can result in delays in care and harm to patients, 
including in states where there are life exceptions and in instances 
involving ectopic pregnancies and miscarriages. Commenters were 
concerned about the legal ramifications for providers. One commenter 
suggested that the rule clearly articulate that physicians have the 
authority to make determinations relating to care covered by this rule 
and questioned whether VA would represent physicians from Federal or 
state actions taken against them for making such determinations.
    VA makes no changes based on these comments. To the extent a VA 
employee provides care consistent with this rule and within the scope 
of their VA employment as authorized by Federal law, they could not 
legally be subject to adverse state actions. Consistent with 38 CFR 
17.419, 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. As explained 
previously, if and when 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. Thus, if states 
attempt to subject VA employees to legal action for appropriately 
carrying out their Federal duties, subject to the requirements and 
procedures set forth in 38 CFR 50.15(a), Department of Justice 
representation is available to Federal employees in civil, criminal, 
and professional licensure proceedings where they face personal 
exposure for actions performed within the scope of their Federal 
duties.

H. Gestational Limits

    One commenter suggested that in any case in which VA provides 
abortions, such care must be provided within the first trimester of 
pregnancy. Another commenter opined that it is the government's job to 
ensure the life of the mother since a fetus cannot maintain its own 
existence until approximately the third trimester.
    VA makes no changes based on this comment. As previously explained, 
VA is returning to its pre-September 9, 2022 position. As such, VA will 
provide care to pregnant women in life-threatening circumstances under 
the medical benefits package and, in the case of CHAMPVA beneficiaries, 
prohibit abortions except when a physician certifies that the life of 
the mother would be endangered if the fetus were carried to term. VA 
will not place any time limit on when such care may or must be 
provided.
    In addition, VA affirms that nothing in this rule alters or 
diminishes the conscience rights of VA or CHAMPVA-authorized health 
care providers. Employees may request to opt out of providing, 
participating in, or facilitating any aspect of clinical care based on 
sincerely held moral or religious beliefs, observances, or practices. 
These requests, often referred to as conscientious objections or 
conscience-based exceptions, will be honored in accordance with 
applicable Federal law and VA policy.

I. Specific Suggestions Not Already Addressed Above

    One commenter suggested VA make clear in the CHAMPVA regulation 
that it intends to prohibit elective abortion.
    VA makes no changes based on this comment. As previously explained, 
VA is returning to its pre-September 9, 2022 position. This means that 
VA will revise its regulatory text for 38 CFR 17.272 to return to the 
same regulatory text in place at that time which clearly prohibits 
elective abortions.
    One commenter suggested VA clarify what provisions are made for a 
``second opinion'' of a VA physician's determination regarding whether 
the life of the mother would be endangered if the child were carried to 
term. That same commenter suggested VA identify what procedures will be 
in place to

[[Page 61327]]

make whole women who suffer any harm due to delay or refusal by a 
physician to make such determination.
    VA makes no changes based on this comment. VA considers these 
matters outside the scope of this rulemaking because they deal with 
clinical decisions and tort claims. VA assumes this commenter was 
referring to a CHAMPVA beneficiary receiving care from a VA physician, 
as the commenter referenced the proposed changes to 38 CFR 17.272. If a 
CHAMPVA beneficiary were receiving care from a VA physician, it would 
only be through the CHAMPVA In-House Treatment Initiative at a VA 
facility. In such instance, if the CHAMPVA beneficiary wanted a second 
opinion of the VA physician's determination regarding the life 
endangerment exception, they could seek such opinion through VHA's 
clinical appeal process. CHAMPVA beneficiaries may file a tort claim 
against the United States based on a negligent or wrongful act or 
omission of a VA employee. More information can be found at https://www.va.gov/OGC/FTCA.asp. To the extent this commenter was referring to 
a veteran receiving care from a VA physician, they would also follow 
VHA's clinical appeal process and may file a tort claim, as referenced 
above.
    Two commenters suggested VA interpret the term ``needed'' through 
clinical judgment that is based on current medical standards, as care 
may be medically warranted in many specific situations. Another 
commenter suggested VA reconsider the definition of ``needed'' medical 
services to include mental health-related pregnancy risks.
    VA makes no changes based on these comments. The term ``needed'' as 
used in 38 U.S.C. 1710 is not defined in law or regulation. To the 
extent consistent with the DOJ Opinion, the Secretary has discretion to 
determine what care is needed. As explained earlier in section II.D. of 
this final rule, while VA has interpreted, for purposes of care in the 
medical benefits package (see 38 CFR 17.38(b)), such language to refer 
to care 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 (see 64 
FR 54210), VA does not believe that the ``promote, preserve, or 
restore'' criteria serves to replace or strictly articulates how the 
Secretary determines that care is ``needed'' under 38 U.S.C. 1710. VA 
does not believe it is necessary to define or interpret ``needed'' as 
the commenters suggest, as ``needed'' is specifically left to the 
discretion of the Secretary in section 1710.
    To the extent one of the commenters suggested VA consider mental 
health-related pregnancy risks to be included under the term 
``needed,'' VA declines to do so as VA is not defining the term 
``needed'' in this rulemaking. VA further notes that to the extent 
mental health-related pregnancy risks would result in a life-
threatening circumstance, care to treat such life-threatening 
circumstance could be provided under medical benefits package.
    Some commenters asserted that life-saving treatment is never 
considered an abortion, and thus, VA should not include language in VA 
regulations to codify an exception for life to the prohibition on 
abortions. One commenter recommended VA clarify that treating certain 
conditions (e.g., ectopic pregnancies, miscarriage, sepsis, severe 
preeclampsia) is not abortion. Other commenters recommended defining 
the term abortion and included recommendations on how to define it.
    VA makes no changes based on these comments. VA is not defining 
abortion, consistent with how VA did not define abortion before 
September 9, 2022, and with how VA currently does not define abortion 
in its regulations. VA will publish policy that provides guidance to 
its health care providers regarding the provision of care covered by 
this rulemaking. Furthermore, as explained in the proposed rule and 
throughout this final rule, VA will continue to provide care to 
pregnant women in life-threatening circumstances pursuant to the 
medical benefits package, even if such care may result in the 
termination of a pregnancy. For purposes of CHAMPVA, VA will prohibit 
abortions except when a physician certifies that the life of the mother 
would be endangered if the fetus were carried to term.
    Based on the rationale set forth in the Supplementary Information 
to the proposed rule, the DOJ Opinion, and this final rule, VA is 
adopting the proposed rule as final without changes.

Executive Orders 12866, 13563 and 14192

    VA examined the impact of this rulemaking as required by Executive 
Orders 12866 (Sept. 30, 1993) and 13563 (Jan. 18, 2011), which direct 
agencies to assess all costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits. The Office of Information and 
Regulatory Affairs has determined that this rulemaking is a significant 
regulatory action under section 3(f) of Executive Order 12866. VA also 
examined the impact of this rulemaking as required by Executive Order 
14192 (Jan. 30, 2025), which directs agencies to ensure that the cost 
of planned regulations is responsibly managed and controlled through a 
rigorous regulatory budgeting process. The Office of Information and 
Regulatory Affairs has determined that this final rule is 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

    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 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

    This rule will not 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.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs has designated this 
rule as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Health care, Health records, 
Mental health programs, Veterans.

Signing Authority

    Douglas A. Collins, Secretary of Veterans Affairs, approved this 
document on December 23, 2025, and authorized the undersigned to sign 
and submit the document to the Office of the Federal Register for 
publication

[[Page 61328]]

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 amends 38 CFR part 17 as set forth below:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read, in part, 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. 2025-24061 Filed 12-30-25; 8:45 am]
BILLING CODE 8320-01-P