Veterans Affairs to Offer Abortions, a Move Some Say Is Illegal

Secretary of Veterans Affairs Denis McDonough speaks in Washington on Nov. 9, 2021. Anna Moneymaker/Getty Images

The Department of Veterans Affairs (VA) on Sept. 2 announced plans to offer abortions, despite warnings that such a move would be illegal.

The VA’s interim final rule lets the department provide abortion counseling and abortions to pregnant veterans and beneficiaries.

The abortions will be available when “the life or the health of the pregnant veteran would be endangered if the pregnancy were carried to term” or the pregnancy resulted from rape or incest, according to the rule.

A pregnant veteran saying that rape or incest occurred is sufficient evidence that it did, according to the rule.

The change brings the VA in alignment with “generally accepted standards of medical practice” and the updated policy came about due to input from VA health care providers and veterans “who sounded the alarm that abortion restrictions are creating a medical emergency for those we serve,” said Dr. Shereef Elnahal, the VA’s undersecretary for health.

The abortions may be done even if they violate restrictions in a state, the VA said.

Senators Called for Move

In July, 27 Democratic senators, following the U.S. Supreme Court’s striking down of Roe v. Wade, called for the VA to offer abortions.

“This decision makes it even more critical that veterans receive access to the reproductive care to which they are entitled," the senators wrote in a letter to VA Secretary Denis McDonough, a Biden appointee. “Thus, the Department of Veterans Affairs (VA) must urgently begin rulemaking to allow veterans and eligible dependents to receive abortions and all abortion-related services.”

Sen. Mazie Hirono (D-Hawaii), one of the signatories, welcomed the update.

“This is an important first step. The VA must go further and provide these services to all veterans, regardless of circumstances,” she said in a statement on Sept. 2.

Sen. Elizabeth Warren (D-Mass.), who also signed the letter, called the update a “critical action ... to ensure American veterans are provided reproductive health care.”

Illegal?

McDonough told a congressional panel in 2021 that the VA isn’t prohibited from providing abortions.

The Democratic senators agreed, noting that the Hyde Amendment, which bars some government funding for abortions, doesn’t apply to the VA.

However, Sen. James Lankford (R-Okla.) warned McDonough in August that the VA would violate a different law if it performed abortions.

Section 106 of the Veterans Health Care Act of 1992 says that the VA may provide women with “general reproductive healthcare, including the management of menopause, but not including under this section infertility services, abortions, or pregnancy care,” except relating to a pregnancy “that is complicated or in which the risks of complications are increased by a service-connected condition.”

“The VA isn’t an abortion clinic. For 30 years, the law has been clear that the VA isn’t permitted to offer abortions. Instead of ignoring the law & promoting taking human life, the VA should respect the dignity of our veterans & their family members, including unborn children,” Lankford said in a statement on Sept. 2.

The VA in its rule cited 38 U.S.C. 1710, which states that the VA secretary “may,” subject to certain limitations, “furnish hospital care” and “medical services ... which the Secretary determines to be needed,” and claimed that those medical services include abortions.