Reproductive Health Services

DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 17</CFR> <RIN>RIN 2900-AS31</RIN> <SUBJECT>Reproductive Health Services</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Veterans Affairs (VA) is proposing to reinstate the full exclusion on abortions and abortion counseling from the medical benefits package, which was removed in 2022. Before that time, this exclusion had been firmly in place since the medical benefits package was first established in 1999. VA is also proposing to reinstate the exclusions on abortion and abortion counseling for Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) that were removed in 2022. We take this action to ensure that VA provides only needed medical services to our nation's heroes and their families. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before September 3, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Comments must be submitted through <E T="03">www.regulations.gov</E> . Except as provided below, comments received before the close of the comment period will be available at <E T="03">www.regulations.gov</E> for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on <E T="03">www.regulations.gov</E> as soon as possible after they have been received. VA will not post on <E T="03">Regulations.gov</E> public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm an individual. VA encourages individuals not to submit duplicative comments; however, we will post comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period's closing date is considered late and will not be considered in the final rulemaking. A plain language summary (not more than 100 words in length) of this rule is available at <E T="03">www.regulations.gov,</E> under RIN 2900-AS31. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Dr. Steven L. Lieberman, Acting Under Secretary for Health, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-0373. (This is not a toll-free telephone number.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Today, VA is proposing to return VA's medical package and CHAMPVA benefits to where they were on September 8, 2022, before VA issued an interim final rule that removed long-standing restrictions against abortions. From 1999, when VA established the medical benefits package in 17.38 of title 38, Code of Federal Regulations (CFR) until September 8, 2022, VA's “medical benefits package” did not authorize abortion services because they were not “needed” medical services under section 1710 of title 38 of the United States Code (U.S.C.). For decades, VA had consistently interpreted abortion services as not “needed” medical services and therefore not covered by the medical benefits package. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>  The medical benefits package was established in 1999 based on the comprehensive Veterans Benefits Act of 1997, which established, inter alia, 38 U.S.C. 1710. Until 2022, VA had never interpreted its authority under the 1999 extensive revisions to title 38 as allowing abortions. </FTNT> As a matter of law, it is without question that VA has the authority to bar provision of abortion services through the VA medical benefits package to veterans. From 1999 until 2022 that is in fact what VA did. It was not until 2022 when the VA Secretary reversed this course. The stated reason for doing so was a reaction to a Supreme Court decision, <E T="03">Dobbs</E> v. <E T="03">Jackson Women's Health Organization,</E> 142 S. Ct. 2228 (2022), that itself was intended to <E T="03">prevent</E> federal overreach and return to States control over the provision of abortion services. Yet, the last administration used <E T="03">Dobbs</E> to do the exact opposite of preventing overreach, creating a purported Federal entitlement to abortion for veterans where none had existed before and without regard to State law. In doing so, the administration predicted a high demand for VA abortions that never materialized. <SU>2</SU> <FTREF/> <FTNT> <SU>2</SU>  As part of the September 9, 2022 IFR and March 4, 2024 final rule, VA estimated that VA would provide abortions to more than 1,000 veterans and CHAMPVA beneficiaries per year. See Regulatory Impact Analysis for Interim Final Rule (2900-AR57) published September 9, 2022, and Final Rule (2900-AR57) published March 4, 2024. <E T="03">Regulations.gov</E> . <E T="03">https://www.regulations.gov</E> (last visited July 14, 2025). However, the average number of veterans who receive abortions from VA is 100 per year, and the average number of CHAMPVA beneficiaries who receive abortions from VA is 40 per year, which are significantly lower than the more than 1,000 per year VA previously projected. See the Regulatory Impact Analysis for this proposed rule. <E T="03">Regulations.gov</E> . <E T="03">https://www.regulations.gov</E> . </FTNT> The regulatory determination that abortion is not a “needed” service for veterans was accepted by every Secretary and Presidential administration for over 20 years. The stated basis for determination that abortions were now a needed service was an anticipated rise in demand as a result of the <E T="03">Dobbs</E> decision. But this conclusion contradicted decades of Federal policy against forced taxpayer funding for abortion. Considerations about whether abortion is “needed” for purposes of VA-provided services necessarily involves the question of whether taxpayers should pay for abortion. For nearly fifty years, and across a slew of Federal programs, including Medicaid, the Child Health Insurance Program, TriCare, Federal Employee Health Benefits Program, and others, Congress has consistently drawn a bright line between elective abortion and health care services that taxpayers would support. VA has never understood this policy to prohibit providing care to pregnant women in life-threatening circumstances, including treatment for ectopic pregnancies or miscarriages, which were covered under the VA's medical benefits package prior to the 2022 IFR. <SU>3</SU> <FTREF/> For the avoidance of doubt, the proposed rule would make clear that the exclusion for abortion does not apply “when a physician certifies that the life of the mother would be endangered if the fetus were carried to term.” This is also consistent with the pre-2022 regulations for the CHAMPVA program. <FTNT> <SU>3</SU>  Maternity Health Care and Coordination, VHA Directive 1330.03 (November 3, 2020) available at <E T="03">https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=9095</E> . See also Secretary Denis McDonough, Press Conference, (July 20, 2022), available at <E T="03">https://www.youtube.com/watch?v=UpFKk5NFhF0</E> at 52:00:000. </FTNT> No State law prohibits treatment for ectopic pregnancies or miscarriages to save the life of a mother. <SU>4</SU> <FTREF/> <FTNT> <SU>4</SU>   <E T="03">https://www.justia.com/constitutional-law/50-state-survey-on-abortion-laws/</E> . </FTNT> Taken together, claims in the prior administration's rule that abortions throughout pregnancy are needed to save the lives of pregnant women are incorrect. The lives of pregnant women will continue to be protected without regard for the previous administration's rule. Thus, prior Administrations recognized that lifesaving procedures would still be performed under the medical benefits package, and this was explicit in the prior versions of the CHAMPVA regulation. We now turn to address VA's legal authority in more depth. VA's exclusion against abortion was legally established in 1999 and existed until the 2022 revisions. Under 38 U.S.C. 1710(a)(1) through (3), VA is authorized to furnish hospital care and medical services that the Secretary determines to be needed. VA implements this general treatment authority and the Secretary determines what care is needed by regulation through VA's medical benefits package. See 64 <E T="04">Federal Register</E> (FR) 54207, 54217 (October 6, 1999); 38 CFR 17.38. Prior to September 9, 2022, abortions and abortion counseling were excluded from the medical benefits package, with no exceptions. 87 FR 55288 (September 9, 2022). We believe the 2022 interim final rule was not only inappropriate as a matter of fact but also was legally questionable. The only time Congress has specifically addressed VA's authority to provide abortions was in 1992 in section 106 of the Veterans Health Care Act of 1992 (VHCA), Public Law 102-585, which authorized VA to provide under chapter 17 of title 38, U.S.C., “[p]apanicolaou tests (pap smears),” “[b]reast examinations and mammography,” and “[g]eneral reproductive health care” but excluded “under this section infertility services, abortions, or pregnancy care (including prenatal and delivery care), except for such care relating to a pregnancy that is complicated or in which the risks of complication are increased by a service-connected condition.” In 1996, Congress extensively revised Chapter 17. The specific statute, 38 U.S.C. 1710, was changed to cover eligibility for hospital care and medical services, whereas in 1992 it had solely covered hospital and nursing home care. While it is possible that Congress intended the 1992 restriction to continue to apply after the dramatic revisions of 1996, it is also possible to conclude that Congress' in ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 18k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━