Reproductive Health Services

<RULE> DEPARTMENT OF VETERANS AFFAIRS <SUBAGY>38 CFR Part 17</SUBAGY> <DEPDOC>[Docket No. VA-2025-VHA-0073]</DEPDOC> <RIN>RIN 2900-AS31</RIN> <SUBJECT>Reproductive Health Services</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective Date:</E> This rule is effective January 30, 2026. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> John Figueroa, Senior Advisor to the Secretary of Veterans Affairs performing the duties of Under Secretary for Health, (202) 461-0373. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Today, VA finalizes its proposed rule published in the <E T="04">Federal Register</E> (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 <E T="03">Reconsidering the Authority of the Department of Veterans Affairs to Provide Abortion Services,</E> 49 Op. O.L.C._(Dec. 18. 2025) (hereinafter referred to as “DOJ Opinion”), <E T="03"> https:// www.justice.gov/olc/media/1421726/dl?inline. </E> 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 <E T="03">West Virginia</E> v. <E T="03">EPA,</E> 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 <E T="03">Dobbs</E> v. <E T="03">Jackson Women's Health Organization,</E> 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. <HD SOURCE="HD1">I. Comments That Generally Challenged the Proposed Rule</HD> <HD SOURCE="HD2">A. Comments That Asserted Abortions Were Needed Medical Services for Veterans or Were Medically Necessary and Appropriate Treatment for CHAMPVA Beneficiaries</HD> VA proposed to remove the exceptions to the general exclusion of abortions in § 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 reg ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 133k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━