Veterans' new abortion policy sets up a battle with conservative states

A A new rule by the Department of Veterans Affairs (VA) is creating a major showdown between conservative states and the federal government, as Republican lawmakers vow to fight the policy that the VA will provide abortion services even in states that have banned the procedure.

Under the new rule, which took effect Sept. 9, the VA will provide abortion counseling and abortions in cases of rape, incest or when the pregnancy threatens the patient’s life to eligible veterans and their family members. This represents a historic change: Previously, the VA did not provide abortions for veterans under any circumstances and did not allow its providers to counsel patients about the procedure.

The move is a direct result of the Supreme Court overturning Roe v. Wade this summer, which sparked a wave of abortion bans and restrictions across the country. VA leaders said those restrictions pose “urgent risks” to veterans and are forcing the agency to act. “This expansion is a decision first and foremost for patient safety,” Dr. Sheriff Elnahal, Virginia’s deputy health secretary, told members of the House Veterans Affairs Committee on Thursday. “It’s important to emphasize that VA is taking these steps with our primary mission: to preserve the lives and health of veterans.”

The policy was welcomed by Democrats, who have been pressing President Joe Biden to find ways to expand access to abortion after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org abolished the federal right to abortion. They said they hope the VA’s move will appeal widely, given that the rule allows abortions only in circumstances that are consistent with other federal policies. Democratic Sen. Patty Murray of Washington called the change “common sense policy” at a news conference on the issue last week, while Sen. Tammy Duckworth of Illinois, who lost her legs while serving in Iraq, questioned why the government would be comfortable allowing her body to be used about war, but not about choosing how and when to start a family. “When did American women have the right to bodily autonomy?” she asked.

Republicans disagree. Many states that have enacted near-total abortion bans have not rape and incest exceptions, so conservatives argue that the VA is overstepping its authority. Alabama Attorney General Steve Marshall said last week that he would enforce his state’s abortion ban, which bans all but life-threatening abortions, against any practitioner who violates it. “I have no intention of abdicating my duty to enforce the Protection of Unborn Life Act against any practitioner who illegally performs abortions in the state of Alabama,” he said in a statement. “The power of states to protect unborn life is settled.” Arkansas Attorney General Leslie Rutledge, whose state abortion ban also allows abortions only in life-threatening cases, similarly told TIME that she would enforce her ban despite the VA’s policy. “I stand ready to challenge the Biden administration for trying to circumvent Arkansas law,” Rutledge said in a statement.

The Hyde Amendment bars federal funding for most abortion-related services, but allows similar exceptions to the VA rule — and applies only to funds earmarked for the Departments of Labor, Health and Human Services, and Education, not the VA. Republicans argue that the VA policy violates other laws, including the Veterans Health Care Act of 1992, which excludes abortion from the medical care the VA is authorized to provide. Democrats counter that the Veterans Health Care Reform Act of 1996 allows the VA secretary to “provide hospital care and medical services” determined to be “necessary,” including abortion.

VA officials and legal experts say the agency is on solid legal ground as it implements the new policy, particularly because of the legal principle of federal preemption. “The federal government has to make laws, and states can’t say, ‘we don’t want to follow this,'” said David Cohen, a law professor at Drexel University. “So a state that tried to sue to say the VA can’t do that would violate that basic principle of American law.”

The outcome of the legal debate could affect thousands of women seeking care. About 260,000 female veterans of reproductive age live in states with strict abortion restrictions, according to Kayla Williams, a RAND Corporation researcher and former director of the Virginia Center for Women Veterans, who testified at the hearing. She estimated that about 96,200 VA patients could be affected by the policy change. Elnahal said he initially expects about 1,000 VA-supported abortions to be performed annually, but that could increase in the coming years as the number of female veterans grows rapidly.

Republicans said at Thursday’s committee hearing that they would support legal challenges to the policy and threatened to pursue Virginia’s budget if they regain control of Congress in November. “It’s not only wrong, it’s illegal,” said ranking committee member Congressman Mike Bost, R-Illinois. He said he is working with colleagues on the House and Senate Appropriations Committees on potential sanctions. “Abortion is not health care, regardless of what those on the other side of the issue feel.”

Legal and logistical challenges

Regardless of whether the VA’s policy is challenged in court, it will be complex to implement, and its providers are unlikely to be ready to immediately provide a range of abortion services.

One of the biggest challenges is the fact that the VA is essentially building the infrastructure for the plan in real time. The VA did not say when its facilities would begin performing abortions. Elnahal told lawmakers the agency is working to ensure facilities have adequate staffing and training to implement the policy, provide pregnancy tests at all locations and conduct a survey on the availability of ultrasound machines. “We believe medical abortion will be the first affordable and most common type of abortion to be provided, so we are working to ensure that providers have access to the training as well as the necessary medication,” he said.

If the VA is unable to immediately provide the care needed, Elnahal said veterans and beneficiaries can use community providers or travel to other VA communities or facilities, and the VA will cover the cost of that transportation when applicable. But on legal landscape It’s complicated. For those providers working in federally owned VA facilities, Elnahal said, “they will be protected by federal supremacy and the full force of the federal government will be there for them if they’re challenged on that.” But the same legal protections “may not necessarily be available” to providers working in non-VA facilities in states that have banned abortions, he said.

This can make it difficult to find community providers willing to help in states that have banned abortions, especially since many abortion clinics in those states have closed or stopped offering the procedure. “As abortion infrastructure and care infrastructure across the country continue to close as a result of state-level bans, Virginia will have a very difficult time implementing this policy,” Lindsay Church, executive director of Minority Veterans of America, who testified at Thursday’s hearing, told TIME.

The Constitution does provide some protection for people traveling to federal land to conduct federal business, Cohen and other legal experts say. The Privileges or Immunities Clause of the 14th Amendment can be used to protect patients or providers if states try to prosecute people for performing abortions at VA facilities. But Rachel Rebusche, dean of Temple University’s Beasley School of Law and an expert on reproductive health law, says the clause has been interpreted narrowly in the past, and it’s unclear how far the protections will go.

Even if states don’t take that legal route, Rebouché says they have the power to make life difficult for doctors if they participate. “Countries can target you in other ways. They may say it’s unethical, or they may attack your license. State medical boards have really broad authority to define what is ethical practice,” she says.

“It will really shine a light on the tension between federal and state regulations,” adds Rebusche. “It will really test our basic assumptions about federalism, about how states should relate to each other, about the role of federal law in the abortion arena.”

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Write to Abigail Abrams c [email protected].

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Write to Abigail Abrams c [email protected].

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