Summary
The primary mission of the Veterans Health Administration (VHA) of the Department of Veterans Affairs (VA) is to provide health care services to veterans. To accomplish this goal, VA has promulgated regulations to create a standard medical benefits package. The medical benefits package expressly excludes abortion services, effectively prohibiting VA providers from providing those services to veteran patients. VHA provides medically necessary health care for the management of a miscarriage.
Recent rulemaking, published on September 9, 2022, established exceptions to the prohibition on abortion services when the life or health of the pregnant veteran is at risk or when the pregnancy is the result of rape or incest. The rulemaking also authorized VA to provide abortion counseling, among other things. This rulemaking is the subject of joint resolutions in the 118th Congress that would disapprove the rule under the Congressional Review Act (Title II, Subtitle E, P.L. 104-121).
It is unclear whether this prohibition on abortion services is required by statute or solely by regulation—a result of potentially conflicting language in the Veterans Health Care Act of 1992 (P.L. 102-585) and the Veterans' Health Care Eligibility Reform Act of 1996 (P.L. 104-262). In recent years, Congress has considered bills to require VA to include abortion counseling in the medical benefits package—something that was authorized in recent rulemaking.
VHA also provides health care to dependents, spouses, and caregivers of veterans who meet certain eligibility criteria through the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA). Under CHAMPVA, VA is to pay for the cost of abortion services only under certain circumstances, such as if a physician certifies that the life of the mother would be endangered should the fetus be carried to term. Under recent rulemaking, CHAMPVA is to also pay for abortion services if the pregnancy is the result of rape or incest, or if the health of the CHAMPVA beneficiary is at risk.
This report describes VA's policy on coverage for abortion services and related counseling, including the legal authority upon which the prohibition on abortion services is based. It also details considerations for Congress related to the legal authority for VA to provide abortions.
Introduction
The Veterans Health Administration (VHA) of the Department of Veterans Affairs (VA) operates the nation's largest public integrated direct health care delivery system.1 VHA provides care to approximately 6.5 million unique veteran patients on an annual basis.2 VHA's primary mission is to provide health care services to eligible veterans.3 VHA generally provides care directly through over 1,700 sites of care, including hospitals, clinics, and health care facilities.4
VHA is primarily a direct provider of care. It directly operates associated facilities and employs clinicians.5 This model differs from the predominant health care financing and delivery model in the United States, in which there is a payer for health care services (e.g., Medicare, private health insurance plan), a provider (e.g., hospital, physician), and a recipient of care (the patient). VHA is not a health insurance financing program that provides reimbursement to providers for all or a portion of a patient's health care costs.
VA has established, through regulation, a medical benefits package to standardize care provided to patients enrolled in the system.6 The medical benefits package includes, among other things, inpatient care, outpatient care, and prescription drugs.7
VHA also provides health care to dependents, spouses, and caregivers of veterans who meet certain eligibility criteria through the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA).8 Unlike the provision of health care for veterans, which follows the standard medical benefits package, CHAMPVA is required to provide benefits similar to Department of Defense (DOD's) TRICARE Standard plan.9 Furthermore, CHAMPVA is primarily a health insurance program where enrollees receive care from private sector health care providers and CHAMPVA pays for a portion of the cost of care. This is in contrast to the provision of health care for veterans, which is generally provided by VA clinicians.
On June 24, 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women's Health Organization, a case challenging the constitutionality of Mississippi's Gestational Age Act, which generally prohibits an abortion once a fetus's gestational age is greater than 15 weeks. A majority of the Court not only upheld the Mississippi law but also overruled the Court's prior decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, concluding that the U.S. Constitution does not confer a right to an abortion.10
Shortly after the Supreme Court's decision in Dobbs, Adam M. Robinson, Director of the VA Pacific Islands Health Care System, stated that VA will continue to deliver reproductive health care consistent with the department's legal authority.11 Questions have been raised regarding VA's authority to provide abortions particularly since March 2021, when VA Secretary McDonough stated that the provision of abortion services is a "regulatory matter" in a hearing before the House Committee on Veterans' Affairs.12 Secretary McDonough's statements on the topic have generated responses from some Members of Congress stating that VA is prohibited from providing abortions by statute.13
VA's standard medical benefits package generally prohibits VA from providing abortion services.14 On September 9, 2022, VA published an interim final rule (IFR), effective immediately upon publication, which provided for exceptions to the prohibition on abortions within the standard medical benefits package.15 While VA continues to prohibit abortions generally within the standard medical benefits package, the IFR created exceptions to this prohibition. VA justified this regulatory change based on medical necessity stating the following:
As abortion bans come into force across the country, veterans in many States are no longer assured access to abortion services in their communities, even when those services are needed. VA has determined that an abortion is "needed" pursuant to 38 U.S.C. 1710, when sought by a veteran, if determined needed by a health care professional, when the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term or when the pregnancy is the result of an act of rape or incest. Unless VA removes its existing prohibitions on abortion-related care and makes clear that needed abortion-related care is authorized, these veterans will face serious threats to their life and health.16
This report (1) describes VA's current abortion policy and authority to provide abortions, (2) presents considerations for Congress regarding VA's authority to provide abortion services, and (3) summarizes legislation related to VA abortion policy in the 118th and 117th Congresses.
Historically, the VA medical benefits package expressly prohibited both abortion and abortion counseling.17 VHA generally did not provide abortions, abortion counseling, or medication to induce an abortion (e.g., mifepristone, also known as RU-486).18
Section 106 of the Veterans Health Care Act of 1992 (P.L. 102-585; Title 38 U.S.C. 1710 note) expressly excluded abortions, among other services, from the health care services it authorized the VA Secretary to provide. Furthermore, VA explicitly excluded abortion and abortion counseling from the medical benefits package when it was initially established through the rulemaking process in October 1999.19
The VA prohibition was more restrictive than prohibitions required by Hyde-type amendments to appropriations measures, which generally restrict federal funds from being used to pay for abortions except in cases of rape, incest, or life endangerment of the mother.20 The VA medical benefits package did not cover abortions or abortion counseling in any circumstance.
Medically necessary procedures for the management of a miscarriage are covered under the medical benefits package.21 In addition, VA provides care under the medical benefits package for ectopic pregnancies (i.e., pregnancy occurring outside the uterine cavity).22
Policy Changes Under Recent Rulemaking
As stated previously, on September 9, 2022, VA published an IFR, effective immediately upon publication, which provided for exceptions to the prohibition on abortions within the standard medical benefits package.23 Under the new rule, VA abortions continue to be prohibited except when
These exceptions bring VA policy closer to those of other federal agencies that provide abortion services under restrictions required by a Hyde-type amendment.
In addition, the IFR authorized VA to provide abortion counseling, which was previously explicitly prohibited under the standard medical benefits package.
Religious Accommodations for VHA Employees
The IFR does not discuss reasonable accommodations for providers who object to providing abortions due to religious belief. Some critics of the IFR have raised concerns that reasonable accommodations will not be considered.25 However, VA has long-standing policies to provide accommodations for religious exemption requests from its employees.26 On October 17, 2022, VA's Under Secretary for Health informed VHA employees that VA is committed to respecting individuals' sincere religious objections to participation in abortions or abortion counseling.27 VA later issued a memorandum to staff that detailed the religious accommodation and reasonable accommodation policy and provided guidance for employees with respect to abortions and abortion counseling.28
Unlike the medical benefits package for veterans, the CHAMPVA program—providing health care to certain dependents, spouses, and caregivers of veterans—had covered abortions and abortion counseling in limited circumstances prior to any changes authorized under the IFR. Specifically, the CHAMPVA program would cover the cost of abortion counseling or abortion procedures only if a physician certifies that the life of the mother would be endangered should the fetus be carried to term.29 In those cases, CHAMPVA would provide coverage for (1) spontaneous, missed, or threatened abortions and abortions related to ectopic pregnancies, or (2) fetal death due to natural causes.30 Dilation and evacuation (D&E) and dilation and curettage (D&C) procedures may be covered when done surgically for a gynecological diagnosis or covered abortion.31 Prior to publication of the IFR, CHAMPVA would not cover any abortion related to incest or rape.32
CHAMPVA Policy Changes under Recent Rulemaking
The IFR provided for additional circumstances under which abortion services are authorized for CHAMPVA beneficiaries. Specifically, the IFR authorizes abortions if the health of the CHAMPVA beneficiary is at risk. This policy change is a deviation from the TRICARE benefit, which authorizes abortions only when the life of the beneficiary is at risk. In addition, under the IFR, CHAMPVA provides coverage for abortions related to incest or rape.33
Legal Authority for VA Abortion Prohibition
It is unclear whether VA abortion services are strictly prohibited by statute or solely limited through the regulations establishing the standard medical benefits package. The lack of clarity stems from two laws enacted in the 1990s: (1) Section 106 of the Veterans Health Care Act of 1992 (P.L. 102-585; Title 38 U.S.C. 1710 note), which expressly excluded abortion services, among other services, from the health care services it authorized VA to provide,34 and (2) the Veterans' Health Care Eligibility Reform Act of 1996 (P.L. 104-262), which requires the VA Secretary to provide medical services determined to be "needed."35
Section 106 of the Veterans Health Care Act of 1992 (P.L. 102-585; 38 U.S.C. 1710 note) authorizes the VA Secretary to provide certain specified health care services for women, including general reproductive health services. The section excludes the provision of infertility services, abortions, and most pregnancy care.36 VA has since included pregnancy care in the standard medical benefits package. VA has also included infertility services to a certain extent.37
The Veterans' Health Care Eligibility Reform Act of 1996 (P.L. 104-262) provided new eligibility criteria for VA hospital care and medical services. Previously, VA's general authority limited the Secretary to providing hospital and outpatient care deemed "needed for the care of a 'disability.'" The 1996 law removed this barrier and allows the Secretary to provide health care determined to be "medically needed."
The medical benefits package was created through rulemaking following enactment of the Veterans' Health Care Eligibility Reform Act of 1996 (P.L. 104-262). VA included some fertility services and maternity care in the original iteration of the standard medical benefits package. There is little in-depth discussion or rationale as to why VA included or excluded certain services from the medical benefits package when it was established. VA provided the following rationale for the inclusion of pregnancy and infertility services:
The 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 proposed 'medical benefits package' is intended to meet these criteria.
Commenters asserted that infertility services, pregnancy and delivery, surgical implantation of penile prostheses, and membership in spas and health clubs should be included in the medical benefits package. As noted above, the medical benefits package would include 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. Upon reconsideration, we conclude that pregnancy and delivery services (to the extent we have legal authority to provide such services) meet these criteria and should be included in the medical benefits package. We also conclude that membership in spas and health clubs does not meet these criteria and should not be included. Further, under these criteria, we have determined that reproductive sterilization, surgery to reverse voluntary sterilization, infertility services (other than in vitro fertilization), and surgical implantation of penile prostheses should not be excluded. Appropriate changes are made to the medical benefits package to reflect these determinations.38
This excerpt explains that VA included services prohibited under Section 106 of the 1992 law because it deemed those services to be ''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.''
Regarding infertility services, which the 1992 law also expressly prohibited, Congress has included funds for the provision of in vitro fertilization in annual appropriations language since FY2017.39 This service is provided with narrow eligibility related to a service-connected disability that prevents procreation.
VA's justification for including pregnancy care and infertility services in its medical benefits package suggests that VA could potentially interpret the 1996 law as similarly allowing VA to provide "medically needed" abortion coverage.40 Some maintain that the 1992 law continues to prohibit abortion coverage.41
Legislative Activity in the 117th and 118th Congress
118th Congress
Members have introduced joint resolutions of disapproval under the Congressional Review Act (CRA; Title II, Subtitle E, P.L. 104-121) in both the House (H.J.Res. 31) and the Senate (S.J.Res. 10) to overturn the interim final rule (IFR).42 If enacted, the IFR would immediately go out of effect. The VA standard medical benefits package would revert to prohibiting abortion services with no exception. It would also prohibit VA from providing abortion counseling. In addition, CHAMPVA would be prohibited from covering the cost of abortions in all cases except when the life of the CHAMPVA beneficiary is at risk. Disapproval of a rule under the CRA also prohibits an agency from issuing a disapproved rule in "substantially the same form" unless Congress provides subsequent statutory authorization.43
117th Congress
The Reproductive Health Information for Veterans Act (H.R. 345, 117th Congress) would have required the VA Secretary to provide abortion counseling to a veteran who has an unwanted pregnancy. As noted above, abortion counseling was recently authorized under the interim final rule.
The bill specified that abortion counseling must include (1) options for veterans with unwanted pregnancies, including abortion; (2) accurate health information based on the health of the veteran regarding those options; and (3) information regarding the nearest location where a veteran can safely receive an abortion.
The House Veterans' Affairs Committee held a hearing on H.R. 345 on June 22, 2022.44 In written testimony, VA expressed support for the bill with technical amendments. VA noted that VA providers face an ethical challenge, as they must adhere to professional standards and clinical practice guidelines regarding abortion counseling while also complying with VA's regulations prohibiting such counseling.45
This bill has not been introduced in the 118th Congress.
| 1. |
Department of Veterans Affairs, FY2023 Congressional Submission, Medical Programs and Information Technology Programs, vol. 2 of 4, March 2022, p. VHA-21. |
| 2. |
Ibid., p. VHA-39. |
| 3. |
38 U.S.C. §7301. |
| 4. |
Department of Veterans Affairs, FY2023 Congressional Submission, Medical Programs and Information Technology Programs, vol. 2 of 4, March 2022, p. VHA-21. |
| 5. |
VHA does pay for care in the community (i.e., non-VA providers) under certain circumstances. The VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 (VA MISSION Act; P.L. 115-182) established the Veterans Community Care Program (VCCP), which requires VHA to provide for care in the community to all enrolled veterans who meet specified criteria. |
| 6. |
38 C.F.R. §17.38. |
| 7. |
For more information on VA health care in general, see CRS Report R42747, Health Care for Veterans: Answers to Frequently Asked Questions. |
| 8. |
For more information on CHAMPVA, see CRS Report RS22483, Health Care for Dependents and Survivors of Veterans. |
| 9. |
38 U.S.C. §1781(b). For more information on TRICARE, see CRS Report R45399, Military Medical Care: Frequently Asked Questions. |
| 10. |
For more information on the Dobbs decision, see CRS In Focus IF12269, Regulating Reproductive Health Services After Dobbs v. Jackson Women's Health Organization. |
| 11. |
Adam M Robinson Jr., Director, "Directors Message," press release, July 1, 2022, https://www.va.gov/pacific-islands-health-care/stories/directors-message-july-1-2022/. |
| 12. |
U.S. Congress, House Committee on Veterans' Affairs, Restoring Faith by Building Trust: VA's First 100 Days, 117th Cong., 1st sess., March 25, 2021. |
| 13. |
Office of United States Senator Jerry Moran, "Sen. Moran: VA's Prohibition on Abortion Services is the Law," press release, August 4, 2021, https://go.usa.gov/xJK4k. |
| 14. | |
| 15. |
Department of Veterans Affairs, "Reproductive Health Services," 87 Federal Register 55287-55296, September 9, 2022, https://www.federalregister.gov/documents/2022/09/09/2022-19239/reproductive-health-services. When an agency finds that it has good cause to issue a final rule without first publishing a proposed rule, it often characterizes the rule as an "interim final rule," or "interim rule." This type of rule becomes effective immediately upon publication. In most cases, the agency stipulates that it will alter the interim rule if warranted by public comments. If the agency decides not to make changes to the interim rule, it generally will publish a brief final rule in the Federal Register confirming that decision; see https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf. |
| 16. |
Ibid. |
| 17. | |
| 18. |
VA, VHA, Health Care Services for Women Veterans, VHA Directive 1330.01(2), February 15, 2017. |
| 19. |
Department of Veterans Affairs, "Enrollment Provisions and Medical," 64 Federal Register 54210, October 6, 1999, https://www.govinfo.gov/content/pkg/FR-1999-10-06/pdf/99-25871.pdf. |
| 20. |
For more information, see CRS In Focus IF12167, The Hyde Amendment: An Overview. Annual VA appropriations measures generally have not included a Hyde-type amendment restricting funds from being used for providing abortion services. |
| 21. |
A miscarriage, or pregnancy loss, is also called a spontaneous abortion, which is "the unexpected loss of a fetus before the 20th week of pregnancy, or gestation." (Source: https://www.nlm.nih.gov/medlineplus/miscarriage.html.) For clinical purposes, "spontaneous abortion often is subdivided into threatened abortion, inevitable abortion, incomplete abortion, missed abortion, septic abortion, recurrent spontaneous abortion, and complete abortion." (Source: Craig P. Griebel et al., "Management of Spontaneous Abortion," American Family Physician, vol. 72, no. 7, October 1, 2005, pp. 1243-1250). In some cases, the procedures used for management of a miscarriage are the same as those used for an abortion (i.e., dilation and curettage). Health Care Services for Women Veterans, VHA Directive 1330.01(2), February 15, 2017. |
| 22. |
VA, VHA, Maternity Health Care and Coordination, VHA Directive 1330.03, November 3, 2020, p. 2. VA directives do not describe the type of care provided for ectopic pregnancy. VA Secretary McDonough stated in a press conference that VA provides lifesaving care for some complications of early pregnancy such as an ectopic pregnancy. The Secretary stated that this care is not abortion services. VA, VA Secretary Press Conference, July 20, 2022, https://www.youtube.com/watch?v=UpFKk5NFhF0. |
| 23. |
Department of Veterans Affairs, "Reproductive Health Services," 87 Federal Register 55287-55296, September 9, 2022, https://www.federalregister.gov/documents/2022/09/09/2022-19239/reproductive-health-services. |
| 24. |
38 C.F.R. § 17.38(c)(1). |
| 25. |
Letter from Lynn Fitch, Attorney General of Mississippi, et al. to Denis R. McDonough, Secretary of Veterans Affairs, November 17, 2022, https://www.ago.state.ms.us/2022/11/17/attorneys-general-put-biden-va-on-notice-about-lawless-and-hasty-abortion-rule-111722/. |
| 26. |
For VA policy on religious and reasonable accommodations, see VA Directive 5975, Diversity and Inclusion, April 29, 2021, https://www.va.gov/vapubs/viewPublication.asp?Pub_ID=668&FType=2. For VA policy on processing accommodation requests, see VA Handbook 5975.1, Processing Requests for Reasonable Accommodation and Personal Assistance Services for Employees and Applicants with Disabilities, April, 18, 2022, https://www.va.gov/vapubs/viewPublication.asp?Pub_ID=732&FType=2. |
| 27. |
Carter v. McDonough, 6:22-cv-01275 pp. 6-7 (Texas Western 2023). |
| 28. |
Ibid. |
| 29. |
38 C.F.R. §17.272(a)(67),(68). Also see Department of Veterans Affairs, Office of Community Care, CHAMPVA Operational Policy Manual, Chapter: 2 Section: 14.2 Title: Abortions, available at https://www.vha.cc.va.gov/. |
| 30. |
38 C.F.R. §17.270(a). 38 C.F.R. §17.272(a). |
| 31. |
Department of Veterans Affairs, Office of Community Care, CHAMPVA Operational Policy Manual, Chapter: 2 Section: 14.2 Title: Abortions, available at https://www.vha.cc.va.gov/. |
| 32. |
TRICARE covers the cost of abortion when there is a threat to the life of the mother or in cases of rape or incest, as directed by 10 U.S.C. §1093 (a) and (b). For more information, see CRS Insight IN11960, FY2023 NDAA: Military Abortion Policies. |
| 33. |
38 C.F.R. §17.272. |
| 34. |
Section 106 authorized general reproductive health care, including the management of menopause, but did not include 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. 38 U.S.C. §1710 note. |
| 35. |
P.L. 104-262 §101, 38 U.S.C. §1710(a). |
| 36. |
Section 106 of P.L. 102-585 authorized pregnancy care for such care relating to a pregnancy that is complicated or in which the risks of complication are increased by a service-connected condition. |
| 37. |
Pregnancy care: Title 38 C.F.R. §17.38(a)(1)(xii). In vitro fertilization is excluded in the medical benefits package [38 C.F.R. §17.38(c)(2)] but Congress has authorized a narrow exception has in annual appropriations measures since FY2017 (38 C.F.R. §17.380). |
| 38. |
Department of Veterans Affairs, "Enrollment Provisions and Medical," 64 Federal Register 54210, October 6, 1999. https://www.govinfo.gov/content/pkg/FR-1999-10-06/pdf/99-25871.pdf. |
| 39. |
The following appropriations acts have provided authority to use funds for in vitro fertilization since FY2017: Section 260 of the Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and the Zika Response and Preparedness Act (P.L. 114-223); Section 236 of Division J of the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2018 (P.L. 115-141); Section 235 of the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019 (P.L. 115-244); Section 235 of the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2020 (Division F of the Further Consolidated Appropriations Act, 2020; P.L. 116-94); Section 234 of Division J of the Consolidated Appropriations Act, 2021 (P.L. 116-260); Section 234 of Division J of the Consolidated Appropriations Act, 2022 (P.L. 117-103); and Section 234 of Division J of the Consolidated Appropriations Act, 2023 (P.L. 117-328). |
| 40. |
VA Secretary McDonough states that the abortion counseling prohibition is a regulatory matter. U.S. Congress, House Committee on Veterans' Affairs, Restoring Faith by Building Trust: VA's First 100 Days., 117th Cong., 1st sess., March 25, 2021. |
| 41. |
Office of United States Senator Jerry Moran, "Sen. Moran: VA's Prohibition on Abortion Services is the Law," press release, August 4, 2021, https://go.usa.gov/xJK4k. |
| 42. |
Interim final rules are considered final rules that carry the force and effect of law, and an interim final rule that satisfies the CRA's definition of rule will be subject to the CRA. For more information, see CRS In Focus IF10023, The Congressional Review Act (CRA): A Brief Overview. |
| 43. |
5 U.S.C. §801(b)(2). The CRA does not define "substantially the same." For a discussion of this issue, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions. |
| 44. |
U.S. Congress, House Committee on Veterans' Affairs, Subcommittee on Health, Legislative Hearing, 117th Cong., 2nd sess., June 22, 2022. |
| 45. |
Testimony of VA representatives, in U.S. Congress, House Committee on Veterans' Affairs, Subcommittee on Health, Legislative Hearing, 117th Cong., 2nd sess., June 22, 2022, p. 2. https://docs.house.gov/meetings/VR/VR03/20220622/114857/HHRG-117-VR03-Wstate-MillerM-20220622-U1.pdf VA raised four technical issues with the bill as written: (1) the language does not limit counseling to veterans enrolled in VA health care; (2) the bill does not define "unwanted pregnancy" and VA suggests revising the language as to not limit counseling to certain types of pregnancies; (3) VA suggests revising the language to authorize VA to provide counseling on the full range of options regarding pregnancy; and (4) it is unclear how it would obtain information on the nearest location where a veteran can receive an abortion. |