AThe new Department of Veterans Affairs rule (VA) is causing a significant clash between conservative states, and the federal government. Republican legislators vow to resist the VA’s policy of providing abortion services in all states except those that outlaw it.
Under the new rule, which took effect on Sept. 9, the VA will provide abortion counseling and abortions in cases of rape, incest, or when a pregnancy threatens the patient’s life to veterans and their eligible family members. It is a significant change. Previously, the VA did not offer abortions to veterans in any circumstance and its doctors were not allowed to advise patients.
This is the direct consequence of the Supreme Court’s decision to reverse this ruling Roe V. WadeThis summer saw a surge in abortion restrictions and bans across the nation. VA leaders said those restrictions created “urgent risks” for veterans and forced the agency to act. “This expansion is a patient safety decision first and foremost,” Dr. Shereef Elnahal, VA under secretary for health, told members of the House Veterans’ Affairs Committee on Thursday. “It is important to emphasize that VA is taking these steps with our primary mission in mind: to preserve the lives and health of veterans.”
The policy was cheered by Democrats, who have been pressing President Joe Biden to find ways to expand abortion access since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health OrganizationThe federal right to abort is gone. They said they hoped VA’s move would have broad appeal, given that the rule only allows for abortions in circumstances that track with other federal policies. Democratic Sen. Patty Murray of Washington called the change a “common sense policy” at a news conference on the topic last week, while Sen. Tammy Duckworth of Illinois, who lost her legs serving in Iraq, questioned why the government would be comfortable letting her use her body for war but not for her choice of how and when to start a family. “When is it that American women have the right to bodily autonomy?” she asked.
Republicans disagree. Republicans disagree. Alabama Attorney General Steve Marshall said last week he would enforce his state’s abortion ban, which outlaws all abortions except in cases that threaten the life of the pregnant person, against any practitioner who violates it. “I have no intention of abdicating my duty to enforce the Unborn Life Protection Act against any practitioner who unlawfully conducts 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 only allows for abortions in life-threatening cases, similarly told TIME she would enforce her ban despite the VA policy. “I stand ready to challenge the Biden Administration for trying to circumvent Arkansas law,” Rutledge said in a statement.
The Hyde Amendment prohibits federal funding for most abortion-related services, but it allows for similar exceptions to the VA’s rule—and it only applies to funds appropriated for the Departments of Labor, Health and Human Services, and Education, not the VA. Republicans argue the VA’s policy violates other laws, including the Veterans Health Care Act of 1992, which excluded abortions from the medical care the VA was allowed to provide. Democrats counter that the Veterans Health Care Eligibility Reform Act of 1996 allows the VA secretary to “furnish hospital care and medical services” determined to be “needed,” including abortion.
Legal experts and officials from VA say that the agency has a solid legal foundation as it implements its new policy. This is especially due to federal preemption. “The federal government gets to make law and states can’t say, ‘we don’t want to follow that,’” says David Cohen, a law professor at Drexel University. “So a state that tried to sue to say the VA can’t do this would be contravening that fundamental principle of American law.”
The legal discussion could have a significant impact on thousands of women who are seeking treatment. About 260,000 women veterans of reproductive age live in states with severe abortion restrictions, according to Kayla Williams, a RAND Corporation researcher and former director of the VA’s Center for Women Veterans, who testified at the hearing. The policy changes could have an impact on approximately 96,200 VA patient’s lives. Elnahal indicated that initially, he expected about 1000 VA-supported abortions to occur per year. However, this number could rise as the population of female veterans continues to grow.
Republicans said during Thursday’s committee hearing that they would support legal challenges to the policy and threatened to go after the VA’s budget if they retake control of Congress in November. “This is not only wrong, it’s illegal,” said ranking committee member Rep. Mike Bost, a Republican from Illinois. Bost stated that he would work with Senate colleagues and members of the House appropriations panel on any potential sanctions. “Abortion is not health care, no matter what those on the other side of this issue may feel.”
Logistical and legal challenges
Regardless of whether the VA policy is challenged in court, it will be complex to implement, and it’s unlikely that its providers will be ready right away to provide a range of abortion services.
A major challenge is that the VA builds infrastructure to support the plan 24/7. It has yet to say when the VA will offer abortions. Elnahal explained to lawmakers that the VA is working with facilities to make it possible to provide abortions. This includes making pregnancies available in all areas and performing a survey on the availability of ultrasonic machines. “We believe medication abortion will be the first available and most common type of abortion provided, so we are working to ensure providers have access to training as well as the needed medications,” he said.
Elnahal explained that beneficiaries and veterans can travel to VA facilities or use community services if they are not able to get the care they need. If this happens, the VA will reimburse the costs of transportation. However, the legal system is not straightforward. For those providers working at VA facilities on federal property, Elnahal said “they will be protected under federal supremacy and the full force of the federal government will be there for them should they be challenged on that.” But the same legal protections would “not necessarily be available” for providers working in non-VA facilities in states that have banned abortion, he said.
These restrictions could mean it is difficult to locate community providers who are willing to assist in state that ban abortion. This is especially true since many clinics offering abortion in these states have either closed down or stopped offering it. “As the abortion infrastructure and the infrastructure for care across the country continues to shut down as a result of state level bans, VA is going to have a really hard time implementing this policy,” Lindsay Church, executive director of Minority Veterans of America who testified at the hearing on Thursday, told TIME.
Cohen and other experts agree that the Constitution provides some protections to people who travel to federal land for federal business. The 14th Amendment’s privileges or immunities clause could be used to protect patients or providers if states try to go after people for providing abortions at VA facilities. But Rachel Rebouché, 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 would go.
Even if states don’t take that legal route, Rebouché says they have the power to make doctors’ lives difficult if they participate. “States could target you in other ways. They could say that it’s unethical, or they could attack your license. State medical boards have really broad authority to define what is ethical practice,” she says.
“It really is going to shine a spotlight on tensions between federal and state regulations,” Rebouché adds. “It really is going to test our fundamental assumptions about federalism, about how states should treat each other, about the role of federal law in the abortion arena.”
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