Abortion battle emerges in Congress over new Veterans Affairs rule

·6-min read

In an unprecedented move, the Department of Veterans Affairs will provide abortion services, regardless of state laws, in response to the Supreme Court decision overturning the federal right to an abortion.

Under the final interim rule that took effect on Sept. 9, the VA will provide abortion counseling and abortions — in cases of rape, incest or when the life or health of the pregnant patient is endangered — to veterans and eligible family members.

“This is a patient safety decision,” VA Secretary Denis McDonough said in a statement. “Pregnant Veterans and VA beneficiaries deserve to have access to world-class reproductive care when they need it most. That’s what our nation owes them, and that’s what we at VA will deliver.”

Jennifer Oliva, a law professor at the University of California Hastings College of the Law, told Yahoo News, “This rule is unprecedented and marks the first time in United States history that this federal agency is extending abortion health care to veterans and VA beneficiaries.” An Army veteran herself, Oliva added, “The Republicans are not taking this position from the [Biden] administration or the Democrats lying down.”

Republicans like Sen. James Lankford of Oklahoma and Rep. Mike Bost of Illinois are questioning the legality of the VA’s policy change, citing the Veterans’ Health Care Act of 1992, which prohibits the VA from offering abortion services.

On the other side of the aisle, Democrats like Rep. Mark Takano of California point to the Veterans’ Health Care Eligibility Reform Act of 1996, which authorizes the VA secretary to determine which health care services are needed. The VA also cites the law in its final interim rule, published in the Federal Register.

So does the Department of Veterans Affairs under the Biden administration have the authority to change its health care policy to include abortion services? Oliva and Benjamin McMichael, associate law professor at the University of Alabama School of Law, spoke to Yahoo News to help explain the legality of this emerging abortion battle in Congress. Read their perspectives below. (Some responses have been edited for length and clarity.)

Yahoo News: What is the Republicans’ argument for challenging the Veterans Affairs interim final rule?

Jennifer Oliva: Republicans are relying on Section 106 of the Veterans' Health Care Act of 1992.

This section of the statute that the Republicans are relying on states that VA can provide women with a bunch of preventative services: Pap smears, breast examinations, mammography and general reproductive health care. But it goes on to say — and this is where Republicans are hanging their hat — but not including infertility services, abortions or pregnancy care, except when the pregnancy is complicated or risks of complication can increase a service-connected condition. So even in Section 106, on which the Republicans are relying, I want to emphasize there is exception for complicated pregnancies. And what the breadth and scope of that means, we shall see.

The Biden administration would come back and say Section 106 never limited the VA's authority to provide health care under any other provisions. The 1996 act is a later-in-time law, which generally trumps an earlier one in any event. And the old system was revamped intentionally in that 1996 law. Even if you don't agree with the narrow interpretation, the 1996 law wins the day. That's the comeback to the Republicans’ position here.

What is the argument from the VA and Democrats as to why this abortion policy can take effect?

Benjamin McMichael: The Democrats are pointing to a 1996 act of Congress that changed how the Department of Veterans Affairs decides what services are provided, what services aren't provided. Democrats are really leaning heavily into this idea that the secretary of the VA, which is basically the administrative machinery of the VA, can decide what medical services are needed — and this word “needed” is really important.

So the VA final interim rule leans into this and basically says the secretary of veterans' affairs — in this case, Denis McDonough — has determined that abortion services are needed in a post-Dobbs world, and that is perfectly consistent with the 1996 act, giving the secretary the authority to make that determination. So that's what the VA is leaning into as well.

Oliva: The Biden administration is clear that the VA rule preempts contrary state laws and that therefore, so long as a state health care professional is acting within the scope of the new VA rule and their VA duties, they are immune from more restrictive state laws and regulations. The VA has a strong argument here because veterans' law in the United States is exclusively federal law.

The states do not and cannot regulate military veteran benefits under our federal system. Period, full stop. That's not controversial. In fact, I would go so far as to say the federal government is at the height of its exclusive and preemptive powers when it comes to military and veterans' law.

Moreover, this isn't new. The VA has issued a regulation that confirms the ability of VA professionals to practice their health care profession consistent with the scope and requirements of their VA employment. And that rule says: notwithstanding any state license, registration, certification or other requirements that unduly interfere with their practice.

So this is a rule that's already on the books, the administration isn't inventing anything new, and this has not been controversial previously. I think that it's certainly going to be debated widely in this context.

Based on these legal arguments, does the Biden administration have solid or shaky legal footing in order to update the VA’s policy on abortion?

Oliva: In my view, the Biden administration has adopted the most plausible reading of the 1992 and 1996 acts for a couple reasons. First, Section 106 of the Veterans' Health Care Act of 1992 is limited on the face of the text and does not appear to extend to any other health care provision. So if you're a textualist, an original-meaning person, you ought to like that position.

Second, and perhaps most importantly, in the Veterans’ Health Care Eligibility Reform Act of 1996. Congress extended to VA the express authority to determine the scope of its medical benefits package based on individual veteran need.

McMichael: I wouldn't say they're on shaky footing, but I would not describe their footing as absolutely rock solid either.

The issue here is whether the '96 law really granted the secretary of the VA to go above and beyond the '92 act. The VA is making some compelling arguments that yes, in fact, not only did the '96 act provide this extra authority, but Congress has implicitly ratified this authority in the past. That doesn't mean that they're absolutely going to win.

So while I never want to say who's going to win in any particular litigation, the Biden administration certainly provided plausible arguments as to the VA having this authority.

Now to be clear, this is the early stages of potential litigation — a legal battle. There may be other acts out there that Republicans or Democrats haven't considered yet.