Reproductive Health Services, 55287-55296 [2022-19239]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 87, Number 174 (Friday, September 9, 2022)]
[Rules and Regulations]
[Pages 55287-55296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19239]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AR57


Reproductive Health Services

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Department of Veterans Affairs (VA) amends its medical 
regulations to remove the exclusion on abortion counseling and 
establish exceptions to the exclusion on abortions in the medical 
benefits package for veterans who receive care set forth in that 
package, and to remove the exclusion on abortion counseling and expand 
the exceptions to the exclusion on abortions for Civilian Health and 
Medical Program of the Department of Veterans Affairs (CHAMPVA) 
beneficiaries.

DATES: 
    Effective date: This interim final rule is September 9, 2022.
    Comment date: Comments must be received on or before October 11, 
2022.

ADDRESSES: Comments may be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: https://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the individual will take actions to harm 
the individual. VA encourages individuals not to submit duplicative 
comments. We will post acceptable comments from multiple unique 
commenters even if the content is identical or nearly identical to 
other comments.

FOR FURTHER INFORMATION CONTACT: Dr. Shereef Elnahal, Under Secretary 
for Health, Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420, (202) 461-7671.

SUPPLEMENTARY INFORMATION:

I. Background

A. Brief Summary of this Interim Final Rule

    On June 24, 2022, the Supreme Court in Dobbs v. Jackson Women's 
Health

[[Page 55288]]

Organization, 142 S. Ct. 2228 (2022), overruled Roe v. Wade, 410 U.S. 
113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. 
Casey, 505 U.S. 833 (1992). Dobbs, 142 S. Ct. at 2279. After Dobbs, 
certain States have begun to enforce existing abortion bans and 
restrictions on care, and are proposing and enacting new ones, creating 
urgent risks to the lives and health of pregnant veterans and CHAMPVA 
beneficiaries in these States. In response, VA is acting to help to 
ensure that, irrespective of what laws or policies States may impose, 
veterans who receive the care set forth in the medical benefits package 
will be able to obtain abortions, if determined needed by a health care 
professional, when the life or the health of the pregnant veteran would 
be endangered if the pregnancy were carried to term or the pregnancy is 
the result of an act of rape or incest. Similarly, VA is acting to 
ensure CHAMPVA beneficiaries will be able to obtain abortions, if 
determined medically necessary and appropriate, when the health of the 
pregnant CHAMPVA beneficiary would be endangered if the pregnancy were 
carried to term or the pregnancy is the result of an act of rape or 
incest.
    VA is taking this action because it has determined that providing 
access to abortion-related medical services is needed to protect the 
lives and health of veterans. See section 1710 of title 38, United 
States Code (U.S.C.); Sec.  17.38(b) of title 38, Code of Federal 
Regulations (CFR). 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.
    Similarly, VA has determined that providing access to abortion-
related medical services is medically necessary and appropriate to 
protect the health of CHAMPVA beneficiaries. See 38 U.S.C. 1781; 38 CFR 
17.270(b) (defining ``CHAMPVA-covered services and supplies'' as 
``those medical services and supplies that are medically necessary and 
appropriate for the treatment of a condition and that are not 
specifically excluded under [38 CFR 17.272(a)(1)] through (84)''). 
CHAMPVA beneficiaries in many States are also no longer assured access 
to abortion services in their communities. Unless VA removes existing 
prohibitions on abortion-related care and makes clear that medically 
necessary and appropriate abortion-related care is authorized, these 
CHAMPVA beneficiaries will face serious threats to their health.
    VA is therefore taking this action to avert imminent and future 
harm to the veterans and CHAMPVA beneficiaries whose interests Congress 
entrusted VA to serve.

B. VA Authority To Provide Abortions and Abortion Counseling Under 38 
U.S.C. 1710 (Medical Benefits Package)

    Pursuant to VA's general treatment authority for veterans, VA 
``shall furnish'' specified veterans with ``hospital care and medical 
services which the Secretary determines to be needed.'' 38 U.S.C. 
1710(a)(1)-(2). For veterans not described in paragraphs (1) and (2), 
the Secretary ``may,'' subject to certain limitations, ``furnish 
hospital care'' and ``medical services . . . which the Secretary 
determines to be needed.'' 38 U.S.C. 1710(a)(3). As relevant here, such 
``medical services'' include ``medical examination, treatment,'' 
``[s]urgical services,'' and ``[p]reventive health services.'' 38 
U.S.C. 1701(6).
    VA implements its general treatment authority, and the Secretary 
determines what care is ``needed,'' 38 U.S.C. 1710(a)(1)-(3), by 
regulation through VA's medical benefits package. 38 CFR 17.38. The 
medical benefits package consists of a wide range of basic and 
preventive care, including inpatient and outpatient medical and 
surgical care, prescription drugs, emergency care (as authorized by 
statute and regulation), pregnancy and delivery services (to the extent 
authorized by law),\1\ and periodic medical exams. 38 CFR 17.38(a). 
Care included in the medical benefits package is ``provided to 
individuals only if it is determined by appropriate health care 
professionals that the care is needed to promote, preserve, or restore 
the health of the individual and is in accord with generally accepted 
standards of medical practice.'' 38 CFR 17.38(b).
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    \1\ The language ``to the extent authorized by law'' in 38 CFR 
17.38 means to the extent VA has legal authority to provide such 
services under 38 U.S.C.1710. 64 FR 54210 (Nov. 10, 1999).
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    Some care is specifically excluded from the medical benefits 
package because the Secretary has determined it is not ``needed'' 
within the meaning of 38 U.S.C. 1710(a)(1)-(3). 38 CFR 17.38(c); 64 FR 
54207, 54210 (Oct. 6, 1999). Among other services, ``[a]bortions and 
abortion counseling'' are currently excluded from the medical benefits 
package, with no exceptions. 38 CFR 17.38(c)(1).
    VA first established the medical benefits package in 1999. 64 FR 
54217. The Veterans' Health Care Eligibility Reform Act of 1996, Public 
Law 104-262, 10 Stat. 3177, mandated that VA implement a national 
enrollment system to manage the delivery of health care services to 
eligible veterans. When VA developed regulations to implement this 
national enrollment system, VA recognized the need to also regulate the 
health care services it provided. 64 FR 54210. VA did not explain the 
rationale behind the exclusion of abortions and abortion counseling 
from the medical benefits package when it was established in 1999. At 
the time, Roe had been reaffirmed in relevant part by Casey, and VA was 
aware that veterans of reproductive age enrolled in its health care 
system could access abortion services in their communities.
    After the Dobbs decision, however, veterans living in States that 
ban or restrict abortion services may no longer be able to receive such 
medical services in their communities, including in States that now 
restrict access to abortion even in cases of rape or incest or where 
the health of the pregnant individual is in danger. It is thus 
essential for the lives and health of our veterans that abortions be 
made available if determined needed by a health care professional when: 
(1) the life or health of the pregnant veteran would be endangered if 
the pregnancy were carried to term; or (2) the pregnancy is the result 
of an act of rape or incest. VA has also determined that abortion 
counseling is needed so that veterans can make informed decisions about 
their health care.
    VA has determined that such medical care is ``needed'' within the 
meaning of VA's general treatment authority, 38 U.S.C. 1710(a). This 
means that such care may be provided if an appropriate health care 
professional determines that such care is needed to promote, preserve, 
or restore the health of the individual and is in accord with generally 
accepted standards of medical practice. 38 CFR 17.38(b)(1)-(3). VA can 
therefore provide abortion counseling and covered abortions pursuant to 
38 U.S.C. 1710 and 38 CFR 17.38.
    The Veterans Health Care Act of 1992, Public Law 102-585, 106 Stat. 
4943 (VHCA), does not prohibit VA's amendment of its medical benefits 
package in this manner. When that law

[[Page 55289]]

was enacted in 1992, prior to the 1996 enactment of the Veterans' 
Health Care Eligibility Reform Act, VA health care was subject to a 
patchwork of eligibility criteria, and care was largely linked only to 
service-connected conditions. See 38 U.S.C. 1710 (Supp. I 1994) 
(authority under which hospital and nursing home care were provided 
prior to 1996); 38 U.S.C. 1712 (Supp. I 1994) (authority under which 
medical services were provided prior to 1996). The VHCA, in relevant 
part, was designed to improve the health care services available to 
women veterans.\2\ Section 106(a) of the VHCA stated that VA could 
provide ``women'' with ``[p]apanicolaou tests (pap smears),'' 
``[b]reast examinations and mammography,'' and ``[g]eneral reproductive 
health care . . . , but not including under this section 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.'' Public Law 102-585, sec. 106(a).\3\
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    \2\ 102 Cong. Rec. 32,367 (1992).
    \3\ Prior to the enactment of section 106(a), VA provided 
gynecology services, including mammograms and screening for cervical 
cancer, under the Department's authority to provide preventative 
health services pursuant to 38 U.S.C. 1762. General Accounting 
Office (GAO)/Human Resources Division (HRD)-92-23 VA Health Care for 
Women: Despite Progress, Improvements needed (January 1992) p. 3 
(https://www.gao.gov/assets/hrd-92-23.pdf). However, the legislative 
history of the VHCA generally, and section 106 specifically, 
indicates that Congress sought to provide statutory support for the 
services VA already provided pursuant to its existing authority. 
Senate Report No. 102-409, p. 40 (1992) (discussing the intent 
behind S. 2973, section 201, Well-women care services, ``The 
Committee expects that providing explicit authority to furnish 
cancer-screening procedures will lead VA to redouble its efforts in 
this critical area. The Committee believes that these services are 
not only vital to women veterans, but they are also in line with 
VA's goal to emphasize preventative health-care services within the 
system.''); see also 102 Congressional Record 34,299 (1992) (``The 
measure also incorporates the exception to the bar on furnishing 
pregnancy care reflected in VA regulations (at 39 CFR 17.48(h) 
[sic]) associated with care relating to a complicated pregnancy, as 
well as the instance in which the risks of complication are 
increased by a service-connected condition.'').
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    Section 106 did not limit VA's authority to provide care under any 
other provision of law. The ``but not including'' language in section 
106 of the VHCA limited only the services provided ``under this 
section,'' meaning that while section 106 barred the provision of any 
abortion or infertility service under section 106 of the VHCA, it did 
not limit VA's authority to provide such services under any other 
statutory provision such as 38 U.S.C. 1710 or 38 U.S.C. 1712. Public 
Law 102-585, sec. 106(a). Consequently, a veteran might have been 
eligible for infertility services for a service-connected disability 
under 38 U.S.C. 1712,\4\ even though that veteran would have been 
ineligible for infertility services under section 106 because of that 
section's exclusions. VA has consistently interpreted section 106 in 
this fashion.\5\
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    \4\ 102 Congressional Record 34,299 (1992).
    \5\ Veterans Health Administration (VHA) Directive 10-93-151, 
December 6, 1993; Letter from Secretary Denis McDonough to Senator 
Jerry Moran, July 7, 2021.
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    In 1996, the Veterans' Health Care Eligibility Reform Act made 
major changes to eligibility for VA health care and, as noted above, 
directed VA to establish a system of patient enrollment to manage the 
provision of care. The purpose behind eligibility reform was to replace 
the old system with a system where an enrolled veteran could receive 
whatever medical care and services are deemed needed. See House of 
Representatives Report No. 104-690, at 4 (1996) (``[The Act] would 
substitute a single uniform eligibility standard for the complex array 
of standards governing access to VA hospital and outpatient care. While 
the new standard is a simple one, more importantly, it employed a 
clinically appropriate `need for care' test, thereby ensuring that 
medical judgment rather than legal criteria will determine when care 
will be provided and the level at which that care will be 
furnished.''); id. at 13 (``[The Act] would substitute a single, 
streamlined eligibility provision--based on clinical need for care--for 
the complex array of disparate rules currently governing veterans' 
eligibility for hospital and outpatient care.''). The Veterans' Health 
Care Eligibility Reform Act effectively overtook section 106 of the 
VHCA.\6\ For example, a veteran in 1992 was only eligible for pregnancy 
and delivery care under section 106 if the pregnancy was complicated or 
the risks of complication were increased by a service-connected 
condition. Public Law 102-585, sec. 106(a). In contrast, general 
pregnancy and delivery services were included in the medical benefits 
package when it was established in 1999 pursuant to VA's authority in 
38 U.S.C. 1710. 64 FR 54210; 38 CFR 17.38(a)(1)(xiii). Moreover, while 
section 106 of the VHCA provided that infertility services could not be 
provided under that section, infertility services (with the exception 
of in vitro fertilization) were also included in the medical benefits 
package pursuant to VA's authority under 38 U.S.C. 1710. Id. 
Consequently, for decades, VA has offered general pregnancy care and 
certain infertility services under 38 U.S.C. 1710. Id. VA no longer 
relies on section 106 of the VHCA to provide such services or any other 
services.
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    \6\ As detailed above, section 106 of the VHCA was intended to 
reinforce VA's existing authority to provide preventative health 
care services to women veterans. See 38 U.S.C. 1762; 38 CFR 
17.30(m)(1); Public Law 102-585, sec. 513. The subsequent 1996 
amendments to 38 U.S.C. 1710 and the 1999 rulemaking establishing 
the medical benefits package overtook VA's need to rely on section 
106 to provide certain women's health care to women veterans.
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    Congress has ratified VA's interpretation that section 106 of the 
VHCA does not limit the medical care that the VA may provide pursuant 
to its authority under 38 U.S.C. 1710. Most recently, when Congress 
enacted the Deborah Sampson Act of 2020, Public Law 116-315, tit. V 
(2021), it created a central office to, inter alia, ``monitor[ ] and 
encourag[e] the activities of the Veterans Health Administration with 
respect to the provision, evaluation, and improvement of health care 
services provided to women veterans by the Department.'' 38 U.S.C. 
7310(b)(1). Congress defined ``health care'' for these purposes as 
``the health care and services included in the medical benefits package 
provided by the Department as in effect on the day before the date of 
the enactment of this Act [Jan. 5, 2021].'' 38 U.S.C. 7310 note.\7\ 
Given that VA's medical benefits package as of that date included 
services that were excluded from the coverage of Section 106 of the 
VHCA, Congress ratified VA's interpretation that it may provide for 
these services pursuant to its authority under 38 U.S.C. 1710, 
notwithstanding section 106. Indeed, the fact that the Deborah Sampson 
Act of 2020 did not reference section 106 of the VHCA and only 
referenced VA's medical benefits package shows that Congress did not 
interpret section 106 of the VHCA as a limitation on VA's authority to 
provide care to ``women veterans.'' \8\
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    \7\ 38 U.S.C. 7310(b)(6) authorizes the Office of Women's Health 
to ``promote the expansion and inclusion of clinical . . . 
activities of [VHA].'' Additionally, subsection (b)(9) authorizes 
the Office to ``carry out such other duties as the Under Secretary 
for Health may require.'' Thus, the Office of Women's Health can 
address health care and services that were not included in the 
medical benefits package on the day before the date of enactment of 
the Deborah Sampson Act of 2020.
    \8\ Letter to Denis McDonough from 24 U.S. Senators, July 28, 
2022.
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    Furthermore, the fact that VA does not rely on section 106 of the 
VHCA and instead relies on 38 U.S.C. 1710(a)(1)-(3) to provide pap 
smears, breast exams and mammography, or general reproductive health 
services, pregnancy or infertility services confirms that

[[Page 55290]]

section 106's prohibition on providing certain services ``under this 
section'' simply is no longer operative.
    VA's authority under 38 U.S.C. 1710 is different from authorities 
governing the provision of health care by other Federal agencies. 
Pursuant to the 1996 amendment, by statute, VA ``shall'' (and, for some 
categories of veterans, ``may'') furnish care that ``the Secretary 
determines to be needed'' to veterans, with no exclusion for abortion. 
38 U.S.C. 1710(a)(1)-(3). Other Federal agencies, by contrast, are 
subject to underlying statutory restrictions or restrictions in their 
appropriations acts concerning certain abortions. For instance, Federal 
funds available to the Departments of Labor, Health and Human Services, 
and Education are subject to an appropriations restriction known as the 
``Hyde Amendment.'' Congress has included the Hyde Amendment in those 
agencies' annual appropriations legislation for more than forty years. 
In its current form, the Hyde Amendment provides that no covered funds 
``shall be expended for any abortion'' or ``for health benefits 
coverage that includes coverage of abortion,'' except ``if the 
pregnancy is the result of an act of rape or incest; or . . . in the 
case where a woman suffers from a physical disorder, physical injury, 
or physical illness, including a life-endangering physical condition 
caused by or arising from the pregnancy itself, that would, as 
certified by a physician, place the woman in danger of death unless an 
abortion is performed.'' Consolidated Appropriations Act, 2022, Public 
Law 117-103, Div. H, secs. 506-07, 136 Stat. 49. The breadth of the 
Hyde Amendment's exception has varied over the years, but since fiscal 
year 1994, the Hyde Amendment has included an exception for the life of 
the woman and for pregnancies resulting from acts of rape or incest. 
See, e.g., Departments of Labor, Health and Human Services, and 
Education, and Related Agencies Appropriations Act, 1994, Public Law 
103-112, Sec. 509, 107 Stat. 1082, 1113 (1993). No similar statutory 
restriction applies to VA.

C. VA Authority To Provide Abortions and Abortion Counseling for 
CHAMPVA Beneficiaries

    By statute, VA's ``Secretary is authorized to provide'' specified 
``medical care'' to certain spouses, children, survivors, and 
caregivers of veterans who meet specific eligibility criteria. 38 
U.S.C. 1781(a). This health benefits program is known as CHAMPVA. VA 
must provide ``for medical care'' under CHAMPVA ``in the same or 
similar manner and subject to the same or similar limitations as 
medical care is'' provided by the Department of Defense to active-duty 
family members, retired service members and their families, and others 
under the TRICARE (Select) program. 38 U.S.C. 1781(b); see 32 CFR 
199.1(r), 199.17(a)(6)(ii)(D). VA has regulated services covered by 
CHAMPVA to mean those medical services that are medically necessary and 
appropriate for the treatment of a condition and that are not 
specifically excluded. 38 CFR 17.270(b).
    The current CHAMPVA regulations exclude coverage for abortions, 
except when a physician certifies that the abortion was performed 
because the life of the woman would be endangered if the fetus were 
carried to term, 38 CFR 17.272(a)(64), and also exclude coverage for 
abortion counseling, 38 CFR 17.272(a)(65). The current CHAMPVA 
regulations do not include coverage for abortions when the pregnancy is 
the result of an act of rape or incest.
    In contrast, TRICARE (Select) provides coverage for abortions when 
the pregnancy is the result of an act of rape or incest, or when a 
physician certifies that the life of the woman would be endangered if 
the fetus were carried to term, and it provides coverage for counseling 
for covered abortions.\9\
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    \9\ Covered Services, Abortions, TRICARE, https://tricare.mil/CoveredServices/IsItCovered/Abortions (last visited Aug. 22, 2022).
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    In this rule, VA amends its CHAMPVA regulations by removing the 
exclusion for abortion counseling and permitting abortions when the 
health of the pregnant beneficiary would be endangered if the pregnancy 
were carried to term, or when the pregnancy is the result of an act of 
rape or incest. This amendment will better align coverage under CHAMPVA 
with coverage under TRICARE (Select).
    Coverage under CHAMPVA will deviate from coverage under TRICARE 
(Select) because CHAMPVA will cover abortions when the health of the 
CHAMPVA beneficiary is at risk and will cover abortion counseling for 
non-covered abortions. VA, however, has determined that, overall, the 
relevant care provided under CHAMPVA will still be sufficiently 
``similar'' to that provided under TRICARE (Select). 38 U.S.C. 1781(b). 
Section 1781(b) does not require CHAMPVA and TRICARE (Select) to be 
administered identically. Rather, by referring to care that is 
``similar,'' the statute permits VA flexibility to administer the 
program for CHAMPVA beneficiaries. For this reason, not every aspect of 
CHAMPVA will find a corollary in TRICARE (Select).
    VA has previously deviated from TRICARE (Select) in amending its 
CHAMPVA regulations to provide care that goes beyond the benefits 
offered by TRICARE (Select). Generally, VA determined that these 
deviations were necessary to best provide services to the CHAMPVA 
population while remaining ``similar'' to TRICARE (Select). For 
example, TRICARE (Select) does not include an annual physical exam 
benefit for all TRICARE (Select) beneficiaries; instead, that benefit 
is limited to certain circumstances.\10\ VA has exercised its 
discretion to deviate from TRICARE (Select) and provide annual physical 
exams to all CHAMPVA beneficiaries. 38 CFR 17.272(30)(xiii). VA did not 
believe that limiting the provision of annual exams was appropriate 
from a clinical perspective. 83 FR 2396, 2401 (Jan. 17, 2018). Annual 
physical exams are beneficial for both CHAMPVA beneficiaries and VA 
because they may identify serious medical issues before they progress. 
Id. Additionally, TRICARE (Select) does not waive beneficiary costs 
associated with preventive services for TRICARE (Select) beneficiaries 
who are Medicare-eligible in cases in which those services are not 
covered by Medicare. VA's CHAMPVA regulations, however, do waive cost-
sharing requirements for preventive services for Medicare-eligible 
beneficiaries. VA determined that enforcing cost-sharing requirements 
for Medicare-eligible beneficiaries for preventive services would 
unfairly disadvantage them as compared to CHAMPVA beneficiaries with 
other health insurance. 83 FR 2404.
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    \10\ Covered Services, Physicals, TRICARE, https://tricare.mil/CoveredServices/IsItCovered/Physicals (last visited Aug. 22, 2022).
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    Thus, VA has previously regulated to provide CHAMPVA benefits 
beyond those benefits offered by TRICARE (Select) if providing such 
health care would better promote the long-term health of CHAMPVA 
beneficiaries. In so doing, VA is still providing for health care in a 
manner similar to TRICARE (Select), but the care is being provided in a 
manner that best serves the CHAMPVA population. Similarly, here, VA is 
aligning CHAMPVA benefits with TRICARE (Select) benefits in certain 
ways, VA is also providing benefits beyond those offered by TRICARE 
(Select) in order to better promote the long-term health of CHAMPVA 
beneficiaries. For the reasons discussed further below, VA finds that 
allowing abortions for CHAMPVA beneficiaries when there is a risk to 
the CHAMPVA

[[Page 55291]]

beneficiary's health and providing abortion counseling for both covered 
and noncovered abortions is both medically necessary and appropriate to 
promote the long-term health of CHAMPVA beneficiaries.

II. Abortions in Limited Circumstances Under 38 U.S.C. 1710 and 1781

A. Abortions When the Life or Health of the Pregnant Veteran Would Be 
Endangered if the Pregnancy Is Carried to Term Are Needed

    VA has determined that access to abortions is ``needed,'' 38 U.S.C. 
1710(a)(1)-(3), and such care may be provided to veterans when an 
appropriate health care professional determines that such care ``is 
needed to promote, preserve, or restore the health of the individual 
and is in accord with generally accepted standards of medical 
practice,'' 38 CFR 17.38(b), when the life or health of the pregnant 
veteran would be endangered if the pregnancy were carried to term. 
Abundant evidence supports VA's determination.
    Research has shown that while most pregnancies progress without 
incident, pregnancy and childbirth in the United States can result in 
physical harm and even death for certain pregnant individuals. From 
1998 to 2005, the U.S. mortality rate associated with live births was 
8.8 deaths per 100,000 live births, and maternal mortality rates have 
increased staggeringly since then.\11\ A 2019 study reviewed mortality 
data from 2007 to 2015 from the National Association for Public Health 
Statistics and Information Systems, which includes information on all 
deaths in the 50 States and the District of Columbia (DC). The data 
showed that, during this time, within 38 States and DC, the maternal 
mortality rate rose to 17.9 deaths of individuals per 100,000 live 
births. This study identified the factors that likely contributed to 
this rising maternal mortality rate, including reduced access to family 
planning and reproductive health services through abortion clinic 
closures and legislation restricting abortions based on gestational 
age.\12\
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    \11\ Elizabeth G. Raymond & David A. Grimes, The Comparative 
Safety of Legal Induced Abortion and Childbirth in the United 
States, 119 Obstetrics & Gynecology 215, 216 (2012); see also Marian 
F. MacDorman et al., Recent Increases in the U.S. Maternal Mortality 
Rate: Disentangling Trends from Measurement Issues, 128 Obstetrics & 
Gynecology 447 (2016) (finding a 26.6 percent increase in maternal 
mortality rates between 2000 and 2014).
    \12\ Summer Shelburne Hawkins et al., Impact of State-Level 
Changes on Maternal Mortality: A Population-Based, Quasi-
Experimental Study, Am. Journal of Preventive Medicine. 85(2): 165-
74 (2019).
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    Individuals at risk of pregnancy complications who do not have 
access to contraception or abortion may experience conditions resulting 
from pregnancies that can leave them at risk for loss of future 
fertility, significant morbidity, or death. According to the American 
College of Obstetricians and Gynecologists (ACOG) and Physicians for 
Reproductive Health, there are situations when pregnancy termination, 
in the form of treatment that may be considered to be an abortion, is 
the only medical intervention that can preserve a patient's health or 
save their life.\13\ Pregnancy poses significant physiological changes 
on an individual's body, which can exacerbate underlying or preexisting 
conditions, like renal or cardiac disease, and can severely compromise 
health or even cause death.\14\ During pregnancies, individuals may 
suffer from life-threatening conditions such as severe preeclampsia, 
newly diagnosed cancer requiring prompt treatment, and intrauterine 
infections.\15\ Preeclampsia is a disorder associated with new-onset 
hypertension that can result in blood pressure swings, liver issues, 
and seizures, among other conditions.\16\
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    \13\ Abortion Can Be Medically Necessary, Am. College of 
Obstetricians and Gynecologists, Sep. 25, 2019. https://www.acog.org/news/news-releases/2019/09/abortion-can-be-medically-necessary (last 
visited Aug. 22, 2022).
    \14\ Victoria L. Meah, et al., Cardiac output and related 
haemodynamics during pregnancy: a series of meta-analyses, Heart J., 
102:518-526 (2016).
    \15\ Abortions later in Pregnancy, Kaiser Family Foundation, 
Dec. 5, 2019. https://www.kff.org/womens-health-policy/fact-sheet/abortions-later-in-pregnancy/ (last visited Aug. 22, 2022).
    \16\ ACOG Practice Bulletin No. 222, Gestational Hypertension 
and Preeclampsia, Am. College of Obstetricians and Gynecologists 
(Dec. 2018).
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    Some pregnant veterans may be at heightened risk for other 
pregnancy complications including hemorrhage, placenta accreta 
spectrum, and peripartum hysterectomy, among others.\17\ Notably, the 
need for peripartum hysterectomy in such instances would cause not only 
morbidity, but loss of future fertility. Pregnancy-related 
complications may endanger the pregnant veteran's life or health. 
Abortion may be needed to protect the life or health of the pregnant 
veteran in these and other circumstances.
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    \17\ ACOG Practice Bulletin No. 183, Postpartum Hemorrhage, Am. 
College of Obstetricians and Gynecologists (Oct. 2017); ACOG 
Obstetric Care Consensus, Placenta Accreta Spectrum (July 2012, 
reaff'd 2021); ACOG Practice Bulletin No. 198, Prevention and 
Management of Obstetric Lacerations at Vaginal Delivery, Am. College 
of Obstetricians and Gynecologists (Sept. 2018); ACOG Clinical 
Consensus No. 1, Pharmacologic Stepwise Multimodal Approach for 
Postpartum Pain Management, Am. College of Obstetricians and 
Gynecologists (Sept. 2021).
---------------------------------------------------------------------------

    Veterans of reproductive age, in particular, have high rates of 
chronic medical and mental health conditions that may increase the 
risks associated with pregnancy.\18\ Such conditions include chronic 
post-traumatic stress disorder, severe hypertension, and chronic renal 
disease.\19\ When a health care professional determines that these 
conditions (potentially in combination with other factors) render an 
abortion needed to preserve the health of a veteran, access to an 
abortion is essential health care.
---------------------------------------------------------------------------

    \18\ Joan L. Combellick, et al., Severe Maternal Morbidity Among 
a Cohort of Post-9/11 Women Veterans, J Women's Health, 29(4):577-84 
(Apr. 2020).
    \19\ Jonathan Shaw, et al., Post-traumatic Stress Disorder and 
Antepartum Complications: a Novel Risk Factor for Gestational 
Diabetes and Preeclampsia, Paediatr Perinat Epidemiol. 31(3):185-194 
(May 2017); David Jones & John P. Hayslett, Outcome of pregnancy in 
women with moderate or severe renal insufficiency, N Engl J Med. 
25;335(4):226-32 (Jul. 1996).
---------------------------------------------------------------------------

    For all of the reasons discussed above, research supports the 
conclusion that an abortion may be needed to save the life or preserve 
the health of a veteran. 38 CFR 17.38(b). Therefore, VA is revising the 
medical benefits package to allow the provision of abortions in such 
circumstances.

B. Abortions When the Health of the Pregnant CHAMPVA Beneficiary Would 
Be Endangered if the Pregnancy Is Carried to Term Are Medically 
Necessary and Appropriate

    Currently, abortions for CHAMPVA beneficiaries are excluded 
``except when a physician certifies that the life of the mother would 
be endangered if the fetus were carried to term.'' 38 CFR 
17.272(a)(64). VA has determined that when the health of the pregnant 
CHAMPVA beneficiary would be endangered if the pregnancy were carried 
to term, access to abortions is also medically necessary and 
appropriate and such abortions should be covered CHAMPVA services. As 
explained above, VA is required to provide medically necessary and 
appropriate care under CHAMPVA to certain spouses, children, survivors, 
and caregivers of veterans who meet specific eligibility criteria. 38 
U.S.C. 1781(a); 38 CFR 17.270 et seq. While this care must be ``in the 
same or similar manner and subject to the same or similar limitations 
as medical care is'' provided by the Department of Defense under 
TRICARE (Select), 38 U.S.C. 1781(b), VA has consistently maintained 
that ``similar'' does not mean ``identical.'' VA requires that such 
care be medically

[[Page 55292]]

necessary and appropriate for the treatment of a condition and not be 
specifically excluded under the CHAMPVA regulations. See 38 CFR 
17.270(b) (defining CHAMPVA-covered services and supplies).
    As discussed in the prior section, an abortion may be medically 
necessary and appropriate to protect a pregnant individual's health. 
Pregnancy can exacerbate underlying or preexisting conditions, like 
renal or cardiac disease, in such a way as to severely compromise the 
health of an individual.\20\ Additionally, pregnant individuals may 
have their health endangered due to severe preeclampsia, newly 
diagnosed cancer requiring prompt treatment, and intrauterine 
infections.\21\ In those circumstances, an abortion may be the only 
treatment available to protect the health of the pregnant CHAMPVA 
beneficiary. Thus, there may be instances when an abortion may be 
medically necessary and appropriate to prevent a pregnant CHAMPVA 
beneficiary's health from being endangered if the pregnancy was carried 
to term, and VA finds it necessary to deviate from TRICARE (Select) to 
provide abortions in these circumstances.
---------------------------------------------------------------------------

    \20\ Victoria L. Meah, et al., Cardiac output and related 
haemodynamics during pregnancy: a series of meta-analyses, HEART J., 
102:518-526 (2016).
    \21\ Abortions later in Pregnancy, Kaiser Family Foundation, 
Dec. 5, 2019. https://www.kff.org/womens-health-policy/fact-sheet/abortions-later-in-pregnancy/ (last visited Aug. 22, 2022).
---------------------------------------------------------------------------

    Accordingly, consistent with VA's regulatory requirements in 38 CFR 
17.270(b), VA is revising the CHAMPVA regulations to allow the 
provision of abortions in such circumstances.

C. Abortions for Veterans When the Pregnancy Is the Result of an Act of 
Rape or Incest Are Needed

    VA has also determined that access to abortions is ``needed,'' 38 
U.S.C. 1710(a)(1)-(3), and such care may be provided in accordance with 
38 CFR 17.38(b), when the pregnancy is the result of an act of rape or 
incest.
    There are severe health consequences associated with being forced 
to carry a pregnancy that is the result of rape or incest to term, 
including constant exposure to the violation committed against the 
individual which can cause serious traumatic stress and a risk of long-
lasting psychological conditions such as anxiety and depression.\22\ 
Those mental health consequences have a unique impact on veterans, who 
report higher rates of sexual trauma compared to their civilian 
peers.\23\ Moreover, veterans are also more likely to have preexisting 
mental health conditions that would be compounded by the mental health 
consequences of being forced to carry a pregnancy to term if that 
pregnancy is the result of rape or incest. Thus, abortion access is 
critical to protect the lives and health of pregnant veterans whose 
pregnancy is the result of an act of rape or incest.
---------------------------------------------------------------------------

    \22\ Concluding observations of the Committee against Torture, 
United Nations Committee Against Torture, 47th Sess., Oct. 31, 2011-
Nov. 25, 2011 CAT/C/PRY/CO/4-6; Paraguay, p. 9, paragraph 22. 
https://www2.ohchr.org/english/bodies/cat/docs/CAT.C.PRY.CO.4-6_en.pdf.
    \23\ Carey Pulverman & Suzannah Creech, The Impact of Sexual 
Trauma on the Sexual Health of Women Veterans: A Comprehensive 
Review, Trauma Violence Abuse. 22(4): 656-671 (Oct. 2021). doi: 
10.1177/1524838019870912.
---------------------------------------------------------------------------

    As discussed above, even where Congress has restricted the 
circumstances in which other Federal agencies may provide abortions, 
Congress has allowed funding when the pregnancy is the result of an act 
of rape or incest. VA agrees that abortions for pregnancies resulting 
from rape or incest are, where sought by the pregnant veteran, needed 
to protect the life and the health of the veteran consistent with the 
terms of 38 U.S.C. 1710. VA further expects that, in all but the most 
unusual circumstances, an individual's access to abortion in cases of 
pregnancy resulting from rape or incest would be ``needed to promote, 
preserve, or restore the health of the individual'' and would be ``in 
accord with generally accepted standards of medical practice.'' 38 CFR 
17.38(b).

D. Abortions for CHAMPVA Beneficiaries When Pregnancy Is the Result of 
an Act of Rape or Incest Are Medically Necessary and Appropriate

    For similar reasons as discussed above, VA has determined that 
access to abortion when the pregnancy is the result of an act of rape 
or incest is medically necessary and appropriate and must be available 
to CHAMPVA beneficiaries. Allowing abortions in these circumstances 
better aligns with TRICARE (Select), which also allows abortions when 
the pregnancy is the result of an act of rape or incest.\24\
---------------------------------------------------------------------------

    \24\ See Covered Services, Abortions, TRICARE, https://tricare.mil/CoveredServices/IsItCovered/Abortions (last visited Aug. 
22, 2022).; 38 U.S.C. 1781(b); and 32 CFR 199.1(r), 
199.17(a)(6)(ii)(D).
---------------------------------------------------------------------------

    VA has determined that this change will provide CHAMPVA 
beneficiaries with care that is medically necessary and appropriate.

III. Abortion Counseling Under 38 U.S.C. 1710 and 1781

A. Abortion Counseling Is Needed Care for Veterans

    Through this rulemaking, VA will remove the exclusion on abortion 
counseling in the medical benefits package from 38 CFR 17.38(c)(1). 
Abortion counseling is a part of pregnancy options counseling and is a 
component of comprehensive, patient-centered, high quality reproductive 
health care both as a responsibility of the provider and a right of the 
pregnant veteran. Abortion counseling has three purposes: (1) to aid a 
pregnant individual in making a decision about an unwanted pregnancy, 
(2) to help the pregnant individual implement the decision, and (3) to 
assist the pregnant individual in controlling their future 
fertility.\25\
---------------------------------------------------------------------------

    \25\ Asher, J.D., Abortion counseling. American Journal of 
Public Health,63(5):686-8 (May 1972). https://pubmed.ncbi.nlm.nih.gov/5024296/.
---------------------------------------------------------------------------

    Removing the exclusion on abortion counseling from 38 CFR 
17.38(c)(1) will allow VA to provide abortion counseling services to 
veterans who receive the care set forth in the medical benefits 
package. Such counseling is essential to ensure that veterans may make 
informed decisions about their care. Studies have shown that 
individuals have limited knowledge about the safety and risks of 
abortion.\26\ Providing veterans with accurate information about 
abortions is needed to ensure that they can make informed decisions 
about their health care. See also 38 U.S.C. 7331; 38 CFR 17.32.
---------------------------------------------------------------------------

    \26\ Ellen Weibe., et al., Knowledge and Attitudes about 
Contraception and Abortion in Canada, US, UK, France and Australia, 
Gynecology & Obstetrics, 5(9) (2015), https://www.longdom.org/open-access/knowledge-and-attitudes-about-contraception-and-abortion-in-canada-us-uk-france-and-australia-40135.html.
---------------------------------------------------------------------------

    Abortion counseling should no longer be excluded from the medical 
benefits package. The provision of abortion counseling will enable a 
pregnant veteran to make a fully informed health care decision, just as 
counseling is offered or covered by VA regarding any other health care 
decision. As such, abortion counseling will be provided as part of 
conversations a veteran has with their provider related to pregnancy 
options care, when appropriate.

B. Abortion Counseling Is Medically Necessary and Appropriate for 
CHAMPVA Beneficiaries

    Through this rulemaking, VA will remove the exclusion of abortion 
counseling from 38 CFR 17.272(a)(65). This will authorize the provision 
of abortion counseling for both covered

[[Page 55293]]

and noncovered abortions to CHAMPVA beneficiaries. We acknowledge that 
this is broader than the abortion counseling provided under TRICARE 
(Select). However, the relevant care provided under CHAMPVA will still 
be sufficiently ``similar'' to that provided under TRICARE (Select). 38 
U.S.C. 1781(b). As explained previously, 38 U.S.C. 1781(b) does not 
require CHAMPVA and TRICARE (Select) to be administered identically. 
Rather, by referring to care that is ``similar,'' the statute permits 
VA flexibility to administer the program for CHAMPVA beneficiaries. For 
this reason, not every aspect of CHAMPVA will find a corollary in 
TRICARE (Select).
    Indeed, as addressed throughout this rule, VA has previously 
provided CHAMPVA beneficiaries with health care services that exceed 
those services offered by TRICARE (Select). As discussed in the section 
above, abortion counseling will enable a pregnant CHAMPVA beneficiary 
to make a fully informed health care decision, just as counseling is 
offered or covered by VA when medically necessary and appropriate to 
make any other health care decision. Because providing CHAMPVA 
beneficiaries with accurate information about abortions is medically 
necessary to ensure that they can make informed decisions about their 
health and the care will be similar to that provided under TRICARE 
(Select), we believe it is appropriate to revise the CHAMPVA 
regulations to authorize the provision of abortion counseling for both 
covered and noncovered abortions to CHAMPVA beneficiaries.
    Thus, VA finds that abortion counseling is beneficial for all 
CHAMPVA beneficiaries to receive accurate information about abortions. 
Therefore, we are including abortion counseling as a covered medical 
service under CHAMPVA.

IV. These Changes Will Promote Clarity and Parity Across Federal 
Agencies

    VA believes it is important to provide at least the same 
reproductive health care services that other Federal agencies provide 
their beneficiaries. Many veterans and VA beneficiaries previously 
received health care from other Federal agencies, such as the 
Department of Defense, and those beneficiaries should have the same or 
greater access to services that they had previously and came to expect 
under other agency policies. This is particularly true for our veteran 
patients who earned their VA health care benefits through their 
military service and sacrifice to this country. It is unconscionable 
that they would not have access to at least these same critical 
services following their transition to civilian life.
    As a result of this rulemaking, VA will also provide abortions when 
the health of the pregnant veteran or CHAMPVA beneficiary is endangered 
in addition to when the pregnancy threatens their life. This difference 
is due to VA's particular statutory authority in 38 U.S.C. 1710 to 
provide needed health care for veterans and VA's flexibility in 
administering the CHAMPVA program under 38 U.S.C. 1781, as discussed 
throughout. In contrast, other Federal agencies have different 
statutory authorities and additional limitations concerning the 
services they provide, such as the Hyde Amendment discussed above.
    In addition, some post-Dobbs State and local laws purport to impose 
criminal liability or threaten suspension of the medical licenses of 
providers who perform abortions without authorization.\27\ In the 
absence of clarity as to exactly what care is covered, this may result 
in a chilling effect on the provision of care, including abortions, to 
veterans and CHAMPVA beneficiaries. Denial of care because of 
uncertainty about the scope of changing State laws has already been 
evidenced outside of the Federal health system in certain States.\28\ 
ACOG warns that the full scope of abortion restrictions' effects 
includes how physicians' ethical obligations to their patients and to 
the practice of medicine may be reshaped, redirected, or even 
contradicted by the threat posed by laws not founded in science or 
based on evidence.\29\
---------------------------------------------------------------------------

    \27\ See e.g., Ark. Code Ann. sec. 5-61-404 (making abortion an 
unclassified felony); Idaho Code Ann. sec. 18-622 (making abortion a 
felony and requiring suspension of medical license); La. Rev. Stat. 
Ann. sec. 40:1061 (making abortion a criminal act and basis for 
professional disciplinary action); Tenn. Code Ann. sec. 39-15-216 
(2019) (making abortion a felony); Tex. Health & Safety Code Ann. 
sec. 170A.004-05 (making abortion a felony and subject to a civil 
penalty).
    \28\ See, e.g., Pam Belluck, They Had Miscarriages, and New 
Abortion Laws Obstructed Treatment, N.Y. Times, July 21, 2022, 
https://www.nytimes.com/2022/07/17/health/abortion-miscarriage-treatment.html (last visited Aug. 23, 2022).
    \29\ Breaking the Law or Breaking the Oath? How Abortion Bans 
Betray America's Patients and Physicians, Am. College of 
Obstetricians and Gynecologists, https://www.acog.org/education-and-events/webinars/acog-nyu-how-abortion-bans-betray-americas-patients-physicians (last visited Aug. 22, 2022).
---------------------------------------------------------------------------

    Consequently, VA is revising its medical benefits package and 
CHAMPVA regulations to promote clarity.

V. Preemption and Related Principles

    As previously described, as a result of Dobbs, States and 
localities have begun to enforce existing abortion bans and 
restrictions on care, and are proposing and enacting new bans or 
restrictions, creating urgent risks to the lives and health of pregnant 
veterans and the health of pregnant CHAMPVA beneficiaries in those 
States. Such State and local bans and restrictions on care chill the 
provision of needed care for veterans and medically necessary and 
appropriate care for CHAMPVA beneficiaries. For instance, the Texas 
Medical Association sent a letter to the Texas Medical Board, seeking 
clarity on the Texas abortion restrictions as it received complaints 
that in some health care settings, physicians have been prohibited from 
providing medically appropriate care to women with ectopic pregnancies 
and other complications.\30\ As reported even before the Dobbs 
decision, there is a climate of fear created by these abortion 
restrictions that has resulted not only in patients not having access 
to needed care but also in patients receiving medically inappropriate 
care.\31\
---------------------------------------------------------------------------

    \30\ Allie Morris, Texas Hospitals Fearing Abortion Law Delay 
Pregnant Women's Care, Medical Association Says, Dallas News, July 
14, 2022, https://www.dallasnews.com/news/politics/2022/07/14/texas-hospitals-fearing-abortion-law-delay-pregnant-womens-care-medical-association-says (last visited Aug. 22, 2022).
    \31\ Whitney Arey, et al., A Preview of the Dangerous Future of 
Abortion Bans--Texas Senate Bill 8, N Engl J Med; 387:388-390 
(2022), https://www.nejm.org/doi/full/10.1056/NEJMp2207423 (last 
visited Aug 22, 2022).
---------------------------------------------------------------------------

    Accordingly, VA clarifies that State and local laws and regulations 
that would prevent VA health care professionals from providing needed 
abortion-related care, as permitted by this rule, are preempted. VA 
previously issued a regulation, 38 CFR 17.419, in which VA confirmed 
the ability of VA health care professionals to practice their health 
care profession consistent with the scope and requirements of their VA 
employment, notwithstanding any State license, registration, 
certification, or other requirements that unduly interfere with their 
practice. The regulation provides that, in order to ``provide the same 
complete health care and hospital services to beneficiaries in all 
States . . . conflicting State laws, rules, regulations, or 
requirements pursuant to such laws are without any force or effect, and 
State governments have no legal authority to enforce them in relation 
to actions by health care professionals within the scope of their VA 
employment.'' 38 CFR 17.419(c). Consistent with Sec.  17.419, VA has

[[Page 55294]]

determined that State and local laws, rules, regulations, or 
requirements that restrict, limit, otherwise impede access to, or 
regulate the provision of health care provided by VA pursuant to 
Federal law, would ``unduly interfere[] with VA health care 
professionals' practice within the scope of VA employment.'' 38 CFR 
17.419(b)(1). Accordingly, consistent with Sec.  17.419, this 
rulemaking confirms that a State or local civil or criminal law that 
restricts, limits, or otherwise impedes a VA professional's provision 
of care permitted by this regulation would be preempted.
    In addition, ``[t]he Constitution's Supremacy Clause generally 
immunizes the Federal Government from State laws that directly regulate 
or discriminate against it,'' unless federal law authorizes such State 
regulation. United States v. Washington, 142 S. Ct. 1976, 1982 (2022). 
Therefore, States generally may not impose criminal or civil liability 
on VA employees who perform their duties in a manner authorized by 
federal law. See, e.g., In re Neagle, 135 U.S. 1, 62 (1890). This 
rulemaking serves as notice that all VA employees, including health 
care professionals who provide care and VA employees who facilitate 
that health care, such as VA employees in administrative positions that 
schedule abortion procedures and VA employees who provide 
transportation to the veteran or CHAMPVA beneficiary to the VA facility 
for reproductive health care, may not be held liable under State or 
local law or regulation for reasonably performing their Federal duties.

VI. Changes to 38 CFR 17.38(c)(1)

    Based on the rationale described above, we remove the exclusion on 
abortion counseling from Sec.  17.38(c)(1). We revise Sec.  17.38(c)(1) 
by adding paragraphs (c)(1)(i) and (ii) to state that the medical 
benefits package includes abortions in certain circumstances.
    Section 17.38(c)(1)(i) permits abortions when the life or health of 
the pregnant veteran would be endangered if the pregnancy is carried to 
term. Assessment of the conditions, injuries, illness, or diseases that 
will qualify for this care will be made by appropriate health care 
professionals on a case-by-case basis. As appropriate, VA may issue 
supplemental guidance to inform these decisions.
    Section 17.38(c)(1)(ii) permits abortions when the pregnancy is the 
result of an act of rape or incest. We are not requiring a veteran to 
present particular evidence such as a police report to qualify for this 
care. This is consistent with longstanding VA policy to treat eligible 
individuals who experienced military sexual trauma without evidence of 
the trauma. This approach, similar to in the context of military sexual 
trauma, removes barriers to providing care. Therefore, the regulation 
will provide that self-reporting from the pregnant veteran constitutes 
sufficient evidence.

VII. Changes to 38 CFR 17.272

    Based on the rationale described above, we amend the CHAMPVA 
regulations at 38 CFR 17.272. We remove Sec.  17.272(a)(65) that 
excludes abortion counseling from the CHAMPVA program. We revise 
current Sec.  17.272(a)(64), which excludes abortions except when a 
physician certifies that the life of the pregnant beneficiary would be 
endangered if the fetus were carried to term, and we add Sec.  
17.272(a)(64)(i) and (ii).
    Section 17.272(a)(64)(i) permits abortions when the life or health 
of the CHAMPVA beneficiary would be endangered if the pregnancy is 
carried to term. Assessment of the conditions, injuries, illnesses, or 
diseases that will qualify for this care will be made by appropriate 
health care professionals on a case-by-case basis. As appropriate, VA 
may issue supplemental guidance to inform these decisions.
    Section 17.272(a)(64)(ii) permits abortions when the pregnancy is 
the result of an act of rape or incest. We are not requiring the 
CHAMPVA beneficiary to present particular evidence such as a police 
report to qualify for this care. This approach, as discussed above, 
removes barriers to providing care. Therefore, the regulation will 
provide that self-reporting from the pregnant CHAMPVA beneficiary 
constitutes sufficient evidence.

VIII. Regulatory Requirements

A. Executive Order 13132, Federalism

    Executive Order 13132 establishes principles for preemption of 
State laws when those laws are implicated in rulemaking or proposed 
legislation. The order provides that, where a Federal statute does not 
expressly preempt State law, agencies shall construe any authorization 
in the statute for the issuance of regulations as authorizing 
preemption of State law by rulemaking only when the exercise of State 
authority directly conflicts with the exercise of Federal authority or 
there is clear evidence to conclude that the Congress intended the 
agency to have the authority to preempt State law.
    As discussed above, consistent with 38 CFR 17.419, State and local 
laws, rules, regulations, or requirements are preempted to the extent 
those laws unduly interfere with Federal operations and the performance 
of Federal duties. That includes laws that States and localities might 
attempt to enforce in civil, criminal, or administrative matters 
against VA health care professionals acting in the scope of their VA 
authority and employment and that would prevent those individuals from 
providing care authorized by 38 U.S.C. 1701, 1710, 1781, 1784A, 7301, 
and 7310, and VA's implementing regulations. State and local laws, 
rules, regulations, or requirements are therefore without any force or 
effect to the extent of the conflict with Federal law, and State and 
local governments have no legal authority to enforce them in relation 
to actions by VA employees acting within the scope of their VA 
authority and employment.
    Because all State and local laws, rules, regulations, or 
requirements that unduly interfere with VA's provision of reproductive 
health care have no force or effect, there are no actual or possible 
violations of such laws related to VA programs, operations, facilities, 
contracts, or information technology systems that would necessitate 
mandatory reporting by VA employees. 38 CFR 1.201-1.205. This 
rulemaking confirms VA's authority and discretion to manage its 
employees concerning the services that will be provided pursuant to 
this rulemaking.
    Next, Executive Order 13132 requires that any regulatory preemption 
of State law must be restricted to the minimum level necessary to 
achieve the objectives of the statute pursuant to which the regulations 
that are promulgated. Under VA's regulations, State and local laws, 
rules, regulations, or other requirements are preempted only to the 
extent they unduly interfere with the ability of VA employees to 
furnish reproductive health care while acting within the scope of their 
VA authority and employment. Therefore, VA believes that the rulemaking 
is restricted to the minimum level necessary to achieve the objectives 
of the Federal statutes.

B. Administrative Procedure Act

    The Administrative Procedure Act (APA), codified in part at 5 
U.S.C. 553, generally requires that agencies publish substantive rules 
in the Federal Register for notice and comment and provide a 30-day 
delay before the rules becomes effective. An agency may forgo notice if 
the agency for good cause finds that compliance would be impracticable, 
unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). An 
agency may also bypass the APA's 30-day delay requirement if good cause 
exists, 5

[[Page 55295]]

U.S.C. 553(d)(3), or if the rule ``recognizes an exemption or relieves 
a restriction,'' 5 U.S.C. 553(d)(1). The Secretary of Veterans Affairs 
finds that there is good cause under the provisions of 5 U.S.C. 
553(b)(B) to publish this rule without prior opportunity for public 
comment because it would be impracticable and contrary to the public 
interest and finds that there is good cause under 5 U.S.C. 553(d)(3) to 
bypass the 30-day delay requirement. The Secretary also finds that the 
30-day delay is inapplicable as this rule is removing restrictions on 
abortion, in certain, limited circumstances, and on abortion 
counseling. 5 U.S.C. 553(d)(1).
    As discussed at length above, leaving veterans and CHAMPVA 
beneficiaries without access to abortions and abortion counseling puts 
their health and lives at risk. Pregnancy and childbirth in the United 
States can result in physical harm or death to certain pregnant 
individuals,\32\ as pregnant individuals may suffer from life-
threatening conditions such as severe preeclampsia, newly diagnosed 
cancer requiring prompt treatment, and intrauterine infections,\33\ and 
may have pre-existing conditions exacerbated by continuing the 
pregnancy.\34\ In such cases, an abortion may be the only treatment 
available to save the health or life of the pregnant individual.\35\ 
This is especially relevant because VA serves a population that is 
particularly vulnerable to adverse pregnancy outcomes. Pregnant 
veterans and CHAMPVA beneficiaries may be at heightened risk for 
pregnancy complications including hemorrhage, placenta accreta 
spectrum, and peripartum hysterectomy, among others.\36\ Veterans of 
reproductive age, in particular, have high rates of chronic medical and 
mental health conditions that may increase the risks associated with 
pregnancy.\37\ As lack of access to abortions can result in loss of 
future fertility, significant morbidity, or death, it is critical that 
veterans and CHAMPVA beneficiaries have access to abortions that are 
needed to save their lives and preserve their health. It is, without 
exception, an urgent and tragic event when pregnant veterans and VA 
beneficiaries face pregnancy-related complications that put their 
health or lives at risk. In such cases, the veterans, VA beneficiaries, 
and their families must be confident that their health care providers 
can and will take swift and decisive action to provide needed health 
care.
---------------------------------------------------------------------------

    \32\ Elizabeth G. Raymond & David A. Grimes, The Comparative 
Safety of Legal Induced Abortion and Childbirth in the United 
States, 119 Obstetrics & Gynecology 215, 216 (2012); see also Marian 
F. MacDorman et al., Recent Increases in the U.S. Maternal Mortality 
Rate: Disentangling Trends from Measurement Issues 128 Obstetrics & 
Gynecology 447 (2016) (finding a 26.6 percent increase in maternal 
mortality rates between 2000 and 2014). Victoria L. Meah, et al., 
Cardiac output and related haemodynamics during pregnancy: a series 
of meta-analyses, Heart J., 102:518-526 (2016).
    \33\ Abortions later in Pregnancy, Kaiser Family Foundation, 
Dec. 5, 2019. https://www.kff.org/womens-health-policy/fact-sheet/abortions-later-in-pregnancy/ (last visited Aug. 22, 2022).
    \34\ Victoria L. Meah, et al., Cardiac output and related 
haemodynamics during pregnancy: a series of meta-analyses, Heart J., 
102:518-526 (2016).
    \35\ Abortion Can Be Medically Necessary, Am. College of 
Obstetricians and Gynecologists, Sep. 25, 2019. https://www.acog.org/news/news-releases/2019/09/abortion-can-be-medically-necessary (last 
visited Aug. 22, 2022).
    \36\ ACOG Practice Bulletin No. 183, Postpartum Hemorrhage, Am. 
College of Obstetricians and Gynecologists (Oct. 2017); ACOG 
Obstetric Care Consensus, Placenta Accreta Spectrum (July 2012, 
reaff'd 2021); ACOG Practice Bulletin No. 198, Prevention and 
Management of Obstetric Lacerations at Vaginal Delivery, Am. College 
of Obstetricians and Gynecologists (Sept. 2018); ACOG Clinical 
Consensus No. 1, Pharmacologic Stepwise Multimodal Approach for 
Postpartum Pain Management, Am. College of Obstetricians and 
Gynecologists (Sept. 2021).
    \37\ Joan L. Combellick, et al., Severe Maternal Morbidity Among 
a Cohort of Post-9/11 Women Veterans, J Women's Health, 29(4):577-84 
(Apr. 2020).
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    The ability of veterans and CHAMPVA beneficiaries to receive 
abortions through VA is especially critical following State attempts to 
further ban abortion, which put the health and lives of veterans and 
CHAMPVA beneficiaries at risk.
    When VA implemented the exclusion on abortions in the medical 
benefits package in 1999, veterans and other CHAMPVA beneficiaries had 
access to abortions in their communities. However, in Dobbs, the 
Supreme Court overruled the constitutional protections recognized in 
Roe and Casey. Dobbs has had an immediate or near-immediate effect 
because several States had laws banning abortion that were triggered 
upon the overruling of Roe. Dobbs has also led States and localities to 
consider new restrictions on abortion. As of August 2022, many States 
appear to be enforcing bans on abortion that do not include, or have 
limited, exceptions for when the pregnancy is due to rape or incest. 
Other States have bans on abortions with limited exceptions that are 
poised to take effect imminently. Additional State legislatures are 
introducing bans on abortion with limited exceptions. While some State 
courts have temporarily blocked the implementation of abortion bans, 
litigation in those States remains ongoing and other State courts have 
declined to enjoin their State's abortion ban.\38\ These developments 
have made it, and will likely continue to make it, very difficult for 
many veterans and CHAMPVA beneficiaries to receive needed abortions in 
their communities. Additionally, ongoing litigation challenging 
individual State abortion bans causes confusion about where abortion 
remains legally accessible.\39\
---------------------------------------------------------------------------

    \38\ See, e.g., Katie Shepherd, Rachel Roubein, and Caroline 
Kitchener, 1 in 3 American women have already lost abortion access. 
More restrictive laws are coming., Wash. Post (Aug. 22, 2022, 3:36 
p.m.), https://www.washingtonpost.com/nation/2022/08/22/more-trigger-bans-loom-1-3-women-lose-most-abortion-access-post-roe/; see also, 
e.g., Idaho Code Ann. sec. 18-622, 18-622(3)(a)(ii) (prohibiting 
abortion in all instances, only providing affirmative defenses in 
case of life or health of pregnant individual); La. Rev. Stat. Ann. 
sec. 40:1061 (providing limited exception for life or health to 
abortion prohibition).
    \39\ See, e.g., Ava Sasani and Emily Cochrane, `I'm Carrying 
This Baby Just to Bury It': The Struggle to Decode Abortion Laws, 
N.Y. Times (Aug. 19, 2022), https://www.nytimes.com/2022/08/19/us/politics/louisiana-abortion-law.html.
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    Thousands of veterans and CHAMPVA beneficiaries are or may be 
impacted by abortion bans and the state of confusion related to where 
abortion remains legal. According to the National Partnership for Women 
& Families, it is estimated that up to 53 percent of veterans of 
reproductive age may be living in States that have already banned or 
are likely to soon ban abortion following the Dobbs decision.\40\ VA 
estimates that over 155,000 veterans ages 18 through 49 are potentially 
capable of pregnancy, enrolled in VA health care, and live in States 
that have enacted abortion bans or restrictions. Additionally, VA 
estimates there are more veterans who may be capable of pregnancy who 
are eligible for, but are not currently enrolled in or using, VA health 
care who could also be impacted by current and future abortion bans and 
restrictions imposed by the State in which they live. Additionally, 
based on VA data, almost 50,000 CHAMPVA beneficiaries may similarly be 
impacted.
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    \40\ Issue Brief: State Abortion Bans Could Harm Nearly 15 
Million Women of Color Nat'l Partnership for Women & Families (Jul. 
2022), https://www.nationalpartnership.org/our-work/economic-justice/reports/state-abortion-bans-harm-woc.html.
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    Thus, State bans and restrictions on abortion present a serious 
threat to the health and lives of over one hundred thousand veterans 
and CHAMPVA beneficiaries who currently rely, or may rely in the 
future, on VA health care. These State laws will have an immediate 
detrimental impact on the lives and health of veterans and CHAMPVA 
beneficiaries who are unable to receive the care that was available 
before State restrictions following the Dobbs decision. This 
detrimental impact is underscored by the potential harmful effects 
associated with being denied an abortion, when an abortion is needed to 
protect the life or

[[Page 55296]]

health of the pregnant individual, or in cases of rape or incest--as 
described in prior portions of this preamble.
    It is critical that this rule be published and be made effective 
immediately to ensure pregnant veterans and CHAMPVA beneficiaries have 
access to this important care. Indeed, delaying the issuance of this 
rule would increase the risk to their health and lives and put care out 
of reach for some pregnant veterans and CHAMPVA beneficiaries entirely. 
Time is also of the essence because, after the Dobbs decision, many 
State laws have prompted providers to cease offering abortion services 
altogether; thus, many veterans and CHAMPVA beneficiaries would face 
delays (including travel and wait times) if they were required to 
obtain, outside the VA, the treatment permitted under this rule. Each 
day, pregnant patients in the United States, some of whom are veterans 
or CHAMPVA beneficiaries, find themselves in need of abortion services 
in accord with generally accepted standards of medical practice. 
Delaying that care for the time required for notice and comment 
rulemaking would result in substantial health deterioration and risk 
the lives of some pregnant veterans and CHAMPVA beneficiaries. Allowing 
even one preventable death of a veteran or CHAMPVA beneficiary by 
limiting access to abortions is unacceptable.
    For these reasons, the Secretary has concluded that ordinary notice 
and comment procedures would be impracticable and contrary to the 
public interest and there is good cause to issue this interim final 
rule with an immediate effective date. Accordingly, VA is issuing this 
rule as an interim final rule with an immediate effective date. As 
noted above, this interim final rule will have a 30-day comment period, 
after which the Secretary will consider and address the comments 
received in a subsequent Federal Register document announcing a final 
rule incorporating any changes made in response to the public comments.

C. Executive Orders 12866 and 13563

    Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. The Office of Information and Regulatory 
Affairs has determined that this rule is a significant regulatory 
action under Executive Order 12866. The Regulatory Impact Analysis 
associated with this rulemaking can be found as a supporting document 
at https://www.regulations.gov.

D. Regulatory Flexibility Act

    The Secretary hereby certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-12. 
This is because the rule does not directly regulate or impose costs on 
small entities and because any effects on small entities will be 
indirect. On this basis, the Secretary certifies that the adoption of 
this rule will not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act. Therefore, pursuant to 5 U.S.C. 605(b), the initial 
and final regulatory flexibility analysis requirements of 5 U.S.C. 603 
and 604 do not apply to this rule.

E. Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995, see 2 U.S.C. 1532, 
requires that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

F. Paperwork Reduction Act

    This rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
21.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs--health, Grant programs--veterans, 
Health care, Health facilities, Health professions, Health records, 
Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Philippines, Reporting 
and recordkeeping requirements, Scholarships and fellowships, Travel 
and transportation expenses, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on August 29, 2022, and authorized the undersigned to sign and 
submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs.

Michael P. Shores,
Director, Office of Regulation Policy & Management, Office of General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 17 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 38 U.S.C. 501, and as noted in specific sections.


0
2. Amend Sec.  17.38 by revising paragraph (c)(1) to read as follows:


Sec.  17.38  Medical benefits package.

* * * * *
    (c) * * *
    (1) Abortions, except 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 is the result of an act of rape or incest. Self-
reporting from the pregnant veteran constitutes sufficient evidence 
that an act of rape or incest occurred.
* * * * *

0
3. Amend Sec.  17.272 by:
0
a. Revising paragraph (a)(64).
0
b. Removing paragraph (a)(65).
0
c. Redesignating current paragraphs (a)(66) through (84) as paragraphs 
(a)(65) through (83).
    The revision reads as follows:


Sec.  17.272  Benefits limitations/exclusions.

    (a) * * *
    (64) Abortions, except when:
    (i) The life or the health of the pregnant beneficiary would be 
endangered if the pregnancy were carried to term; or
    (ii) The pregnancy is the result of an act of rape or incest. Self-
reporting from the pregnant beneficiary constitutes sufficient evidence 
that an act of rape or incest occurred.
* * * * *
[FR Doc. 2022-19239 Filed 9-8-22; 8:45 am]
BILLING CODE 8320-01-P