Reproductive Health Services, 15451-15474 [2024-04275]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 89, Number 43 (Monday, March 4, 2024)]
[Rules and Regulations]
[Pages 15451-15474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04275]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AR57


Reproductive Health Services

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is finalizing, without 
changes, an interim final rule that amended VA's medical regulations to 
remove the exclusion on abortion counseling in the medical benefits 
package; establish exceptions to the exclusion on abortions for 
veterans who

[[Page 15452]]

receive care set forth in that package; and 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: This rule is effective April 3, 2024.

FOR FURTHER INFORMATION CONTACT: Dr. Shereef Elnahal, Under Secretary 
for Health, Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420, (202) 461-0373.

SUPPLEMENTARY INFORMATION: In an interim final rule (IFR) published in 
the Federal Register (FR), VA amended its medical regulations to remove 
the exclusion on abortion counseling in the medical benefits package; 
establish exceptions to the exclusion on abortions for veterans who 
receive care set forth in that package; and 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. 87 FR 55287 (September 9, 
2022).
    VA provided a 30-day comment period on the IFR, which ended on 
October 11, 2022. VA received 57,901 comments, many of which were 
supportive of the IFR. The vast majority of the comments were a type of 
duplicated form response, where some requested clarifications or 
suggested changes to the IFR, and others merely expressed support or 
requested the IFR be rescinded without suggested clarifications or 
changes. VA summarizes and addresses all topics raised in relevant and 
significant comments below, but VA does not address any supportive 
comments below that did not also request clarifications or suggest 
substantive revisions.

I. Comments That Asserted VA Does Not Have Authority To Promulgate or 
Implement the IFR

    Many commenters asserted that VA does not have the legal authority 
to promulgate or implement the IFR, most of which provided few details 
to explain their assertions. Other commenters cited to specific laws 
that they asserted conflicted with VA's provision of the health care 
services permitted by the IFR. VA addresses these comments below.

A. General Assertions of Lack of Authority

    Many comments asserted that VA should rescind the IFR because VA 
has a longstanding policy regarding abortion and does not have the 
authority to impose the IFR in a manner that violates this policy. 
These comments generally assert that VA does not have authority to 
either promulgate or implement the IFR to remove the restriction on 
abortion counseling and create exceptions for abortions in certain 
circumstances in Sec. Sec.  17.38 and 17.272 of title 38, Code of 
Federal Regulations (CFR).
    VA does not make any changes to the rule and does not rescind the 
IFR based on these comments. As indicated in the IFR (see 87 FR 55288-
55290), 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.'' Section 
1710(a)(1)-(2) of title 38, United States Code (U.S.C.). 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). 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. 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). VA has 
determined that the health care services permitted under the IFR are 
``needed'' within the meaning of VA's general treatment authority, 38 
U.S.C. 1710, 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). Although VA previously did not have 
any exceptions to the exclusion on abortion in the medical benefits 
package, VA's authority as described above permits it to amend the 
medical benefits package through regulation. VA can therefore provide 
the health care services permitted under the IFR to veterans pursuant 
to 38 U.S.C. 1710 and 38 CFR 17.38. Similarly, VA has determined that 
providing access to such care 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)'').
    Several commenters suggested that the IFR usurps Congressional 
authority. Other commenters stated that VA is unable to provide the 
health care services permitted under the IFR because Congress has not 
funded them specifically, or that VA should not use taxpayer money to 
provide the health care services permitted under the IFR because VA 
does not have the legal right to do so, and it is contrary to the 
wishes of taxpayers. VA does not make changes to the rule based on 
these comments. The IFR did not usurp Congressional authority. VA, 
similar to other agencies in the Executive Branch, has the authority to 
promulgate regulations to interpret and implement laws passed by 
Congress, and such regulations may have the force and effect of law. In 
this instance, the IFR was promulgated and implemented pursuant to 
statute. 38 U.S.C. 1710, 1781; see also id. 501. VA does not receive 
separate appropriations for individual medical services, but instead 
receives appropriations generally for authorized services. While some 
taxpayers may disagree with this use of Federal funds, VA is authorized 
to provide and pay for care that is needed for veterans and medically 
necessary and appropriate for CHAMPVA beneficiaries.

B. Specific Assertions of Lack of Authority or Conflicting Authority

1. Lack of Authority Under 38 U.S.C. 1710
    Commenters asserted that VA's interpretation of 38 U.S.C. 1710 to 
provide access to health care services permitted under the IFR was 
unsupported because the text of 38 U.S.C. 1710 does not expressly 
include these services and because VA has not previously invoked or 
construed 38 U.S.C. 1710 as authority for provision of these services. 
VA does not make changes to the rule based on these comments. The 
commenters' assertions regarding the text of 38 U.S.C. 1710 overlook 
that the terms ``hospital care'' and ``medical services'' as used in 38 
U.S.C. 1710 are further defined in 38 U.S.C. 1701(5) and (6). As 
relevant here, ``hospital care'' is defined to include ``medical 
services rendered in the

[[Page 15453]]

course of hospitalization of any veteran'' and ``medical services'' is 
defined to include ``medical examination, treatment, and rehabilitative 
services,'' ``[s]urgical services,'' and ``[p]reventive health 
services'' (38 U.S.C. 1701(5) and (6)). The definitions of ``hospital 
care'' and ``medical services'' in 38 U.S.C. 1701(5) and (6) do not 
list more specific types of care or services. And, in describing 
categories of hospital care and medical services, 38 U.S.C. 1701 and 
1710 do not enumerate every conceivable or commonly prescribed care or 
service, whether such care or service involves specific care or 
services such as abortion, prescription drugs, or completion of 
specific medical forms such as life insurance applications. Rather, 
such care and services are generally described in the VA medical 
benefits package codified in 38 CFR 17.38(a).
    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, pregnancy and 
delivery services, and periodic medical exams. 38 CFR 17.38(a). Whether 
hospital care or medical services under the medical benefits package 
are considered needed are determinations that 38 U.S.C. 1701 and 1710 
leave to the Secretary's discretion. See 38 U.S.C. 1710(a)(1) (``The 
Secretary . . . shall furnish hospital care and medical services which 
the Secretary determines to be needed[.]''). The Secretary can include 
or exclude care in the medical benefits package based on whether the 
Secretary determines that care is ``needed'' within the meaning of 38 
U.S.C. 1710(a)(1)-(3). 38 CFR 17.38(c).
    After the Supreme Court issued its decision in Dobbs v. Jackson 
Women's Health Organization, 142 S. Ct. 2228 (2022), veterans living in 
States that ban or restrict abortions may no longer be able to receive 
needed medical services in their communities as a result of State 
restrictions. 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.
    Additionally, the commenters' assertions that VA has never 
previously invoked its authority under 38 U.S.C. 1710 to authorize the 
provision of abortions are incorrect. Before the regulatory 
promulgation of the medical benefits package in 1999, which excluded 
the health care services permitted under the IFR, VA policy authorized 
the provision of certain abortions. VHA Policy, Manual M-2, 
Professional Services Part XIV, Surgical Service, Change 27, paragraph 
9.02a (July 26, 1977, partial rescission, expired on Jan. 7, 1999) 
(authorizing ``therapeutic . . . abortion as a proper treatment'' in 
some circumstances pursuant to the procedures described therein). This 
was permitted under VA's authority to provide hospital care and medical 
services under 38 U.S.C. 1710 and 38 U.S.C. 1712 (former medical 
services authority), respectively. As explained in the IFR, 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, but at the time, Roe v. Wade, 410 U.S. 113 (1973) had been 
reaffirmed in relevant part by Casey, and VA was aware that veterans 
could access abortions in their communities. 87 FR 55288. Following the 
Dobbs decision, States began to ban or restrict abortion services and 
veterans living in those States were losing access to such medical 
care. Id. Thus, VA explained in the IFR that this policy change was 
essential for the lives and health of the veterans that VA serves. Id.
    VA makes no changes to the rule based on the assertions raised in 
these comments, as discussed above.
    In support of the claim that 38 U.S.C. 1710 does not authorize VA's 
provision of the health care services permitted under the IFR, some 
commenters cited to testimony presented during a June 2022 legislative 
hearing before the House of Representatives Veterans Affairs Committee 
Subcommittee on Health and minutes from an August 2019 meeting of the 
Advisory Committee on Women Veterans. VA makes no changes to the rule 
based on this comment.
    Neither the testimony presented during the June 2022 legislative 
hearing before the House of Representatives Veterans Affairs Committee 
Subcommittee on Health nor the minutes from the August 2019 meeting of 
the Advisory Committee on Women Veterans suggests that VA lacks 
authority under 38 U.S.C. 1710 to provide the health care services 
permitted under the IFR. The passage that the commenter cites from the 
Advisory Committee on Women Veterans meeting minutes refers to language 
from page 20 of the August 2019 Advisory Committee on Women Veterans 
meeting minutes, which refers to an update on the Committee's 
recommendation that VA pursue a regulatory change to remove the 
exclusion of abortions in cases of threat to the life of the mother, 
sexual assault, and incest from the medical benefits package. The 
minutes state:

    VA has declined the ACWV's recommendation and will not change 
the medical benefits package regulations to remove the exclusion of 
abortions and abortion counseling services. VA believes that 
Congress, as the representatives of the will of the American people, 
must take the lead on this sensitive and divisive issue. VA will 
take no further action on the matter without a legal mandate, and 
will work with the House Veterans Affairs Committee to provide 
technical assistance on related legislation.

    VA has never indicated that it lacks statutory authority to include 
abortion counseling and abortions in its medical benefits package in a 
circumstance in which the VA Secretary determined that such care was 
needed. And notably, VA made this statement in response to ACWV's 
recommendations before the Supreme Court issued its decision in Dobbs.
    In addition, during the June 2022 legislative hearing, VA was 
discussing a single, standalone bill, H.R. 345, that would have 
overridden VA's regulatory exclusion of abortion counseling by 
requiring the Department to provide this service to a veteran as 
appropriate. VA stated, ``[T]he bill would not authorize VA to provide 
abortions; it would only allow VA to provide patient education.'' This 
statement does not mean that VA otherwise lacks authority to provide 
abortions, merely that VA was providing testimony on a legislative 
measure that, if enacted, would have only overridden VA's then-
exclusion of abortion counseling codified in VA regulations. VA also 
notes that such legislative discussions in 2022 do not provide a basis 
to narrowly construe the scope of VA's pre-existing statutory 
authority. See, e.g., Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 
1731, 1747 (2020) (``[S]peculation about why a later Congress declined 
to adopt new legislation offers a `particularly dangerous' basis on 
which to rest an interpretation of an existing law a different and 
earlier Congress did adopt.'' (citing Pension Benefit Guaranty 
Corporation v. LTV Corp., 496 U.S. 633, 650 (1990))).
    One commenter, in further support of the assertion that VA did not 
have legal authority to issue the IFR, cited recent Supreme Court case 
law to argue that Federal agencies exceed their statutory authorities 
when they purport to find novel powers in long extant Federal statutes. 
West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 
(2022); National Federation of Independent Business v. Dept. of Labor,

[[Page 15454]]

142 S. Ct. 661 (2022). But those cases are inapposite because, as 
discussed, clear statutory authority supports this rulemaking. Pursuant 
to VA's general treatment authority provided by Congress, 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 other veterans, 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). VA 
issued the IFR because the Secretary determined that it is ``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.'' 87 FR 55288. The Secretary also determined 
that ``abortion counseling is needed so that veterans can make informed 
decisions about their health care.'' Id. at 55292. The Secretary thus 
``determined that such medical care is `needed' within the meaning of 
VA's general treatment authority,'' which ``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.'' Id. at 55288. See also 38 U.S.C. 1781(a); 38 CFR 
17.270(b); 87 FR 55290-92 (discussing the VA Secretary's authority and 
determinations regarding CHAMPVA beneficiaries).
    The Secretary has previously exercised authority under 38 U.S.C. 
1710 to amend 38 CFR 17.38 to add new services to the medical benefits 
package services. For example, VA added to the medical benefits package 
pregnancy and delivery services to the extent authorized by Federal 
law. See 64 FR 54217. VA also added newborn care as a service provided 
under the medical benefits package. See 76 FR 78569. Such care was 
authorized pursuant to 38 U.S.C. 1710 and 1786.
    The decisions the commenter cites also are distinguishable because, 
as discussed above, this is not the first time that VA has relied on 
relevant statutory authority in this manner. As stated before, VA 
policy authorized the provision of certain abortions. VHA Policy, 
Manual M-2, Professional Services Part XIV, Surgical Service, Change 
27, paragraph 9.02a. (July 26, 1977, partial rescission, expired on 
Jan. 7, 1999)) (authorizing ``therapeutic . . . abortion as a proper 
treatment'' in some circumstances pursuant to the procedures described 
therein).
    The determination not to continue this medical service when the 
medical benefits package regulation was established in 1999 was based 
on a VA policy decision, not because VA's general treatment authority 
did not cover this medical service. Indeed, the fact that abortion was 
specifically excluded from the medical benefits package under 38 CFR 
17.38(c) makes clear that VA has long held the position that abortion 
and abortion counseling is medical care that the Secretary is 
statutorily authorized, pursuant to his discretion, to include in the 
medical benefits package under Sec.  17.38(a). Although VA maintained 
the exclusion on abortion care starting from the effective date of the 
medical benefits package in 1999 until 2022, as stated in the preamble 
to the IFR, Congress has authorized VA to amend its medical benefits 
package when the Secretary determines such change is warranted. 
Contrary to the commenter's assertion, VA's reading of 38 U.S.C. 1710 
is not novel but supported by past readings of VA's medical care 
treatment authority; the commenter's cited case law is thus not 
applicable to this rulemaking. VA makes no changes to the rule based on 
this comment.
2. Conflict With Section 106 of the Veterans Health Care Act of 1992
    Many commenters generally stated that the IFR violates section 106 
of the Veterans Health Care Act of 1992 (VHCA), Public Law (Pub. L.) 
102-585, 106 Stat. 4943, and that therefore VA should rescind the IFR. 
VA does not make any changes to the rule or rescind the IFR based on 
these comments. As explained in the preamble to the IFR, the VHCA 
barred the provision of abortion, infertility, and much of prenatal and 
delivery care but only 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). See 87 FR 55288-289. Moreover, in 1996, the Veterans' 
Health Care Eligibility Reform Act effectively overtook section 106 of 
the VHCA by enacting major changes to eligibility for VA health care, 
including by amending 38 U.S.C. 1710, and directing VA to establish a 
system of patient enrollment to manage the provision of care. See 87 FR 
55289. 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). Consequently, for 
decades, VA has offered general pregnancy care and certain infertility 
services under 38 U.S.C. 1710, despite the VHCA's prohibition on 
providing such services under section 106. Id. VA has not relied on 
section 106 of the VHCA to provide such services or any other services.
    Other commenters more specifically asserted that section 106 of the 
VHCA was still operable to prohibit abortion in VA health care 
programs, and provided more specific supporting rationale, as addressed 
below.
a. General Versus Specific Canon of Statutory Construction
    Some commenters asserted that, under traditional rules of statutory 
construction, the more specific and targeted treatment of abortion in 
section 106 of the VHCA governs over the more general treatment of 
health care in the Veterans Health Care Eligibility Reform Act of 1996 
and 38 U.S.C. 1710. As further explained below, this canon of 
construction is applicable when two statutory provisions are in 
conflict, but section 106 does not conflict with VA's authority to 
provide abortions under other statutory provisions such as 38 U.S.C. 
1710 and 1712 (former medical services authority). Consequently, the 
focus of commenters on the general versus specific canon is mistaken, 
and VA does not make changes to the rule based on these comments.
    By its plain terms, section 106 of the VHCA does not circumscribe 
the Secretary's authority to determine what hospital care and medical 
services are needed under 38 U.S.C. 1710. Section 106 affirmatively 
authorized VA to provide certain healthcare services to women, 
including ``[g]eneral reproductive health care,'' but provided that 
this authorization for general reproductive health care did ``not 
includ[e] 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.'' 
(emphasis added). The phrase ``under this section'' means that while 
section 106 bars the provision of any abortion or infertility or 
general pregnancy services under section 106 of the VHCA, it does not 
limit VA's authority to provide such services under any other statutory 
provision, such as VA's general treatment authority, 38 U.S.C. 1710. 
See, e.g., Intergovernmental Immunity for the Department of Veterans 
Affairs and Its Employees

[[Page 15455]]

When Providing Certain Abortion Services, 46 Op. O.L.C., _, at *1, 7-8 
(Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf (noting that the IFR represented 
a reasonable exercise of the VA Secretary's discretion to provide 
medical services).
    Accordingly, the commenters' reliance on the ``general/specific 
canon'' is misplaced. Moreover, as the Supreme Court has acknowledged, 
the general/specific canon is not an absolute rule and can be overcome 
by textual indications that point to the general and specific 
provisions coexisting, rather than the specific governing the general. 
See RadLAX Gateway Hotel v. Amalgamated Bank, 566 U.S. 639, 646 (2012). 
In this case, section 106 specifies that abortions cannot be provided 
``under this section'' of the VHCA, but it does not prohibit VA from 
providing abortions under other statutory provisions such as 38 U.S.C. 
1710 and 1712 (former medical services authority).
    VA's interpretation of section 106 in this respect has been long-
standing. VA has never interpreted section 106 to prohibit the 
Department from providing health care under other statutory 
authorities. For example, as discussed above, VA continued to provide 
certain abortions as well as therapeutic surgical sterilizations, a 
type of infertility treatment, after the passage of section 106 and 
until promulgation of the final rule establishing VA's medical benefits 
package in October of 1999. See VHA Policy, Manual M-2, Professional 
Services Part XIV, Surgical Service, Change 27, paragraph 9.02a. (July 
26, 1977, partial rescission, expired on Jan. 7, 1999) (authorizing 
``therapeutic . . . abortion as a proper treatment'' in some 
circumstances pursuant to the procedures described therein).
    A VA policy published in 1993 also demonstrates this long-standing 
interpretation of section 106. With VA's increased focus on health 
services available for women veterans, VA published VHA Directive 10-
93-151, Health Care Services for Women Including General Reproductive 
Health Care for Women Veterans under the Women Veterans Health Program 
Act of 1992 (Pub. L. 102-585) (dated Dec. 6, 1993, rescinded Dec. 29, 
1994). In para. 2.b. of this 1993 policy, VA squarely addressed section 
106's relation to other treatment laws. Specifically, VA explained that 
the exclusions from ``general reproductive healthcare'' (set forth in 
section 106(a)(3)) ``do not constitute a ban on the Secretary's 
authority to provide infertility or abortion services as otherwise 
authorized under 38 United States Code (U.S.C.) Chapter 17.'' It also 
explained how the authorities granted in section 106 ``are not new,'' 
as VA medical centers ``have provided cancer screening to women for 
some time,'' and it further described how ``general reproductive health 
care'' is ``within the purview of gynecology.'' To this point, when 
later issuing the medical benefits package, VA included, within covered 
basic care, infertility services (such as reverse voluntary 
sterilization and infertility services other than in vitro 
fertilization) because they meet the criteria for inclusion, i.e., 
``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.'' 64 FR 54207, 54210.
    Similarly, VA has provided some infertility services (excluding in 
vitro fertilization (IVF) pursuant to 38 CFR 17.38(c)(2)) and 
pregnancy-related services under 38 U.S.C. 1710 for decades. See 87 FR 
55289; see also 64 FR 54210; VHA Directive 10-93-151, December 6, 1993. 
Section 106 excludes ``infertility services'' and ``pregnancy care'' in 
addition to ``abortion'' from care provided under section 106. (We note 
that section 106 does not further define these terms.) Commenters' 
reliance on section 106 to object to VA's addition of abortion to care 
provided under 38 U.S.C. 1710 overlooks VA's longstanding provision of 
infertility services (excluding IVF) and pregnancy-related services 
under 38 U.S.C. 1710, which shows that section 106 does not limit VA's 
other healthcare authorities. And VA has long recognized that a veteran 
could be eligible for certain infertility services (excluding IVF) for 
a service-connected disability under (former) 38 U.S.C. 1712 (former 
authority under which outpatient medical services were provided prior 
to 1996), even though that veteran would have been ineligible for 
infertility services under section 106 of the VHCA. 87 FR 55289.
    The IFR explained that Congress enacted the VHCA at a time when 
``VA health care was subject to a patchwork of eligibility criteria, 
and care was largely linked only to service-connected conditions,'' and 
how ``[t]he VHCA, in relevant part, was designed to improve the health 
care services available to women veterans.'' 87 FR 55288-89. Section 
106 of the VHCA, however, was effectively overtaken by a subsequent 
statutory and regulatory overhaul of VA's medical benefits system, 
which extended eligibility for hospital care and medical services. The 
Veterans' Health Care Eligibility Reform Act of 1996 established a 
system in which an eligible veteran could receive whatever medical care 
and services the Secretary determines are ``needed.'' 38 U.S.C. 1710; 
see, e.g., H.R. Rep. No. 104-690, at 4 (1996); see also id. (``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.''). As explained in the 
IFR, ``[t]he Veterans' Health Care Eligibility Reform Act effectively 
overtook section 106 of the VHCA,'' and ``section 106's prohibition on 
providing certain services `under this section' simply is no longer 
operative.'' 87 FR 55289-90.
b. VA's Interpretation of the Phrase ``But Not Including Under This 
Section'' in Section 106 of VHCA
    Some commenters further asserted that VA's interpretation of the 
phrase ``but not including under this section'' in section 106 of the 
VHCA, as reiterated in the IFR (87 FR 55289), was invalid, arguing that 
such language does not limit abortion restrictions to only that 
healthcare for women veterans that was provided under section 106. In 
support of this assertion, the commenters proffered that certain 
prefatory language in section 106(a) qualifies the ``under this 
section'' language in section 106(a)(3) such that the exclusion on 
abortions there must be read to apply to all hospital care and medical 
services under chapter 17 of title 38.
    VA does not make changes to the rule based on these comments, which 
misunderstand VA's statutory authority. The VHCA, in relevant part, was 
designed to improve the health care services available to women 
veterans. 102 Cong. Rec. 32,367 (1992). Section 106(a) of the VHCA 
stated that ``[i]n furnishing hospital care and medical services under 
chapter 17 of title 38, United States Code,''--prefatory language 
applicable to all of section 106--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

[[Page 15456]]

(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).
    As explained above, the VHCA has been effectively overtaken by laws 
that Congress has subsequently enacted. But even taking section 106 on 
its own terms, the commenters' interpretation of section 106(a)'s 
prefatory language would render the important ``under this section'' 
qualifier in section 106(a)(3) a nullity, contrary to longstanding 
precedent. Nat'l Ass'n of Mfrs. v. Dep't of Def., 583 U.S. 109, 128-29 
(2018) (``As this Court has noted time and time again, the Court is 
`obliged to give effect, if possible, to every word Congress used.' '' 
(quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)). If 
section 106(a)'s prefatory language precluded VA from providing 
abortion care under its other statutory authorities, then section 
106(a)(3)'s ``under this section'' qualifier would be ``a dead 
letter.'' United States v. Atl. Rsch. Corp., 551 U.S. 128, 137 (2007). 
By contrast, VA's longstanding interpretation of section 106 faithfully 
reads the statute `` `as a whole.' '' Id. at 135 (quoting King v. St. 
Vincent's Hospital, 502 U.S. 215, 221 (1991)). In addition, VA finds 
support for this in the legislative history accompanying the enactment 
of section 106. See Joint Explanatory Statement on H.R. 5193, 1992 
U.S.C.C.A.N. 4186, 4189-90 (noting ``[t]he inclusion of the phrase 
`under this section' underscores the intent of the Committees not to 
limit such authority as the Secretary may have to provide any 
infertility services under Chapter 17.''). As explained, moreover, the 
commenters' interpretation is inconsistent with the plain meaning (and 
VA's decades-long interpretation) of the phrase ``under this section.''
c. VA's Furnishing of In-Vitro Fertilization Services
    Commenters asserted that section 106 of the VHCA remains in effect 
to prohibit VA from furnishing the health care services permitted under 
the IFR, citing as evidence the proposition that VA required a special 
amendment, the ``Murray Amendment,'' to carve out an exception from 
section 106 of the VHCA so that VA could provide IVF services. The 
Murray Amendment is a reference to section 260 of Public Law 114-223, 
Division A, title II, enacted on September 29, 2016, and renewed in 
subsequent fiscal years. Section 260(a)(1) of Public Law 114-223 
provides, notwithstanding any other provision of law, that the amounts 
appropriated or otherwise made available to VA for the Medical Services 
account may be used to provide fertility counseling and treatment using 
assisted reproductive technology to a covered veteran or the spouse of 
a covered veteran, subject to certain statutory and regulatory 
limitations.
    VA does not make changes to the rule based on these comments. VA 
disagrees with the commenters' assertion that independent authority to 
provide IVF care was needed to supersede section 106. The Murray 
Amendment established new authority to provide fertility counseling and 
treatment using assisted reproductive technology not only to a covered 
veteran but also to the spouse of a covered veteran. It was needed 
because 38 U.S.C. 1710 does not extend, and never has extended, to a 
veteran's spouse. See 38 U.S.C. 1710 (referring only to veterans) and 
38 U.S.C. 1781 through 1789 (VA's statutory authorities to provide 
health care to persons other than veterans, which do not extend IVF 
care to non-veterans). Independent authority was needed to authorize VA 
to also include the spouses of covered veterans in the VA-furnished IVF 
episode of care. But the Murray Amendment was not necessary to enable 
VA to provide infertility services to the veterans themselves under 38 
U.S.C. 1710. And as explained above, section 106 has no impact on VA's 
authority to provide medical services pursuant to section 1710 or any 
statutory authority other than section 106 itself. In short, the Murray 
Amendment did not and does not implicate section 106 of the VHCA.
d. Effect of Deborah Sampson Act of 2020
    Some commenters asserted that section 106 of the VHCA must prohibit 
VA from furnishing the health care services permitted under the IFR 
because the Deborah Sampson Act of 2020 (Pub. L. 116-315, title V, 
subtitle A) defined ``health care'' as ``the health care and services 
included in the medical benefits package provided by the Department 
before January 5, 2021,'' sec. 5101 of Public Law 116-315, and on 
January 4, 2021, the health care and services included in the medical 
benefits package provided by the Department did not include abortion or 
abortion counseling. The commenters argued that Congress thus approved 
of the exclusion of abortion and abortion counseling.
    VA does not make changes to the rule based on these comments. The 
IFR explained that the Deborah Sampson Act of 2020, Public Law 116-315, 
title V, section 5001 (2021) ``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.' '' 87 FR 55289 (quoting 38 U.S.C. 7310(b)(1)) (alterations 
in original). 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].'' Id. (quoting 38 U.S.C. 7310 
note). At the time, the medical benefits package included (and still 
includes) care that would have been excluded under the commenters' 
interpretation of section 106 of the VHCA, such as prenatal and 
delivery services.
    The IFR stated that ``[g]iven 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.' '' 87 FR 55289.
    Contrary to the commenter's assertion, the fact that VA had not, in 
its discretion, exercised its authority at the time of the Act to 
provide abortions or make exceptions to the regulatory exclusion on 
abortion does not mean that VA lacks statutory authority under 38 
U.S.C. 1710 to determine that abortions in some cases constitute needed 
care and to accordingly amend its exclusion by regulation. As VA 
explained in the IFR, the Deborah Sampson Act of 2020 recognized 38 
U.S.C. 1710 as a separate treatment authority unaffected and not 
limited by section 106. In fact, the terms of 38 U.S.C. 7310A(g)(2) as 
added by the Deborah Sampson Act of 2020 define, for purposes of VA's 
annual reporting requirement, gender-specific services to include: 
``mammography, obstetric care, gynecological care, and such other 
services as the Secretary determines appropriate,'' some of which VA 
would not have authority to provide ``under the commenters' 
interpretation of section 106. See also supra I.B.2. Thus, section 106 
and its limits on certain care under section 106 of Public Law 102-

[[Page 15457]]

585 were clearly not seen by Congress in promulgating the Deborah 
Sampson Act of 2020 as having any effect on VA's exercise of authority 
under 38 U.S.C. 1710.
    Nothing in the Deborah Sampson Act of 2020 prohibits VA from 
removing exclusions from the medical benefits package under 38 U.S.C. 
1710. VA recognizes that 38 U.S.C. 7310, Note, (Pub. L. 116-315, title 
V, section 5101(b)(2)) provides that: ``The references to health care 
and the references to services in sections 7310 and 7310A of title 38, 
United States Code, as added by paragraph (1), are references to 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].'' Congress did not, through 
that language, freeze in place the types of medical services that VA is 
authorized to provide under its general treatment authorities. Section 
7310 of title 38, U.S.C. relates to the establishment of the Office of 
Women's Health within VHA and its mission, and 38 U.S.C. 7310A relates 
to annual reports on Women's Health to be submitted to Congress. 
Nothing in either statute prohibits VA from expanding the medical 
benefits package or services or from providing additional information 
beyond what is required under 38 U.S.C. 7310 and 7310A. And these 
sections impose no limits on VA's general treatment authority in 38 
U.S.C. 1710.
    To the contrary, some of the functions of the Office of Women's 
Health set forth in 38 U.S.C. 7310(b) are to promote the expansion and 
improvement of clinical activities of VHA with respect to the health 
care of women veterans and to carry out such other duties as the Under 
Secretary for Health may require. On its face, the function of the 
Office to ``expand and improve'' clinical activities of VHA 
contemplates VA's authority to modify the medical benefits package to 
include additional services with respect to the health care of women 
veterans.
e. Repeal of Section 106 of the VHCA
    Some commenters asserted that section 106 has not been expressly 
repealed and further that repeals by implication are not favored, 
citing Branch v. Smith, 538 U.S. 254, 273 (2003), and Posadas v. 
National City Bank, 296 U.S. 497 (1936). VA does not make any changes 
to the rule based on these comments.
    At the outset, VA notes that this issue is immaterial because, even 
if section 106 remained in force, it would not constrain VA's authority 
to provide services (whether abortions, prenatal care, or other 
services) limited under section 106 but authorized under other 
statutory provisions such as 38 U.S.C. 1710 and former 38 U.S.C. 1712. 
Rather, the limitation in section 106 regarding care ``under this 
section'' applies only to section 106.
    Regardless, VA disagrees with commenters that section 106 remains 
in force. As discussed above and in the preamble to the IFR, the 
Veterans' Health Care Eligibility Reform Act effectively overtook 
section 106 of the VHCA by establishing a new standard to focus on 
medical necessity as ``the sole criterion of eligibility for VA 
hospital care and medical services.'' \1\ The ``need for care'' test 
was meant to ensure ``that medical judgment rather than legal criteria 
will determine when care will be provided and the level at which that 
care will be furnished.'' \2\ To the extent the commenters would 
construe section 106 of the VHCA to restrict VA's authority to provide 
a specific type of health care or service under separate statutory 
authorities, regardless of a finding of medical need, that restriction 
would irreconcilably conflict with VA's furnishing of any needed health 
care or services under 38 U.S.C. 1710. Indeed, for decades, VA has 
offered general pregnancy care and certain infertility services under 
38 U.S.C. 1710 and has not relied on section 106 of the VHCA to provide 
such services or any other services.
---------------------------------------------------------------------------

    \1\ H.R. REP. NO. 104-690, at 11.
    \2\ Id. at 4.
---------------------------------------------------------------------------

3. Conflict With State Laws
    Many commenters generally opined that the IFR violates State laws. 
VA does not make changes to the rule based on these comments.
    The Supremacy Clause of the U.S. Constitution, U.S. Const. art. VI, 
cl. 2., generally prohibits States from interfering with or controlling 
the operations of the Federal government, and therefore immunizes the 
Federal government from State laws that directly regulate it. ``[W]hen 
a federal agency `perform[s] a federal function pursuant to a law 
validly enacted by Congress[,] . . . under the Supremacy Clause, the 
states may not prohibit or, by regulation, significantly burden the 
manner of its execution without the consent of the United States.' '' 
Intergovernmental Immunity for the Department of Veterans Affairs and 
Its Employees When Providing Certain Abortion Services, 46 Op. O.L.C., 
_, at *4 (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf. Applying this principle to 
VA's IFR, the Department of Justice's Office of Legal Counsel concluded 
that ``states may not restrict VA and its employees acting within the 
scope of their federal authority from providing abortion services as 
authorized by federal law, including VA's rule.'' Id. at *10.
    Moreover, VA promulgated a regulation at 38 CFR 17.419 that 
explicitly preempts any State laws, rules, regulations, or requirements 
that conflict with a VA health care professional's practice within the 
scope of their VA employment. As explained in the IFR, consistent with 
Sec.  17.419, VA has determined that State and local laws, rules, 
regulations, or requirements, to the extent those laws unduly interfere 
with Federal operations and the performance of Federal duties, are 
preempted. That includes laws that States and localities might attempt 
to enforce in civil, criminal, or administrative matters against VA 
employees. State and local governments lack legal authority to enforce 
such laws, rules, regulations, or requirements in relation to health 
care and medical services provided by VA employees acting within the 
scope of their VA authority and employment.
    One commenter asserted that VA has no basis in Federal law to claim 
``blanket preemption'' in States that prohibit or restrict abortion, 
and other commenters relatedly stated that VA must be specific with 
regards to its claim of Federal supremacy. Such comments noted specific 
kinds of State laws that they asserted VA must either adhere to or 
demonstrate are explicitly preempted. Other commenters stated that 
Federal agencies cannot preempt State law unless an explicit conflict 
exists.
    VA does not make changes to the rule based on these comments. It is 
not clear what the commenter meant by ``blanket preemption.'' VA has 
been specific as to the scope of preemption; as VA previously confirmed 
in 38 CFR 17.419, and reiterated in the IFR, VA health care 
professionals may practice their health care profession consistent with 
the scope and requirements of their VA employment, notwithstanding any 
State law or license, registration, certification, or other 
requirements that unduly interfere with their practice. VA's regulation 
provides that, in order to ``provide the same complete health care and 
hospital service to beneficiaries in all States as required by 38 
U.S.C. 7301, 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

[[Page 15458]]

enforce them in relation to actions by health care professionals within 
the scope of their VA employment.'' 38 CFR 17.419. Consistent with the 
Supremacy Clause and Sec.  17.419, the IFR further explained that a 
State or local civil or criminal law that restricts, limits, or 
otherwise impedes a VA professional's provision of needed medical care 
within the scope of their VA employment, including the health care 
services permitted under the IFR, would be preempted. VA employees, 
including health care professionals who provide care and VA employees 
who facilitate that health care, such as VA employees in administrative 
positions who 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.
    In response to comments that raised specific State requirements 
related to abortion, and further suggested that VA must show whether 
such requirements are specifically preempted, we do not make changes. 
As a general matter, VA determines whether a State law ``unduly 
interferes on a case-by-case basis.'' See Authority of VA Professionals 
to Practice Health Care, 85 FR 71838, 71842 (Nov. 12, 2020); 
Intergovernmental Immunity for the Department of Veterans Affairs and 
Its Employees When Providing Certain Abortion Services, 46 Op. O.L.C., 
_, at *10 (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf. Accordingly, consistent with 
VA's existing regulations and the authorities discussed above, any 
State and local laws and regulations that VA determines would prevent 
or unduly interfere with VA health care professionals providing needed 
care as permitted by this rule, would be preempted.
    Several commenters referenced a court case related to HHS's 
interpretation of the Emergency Medical Treatment and Labor Act 
(EMTALA), which VA believes meant to reference an injunction issued by 
the U.S. District Court for the Northern District of Texas, Texas v. 
Becerra, 623 F. Supp. 3d 696 (N.D. Tex. 2022), aff'd, 89 F.4th 529 (5th 
Cir. 2024), where the district court was interpreting the specific 
language of this different statute that applies to certain hospitals 
that receive Medicare funding. The court was not interpreting VA's 
statutory authority, or related statutory language applicable here, and 
its decision and reasoning are not applicable to VA's IFR.
    One commenter asserted, without any supporting authority, that VA 
is required to show a compelling interest to preempt State laws. As VA 
explained in the IFR, pursuant to its authorities in 38 U.S.C. 1710 and 
1781, VA implemented the IFR to avert imminent and future harm to 
veterans and CHAMPVA beneficiaries whose interests Congress entrusted 
VA to serve. As explained above, 38 CFR 17.419(c) preempts 
``conflicting State laws, rules, regulations, or requirements pursuant 
to such laws'' to the extent the State law unduly interferes with VA's 
ability ``provide the same complete health care and hospital services 
to beneficiaries in all States'' including, but not limited to, 
abortion. VA takes no action based on this comment.
4. Conflict With the Holding in Dobbs and the Tenth Amendment
    Some commenters stated that the Dobbs decision delegated abortion 
matters to States rather than the Federal government, and further that 
the Tenth Amendment of the United States Constitution limits VA's 
authority to preempt State law. VA takes no action based on these 
comments. The Dobbs decision overturned Roe v. Wade, 410 U.S. 113 
(1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 
505 U.S. 833 (1992), and in no way affects VA's Federal statutory 
authority to develop regulations and policy related to the agency's own 
provision of needed medical care, including the health care services 
permitted under the IFR. VA furnishes hospital care and medical 
services determined to be needed pursuant to VA's general treatment 
authority for veterans (38 U.S.C. 1710), and pursuant to regulation 
through VA's medical benefits package (38 CFR 17.38). VA has determined 
that the health care services permitted by the IFR are needed. 
Similarly, VA has determined that providing access to such care 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)''). As explained above, the 
Supremacy Clause of the United States Constitution prohibits states 
from restricting Federal agencies and their employees acting within the 
scope of their Federal authority from providing abortion services. See 
generally Intergovernmental Immunity for the Department of Veterans 
Affairs and Its Employees When Providing Certain Abortion Services, 46 
Op. O.L.C., _, (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf.
    The Tenth Amendment of the United States Constitution provides that 
the powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States 
respectively, or to the people. VA is a Federal health care system, the 
operations of which are governed by Federal law, consistent with title 
38, United States Code. VA's authority to furnish health care to 
veterans and CHAMPVA beneficiaries has been granted by Federal statute 
as described above. VA's issuing of the IFR does not encroach on any 
rights reserved to the States or to the people and is not a violation 
of the Tenth Amendment to the United States Constitution. The statement 
of preemption of conflicting State law under the IFR is consistent with 
38 CFR 17.419(c) and lawful pursuant to the Supremacy Clause, U.S. 
Const. art. VI, cl. 2.
5. Conflict With Department of Defense Authorities
    Commenters alleged that this rule violates 10 U.S.C. 1093 and that 
VA cannot or should not provide broader access to abortion counseling 
and abortions than DoD. Multiple of these commenters further asserted 
that it is hard to imagine that Congress intended for former members of 
the armed services and their dependents to have access to abortion 
under VA programs when current service members do not have such access 
under DoD programs, and one commenter incorrectly stated that VA 
Medical Centers are facilities within the control of DoD. VA does not 
make changes to the rule based on these comments.
    Section 1093 of title 10 of the U.S. Code establishes that DoD may 
not use funds or facilities ``to perform abortions except where the 
life of the mother would be endangered if the fetus were carried to 
term or in a case in which the pregnancy is the result of an act of 
rape or incest.'' Section 1093 applies only to the use of DoD funds and 
facilities, not to VA funds and facilities. VA notes, however, that the 
terms of 10 U.S.C. 1093 conflict with the assertions made by some 
commenters that active-duty members of the armed services can never 
receive abortions under DoD programs.

[[Page 15459]]

    To the extent that some of these commenters raised the issue of 
dependents of service members having access to services in VA programs 
that they would not have under DoD programs for dependents, the statute 
governing VA's coverage for CHAMPVA beneficiaries specifically 
recognizes the possibility of differences in what care is covered under 
this VA program as opposed to the care covered under the similar DoD 
program, i.e., TRICARE (Select). Congress did not require that VA 
furnish identical medical benefits to those not eligible for TRICARE 
(Select). Rather, the law directs VA to provide CHAMPVA beneficiaries 
with medical care ``in the same or similar manner and subject to the 
same or similar limitations as medical care'' furnished to DoD TRICARE 
Select beneficiaries. 38 U.S.C. 1781(b) (emphases added). Indeed, prior 
to the IFR, CHAMPVA was not identical to TRICARE (Select). See, e.g., 
87 FR 55290. For example, the former did not include access to 
abortions in cases of rape or incest, while the latter did. The IFR 
brought CHAMPVA more in line with TRICARE (Select) in this regard. The 
commenter does not address the statute's repeated use of the phrase 
``or similar.'' That text recognizes differences may exist between the 
two programs' respective beneficiary populations and their needs. As VA 
explained in the IFR, 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. 87 FR 55290. Further, CHAMPVA beneficiaries (unlike 
TRICARE (Select) beneficiaries) include family caregivers of veterans, 
not just eligible dependents. 38 U.S.C. 1720G(a)(3)(A)(ii)(IV). 
Consistent with the statute's plain meaning, VA provides CHAMPVA 
beneficiaries certain care that is ``similar,'' but not necessarily 
identical, to care provided to beneficiaries of TRICARE (Select). See, 
e.g., 73 FR 65552 (November 4, 2008) (adding coverage for medically 
necessary prostheses because of significant conditions and removing 
exclusion of enuretic devices despite each not being covered by TRICARE 
(Select)); 87 FR 41594 (July 13, 2022) (providing coverage for annual 
physical exams, even though excluded in TRICARE (Select)).
6. Conflict With the Antideficiency Act
    Commenters stated that VA is barred from providing or paying for 
abortion or abortion counseling pursuant to the Antideficiency Act. VA 
does not make changes to the rule based on these comments. The 
Antideficiency Act, 31 U.S.C. 1341(a), generally prohibits Federal 
agencies from making expenditures in excess of available appropriations 
or in advance of appropriations. Per 31 U.S.C. 1349(a) and 1350, there 
are penalties associated with violations of the Antideficiency Act.
    In this case, the Antideficiency Act is not implicated because 
Congress appropriated funds to VA to perform authorized services. Per 
title II of division J of the Consolidated Appropriations Act, 2021 
(Pub. L. 116-260), title II of division J of the Consolidated 
Appropriations Act, 2022 (Pub. L. 117-103) and title II of division J 
of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), funds 
appropriated for fiscal years 2022, 2023, and 2024 to the Medical 
Services appropriations account have been made available ``[f]or 
necessary expenses for furnishing, as authorized by law, inpatient and 
outpatient care and treatment to beneficiaries of the Department of 
Veterans Affairs and veterans described in section 1705(a) of title 38, 
United States Code, including care and treatment in facilities not 
under the jurisdiction of the Department.'' The Medical Community Care 
appropriations account for fiscal years 2022, 2023, and 2024, has been 
made available ``[f]or necessary expenses for furnishing health care to 
individuals pursuant to chapter 17 of title 38, United States Code, at 
non-Department facilities.'' Title II, Division J, Consolidated 
Appropriations Act, 2021 (Pub. L. 116-260); Title II, Division J, 
Consolidated Appropriations Act, 2022 (Pub. L. 117-103); Title II, 
Division J, Consolidated Appropriations Act, 2023 (Pub. L. 117-328). 
More specifically, the Medical Services appropriation is for necessary 
expenses of inpatient and outpatient VA beneficiary care provided by VA 
at VA facilities and Government facilities for which VA contracts. The 
Medical Community Care appropriation is for necessary expenses of 
providing healthcare to VA beneficiaries in the community--facilities 
other than VA facilities and Government facilities for which VA 
contracts.
    As explained, an abortion is authorized care under 38 U.S.C. 1710, 
the IFR, and the medical benefits package when a health care 
professional determines it to be needed and in accord with generally 
accepted standards of medical practice and: (1) the life or the 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. Expenditures associated with such authorized care may be 
made from VA's Medical Services and--when appropriate--Medical 
Community Care accounts.
    The IFR also authorizes the provision of medically necessary 
abortions and abortion counseling under VA's CHAMPVA program, 38 U.S.C. 
1781, under the circumstances described in the rule. Medical Services 
and Medical Community Care account funds are used for the CHAMPVA 
program and may therefore be used for authorized counseling and care. 
Such expenditures are proper and do not violate VA's appropriations act 
or the Antideficiency Act.
7. Conflict With the Hyde Amendment
    Some commenters stated that VA is barred from providing or paying 
for the health care services permitted under the IFR pursuant to what 
is referred to as the Hyde Amendment. VA does not make changes to the 
rule based on these comments.
    VA is not subject to the Hyde Amendment, which addresses Federal 
funds available to the Departments of Labor, Health and Human Services, 
and Education in legislation on annual appropriations. Division H of 
Public Law 117-328; see also 87 FR 55290. Accordingly, VA is not barred 
by the Hyde Amendment from spending its funds to provide authorized 
health care services permitted by the IFR.
8. Conflict With the Assimilative Crimes Act and VA-Related Regulation
    Some commenters asserted that the IFR violates the Assimilative 
Crimes Act, 18 U.S.C. 13, which allows the Federal government to 
prosecute a State crime as a Federal offense in limited circumstances 
when such offense has been committed on an area within the jurisdiction 
of the United States known as a Federal enclave and is not otherwise a 
Federal offense. These commenters appeared to assert that if a State 
makes it a crime to perform an abortion, any abortion performed in that 
State, in the absence of a Federal law prohibiting such performing of 
an abortion, would be unlawful under 18 U.S.C. 13 if performed on 
Federal property. Relatedly, one commenter alleged that the rule 
conflicts with 38 CFR 1.218(c)(3), which states that nothing contained 
in the rules and regulations set forth under 38 CFR 1.218(a) shall be 
construed to abrogate any other Federal laws or regulations, including 
assimilated offenses under 18 U.S.C. 13, or any State or local laws and 
regulations applicable to the area in which the property is situated.

[[Page 15460]]

    VA does not make changes to the rule based on these comments. As 
some of these commenters acknowledged, the Department of Justice's 
Office of Legal Counsel (OLC) has examined whether the Assimilative 
Crimes Act would apply to Federal employees performing their duties in 
a manner authorized by Federal law, while on a Federal enclave, which 
may include VA hospitals. OLC concluded that Federal employees engaging 
in such conduct would not violate that statute and could not be 
prosecuted by the Federal government under that law. Application of the 
Assimilative Crimes Act to Conduct of Federal Employees Authorized by 
Federal Law, 46 Op. O.L.C. _ (Aug. 12, 2022), https://www.justice.gov/olc/file/1527726/download. The reasoning in that opinion applies to VA 
employees on Federal enclaves who are providing care in accordance with 
their Federal duties authorized under the IFR. The commenter did not 
provide any response to this analysis, other than to reiterate the 
commenter's view that Federal law ``places significant limitations on 
abortions in VA programs.'' As explained, however, VA has statutory 
authority to provide the health care services permitted under the IFR.
    Furthermore, the IFR is not in conflict with 38 CFR 1.218(c)(3), 
which provides, ``Nothing contained in the rules and regulations set 
forth in paragraph (a) of this section shall be construed to abrogate 
any other Federal laws or regulations, including assimilated offenses 
under 18 U.S.C. 13 or any State or local laws and regulations 
applicable to the area in which the property is situated.'' Paragraph 
(a) of such section describes rules and regulations that apply at a 
property under the charge and control of VA, and to persons entering 
such property, including, for example, conduct related to gambling, use 
of service animals, creation of disturbances, and vehicular and 
pedestrian traffic. 38 CFR 1.218(a). This provision is unrelated to 
matters of medical practice or the provision of medical benefits. It 
does not subject VA and its employees to State or other local 
restrictions on any form of medical care that VA staff are authorized 
to furnish, including VA's provision of health care services permitted 
under the IFR. Additionally, because the Assimilative Crimes Act has no 
application to VA employees practicing within the scope of their VA 
practice, as explained above, the portion of 38 CFR 1.218(c)(3) 
referring to the Act has no application to care provided under the IFR.
9. Conflict With Interstate Prohibitions Under 18 U.S.C. 1461 and 1462
    Commenters alleged that the IFR violates 18 U.S.C. 1461 and 1462. 
Section 1461, in pertinent part, prohibits the mailing of ``[e]very 
article or thing designed, adapted, or intended for producing abortion, 
or for any indecent or immoral use'' and ``[e]very article, instrument, 
substance, drug, medicine, or thing which is advertised or described in 
a manner calculated to lead another to use or apply it for producing 
abortion, or for any indecent or immoral purpose.'' Section 1462, in 
pertinent part, prohibits the knowing use of ``any express company or 
other common carrier or interactive computer service'' for 
transportation across State lines of ``any drug, medicine, article, or 
thing designed, adapted, or intended for producing abortion, or for any 
indecent or immoral use[.]'' These commenters also alleged that 
violation of these laws then support offenses under 18 U.S.C. 
1961(1)(B) and 18 U.S.C. 552 (prohibiting Federal employees from aiding 
and abetting persons engaged in violation of laws prohibiting dealing 
in, among other things, the means for procuring abortion).
    VA does not make changes to the rule based on these comments 
because the IFR is consistent with 18 U.S.C. 1461. In December 2022, 
OLC concluded that 18 U.S.C. 1461 does not prohibit the mailing of 
certain drugs that can be used to perform abortions where the sender 
lacks the intent that the recipient of the drugs will use them 
unlawfully. Because there are manifold ways in which recipients in 
every State may lawfully use such drugs, the mere mailing of such drugs 
to a particular jurisdiction is an insufficient basis for concluding 
that the sender intends them to be used unlawfully. See Application of 
the Comstock Act to the Mailing of Prescription Drugs That Can Be Used 
for Abortions, 46 Op. O.L.C., _, at 1 (Dec. 23, 2022), https://www.justice.gov/d9/opinions/attachments/2023/01/03/2022-12-23_-_comstock_act_1.pdf. In support of this conclusion, the OLC opinion 
explains that there are uses of these medications that State law does 
not prohibit, including mailing of abortion medications intended, for 
example, to be used pursuant to Federal authorities. Federal agencies, 
including VA, provide lawful abortions pursuant to their Federal 
authorities; therefore the mailing of abortion medications intended to 
be used lawfully pursuant to those authorities would not violate 18 
U.S.C. 1461. This opinion further explains that the same analysis is 
applicable to the cognate provision 18 U.S.C. 1462. Id. at 2 n.3. 
Because any mailing or other transporting across State lines of certain 
medications or items under the IFR would not violate 18 U.S.C. 1461 or 
1462, there is no subsequent potential offense under 18 U.S.C. 
1961(1)(B) and 18 U.S.C. 552.
10. Conflict With the Major Questions Doctrine
    Commenters alleged that this rule violates the major questions 
doctrine, referencing West Virginia v. Environmental Protection Agency, 
142 S. Ct. 2587 (2022). Under such doctrine, an agency must identify 
clear congressional authorization for its exercise of authority in `` 
`extraordinary cases' in which the `history and the breadth of the 
authority that [the agency] has asserted,' and the `economic and 
political significance' of that assertion, provide a `reason to 
hesitate before concluding that Congress' meant to confer such 
authority.'' Id. at 2608 [alterations in original]. VA does not make 
changes to the rule based on these comments. As explained above, VA has 
not found ``a newfound power'' in an ``ancillary provision'' of the 
Veterans' Health Care Eligibility Reform Act of 1996, as the Supreme 
Court found the Environmental Protection Agency had done with the Clean 
Power Plan. West Virginia, 142 S. Ct. at 2602, 2610. Congress expressly 
delegated to the Secretary of Veterans Affairs the authority to 
``furnish hospital care [and] medical services . . . which the 
Secretary determines to be needed.'' 38 U.S.C. 1710(a)(1)-(3). 
Identifying the medical services ``determine[d] to be needed'' for 
veterans is clearly within VA's authority. As discussed above, prior to 
promulgation of the final rule establishing VA's medical benefits 
package in October of 1999, VHA Policy, Manual M-2, Professional 
Services Part XIV, Surgical Service, Change 27, paragraph 9.02a. (July 
26, 1977, partial rescission, expired on Jan. 7, 1999), recognized the 
need for and authorized the provision of a ``therapeutic . . . abortion 
as a proper treatment'' in some circumstances pursuant to the 
procedures described therein. The IFR is thus a traditional exercise of 
VA's established authority to determine what medical services are 
``needed'' and, therefore, to decide what specific medical services VA 
will cover or provide under the medical benefits package.
    Additionally, Congress has directed VA to 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 under TRICARE 
(Select). As

[[Page 15461]]

explained in the IFR, VA has previously deviated from TRICARE (Select) 
in amending its CHAMPVA regulations to provide services that best 
promote the long-term health of CHAMPVA beneficiaries while remaining 
sufficiently ``similar'' to TRICARE (Select). 87 FR 55290-55291. Thus, 
this IFR is also a traditional exercise of VA's authority to administer 
CHAMPVA and decide what medical services are medically necessary and 
appropriate for CHAMPVA coverage while remaining sufficiently 
``similar'' to TRICARE (Select).
11. The Born Alive Infants Protection Act
    One commenter inquired what VA will do to comply with its 
obligations under the Born Alive Infants Protection Act of 2002, and 
further stated that VA fails to explain what policies and procedures 
are in place to ensure that any children born alive after attempted 
abortions are given appropriate medical care in the same manner as 
other children born alive. The Born-Alive Infants Protection Act of 
2002, Public Law 107-207, was enacted August 5, 2002, and is codified 
at 1 U.S.C. 8. The Act clarifies that, for purposes of any Act of 
Congress or any ruling, regulation, or interpretation of the various 
Federal agencies, the meaning of the words ``person,'' ``human being,'' 
``child,'' or ``individual'' ``shall include any infant member of the 
species homo sapiens who is born alive at any stage of development.'' 
VA is subject to, and will continue to comply with, the provisions 
found in 1 U.S.C. 8. Additionally, VA is authorized to provide certain 
health care services to a newborn child of a woman veteran receiving 
care from VA. 38 U.S.C. 1784A and 1786. VA does not make changes to the 
rule based on this comment.

II. Comments That Raised Concerns With VA's Good Cause Analysis To 
Issue an IFR

    VA issued an IFR, in which the changes to 38 CFR 17.38 and 17.272, 
were effective immediately upon publication, and the public comment 
period began on the date of publication. 87 FR 55287. VA found that 
good cause justified forgoing advance notice for public comment and a 
delayed effective date. 5 U.S.C. 553(b)(B), (d)(3). VA cited its urgent 
need to provide access to abortion counseling and to abortions in cases 
of rape or incest or where the life or health of the pregnant 
individual is in danger following Dobbs. After Dobbs, some States had 
begun to enforce existing abortion bans and restrictions on care and 
were proposing and enacting new bans and restrictions containing 
limited exceptions for medical necessity; some also included exceptions 
for pregnancy that is the result of rape or incest. These measures were 
creating urgent risks to the lives and health of pregnant veterans and 
CHAMPVA beneficiaries in those States. 87 FR 55294. VA received 
comments that opposed VA's issuance of an IFR based on general 
assertions that VA's good cause justification was insufficient, 
although only some of these comments directly addressed VA's good 
cause. VA notes at the outset that our request for comment in the IFR 
and issuance of this final rule have overtaken any assertions 
concerning a lack of good cause. In any event, VA addresses below the 
comments it received concerning VA's good cause for making the IFR 
effective immediately.

A. General Assertions That Good Cause Was Not Established

    Some commenters asserted that VA's good cause justification was 
insufficient for general reasons unrelated to VA's rationales 
supporting good cause. Many of the duplicated form responses that VA 
received as comments asserted that the IFR violated the Administrative 
Procedure Act (APA) and stated that the APA requires that the public 
have an opportunity to provide comment on matters of public interest 
before a rule is effective. VA does not change course based on these 
comments. The 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 at least a 30-day delay before the rules 
become effective. 5 U.S.C. 553(b), (d). However, an agency may forgo 
prior 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)) and may also bypass the APA's 30-day delayed 
effective date requirement if good cause exists (5 U.S.C. 553(d)(3)), 
or if the rule ``grants or recognizes an exemption or relieves a 
restriction'' (5 U.S.C. 553(d)(1)). VA found good cause under 5 U.S.C. 
553(b)(B), ((d)(3), and also explained that the IFR removed certain 
restrictions (see 87 FR 55294-96), and therefore did not violate the 
APA in issuing the IFR.
    Other commenters asserted that although a Federal agency is allowed 
to publish an IFR, VA did not demonstrate that it had good cause to do 
so. Because these commenters did not specifically assert or explain why 
they believed VA did not demonstrate good cause, VA does not change 
course based on these comments. As VA explained in the IFR, VA had good 
cause to make the IFR effective immediately because delaying its 
effectiveness would leave many veterans and CHAMPVA beneficiaries 
without access to needed and medically necessary and appropriate health 
care--abortions and abortion counseling that VA is able to provide 
under the IFR--thus putting their health and lives at risk. 87 FR 
55295-96. Immediate effectiveness was critical following State actions 
to further ban or restrict abortion post-Dobbs. Id. These State bans 
and restrictions on abortion presented a serious threat to the health 
and lives of over one hundred thousand veterans and CHAMPVA 
beneficiaries who relied, or may rely in the future, on VA health care. 
Id. VA determined that such bans and restrictions would 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 in the community before the Dobbs decision, especially as 
State laws prompted providers to cease offering abortion services 
altogether. 87 FR 55295-55296. 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 health of 
the pregnant individual or when the pregnancy is the result of an act 
of rape or incest. Id. As noted in the IFR, it was estimated that up to 
53 percent of veterans of reproductive age may be living in States that 
either had already banned abortions or were soon expected to ban 
abortions, following Dobbs. 87 FR 55295. VA also estimated that nearly 
50,000 CHAMPVA beneficiaries could have been impacted by such those 
then-current or expected bans. Id.
    Some commenters asserted that the substantive provisions of the IFR 
were generally not in the public interest or in States' interests (for 
those States that have instituted more stringent restrictions on 
abortions or more burdensome requirements on abortion counseling), and 
therefore VA could not have provided adequate good cause. These 
commenters did not offer specific reasons why VA did not have good 
cause to issue the IFR; rather, they seemed to assert that because they 
deemed a substantive provision of an IFR to generally be against the 
public or States' interests, then a good cause justification must 
necessarily fail. In invoking the public interest prong of the good 
cause exemption, the question is not whether a substantive provision of 
a rule, itself, would be contrary to public interest in the minds of 
some, but

[[Page 15462]]

whether following ``ordinary procedures--generally presumed to serve 
the public interest--would in fact harm that interest.'' Mack Trucks, 
Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012). For the reasons 
explained in the IFR, VA provided good cause for why providing advance 
notice and comment would be contrary to public interest. See, e.g., 87 
FR 55294-96.

B. Specific Assertions That Good Cause Was Not Established

    Some commenters asserted that VA's good cause justification was 
insufficient for reasons more directly related to the reasons VA stated 
in finding good cause. These commenters did not agree with VA's 
statement of urgent need to provide access to the health care services 
permitted under the IFR following the ruling in Dobbs, which resulted 
in some States severely restricting and banning abortion. VA groups and 
summarizes such comments below.
    Some commenters asserted that the IFR was not urgently needed 
because every, or nearly every, State that restricts abortion permits 
exceptions when the life of the pregnant individual would be endangered 
were the pregnancy carried to term, and further that some of those 
States also permit exceptions where the pregnancy was the result of 
rape or incest. These commenters generally seemed to assert that if 
many or enough of the States had similar exceptions for abortions as 
the IFR, then there could not be sufficient need among veterans to 
access the health care services permitted under the IFR from VA to 
support good cause.
    VA does not change course based on these comments. The fact that 
some, but not all, States might permit similar access to care as VA is 
not sufficient to prevent endangerment to the life or health of 
pregnant individuals that VA serves. See 87 FR 55288 (concluding that 
care available under the IFR is needed and medically necessary and 
appropriate). In fact, even though some States may allow an abortion to 
prevent the endangerment to the life of a pregnant individual, they may 
not allow an abortion to prevent the endangerment to the health of a 
pregnant individual. When pregnant veterans and CHAMPVA beneficiaries 
face pregnancy-related complications that their VA health care 
providers have determined are putting their health or lives at risk or 
are pregnant due to an act of rape or incest, they must be confident 
that their providers can take the clinically necessary action to 
provide needed and medically necessary and appropriate health care. And 
even in States that restrict abortions subject to exceptions similar to 
VA's, abortion access is often subject to additional restrictions that 
VA, on the basis of its authorities and obligations, has not adopted, 
such as timeframe limitations, evidentiary requirements, or 
prerequisite procedures (such as mandatory waiting periods or required 
ultrasounds), which could delay delivery of care that is often time 
sensitive. VA must always ensure it can consistently meet the medical 
needs of veterans and CHAMPVA beneficiaries across its healthcare 
system. Even one State presents enough risk to the lives and health of 
veterans and CHAMPVA beneficiaries to support VA's good cause 
justification in the IFR. As the IFR states, ``[a]llowing even one 
preventable death of a veteran or CHAMPVA beneficiary by limiting 
access to abortions is unacceptable.'' 87 FR at 55296.
    Commenters further asserted that VA's statements of good cause were 
not substantiated because VA did not cite specific cases where needed 
and medically necessary and appropriate care would not be permitted. In 
so doing, commenters argued that VA must conduct a more thorough 
analysis to more specifically identify those individuals who cannot get 
the care VA has found to be needed and medically necessary and 
appropriate. Those commenters are incorrect. VA explained that 
``certain States have begun to enforce abortion bans and restrictions 
on care, and are proposing and enacting new ones.'' Id. at 55288; see 
also id. at 55293, 55295 (citing examples and describing the evolving 
legal landscape). VA also documented the pressing need to ensure that 
all of the veterans and CHAMPVA beneficiaries for which VA provides 
healthcare have access to needed and medically necessary and 
appropriate care. Id. at 55291-92.
    Other commenters asserted that VA has not issued statements 
regarding, or otherwise does not have, a clear plan to implement the 
provisions of the IFR despite asserting an emergency to support good 
cause. These commenters seemed to argue that there can be no need to 
forgo notice and comment procedures and dispense with a delayed 
effective date if VA is not yet ready to implement the IFR on a large-
scale level. That is incorrect: VA was prepared to offer health care 
services permitted under the IFR on the day the IFR was published.
    To the extent commenters posit that abortion is harmful to patients 
or is never necessary--that abortions are, essentially, illegitimate 
medical services, thereby negating VA's good cause argument and grounds 
for publishing the IFR--the commenters failed to provide a rationale 
for, and to demonstrate the basis for, this position. The VA Secretary 
has determined that the health care services permitted under the IFR 
are needed pursuant to 38 U.S.C. 1710 and are medically necessary and 
appropriate pursuant to 38 U.S.C. 1781, as implemented by 38 CFR 17.270 
et seq., and VA has authority to provide these services under the terms 
of the IFR, as explained there. As non-exhaustive examples, the IFR 
identified conditions such as ``severe preeclampsia, newly diagnosed 
cancer requiring prompt treatment, and intrauterine infections, and . . 
. pre-existing conditions exacerbated by continuing the pregnancy,'' 
for which pregnancy termination ``may be the only treatment available 
to save the health or life of the pregnant individual.'' 87 FR 55295. 
In States that restrict access to abortion services, treatment delayed 
so VA could seek prior public comment would have been treatment denied.
    Other commenters asserted that the timing of VA's publication of 
the IFR, being two months after publication of the Dobbs decision (and 
four months after such decision ``leaked'' as stated in the comments) 
was too late to justify VA's statement of need in support of its good 
cause. In support of this assertion, these commenters proffered that 
because VA was aware that the Supreme Court could overturn Roe, prior 
to the Dobbs decision, and because some States had taken anticipatory 
action prior to the Dobbs decision, VA would have issued the IFR sooner 
if there were an actual emergent need. VA does not change course based 
on these comments. The administrative process for VA to weigh policy, 
make decisions, draft a rulemaking, and have that rulemaking clear all 
required reviews prior to publication in the Federal Register can 
routinely take substantial effort and time. Indeed, the Supreme Court 
has found that an agency taking two months to prepare a 73-page rule 
did not constitute ``delay'' inconsistent with the Secretary's finding 
of good cause. Missouri, 142 S. Ct. at 654. Here, the publication of 
the IFR was completed at the earliest possible time and ensures that, 
irrespective of contrary State laws post-Dobbs, veterans and CHAMPVA 
beneficiaries can receive access to the needed and medically necessary 
and appropriate health care services permitted under the IFR.
    One commenter opined that the IFR lacked good cause because VA has 
always provided care to pregnant individuals in life-threatening

[[Page 15463]]

circumstances, including treatment for ectopic pregnancies or 
miscarriages, which were covered under VA's medical benefits package 
prior to the IFR. In support, the commenter cited to Veterans Health 
Administration (VHA) Directive 1330.03, titled Maternity Health Care 
and Coordination, dated November 3, 2020. The commenter further stated 
that providing such lifesaving care to a pregnant individual is not an 
abortion and is already allowed. This commenter seemed to assert that 
because VA provided some lifesaving treatment to manage certain 
complications associated with pregnancy prior to the IFR, that there 
could not have been an emergency to warrant VA's issuance of the IFR. 
While VA agrees that the care identified by the commenter has been 
lawfully provided, as discussed herein and in the IFR (for example, see 
87 FR 55291), there are many life- and health-endangering complications 
of pregnancy other than ectopic pregnancies and miscarriages where 
abortion would be the needed or necessary treatment, and prior to the 
IFR, VA's medical benefits package did not provide access to care in 
such circumstances.
    One commenter opined that the IFR did not have good cause since it 
undermines what the commenter described as the ``pro-life policy 
stance'' of Congress and further disregards governmental interests, 
including ``interest in safeguarding preborn human life''. VA disagrees 
with the commenter's assertion and implemented the IFR pursuant to the 
authority Congress granted VA to furnish eligible veterans and CHAMPVA 
beneficiaries with medical services that VA determines to be needed and 
medically necessary and appropriate. 38 U.S.C. 1710, 1781; 87 FR 55291-
55293. The changes made by the IFR were within the scope of the 
authority Congress has provided to VA.

III. Comments Asserting That the IFR Is Too Broad

    Commenters raised concerns with various aspects of the IFR being 
overly broad so as to allow for abortions for reasons beyond the 
circumstances stated in the IFR. VA summarizes and addresses those 
comments below.

A. Lack of Definition of Abortion

    One commenter opined that the IFR avoided clarity by not defining 
abortion. VA does not make changes to the rule based on this comment. 
VA does not specifically define in its regulations the other various 
types of care provided under the medical benefits package or covered by 
CHAMPVA. As the medical field is constantly evolving, attempting to 
define medical terms in regulation could be arbitrary or outdated based 
on evolving standards of practice and thus could result in unintended 
limitations on the provision of life and health-saving care. Therefore, 
and consistent with other treatments listed in such regulations, VA 
does not find it appropriate to define the term abortion in regulation.

B. The Term ``Health'' Is Too Broad or Not Defined

    Several commenters asserted that the term ``health,'' in the 
context of the exception permitting abortion if a health care provider 
determines that the ``health'' of the pregnant individual would be 
endangered were the fetus carried to term, was too broad in scope. Some 
asserted that the lack of definition for the term ``health'' means VA 
will provide abortions in all circumstances, or, essentially, allow for 
``elective abortions.'' Other commenters more specifically asserted 
that the Supreme Court broadly defined ``health'' for purposes of 
abortion as ``physical, emotional, psychological, familial, and the 
woman's age--relevant to the wellbeing of the patient. All these 
factors may relate to health.'' Doe v. Bolton, 410 U.S. 179, 192 
(1973). These commenters argue that a rule permitting abortion for 
reasons of health without further qualification or limitation could be 
interpreted in a way that increases access to abortions beyond the 
scope stated in the IFR.
    VA does not make changes to the term ``health'' or further define 
or characterize it in regulation based on these comments. VA has 
existing statutory and regulatory authorities that establish when 
needed care provided under the medical benefits package may be provided 
to an individual veteran and when medically necessary services are 
covered by CHAMPVA.
    As explained in the IFR, VA's general treatment authority requires 
the Secretary to determine what ``hospital care and medical services'' 
are ``needed.'' 38 U.S.C. 1710. Consistent with this authority and 
under the IFR, VA provides an abortion to a veteran only if an 
appropriate health care professional determines that such care is in 
accord with generally accepted standards of medical practice and is 
needed to promote, preserve, or restore the health of the individual, 
consistent with the definitions set forth by existing VA regulations. 
38 CFR 17.38(b).
    With respect to CHAMPVA, VA provides beneficiaries with medical 
services and supplies if the services and supplies are ``medically 
necessary and appropriate for the treatment of a condition'' and ``not 
specifically excluded from program coverage.'' See 38 CFR 17.272(a). 
With respect to abortions, VA would provide or reimburse for the care 
only if the life or the health of the pregnant beneficiary would be 
endangered if the pregnancy were carried to term or if the pregnancy is 
the result of an act of rape or incest. See id. at Sec.  17.272(a)(64).
    Because determining whether a pregnant individual's health is 
endangered necessarily requires an individualized assessment by a 
health professional, VA does not believe it is appropriate to define 
the term ``health'' in regulation. Attempting to define every single 
condition, illness, and other circumstance (and combination of such 
circumstances) that could be included under such a definition would 
likely be arbitrary and incomplete and thus could result in veterans 
and CHAMPVA beneficiaries not receiving needed and medically necessary 
and appropriate care.

C. Breadth of Determinations by, or Qualifications of, Health Care 
Professionals

    One commenter asserted ``the phrase `if determined to be needed by' 
a medical professional . . . allows abortion on demand'' because it 
generally allows a provider to say such care is ``needed for mental 
anguish or anxiety''. VA does not make changes to the rule based on 
this comment. As stated above, the IFR does not allow for abortions in 
all circumstances; rather, it allows only those permitted under the 
circumstances described in the IFR when the life or health of the 
individual would be endangered if the pregnancy were carried to term or 
when the pregnancy is the result of rape or incest. The decision of 
whether a veteran's health is endangered is a clinical decision made on 
an individual, case-by-case basis using the standard provided in 38 CFR 
17.38(b) for the provision of health care to veterans. VA health care 
professionals consider a veteran's health in terms of the veteran's 
whole health when determining if care is needed to promote, preserve, 
or restore the health of the individual and is also in accord with 
generally accepted standards of medical practice, pursuant to 38 CFR 
17.38(b). As to CHAMPVA beneficiaries, a determination is likewise 
performed on a case-by-case basis, with the health care provider 
determining if the care is medically necessary and appropriate for the 
treatment of a condition and not specifically excluded from program 
coverage. See 38 CFR 17.272(a).

[[Page 15464]]

    Multiple commenters raised concerns that VA did not indicate in the 
IFR the qualifications or professional competence required for VA 
health care professionals to furnish the health care services permitted 
under the IFR. One commenter more specifically alleged that, to merely 
permit a ``health care professional'' (as that term was used in the 
preamble of the IFR) to determine the clinical need for an abortion 
would allow for personnel without any gynecological or obstetrical 
skill or experience to make such determination. One commenter more 
generally raised concerns about who determines whether the life of the 
pregnant individual is at risk and at what degree, and other commenters 
specifically requested that VA ensure only physician-led teams are 
making these clinical eligibility decisions.
    VA does not make changes to the rule based on these comments. As a 
preliminary matter, VA regulations specify that care in the medical 
benefits package will only be provided if an ``appropriate health care 
professional[ ]'' determines that it is needed. 38 CFR 17.38(b) 
(emphasis added). VA health care professionals are not permitted to 
provide any medical care, including making determinations about needed 
care, beyond the scope of their VA practice, training, expertise, and 
demonstrated skills and abilities. 38 U.S.C. 7402 and 38 CFR 17.419. 
Regarding the expressed concerns about the term ``health care 
professional,'' or the lack of defined qualifications or occupations in 
the IFR to designate that a ``health care professional'' is permitted 
to determine whether an abortion is medically necessary, VA notes that 
the regulations revised by the IFR (38 CFR 17.38 and 38 CFR 17.272) 
only address the coverage of health care and not the provision of 
health care by a ``health care professional'' or the training or 
credentials they must possess. Therefore, this final rule will not 
specify particular occupations or qualifications for a VA health care 
professional to provide either abortion counseling or abortions under 
the circumstances identified through this rule. VA reiterates that only 
an appropriate health care professional can make determinations about 
what care is needed. A VA health care professional is not and will not 
be permitted to provide any medical care beyond the scope of their VA 
practice, training, expertise, and demonstrated skills and abilities in 
any context, including if providing either abortion counseling or 
abortions.
    Regarding the comment that inquired about the degree of risk to 
life to be ascertained when determining whether an abortion is 
medically necessary, that determination is made by the appropriate 
health care professional on a case-by-case basis; VA will not establish 
a threshold degree of risk to life that is required before an 
individual is determined eligible for an abortion through VA because 
every case is clinically distinct. Regarding the requests that VA only 
permit decisions about the provision of abortions to be made by 
physician-led teams, VA restates from above that this final rule will 
not specify particular occupations or qualifications for a VA health 
care professional to provide either abortion counseling or abortions. 
VA does not intend for any occupation to perform clinical duties beyond 
their occupational training and expertise, and their practice will be 
consistent with generally accepted standards of care.
    One commenter stated that the regulations were vague and can leave 
room for interpretation, and further suggested that VA have a service 
that would allow doctors or staff the ability to get a second opinion, 
feedback, and ability for quick determinations or assistance. VA does 
not make changes to the rule based on this comment. The IFR does not 
restrict VA health care professionals' ability to seek consultations 
for assistance with determinations of clinical necessity for any health 
care or service provided, to include the health care services permitted 
by the IFR.

D. Lack of Gestational Limits

    Commenters raised concerns that the IFR did not establish 
gestational age limits beyond which an abortion would not be permitted, 
which they asserted will authorize VA to provide abortions for reasons 
beyond the circumstances permitted in the IFR. Most of these commenters 
did not offer specific support for this concern. Other commenters 
asserted that an abortion is only necessary up to a certain gestational 
age. One commenter specifically inquired about a gestational age limit 
for pregnancies that were the result of rape or incest, and relatedly 
other comments stated that some States that permit abortion in cases 
where the pregnancy is the result of rape or incest also have 
gestational age limits for such abortions. VA does not make changes to 
the rule based on these comments. As explained, the IFR does not permit 
the provision and coverage of abortions in all circumstances. The 
preamble to the IFR explains that VA has authority under 38 U.S.C. 1710 
to furnish veterans with hospital care and medical services that the 
Secretary determines to be needed. 87 FR 55288. Consistent with this 
authority, VA would provide an abortion to a veteran only 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. 
This means that in either case such care may be provided only 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).
    Additionally, VA has authority under 38 U.S.C. 1781 to provide 
CHAMPVA beneficiaries with medical care. 87 FR 55290. Pursuant to 38 
CFR 17.270(b), VA provides those medical services that are medically 
necessary and appropriate for the treatment of a condition and that are 
not specifically excluded. Consistent with these authorities, VA would 
provide an abortion to a CHAMPVA beneficiary only if such care is 
medically necessary and appropriate when (1) the life or health of the 
pregnant beneficiary would be endangered if the pregnancy were carried 
to term; or (2) the pregnancy is the result of an act of rape or 
incest. 38 CFR 17.272(a)(64).
    The decision about whether a pregnancy endangers the veteran's or 
CHAMPVA beneficiary's life or health, and the needed care or medically 
necessary and appropriate treatment, must be made on a case-by-case 
basis by appropriate healthcare professionals consistent with 38 CFR 
17.38 and 17.270(b). As life and health endangering pregnancy 
complications can arise throughout a pregnancy, imposing a time limit 
after which VA could not provide needed or medically necessary and 
appropriate care could be potentially dangerous to veterans and CHAMPVA 
beneficiaries and would be inconsistent with VA's authority to provide 
needed health care to veterans and medically necessary and appropriate 
health care to CHAMPVA beneficiaries and contrary to VHA's primary 
function to provide a complete medical and hospital service for the 
medical care and treatment of veterans. 38 U.S.C. 1710, 38 CFR 17.38; 
38 U.S.C. 7301(b); 38 U.S.C. 1781; 38 CFR 17.270(b). Each patient's 
situation is different, and the decision about whether to continue a 
pregnancy that endangers the veteran or CHAMPVA beneficiary's life or 
health must be made on a case-by-case basis by the pregnant patient in 
consultation with appropriate health care professionals based on the

[[Page 15465]]

best medical evidence and accepted standards of medical practice. As to 
comments that specifically inquired about gestational age limits in 
cases where pregnancies are the result of rape or incest, we reiterate 
the statements above that establishing limits would be inconsistent 
with VA's authority to provide needed health care to veterans and 
medically necessary and appropriate health care to CHAMPVA 
beneficiaries and contrary to VHA's primary function to provide a 
complete medical and hospital service for the medical care and 
treatment of veterans. 38 U.S.C. 1710, 38 CFR 17.38, 38 U.S.C. 7301(b), 
38 U.S.C. 1781, 38 CFR 17.270(b).

IV. Comments Related to the Exception for Abortion if the Life of the 
Pregnant Individual Would Be Endangered

    The IFR revised 38 CFR 17.38(c)(1) to establish an exception for an 
abortion if the life of the pregnant veteran would be endangered if the 
pregnancy were carried to term. Below VA summarizes comments that 
specifically raised concerns with this exception, other than those 
already addressed in this rulemaking.
    Commenters who opposed the IFR generally stated that it is rare 
that the life of a pregnant individual is truly threatened by pregnancy 
or delivery. VA does not make changes to the rule based on these 
comments as VA disagrees. Endangerment to even one veteran's life would 
be sufficient, and regardless, VA refers commenters to the discussion 
in the IFR that details how pregnant individuals may face life-
threatening conditions, and abortion may be the only medical 
intervention available that can preserve their life. See 87 FR 55291. 
As noted in the IFR, while research has shown most pregnancies progress 
without incident, from 1998 to 2005, the U.S. maternal mortality rate 
associated with live births was 8.8 deaths per 100,000 live births, and 
maternal mortality rates have increased staggeringly since then. Id. 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). Id. 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. Id. Additionally, in 2020 and 
2021, maternal mortality rates increased to 23.8 and 32.9 deaths per 
100,000 live births, respectively. Id. The study identified abortion 
clinic closures and legislation restricting access to abortion as 
factors that likely contributed to this rise in maternal mortality 
rates. Id.
    One commenter more specifically stated that the presence of 
underlying health conditions prior to pregnancy does not mean a 
patient's life is in danger when they are pregnant, and further 
asserted that such cases merely require more skill and attentiveness by 
a provider that specializes in obstetrics and gynecology. VA does not 
make changes to the rule based on this comment, which seems to be 
stating that a pregnancy can always be carried to term without the 
pregnant veteran's life ever being endangered by either preexisting 
health conditions or health conditions arising during pregnancy, if and 
when a correct approach is used by providers. This assertion is 
incorrect. As VA described in the IFR, there are circumstances in which 
abortion may be the only medical intervention available that can 
preserve a pregnant veteran's life. See 87 FR 55291. VA has amended the 
medical benefits package to allow VA to provide abortions in certain 
circumstances, including when an appropriate healthcare professional 
determines that such care is needed to save a pregnant veteran's life, 
which is critical now that some States are enforcing and enacting 
abortion restrictions that could result in the delay or denial of such 
life-saving treatment.
    Relatedly, other commenters stated that the presence of health 
conditions (such as preeclampsia, as noted in one comment) in pregnant 
individuals are not life threatening as they can be resolved by the 
induction of labor or the performance of a c-section, and therefore an 
abortion is not necessary to preserve the pregnant individual's health 
or life. One commenter further asserted that a fetus is viable at 
approximately 24 weeks gestational age, and if the health of the 
pregnant patient was a concern, birth could be induced, or a cesarean 
section (c-section) performed, to save the life of both the pregnant 
patient and the child. VA does not make changes to the rule based on 
these comments. Similar to our response to related comments above, VA 
recognizes that there are circumstances in which abortion may be the 
only medical intervention available that can preserve a pregnant 
veteran's life, and the decision about the needed care or medically 
necessary treatment must be made on a case-by-case basis by appropriate 
healthcare professionals consistent with 38 CFR 17.38 and applying the 
applicable clinical standards discussed throughout this preamble.

V. Comments Related to the Exception for Abortion if the Health of the 
Pregnant Individual Would Be Endangered

    Several commenters raised concerns about the exception for an 
abortion if the health of the pregnant individual would be endangered 
if the pregnancy were carried to term. Below VA summarizes comments 
that specifically raised concerns with this exception, other than as 
already addressed in this rulemaking.
    One commenter suggested that VA revise the regulatory text in Sec.  
17.38(c)(1) to additionally include ``wellbeing'' because the addition 
of ``wellbeing'' would encompass mental and emotional health. This 
commenter raised concerns that the rule was not clear that mental 
health was included in the consideration of the ``health'' of the 
pregnant veteran as opposed to applying solely to physical health. 
Another commenter asked that VA acknowledge in the text of the rule 
that the exception for abortions for the health of the pregnant 
beneficiary includes mental health in addition to physical health. VA 
does not make any changes to the rule based on these comments. Both 
physical and mental health are included in the meaning of the term 
``health'' under 38 CFR 17.38 and 38 CFR 17.272. See also 87 FR 55291 
(explaining that both chronic medical and mental health conditions 
increase risks associated with pregnancy, and health care professionals 
may determine ``that these conditions (potentially in combination with 
other factors) render an abortion needed to preserve the health of a 
veteran[.]''). VA therefore does not believe it is necessary to revise 
the regulatory text as the commenters suggest. See also supra Part 
III.B above.
    One commenter asserted the IFR implied that all pregnancies 
threaten the health of the pregnant individual, and that abortions 
would be permitted in all circumstances based on the threat to the 
pregnant individual's health. The commenter states that authorizing 
abortions when there is a threat to health is an ``ideological'' 
statement and not a medical determination. The commenter further 
requests that VA enumerate these ``threats to their health'' in 
writing. VA makes no changes to the rule based on this comment. See 
Section III.B. above. VA has determined that abortions may be 
authorized when carrying the pregnancy to term endangers the health of 
the pregnant individual and VA has authority to provide these services 
under the terms of the IFR, as explained in the IFR and herein. 
Further, medical

[[Page 15466]]

determinations regarding threats to health must be made by healthcare 
professionals on a case-by-case basis and be consistent with 
established standards of care.

VI. Comments Related to the Exception for Abortions in Cases of Rape or 
Incest

    The IFR revised 38 CFR 17.38(c)(1) and 38 CFR 17.272(a) to 
establish an exception for an abortion if the pregnancy were the result 
of rape or incest. Below VA summarizes comments that specifically 
raised concerns with this exception other than as already addressed in 
this rulemaking.

A. Evidence of the Incident of Rape or Incest

    Several commenters alleged that a person's statement that a 
pregnancy resulted from rape or incest is not sufficient evidence to 
support the provision of abortion, particularly as a provider has no 
obligation to confirm such statement.
    VA does not make changes to the rule based on these comments. As VA 
explained in the IFR, the self-reporting from the pregnant veteran 
constitutes sufficient evidence, and the rule does not require a 
veteran or CHAMPVA beneficiary to present particular evidence such as a 
police report to qualify for this care. 87 FR 55294. This is consistent 
with longstanding VA policy to treat eligible individuals who 
experienced military sexual trauma without additional evidence of the 
trauma. Id. This approach is appropriate as it removes barriers to 
providing needed or medically necessary and appropriate care. Id. VA 
does not believe it is appropriate to require a provider to separately 
investigate or confirm the veteran or CHAMPVA beneficiary's self-
reporting that an act of rape or incest occurred. Requiring such proof 
or confirmation could harm the provider-patient relationship, and it is 
unnecessary.
    It is a part of routine practice for VA providers to take and rely 
on many types of patient-reported information (family, trauma, work, 
medical, legal, and other histories, for instance), as part of their 
clinical evaluations and assessments. For instance, VA providers make a 
clinical eligibility determination as to whether an individual is 
eligible for military sexual trauma-related treatment under 38 U.S.C. 
1720D without requiring additional proof that this experience occurred, 
as already stated herein. See VHA Directive 1115(1), Military Sexual 
Trauma (MST) Program.
    The comments misunderstand the function of the rape or incest 
exception. By operation of the IFR, patient self-reports of rape or 
incest constitute sufficient evidence for the VA provider to establish 
and document that this exception is met. 38 CFR 17.38(c)(1)(ii), 
17.272(a)(64)(ii). There is no reason to treat these patient self-
reports differently from self-reports supporting other sought-after 
medical care; nor do these comments provide any rationale for doing so. 
In any case where the rape or incest exception applies, the VA provider 
must still determine that an abortion meets the clinical standard set 
forth in 38 CFR 17.38(b) or 17.272(a), as applicable.

B. Assertions That Rape or Incest Exception Is Not Medically Necessary

    One commenter opined that in the case of a pregnancy that is the 
result of rape or incest, an abortion can never be ``needed'' or 
``medically necessary and appropriate'' and that patients who 
experience mental health issues following acts of rape or incest should 
be provided counseling and support, not abortions. VA does not make 
changes to the rule based on this comment. As VA explained in the IFR, 
VA has determined that abortions for pregnancies resulting from rape or 
incest, when sought by a pregnant veteran and clinically determined to 
be needed to promote, preserve, or restore the health of the veteran 
and in accord with generally accepted standards of medical practice, 
are needed consistent with the terms of 38 U.S.C. 1710. As noted in the 
IFR, 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. 87 FR 55292. Such consequences can 
have a particular impact on veterans, who report higher rates of sexual 
trauma compared with civilian peers. Id. In addition, veterans are 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. 
Id. In addition, for similar reasons to those discussed above and in 
the IFR, and because it is ``similar'' to the care offered under 
TRICARE (Select), see 38 U.S.C. 1781(b), VA has also determined, for 
purposes of 38 CFR 17.272(a), that access to abortion when the 
pregnancy is the result of an act of rape or incest is medically 
necessary and appropriate and so must be available to CHAMPVA 
beneficiaries. 87 FR 55292.

C. Investigation or Reporting

    Commenters raised concerns about whether evidence of sexual abuse 
will be investigated or reported. To the extent these commenters might 
want VA to regulate such investigation or reporting for purposes of 
providing the health care services permitted under the IFR, VA does not 
make changes to the rule. For the reasons already explained herein, 
self-reports are sufficient to establish that an act of rape or incest 
occurred. Further, this approach is similar to how VA providers, who 
are not investigators, consider other types of patient self-reported 
information such as military sexual trauma; other trauma; and medical, 
personal, health information and history. VA will investigate claims of 
rape or incest to the extent they occurred on VA property or involved a 
VA employee, consistent with VHA Directive 5019.02, which relates to 
reporting of harassment, sexual assault, and other public safety 
incidents in VHA. Additionally, consistent with VHA Directive 1199(2), 
VA providers will report claims of abuse, as necessary and required by 
Federal law.

VII. Availability of the Health Care Services Permitted Under the IFR 
to Non-Veterans and Non-CHAMPVA Beneficiaries

A. Spina Bifida Health Care Benefits Program

    One commenter inquired into whether the health care services 
permitted under the IFR will be available to beneficiaries in VA's 
Spina Bifida Health Care Benefits Program. VA considers this comment 
outside the scope of the rulemaking as VA did not amend the regulations 
for such program; only the regulations for the medical benefits package 
and CHAMPVA were amended by the IFR. VA makes no changes to the rule 
based on this comment.

B. Nonveterans

    This same commenter inquired into whether the health care services 
permitted under the IFR will be available to nonveterans for emergency 
services on a humanitarian basis. VA is authorized to provide 
humanitarian care under 38 U.S.C. 1784 and medical screening and 
stabilization for an emergency medical condition under 38 U.S.C. 1784A, 
but VA considers this comment to be outside the scope of the rulemaking 
as VA only amended the regulations for the medical benefits

[[Page 15467]]

package and CHAMPVA, which determine care for veterans and CHAMPVA 
beneficiaries, respectively. VA makes no changes to the rule based on 
this comment.

C. ``Wives of Military Members''

    Another commenter inquired whether ``wives of military members'' 
will be eligible for the health care services permitted under the IFR. 
To the extent such individuals have veteran status and are receiving 
their medical care through VA (specifically care included in the 
medical benefits package), or else are CHAMPVA beneficiaries, then they 
would be eligible for health care services in the circumstances 
permitted by the IFR. However, to the extent the commenter is referring 
to individuals who do not have veteran status or are not CHAMPVA 
beneficiaries, these individuals are not covered by the amendments made 
by the IFR. VA makes no changes to the rule based on this comment.

VIII. Comments That Stated Abortion Was Not Health Care or Is Otherwise 
Harmful

    Many commenters stated that abortion is not health care. Some of 
these commenters did not provide any supporting rationale for this 
statement, while others asserted that abortion could not be health care 
because the practice of medicine is supposed to preserve life, not end 
life. VA does not make changes to the rule based on these comments. As 
VA explained in the IFR and herein, abortions are health care and may 
be needed to preserve the life or health of a pregnant individual. 
Pregnant individuals may face life and health-threatening conditions, 
where abortion may be the only medical intervention available that can 
preserve their health or life.\3\ See 87 FR 55291.
---------------------------------------------------------------------------

    \3\ Martha B. Kole, Jennifer Villavicencio, and Erika G. Werner, 
Reproductive services for the patient at increased risk for 
morbidity and mortality during the second trimester. Semin 
Perinatol, 44 (5), 151270 (2020).
---------------------------------------------------------------------------

    Many commenters opposed VA providing access to abortions because 
they asserted that abortions can be harmful to pregnant individuals. 
Some commenters stated that abortions can result in emotional harm or 
complications for pregnant individuals but did not offer support, 
evidence, or a rationale for such assertions. Some commenters asserted 
similar opinions but posited distinct harms and cited certain 
literature. VA does not make changes to the rule based on these 
comments.
    All medical care may pose a risk of complications to some patients. 
In every instance of care, medical practice requires practitioners to 
balance the risks of providing needed or medically necessary and 
appropriate care with the risks of not doing so, a calculation guided 
by clinical standards and informed by reliable data. The patient must 
then also balance the risks of receiving needed or medically necessary 
and appropriate care with the risks of not doing so, and VA obtains 
informed consent for any medical care pursuant to its existing informed 
consent requirements set forth in 38 CFR 17.32 (implementing 38 U.S.C. 
7331). As explained in the IFR (87 FR 55291) and herein, 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 pregnant individuals.\4\ Without access to comprehensive 
reproductive health care, including abortion, such individuals may 
experience conditions resulting from their pregnancy that can leave 
them at risk for loss of future fertility, significant morbidity, or 
death. In such instances, an abortion may be the only medical 
intervention that can preserve that individual's health or save their 
life.\5\
---------------------------------------------------------------------------

    \4\ 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).
    \5\ 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).
---------------------------------------------------------------------------

    The health care profession understands that abortions are safe 
medical interventions.\6\ A study available to the public and cited in 
the IFR addressed the rate of abortion complications and concluded 
that, contrary to the unsupported assertion by commenters, the most 
common type of complications from abortions are minor and treatable.\7\ 
The scientific evidence also shows that the risk of complication or 
mortality from abortion is less than the risk of complication or 
mortality from other common clinical procedures.\8\
---------------------------------------------------------------------------

    \6\ Abortion Access Fact Sheet. The American College of 
Obstetrics and Gynecology. 2023. https://www.acog.org/advocacy/abortion-is-essential/come-prepared/abortion-access-fact-sheet (last 
visited May 15, 2023).
    \7\ Desai Upadhyay, et al. Incidence of emergency department 
visits and complications after abortion, Obstet Gynecol; 125(1):175-
183 (2105).
    \8\ Abortion Access Fact Sheet. The American College of 
Obstetrics and Gynecology. 2023. https://www.acog.org/advocacy/abortion-is-essential/come-prepared/abortion-access-fact-sheet (last 
visited May 15, 2023).
---------------------------------------------------------------------------

    A 2018 consensus study report from the National Academy of Medicine 
(National Academies of Sciences, Engineering, and Medicine (NASEM)) 
reviewed the then available evidence on the safety and quality of legal 
abortions in the United States and concluded that having an abortion 
does not increase an individual's risk of secondary infertility, 
pregnancy-related hypertensive disorders, abnormal placentation, 
preterm birth, or breast cancer.\9\ This review by NASEM also found 
that having an abortion does not increase a person's risk of 
depression, anxiety, or posttraumatic stress disorder.\10\
---------------------------------------------------------------------------

    \9\ The Safety and Quality of Abortion Care in the United 
States. National Academies of Sciences, Engineering, and Medicine 
(Mar. 2018), https://nap.nationalacademies.org/catalog/24950/the-safety-and-quality-of-abortion-care-in-the-united-states.
    \10\ Id.
---------------------------------------------------------------------------

    One commenter opined that allowing access to abortion counseling or 
abortions via telehealth is harmful. The commenter provides no evidence 
or rationale for this assertion. VA makes no changes to the rule based 
on this comment. Telehealth is widely implemented at VA to provide 
high-quality care to veterans and eligible beneficiaries, enhancing 
access to care in appropriate cases. See 38 U.S.C. 1730C. Abortion 
counseling as well as some abortions can be provided through telehealth 
in accord with generally accepted standards of medical practice. VA 
will only provide medical care, whether in-person or through 
telehealth, that is consistent with generally accepted standards of 
care.
    Commenters also raised concerns that the rule did not include 
informed consent or standards for medical evaluations to ensure that an 
abortion would not lead to further medical complications or harm for 
women. VA does not make changes to the rule based on these comments. In 
determining whether to recommend any treatment or procedure, VA 
providers take into consideration all relevant clinical factors, that 
is, they conduct a medical evaluation based on a number of clinical 
factors. Decisions as to which treatment or procedures to recommend are 
clinical judgments made in accord with generally accepted standards of 
care. Informed consent is not required as part of the provider's 
individual undertaking of a differential diagnosis or decision process 
as to available and recommended treatment options. These clinical 
evaluation steps occur before the provider's professional 
recommendation is decided. Informed consent only applies to the receipt 
of

[[Page 15468]]

VA recommended treatment or procedures, which the patient can then 
decide to reject or accept. No medical treatment or procedure may be 
performed without the prior, voluntary, and fully informed consent of 
the patient. 38 CFR 17.32(b). 38 U.S.C. 7331; 38 CFR 17.32. As part of 
informed consent discussion, the practitioner must explain in plain 
language understandable to the patient the nature of the proposed 
procedure or treatment; expected benefits; reasonably foreseeable 
associated risks, complications, side effects; reasonable and available 
alternatives; and anticipated result if nothing is done, among other 
information. See 38 CFR 17.32(c)(2).

IX. Comments Related to Employee Rights and Protections and Rights of 
the Public

    Commenters raised concerns related to employees' religious and 
conscience-based protections, including under the First Amendment, the 
Religious Freedom Restoration Act, the Public Health Service Act 
(including the Coats-Snowe Amendment), and Title VII of the Civil 
Rights Act of 1964. Commenters further asserted that VA is forcing VA 
employees to provide abortions that may be criminal offenses under 
State or local law, and one commenter specifically inquired whether any 
or all VA employees will be responsible for assisting with ``emergency 
abortions.'' VA does not make any changes to the rule based on these 
comments. In implementing the IFR and this rule, VA adheres to all 
applicable Federal laws relating to employee rights and protections, 
including protections based on an employee's religious or conscience-
based objection to abortion. VA has a policy in place for reasonable 
accommodation requests, where employees may request to be excused from 
providing, participating in, or facilitating an aspect of clinical 
care, including reproductive health clinical care authorized by this 
rule. See, AUSHO Memorandum, Processing Employee Requests to be Excused 
from Aspects of the Provision of Reproductive Health Care within the 
Veterans Health Administration (Jan. 6, 2023). Pursuant to that policy, 
VA health care professionals that object to furnishing the care covered 
by this rulemaking to veterans or CHAMPVA beneficiaries may request to 
be excused from that care and such requests will be individually 
assessed under the applicable Federal law. If excusal is requested, 
supervisors should grant interim excusal for employees from duties or 
training regarding reproductive health care while requests are being 
processed.
    Commenters also raised concerns regarding whether those providing 
the health care services permitted under the IFR, including VA 
employees and non-VA providers, would be protected by VA against State 
action, such as potential enforcement of State criminal, civil, or 
administrative penalties related to the provision of the health care 
services permitted under the IFR. To the extent a VA employee provides 
the health care services permitted under the IFR within the scope of 
their VA employment as authorized by Federal law, they could not 
legally be subject to adverse State actions. As described above, State 
and local laws, rules, regulations, and requirements that unduly 
interfere with health care professionals' practice will have no force 
or effect when such professionals are practicing health care while 
working within the scope of their VA employment. 38 CFR 17.419.
    Moreover, as further described above, in circumstances where there 
is a conflict between Federal and State law, Federal law would prevail 
in accordance with the Supremacy Clause under Article VI, clause 2, of 
the U.S. Constitution. The Department of Justice's Office of Legal 
Counsel has issued an opinion confirming that States may not impose 
criminal or civil liability on VA employees who provide or facilitate 
abortions or related services in a manner authorized by Federal law, 
including this rule. See 46 Op. O.L.C. _ (Sept. 21, 2022); 
www.justice.gov/olc/opinion/intergovernmental-immunity-department-veterans-affairs-and-its-employees-when-providing. If States attempt to 
subject VA employees to legal action for appropriately carrying out 
their Federal duties the Department of Justice will support and provide 
representation to those employees.
    Several commenters additionally asserted that performing an 
abortion would violate a VA health care professional's Hippocratic 
oath, where some of these comments further noted that this oath 
requires individuals who take it to ``do no harm'' in the practice of 
medicine. VA does not make changes to the rule based on these comments. 
An abortion would be provided pursuant to the rule to veterans only 
when 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; and to 
CHAMPVA beneficiaries when medically necessary and appropriate.
    Some commenters appeared to allege that the IFR violates their 
First Amendment rights and religious freedoms as members of the public, 
without providing rationale or support for such statements. Unlike the 
comments above that raised specific First Amendment and religious 
freedom concerns for VA health care professionals, these comments did 
not assert or explain why they believed the IFR violated their First 
Amendment rights or religious freedoms as members of the public. VA's 
IFR authorizes the provision of abortions and abortion counseling to 
veterans and CHAMPVA beneficiaries in certain circumstances. It does 
not limit the First Amendment rights or religious freedoms of the 
public.

X. Comments Specifically Concerning Abortion Counseling

    The IFR revised 38 CFR 17.38(c)(1) and 17.272(a) to remove a 
prohibition on VA providing access to abortion counseling. Below VA 
summarizes comments that specifically raised concerns with this 
revision, other than as already addressed in this rulemaking.

A. Provision of Abortion Counseling

    Multiple commenters raised various concerns about VA's provision of 
abortion counseling. The commenters stated that abortion counseling 
should be unbiased, and that VA should not ``direct'' pregnant 
individuals to have an abortion. The commenters further suggested that 
abortion counseling should include discussion of options other than 
abortion and should also include information about the negative effects 
of abortion. One commenter further implied that VA is not providing 
counseling about options other than abortion specifically for victims 
of rape or incest.
    VA does not make changes to the rule based on these comments. Prior 
to the IFR, VA could not discuss abortion as an option with pregnant 
patients, but VA has always provided counseling to pregnant patients 
about pregnancy options such as carrying the pregnancy to term and 
adoption. Under the IFR, VA now provides the full range of pregnancy 
options counseling to individuals who are pregnant, which includes all 
options related to that individual's pregnancy and is not limited to 
discussing only the option of abortion. This is consistent with Centers 
for Disease Control and Prevention guidance.\11\ As explained in the 
IFR,

[[Page 15469]]

abortion counseling is part of pregnancy options counseling and is a 
component of comprehensive, patient-centered, high-quality reproductive 
health care, and is needed care for veterans, and medically necessary 
and appropriate for CHAMPVA beneficiaries, because such counseling will 
enable a pregnant individual to make a fully informed health care 
decision, just as counseling offered or covered by VA regarding other 
health care treatments enables the patient to make an informed 
decision. See 87 FR 55292-93. Such pregnancy options counseling is 
provided in a neutral, non-directive, and unbiased manner to ensure 
patients receive the most complete and accurate information regarding 
available treatment options. VA does not direct a patient towards a 
specific option when it conducts pregnancy options counseling. The rule 
also makes clear that VA's determinations that such counseling is 
needed care (as to veterans) and medically necessary and appropriate 
(as to CHAMPVA beneficiaries)--and the accompanying regulatory 
amendments--were not limited to instances in which the pregnancy is the 
result of rape or incest. See, e.g., id at 55293-94.
---------------------------------------------------------------------------

    \11\ Providing Quality Family Planning Services: Recommendations 
of CDC and the U.S. Office of Population Affairs. Centers for 
Disease Control and Prevention. April 25, 2014. https://www.cdc.gov/mmwr/preview/mmwrhtml/rr6304a1.htm?s_cid=rr6304a1_w (last visited 
December 6, 2023).
---------------------------------------------------------------------------

B. Post-Abortion Counseling

    Another commenter suggested VA provide post-abortion counseling and 
support for the pregnant individual and their spouse. VA does not make 
changes to the rule based on this comment. To the extent a veteran 
requests counseling or mental health support from VA after an abortion 
or any other type of medical service, such care is available to 
veterans as part of the medical benefits package. VA would also cover 
such counseling and mental health support for CHAMPVA beneficiaries. 
However, and as explained herein, VA does not have authority to provide 
such counseling under the medical benefits package or CHAMPVA to non-
veterans and non-VA beneficiaries, respectively.

XI. Comments Specific to CHAMPVA

    Prior to the IFR, the CHAMPVA program at 38 CFR 17.272(a)(64) 
covered abortions for beneficiaries when the life of the beneficiary 
would be endangered if the pregnancy were carried to term. The IFR 
revised Sec.  17.272(a)(64) to: (i) expand the exception on the 
exclusion of abortion to cover cases where the health of the pregnant 
CHAMPVA beneficiary would be endangered if the pregnancy were carried 
to term; and (ii) to establish an exception to the exclusion of 
abortion to cover cases where the pregnancy of the CHAMPVA beneficiary 
is the result of an act of rape or incest. Below VA addresses comments 
that specifically raised concerns with these changes to CHAMPVA, other 
than as already addressed in this rulemaking.

A. CHAMPVA and TRICARE

    One commenter stated that VA does not have authority to provide 
medical care under the CHAMPVA program in the same manner as under the 
TRICARE program because TRICARE and CHAMPVA are separate programs and 
CHAMPVA covers medical care only to those specifically identified at 38 
U.S.C. 1781(a). The commenter further stated that VA does not 
effectively argue that CHAMPVA and TRICARE coverage should be aligned. 
VA does not make any changes to the rule based on this comment. It 
appears that the commenter may misunderstand the CHAMPVA authority. VA 
has authority to furnish medical care to CHAMPVA beneficiaries pursuant 
to 38 U.S.C. 1781. Section 1781(b) establishes that VA must provide 
such care ``in the same or similar manner and subject to the same or 
similar limitations as medical care'' is provided by DoD under the 
TRICARE program.
    Other commenters asserted that the IFR's changes to the CHAMPVA 
regulations were not the same or similar to what is permitted under 
TRICARE. Specifically, these comments noted that the exclusion to 
provide abortions if the health of an individual were endangered, as 
well as furnishing abortion counseling for any reason (and not just in 
those cases for which abortions would be covered by TRICARE), were too 
broad to be considered the same or similar to what is permitted under 
TRICARE. Notably, these comments also incorrectly argued that the 
CHAMPVA exception to protect the health of the pregnant individual 
without further qualification or limitation could be interpreted in a 
way that increases access to abortion services beyond the scope stated 
in the IFR.
    VA does not make changes to the rule based on these comments. As 
explained in the IFR and herein, 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 pregnancy were carried to term. 87 FR 55290. CHAMPVA 
regulations previously allowed for abortions only when a physician 
certifies that the abortion was performed because the life of the woman 
would be endangered if the pregnancy were carried to term. See 38 CFR 
17.272(a)(64); 87 FR 55290. Pursuant to VA's authority in 38 U.S.C. 
1781, VA amended the CHAMPVA regulations to better align coverage under 
CHAMPVA with coverage under TRICARE (Select). In this regard, VA 
amended its regulations to additionally provide coverage of abortions 
when the pregnancy is the result of an act of rape or incest. Although 
VA also revised the regulations to cover abortions when the health of 
the CHAMPVA beneficiary would be endangered if the pregnancy were 
carried to term, in contrast with coverage under TRICARE (Select), 
coverage under CHAMPVA must be provided in the ``same or similar'' 
manner and subject to the ``same or similar'' limitations as TRICARE 
(Select). 38 U.S.C. 1781(b); see 87 FR 55290. By referring to care that 
is ``similar,'' the statute permits VA flexibility to administer the 
program for CHAMPVA beneficiaries. If Congress had intended for VA to 
administer the program for CHAMPVA beneficiaries in a manner equivalent 
to TRICARE (Select), 38 U.S.C. 1781(b) simply could have required VA 
provide ``the same'' care in ``the same'' manner as TRICARE (Select); 
however, the statute recognizes that there will be differences in how 
VA administers CHAMPVA. VA determined that the care provided under this 
rule is similar to that provided by DOD under TRICARE (Select), which 
covers abortions to beneficiaries when there is a medical risk to the 
pregnant individual if the pregnancy were carried to term or if the 
pregnancy is the result of an act of rape or incest. Id. The 
flexibility to administer CHAMPVA in a manner ``similar'' to TRICARE 
(Select) also recognizes that VA serves a different population than 
TRICARE under a different authority. Section 1781(b) of 38 U.S.C. 
authorizes VA to provide care directly to CHAMPVA beneficiaries through 
VA facilities, and beneficiaries who receive care at a VA facility are 
eligible for the same medical services as a veteran. In exercising our 
discretion to provide care in a ``similar'' manner to TRICARE (Select), 
we have concluded it lies within our discretion to determine that 
abortions in the circumstances authorized by the IFR should be made 
available to all CHAMPVA beneficiaries, not just those who receive 
their care through VA facilities. As explained, it is important to 
provide medically necessary and appropriate abortion care when the 
health of the pregnant individual is endangered, as determined by an 
appropriate medical professional under

[[Page 15470]]

generally accepted standards of care, to better promote the long-term 
health of CHAMPVA beneficiaries, which is consistent with VA's past 
practices related to implementing CHAMPVA.
    Regarding the portion of these comments related to VA furnishing 
abortion counseling under CHAMPVA for any beneficiary and not just in 
those cases for which an abortion would be covered by TRICARE, we 
reiterate from above that VA finds this more comprehensive abortion 
counseling to be sufficiently similar to that under TRICARE (Select). 
VA's broader coverage may deviate for purposes of promoting the long-
term health of CHAMPVA beneficiaries by covering the most complete and 
accurate information available regarding various pregnancy and health 
care options, regardless of whether CHAMPVA would cover any such 
abortion the beneficiary receives. See also 87 FR 55292-93.

B. CHAMPVA Care at VA Facilities

    One commenter stated that 38 U.S.C. 1781 authorizes, but does not 
mandate, the provision of CHAMPVA care at VA facilities through the 
CHAMPVA In-House Treatment Initiative (CITI). The commenter suggested 
that VA ensure that VA facilities provide access to abortion to CHAMPVA 
beneficiaries through the CITI program, particularly in localities 
where abortions are banned or restricted. VA does not make changes to 
the rule based on this comment. The provision of CHAMPVA care at VA 
facilities through the CITI program is permissible under 38 U.S.C. 
1781(b), which provides that those VA medical facilities that are 
equipped to provide CHAMPVA beneficiaries care may do so only to the 
extent they are not being utilized for the care of eligible veterans. 
Because the capacity, projected demands, and care needs of veterans at 
each VA Medical Center can fluctuate, VA cannot ensure that a certain 
number of VA facilities or facilities in any particular State or region 
will participate in the CITI program at any given time. However, where 
a VA facility operates a CITI program, it will provide the health care 
services permitted by the IFR to CHAMPVA beneficiaries who are eligible 
to receive care through CITI consistent with the IFR and to the extent 
that facility's resources are not being utilized for the care of 
eligible veterans. Further, it remains the case that the CITI program 
may expand to additional VA facilities if such facilities are equipped 
to provide the care and treatment and are not being utilized for the 
care of eligible veterans, without any revisions to VA regulations.

C. Provision of Abortions and Abortion Counseling to Those Under Age 18

    One commenter asserted that VA should clarify that it is not 
requiring its health care professionals to perform any abortions on 
those under the age of 18, and that parental notification and consent 
is required for any abortion. Another commenter similarly stated that 
it was unclear what protocols will be put in place to ensure that 
children of veterans who may be eligible to receive abortions through 
the VA have received proper parental consent. VA makes no changes to 
the rule based on these comments.
    In accordance with VHA Directive 1004.01, dated December 12, 2023, 
it is VA policy that if a patient is considered a minor under State law 
in the jurisdiction where the VA facility is located, then that patient 
is not presumed to have decision-making capacity for giving informed 
consent. As a result, for patients considered minors, consent would be 
obtained from the patient's parent or legal guardian, except as 
otherwise provided by law. And as also consistent with this VA policy, 
if the patient is not considered a minor under State law, for example, 
by virtue of a State court order awarding emancipation to the minor or 
automatic emancipation under State law based on certain events, 
parental notification and consent would not be required.

XII. Comments Related to Fatal Fetal Anomalies

    One commenter recommends VA revise the rule to include an exception 
to allow abortions for fatal fetal anomalies. VA makes no changes based 
on this comment. The commenter provides no rationale for the proposal 
that abortions be provided absent the circumstances identified in the 
rule, or for a finding that the proposed expansion would constitute 
needed care (for veterans) or medically necessary and appropriate care 
(for CHAMPVA beneficiaries) under 38 U.S.C. 1710 and 1781. As explained 
herein and in the IFR, VA has determined that abortions are needed or 
medically necessary and appropriate care, as required under VA's 
statutory authorities, when the life or health of the pregnant veteran 
or CHAMPVA 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. It is up to the provider to determine if the specific 
clinical facts of the individual case establish that the carrying to 
term of a fetus with a fatal fetal anomaly would endanger the life or 
health of a pregnant veteran or CHAMPVA beneficiary. That is, it would 
be up to the provider to make the necessary clinical determination.

XIII. Comments Related to VA Mission and Funding

    Several commenters opined that VA should not use its limited 
resources for abortion as VA facilities are for veteran care. These 
commenters expressed concerns regarding the impact of the health care 
services permitted under the IFR on VA's provision of other needed 
care. VA makes no changes to the rule based on these comments. As 
explained in the IFR and throughout this final rule, abortions can also 
be needed health care for veterans and medically necessary and 
appropriate for CHAMPVA beneficiaries. Pursuant to authorized 
appropriations, detailed above, VA receives and uses funding to furnish 
medical care authorized under the medical benefits package, which now 
includes abortions in certain circumstances and abortion counseling. 
VA's provision of the health care services permitted under the IFR does 
not impact or preclude VA's provision of all other needed health care.

XIV. Comments That VA Should Expand Access to Abortion

    Several commenters opined that VA should permit access to abortions 
for any reason, not just in the circumstances identified in the IFR. 
One of these commenters asserted that VA's statutory authority permits 
abortion care in all circumstances, not just in cases where the life or 
health of the pregnant patient would be endangered if the pregnancy 
were carried to term, or when the pregnancy is the result of rape or 
incest. Consistent with its authorities, and as discussed throughout 
this rule and the IFR, VA has removed exclusions for certain care that 
VA has, at this time, determined to be ``needed'' (for veterans) and 
``medically necessary and appropriate'' (for CHAMPVA beneficiaries). We 
decline to change course based on these comments.
    Some commenters supported a legislative change to permit VA to 
provide access to abortions for any reason. Those comments regarding 
Congress's ability to amend VA's statutory authority are outside the 
scope of this rulemaking.
    Some commenters otherwise asserted that the IFR's framing of VA's 
regulatory changes as prohibitions on abortion with exceptions could be 
confusing, perhaps to the detriment of veterans or CHAMPVA 
beneficiaries. As discussed, given VA's statutory authorities and 
regulations concerning determinations that care is ``needed'' or 
``medically

[[Page 15471]]

necessary and appropriate''--as well as a preexisting prohibition with 
``exceptions'' for abortion care under VA's implementing regulations 
for CHAMPVA (38 CFR 17.272)--it was appropriate to regulate in this 
consistent manner. VA has and will continue to issue appropriate 
guidance to ensure that VA health care professionals understand that 
abortion is permitted under the exceptions as outlined in the IFR, and 
again directs veterans, CHAMPVA beneficiaries, and external 
stakeholders to VA's public-facing websites for clarifying information: 
www.womenshealth.va.gov/WOMENSHEALTH/topics/abortion-services.asp.

XV. Comments Outside the Scope of the IFR

    Many commenters raised concerns that were outside the scope of the 
rulemaking, in addition to those noted above. VA has briefly summarized 
those concerns below; VA does not make any changes to the rule based on 
them.

A. Mandated Provision of Abortion or Any Related Reproductive Health 
Services

    One commenter suggested VA clarify that ``the rule cannot mandate 
coverage for abortion or situationally for any related reproductive 
health services.'' To the extent the comment was simply asking VA to 
clarify this point, we reiterate that the covered health care and 
services permitted under the IFR are available to veterans and CHAMPVA 
beneficiaries when their health care provider determines they are 
needed or medically necessary and appropriate. The decision to pursue a 
particular course of treatment is the pregnant individual's decision, 
made in consultation with a provider, VA does not make that decision 
for the individual.

B. VA's Implementation of the IFR

    Multiple commenters made statements or asked questions about VA's 
implementation plan(s) related to the IFR. VA finds comments related to 
VA's implementation beyond the scope of the IFR as these are 
administrative matters not controlled by the regulations that were 
revised by the IFR. Nonetheless, VA provides summaries and responses 
below for the purposes of transparency and as appropriate.
    One commenter opined that VA must make explicit its plan to 
implement the rule. VA has made relevant information available on its 
website. See www.womenshealth.va.gov/WOMENSHEALTH/topics/abortion-services.asp. As stated there, VA is taking steps to guarantee veterans 
and CHAMPVA beneficiaries have access to abortion-related care, as 
authorized by this rule, anywhere in the country.
    One commenter stated that a VHA website related to community care 
provisions (https://www.va.gov/communitycare/programs/veterans/general_care.asp) provided that VA facilities do not provide maternity 
care which suggests that veterans can only receive medical care related 
to pregnancy (and therefore abortions) through VA's community care 
providers. The commenter raised a concern about how eligible veterans 
would be able to access the health care services permitted under the 
IFR if they were solely available in the community and those community 
providers would be required to adhere to State law requirements. 
Relatedly, another commenter inquired whether VA will be providing the 
health care services permitted under the IFR within its VA medical 
facilities or referring individuals out to the community in other 
States.
    VA does provide some maternity care services to veterans in VA 
medical facilities, and to the extent that VA can furnish the health 
care services permitted by the IFR directly, it will do so. Since the 
IFR published and became effective, VA has made efforts to ensure it 
has adequate capacity to provide abortion care at VA facilities, 
including abortion counseling. Regarding needed health care services 
permitted by the IFR that cannot be furnished in VA facilities (due to 
lack of resources such as staff or equipment, for instance), VA may 
refer such care to VA community care providers where that health care 
is available, consistent with existing VA regulations (see, for 
instance, 38 CFR 17.4000 et seq.).
    Several commenters raised concerns that the IFR does not explain 
the types of abortion methods that will be permitted or prohibited by 
VA. As noted above, VA does not generally find it appropriate to 
regulate the types of methods of care or procedures that are permitted 
or prohibited. Doing so could unnecessarily restrict the provision of 
care, including abortions, and result in negative impact or harm to our 
patients. The type of abortion provided will vary on a case-to-case 
basis, and appropriate VA medical professionals must be able to 
determine, in accord with generally accepted standards of medical 
practice, how best to treat all individuals.
    One commenter opined that VA should clarify in guidance that no 
additional administrative barriers should delay or impede access to the 
health care services permitted under the IFR determined to be 
appropriate by a health care professional. Neither the IFR nor this 
final rule adds administrative barriers to delay or impede access to 
the health care services permitted under the IFR. VA will ensure its 
health care professionals furnish this care consistent with the manner 
in which they furnish all other authorized health care.
    One commenter inquired as to whether VA will have funding for the 
provision of this care, if VA will provide medication abortion, and if 
VA will have necessary providers available to provide this care. VA is 
using and will continue to use its current funding for the provision of 
health care authorized under 38 U.S.C. 1710 and 1781 to provide health 
care services in the circumstances permitted under the IFR. VA will 
ensure that experienced and trained VA providers are available to 
provide abortions, including medication abortion. Another commenter 
relatedly recommended that VA equip its pharmacists with the authority 
and infrastructure to support mail dispensary of medication abortion 
drugs. VA pharmacists do have the authority to mail medications.
    Another commenter urged VA to include virtual counseling and 
medication abortion as part of the care authorized under the IFR. As 
explained previously in this rule, abortion counseling may be provided 
virtually through telehealth in accord with generally accepted 
standards of care. VA will provide medication abortions when needed and 
medically appropriate and in a manner consistent with Federal law.
    Another commenter suggested that VA clarify that sexual assault 
survivors can receive the full range of health care without barriers, 
especially as the majority of sexual assaults are not reported, and 
survivors may distrust the police or fear retaliation from a known 
perpetrator. Veterans who are eligible for VA health care and CHAMPVA 
beneficiaries are able to receive the full range of health care 
authorized under the medical benefits package and CHAMPVA, 
respectively, regardless of whether they are a sexual assault survivor. 
VA notes that it has military sexual trauma coordinators at every VA 
medical facility that can further assist eligible individuals in 
accessing needed military sexual trauma care. For additional 
information, please see www.va.gov/health-care/health-needs-conditions/military-sexual-trauma/.
    One commenter appeared to support VA's training of medical students 
and residents to provide the health care services permitted under the 
IFR.

[[Page 15472]]

Similar to the provision of all other health care provided by VA, 
medical students and residents may receive training from VA regarding 
the provision of the health care services permitted under the IFR. Such 
training would be conducted pursuant to an affiliation agreement 
between an educational institution and a VA facility, and under the 
clinical supervision of an appropriate health care professional.
    One commenter stated that not all VA facilities are located on 
exclusive Federal property, and therefore it would seem necessary to 
alert individuals seeking an abortion at such a VA facility that VA 
cannot guarantee that such individuals would not be prosecuted under 
State law even though the VA medical provider would appear to be 
protected. The commenter further stated that a better option would be 
to have VA authorize transport at government expense of such an 
individual to a VA facility in a State that does not criminalize 
abortion. Relatedly, commenters inquired how VA will address State 
action concerns because not all veterans live in areas that permit 
abortion counseling or services and that there should be measures to 
ensure travel across State lines if necessary, and generally noted that 
VA needs to ensure that veterans feel safe in accessing abortion care.
    For the portions of these comments that assert or question VA's 
jurisdiction or control of its facilities, any care or services 
furnished by VA in a manner authorized by Federal law, including by 
this rule, would preempt conflicting State law that would penalize VA 
employees for performing their Federal functions, regardless of any 
specific land ownership or leasing arrangements (for instance, such as 
if a VA facility is co-located to a State-sponsored academic 
institution).
    To the extent these comments may raise concerns that needed 
abortion counseling or abortions cannot be furnished in VA facilities 
(due to lack of resources such as staff or equipment, for instance), VA 
reiterates from earlier in this discussion that VA may refer such care 
to VA community care providers where available.
    Insofar as some comments concerned potential travel needed to 
obtain the health care services permitted under the IFR, veterans would 
have access to both Beneficiary Travel and Veterans Transportation 
Program benefits if so eligible under VA regulations at 38 CFR part 70.
    Finally, insofar as commenters suggested that VA alert certain 
individuals seeking abortions that VA cannot guarantee that such 
individuals would not be prosecuted under State law, VA is a health 
care provider, and VA attorneys have no authority to provide any legal 
advice to veterans or CHAMPVA beneficiaries.

C. Suggested Alternatives to VA Providing Access to Abortion

    Commenters asserted that instead of access to the health care 
services permitted under the IFR they believed pregnant individuals 
should be given the option of emotional and physical support throughout 
their pregnancies and post-partum experiences, specifically including 
prenatal medical attention. Other commenters similarly indicated that 
instead of providing access to abortions, VA should direct pregnant 
individuals to support groups that are available and, if such 
individuals do not wish to keep a child after giving birth, to help 
them through the adoption process. As with all comments discussed in 
this section, VA finds these comments to be beyond the scope of the 
IFR.
    These commenters seem to assert that abortion would not be 
necessary if pregnant individuals were given more support during 
prenatal, pregnancy, or postpartum stages, or offered choices beyond 
abortion, which seems to assume that VA is providing access to abortion 
procedures for reasons other than medical necessity. However, the IFR 
permits abortions to be provided only when the life or health of the 
pregnant individual would be endangered if the pregnancy were carried 
to term or when the pregnancy is the result of an act of rape or 
incest. VA provides care to veterans when such care is determined by an 
appropriate health care professional to be needed to promote, preserve, 
or restore the health of the veteran and is in accord with generally 
accepted standards of medical practice, and provides care for CHAMPVA 
beneficiaries that is medically necessary and appropriate. The need for 
health care services permitted under the IFR would not be prevented by 
increased access to support groups or to a particular level of 
maternity care services. Moreover, VA's pregnancy options counseling, 
discussed above, includes abortion counseling and all other pregnancy 
options. The course of treatment is the pregnant individual's decision, 
made in consultation with a provider, and nothing in the IFR changes 
this.
    To the extent the commenters might be expressing that lack of 
maternity care services could endanger a pregnant individual's life or 
health if the pregnancy were carried to term, maternity care services 
provided by VA include comprehensive pre- and post-partum care and 
services. VA will continue to provide comprehensive maternity care in 
addition to the health care services permitted by the IFR in the 
circumstances stated in the rule.
    Regarding the request in the comments that VA assist pregnant 
individuals with the adoption process if they did not want to keep a 
child after giving birth, VA does provide pregnancy options counseling 
as part of its furnishing of maternity care services, and this 
pregnancy options counseling includes providing information on 
adoption.

Severability

    The purpose of this section is to clarify VA's intent with respect 
to the severability of provisions of this rule. Each provision and 
portion of this rule is capable of operating independently. If any 
provision or portion of this rule is determined by judicial review or 
operation of law to be invalid, that partial invalidation will not 
render the remainder of this rule invalid. As explained in the IFR and 
above, VA amended its regulations because it determined that providing 
access to abortion-related medical care is needed to protect the lives 
and health of veterans and is medically necessary and appropriate care 
for CHAMPVA beneficiaries. For those same reasons, VA intends each 
aspect of the rule to operate and ensure that such care is available, 
even if one portion of the rule is invalidated. For example, if a 
provision of the rule concerning benefits for CHAMPVA beneficiaries 
were held invalid, other provisions concerning CHAMPVA beneficiaries, 
and provisions concerning the care available to Veterans under the 
medical benefits package, could and should continue to operate 
independently. The provisions authorizing abortions in cases where the 
life or health of the pregnant veteran or CHAMPVA beneficiary would be 
endangered if the pregnancy were carried to term could operate 
independently should the provision authorizing abortions in cases where 
the pregnancy is due to an act of rape or incest be held invalid, and 
vice versa. The provisions authorizing VA to provide abortions could 
continue to operate should the provisions authorizing VA to provide 
abortion counseling be held invalid. We emphasize that this is a non-
exhaustive list of examples. Likewise, if the application of any 
portion of this rule to a particular circumstance is determined to be 
invalid, the agency intends that

[[Page 15473]]

the rule remain applicable to all other circumstances.

Administrative Procedure Act

    VA has considered all relevant input and information contained in 
the comments submitted in response to the IFR (87 FR 55287) and, for 
the reasons set forth in the foregoing responses to those comments, has 
concluded that changes to the IFR are not warranted. Accordingly, based 
upon the authorities and reasons set forth in issuing the IFR (87 FR 
55287), as supplemented by the additional reasons provided in this 
document in response to comments received, VA is adopting the 
provisions of the IFR as a final rule without changes.

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 in the IFR, 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 or the 
performance of Federal duties. 87 FR 55293-55294. 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 have no force or effect to the extent that 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, 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 
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 
needed or medically necessary and appropriate health care to veterans 
and CHAMPVA beneficiaries 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.

Executive Orders 12866, 13563, and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
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 (Improving 
Regulation and Regulatory Review) emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. Executive Order 14094 (Executive order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in Executive Order 12866 of September 30, 
1993 (Regulatory Planning and Review), and Executive Order 13563 of 
January 18, 2011 (Improving Regulation and Regulatory Review). The 
Office of Information and Regulatory Affairs has determined that this 
rule is a significant regulatory action under Executive Order 12866, as 
amended by Executive Order 14094. The Regulatory Impact Analysis 
associated with this rulemaking can be found as a supporting document 
at https://www.regulations.gov.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final 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-
612). This final rule will not have a significant impact on a 
substantial number of small entities because the final rule does not 
directly regulate or impose costs on small entities and any effects 
will be indirect. 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.

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.

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.

Congressional Review Act

    Pursuant to the Subtitle E of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (known as the Congressional Review 
Act) (5 U.S.C. 801 et seq.), the Office of Information and Regulatory 
Affairs designated this rule as not satisfying the criteria under 5 
U.S.C. 804(2).

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Claims, Health care, Health 
facilities, Health professions, Health records, Medical devices, 
Medical research, Mental health programs, Veterans.

0
For the reasons stated in the preamble, the interim final rule amending 
38 CFR part 17, which was published at 87 FR 55287 on September 9, 
2022, is adopted as final.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on February 26, 2024, and authorized the undersigned to 
sign and submit the document to the Office of the Federal Register for 
publication

[[Page 15474]]

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.
[FR Doc. 2024-04275 Filed 3-1-24; 8:45 am]
BILLING CODE 8320-01-P