Abortion battle emerges in Congress over new Veterans Affairs rule

In an unprecedented move, the Department of Veterans Affairs (VA) will provide abortion services in some cases, regardless of state abortion laws, in response to the Supreme Court’s decision to overturn the federal right to an abortion. Republicans have already called into question the legality of the Biden administration’s decision to change the VA’s health care policy to include abortion. Republicans and Democrats have been going back and forth citing different laws to support their opposing arguments. Jennifer Oliva, law professor at the University of California Hastings College of the Law, and Benjamin McMichael, associate law professor at the University of Alabama School of Law, spoke to Yahoo News to help explain the legality of this emerging controversy in Congress.

Video transcript

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SHEREEF ELNAHAL: As a result of the Supreme Court decision that overturned Roe v Wade, certain states have begun to enforce abortion bans and restrictions that create urgent risks to the lives and health of pregnant veterans and VA beneficiaries. Therefore, VA modified its regulations to expand reproductive health care. When medically necessary, VA will now offer abortion counseling and provide abortions when the life or health of the veteran would be endangered if the pregnancy were carried to term, or when the pregnancy is the result of rape or incest.

Self reporting from the pregnant veteran constitutes sufficient evidence that an act of rape or incest has occurred.

JENNIFER OLIVA: There are about 16 states that have on the books, in effect, fairly restrictive or criminalization abortion laws. It appears that at least nine of those states that ban abortion have no exceptions for rape or incest. And those states are Alabama, Arkansas, Kentucky, Louisiana, Missouri, South Dakota, Tennessee, Texas, and Wisconsin. There's a tenth state, Mississippi, who has an abortion ban that contains an exception for rape, but not incest.

SHEREEF ELNAHAL: This expansion is a patient safety decision, first and foremost, to ensure enrolled veterans and VA beneficiaries can access life-saving reproductive health care services at VA no matter where they live.

JENNIFER OLIVA: The rule is explicit that is being adopted in response to the Supreme Court's June 24, 2022 decision in Dobbs v. Jackson Women's Health Organization that, therefore, the VA will provide these abortion-related services irrespective of state law. This rule is unprecedented and marks the first time in the United States history that this federal agency is extending abortion health care to veterans and VA beneficiaries. The Republicans are not taking this position from the administration or the Democrats lying down.

MIKE BOST: I also believe as a matter of law the VA does not have the authority to offer abortions. Congress made that clear in 1992 by prohibiting VA from providing abortion. 30 years later, that prohibition remains in place.

It has not changed. It has not been repealed. It has not been replaced by subsequent congressional action.

JENNIFER OLIVA: They're relying on section 106 of the Veterans' Health Care Act of 1992. So this section of the statute that the Republicans are relying on states on its face that VA can provide women with a bunch of preventative services, but not including under this Section 106 infertility services, abortions, or pregnancy care, except when the pregnancy is complicated or risks of complication can increase a service-connected condition.

So even in Section 106 where the Republicans are relying, I want to emphasize there is exceptions for complicated pregnancies. And what the breadth and scope of that means, we shall see.

BENJAMIN MCMICHAEL: The catch with this is that Democrats, and I think the VA's response, at least based on the interim final rule, is that the 1996 act overtook the 1992 act.

MARK TAKANO: The 1996 law that Congress passed empowered the secretary to define the benefit package for VA. And therefore, the benefit package that has been set forth in this interim final rule is rooted in law, is rooted in statute, and is rooted in congressional action.

BENJAMIN MCMICHAEL: The argument from the VA and the Democrats is that this new law provides the secretary extra authority to go in and determine new services that are needed, which post-Dobbs, the secretary has now determined that abortion services are needed. And with all of that happening, the VA is also responding to Republicans and other legal arguments that you don't have this authority under the old act, and the new act didn't provide this new authority-- they have cited some instances of services that weren't provided under the '92 act that Congress has implicitly ratified under the '96 act. So there's a lot of back and forth. And I certainly don't think we've seen the end of these arguments.

JENNIFER OLIVA: In my view, the Biden administration has adopted the most plausible reading of the 1992 and 1996 acts for a couple of reasons. First, the Section 106 of the 1992 act is limited on the face of the text and does not appear to extend to any other VA health care provision. Second, and perhaps most importantly, in the 1996 law, Congress extended to VA the express authority to determine the scope of its medical benefits package based on individual veteran need.

BENJAMIN MCMICHAEL: The Biden administration, I wouldn't say they're on shaky footing. But I would not describe their footing as absolutely rock solid either. So while I never want to say who's going to win in any particular litigation, the Biden administration has certainly provided plausible arguments as to the VA having this authority.

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