< Back to Current Version

Department of Veterans Affairs: Abortion Policy

Changes from July 26, 2022 to March 20, 2023

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with red strikethrough and textual matter added in the later version is indicated with blue.

Department of Veterans Affairs:
July 26, 2022March 20, 2023
Abortion Policy
Jared S. Sussman
The primary mission of the Veterans Health Administration (VHA) of the Department of The primary mission of the Veterans Health Administration (VHA) of the Department of
Analyst in Health Policy Analyst in Health Policy
Veterans Affairs (VA) is to provide health care services to veterans. To accomplish this goal, VA Veterans Affairs (VA) is to provide health care services to veterans. To accomplish this goal, VA

has promulgated regulations to create a standard medical benefits package. The medical benefits has promulgated regulations to create a standard medical benefits package. The medical benefits
package expressly excludes abortion servicespackage expressly excludes abortion services and abortion counseling in all instances, effectively

, effectively prohibiting VA providers from prohibiting VA providers from providing those services to veteran patients. VHA provides providing those services to veteran patients. VHA provides
medically necessary health care for medically necessary health care for the management of a miscarriage. Recent rulemaking, published on September 9, 2022, established exceptions to the prohibition on abortion services when the life or health of the pregnant veteran is at risk or when the pregnancy is the result of rape or incest. The rulemaking also authorized VA to provide abortion counseling, among other things. This rulemaking is the subject of joint resolutions in the 118th Congress that would disapprove the rule under the Congressional Review Act (Title II, Subtitle E, P.L. 104-121). the management of a miscarriage.
It is unclear whether this prohibition on abortion services is required by statute or solely by regulation—a result of potentially It is unclear whether this prohibition on abortion services is required by statute or solely by regulation—a result of potentially
conflicting language in the Veterans Health Care Act of 1992 (P.L. 102-585) and the Veterans’ Health Care Eligibility conflicting language in the Veterans Health Care Act of 1992 (P.L. 102-585) and the Veterans’ Health Care Eligibility
Reform Act of 1996 (P.L. 104-262). In recent years, Congress has considered bills to require VA to include abortion Reform Act of 1996 (P.L. 104-262). In recent years, Congress has considered bills to require VA to include abortion
counseling in the medical benefits packagecounseling in the medical benefits package—something that was authorized in recent rulemaking. .
VHA also provides health care to dependents, spouses, and caregivers of veterans who meet certain eligibility criteria through VHA also provides health care to dependents, spouses, and caregivers of veterans who meet certain eligibility criteria through
the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA). Under CHAMPVA, VA the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA). Under CHAMPVA, VA willis to
pay for the cost of abortion services only pay for the cost of abortion services only under certain circumstances, such as if a physician certifies that the life of the mother would be endangered should the if a physician certifies that the life of the mother would be endangered should the
fetus be carried to term. This differs from the provision of health care for veterans in which abortion services are prohibited
under any circumstance.
This report describes VA’s prohibition on fetus be carried to term. Under recent rulemaking, CHAMPVA is to also pay for abortion services if the pregnancy is the result of rape or incest, or if the health of the CHAMPVA beneficiary is at risk. This report describes VA’s policy on coverage for abortion services and related counseling, including the legal authority upon which abortion services and related counseling, including the legal authority upon which
the prohibition the prohibition on abortion services is based. It also details considerations for Congress related to the legal authority for VA to provide abortions. is based. It also details considerations for Congress related to the legal authority for VA to provide abortions.

Congressional Research Service Congressional Research Service

link to page 4 link to page link to page 4 link to page 56 link to page 6 link to page link to page 6 link to page 67 link to page 8 link to page 8 link to page link to page 8 link to page 910 link to page 12 Department of Veterans Affairs: Abortion Policy

Contents
Introduction ..................................................................................................................................... 1
VA Abortion Policy.......................................................................................................................... 2
3 Policy Changes Under Recent Rulemaking .............................................................................. 3 CHAMPVA Abortion Policy ..................................................................................................... 34 CHAMPVA Policy Changes under Recent Rulemaking ........................................................... 5
Legal Authority for VA Abortion Prohibition .................................................................................. 35
Legislative Activity in the 117th Congress .........and 118th Congress .............................................................................. 5 7

Contacts
Author Information .......................................................................................................................... 69

Congressional Research Service Congressional Research Service

Department of Veterans Affairs: Abortion Policy

Introduction
The Veterans Health Administration (VHA) of the Department of Veterans Affairs (VA) operates The Veterans Health Administration (VHA) of the Department of Veterans Affairs (VA) operates
the nation’s largest public integrated direct health care delivery system.1 VHA provides care to the nation’s largest public integrated direct health care delivery system.1 VHA provides care to
approximately 6.5 million unique veteran patients on an annual basis.2 VHA’s primary mission is approximately 6.5 million unique veteran patients on an annual basis.2 VHA’s primary mission is
to provide health care services to eligible veterans.3 VHA generally provides care directly through to provide health care services to eligible veterans.3 VHA generally provides care directly through
over 1,700 sites of care, including hospitals, clinics, and health care facilities.4 over 1,700 sites of care, including hospitals, clinics, and health care facilities.4
VHA is primarily a direct provider of care. It directly operates associated facilities and employs VHA is primarily a direct provider of care. It directly operates associated facilities and employs
clinicians.5 This model differs from the predominant health care financing and delivery model in clinicians.5 This model differs from the predominant health care financing and delivery model in
the United States, in which there is a payer for health care services (e.g., Medicare, private health the United States, in which there is a payer for health care services (e.g., Medicare, private health
insurance plan), a provider (e.g., hospital, physician), and a recipient of care (the patient). VHA is insurance plan), a provider (e.g., hospital, physician), and a recipient of care (the patient). VHA is
not a health insurance financing program that provides reimbursement to providers for all or a not a health insurance financing program that provides reimbursement to providers for all or a
portion of a patient’s health care costs. portion of a patient’s health care costs.
VA has established, through regulation, a medical benefits package to standardize care provided VA has established, through regulation, a medical benefits package to standardize care provided
to patients enrolled in the system.6 The medical benefits package includes, among other things, to patients enrolled in the system.6 The medical benefits package includes, among other things,
inpatient care, outpatient care, and prescription drugs.7 inpatient care, outpatient care, and prescription drugs.7
VHA also provides health care to dependents, spouses, and caregivers of veterans who meet VHA also provides health care to dependents, spouses, and caregivers of veterans who meet
certain eligibility criteria through the Civilian Health and Medical Program of the Department of certain eligibility criteria through the Civilian Health and Medical Program of the Department of
Veterans Affairs (CHAMPVA).8 Unlike the provision of health care for veterans, which follows Veterans Affairs (CHAMPVA).8 Unlike the provision of health care for veterans, which follows
the standard medical benefits package, CHAMPVA is required to provide benefits similar to the standard medical benefits package, CHAMPVA is required to provide benefits similar to
Department of Defense (DOD’s) TRICARE Standard plan.9 Furthermore, CHAMPVA is Department of Defense (DOD’s) TRICARE Standard plan.9 Furthermore, CHAMPVA is
primarily a health insurance program where enrollees receive care from private sector health care primarily a health insurance program where enrollees receive care from private sector health care
providers and CHAMPVA pays for a portion of the cost of care. This is in contrast to the providers and CHAMPVA pays for a portion of the cost of care. This is in contrast to the
provision of health care for veterans, which is generally provided by VA clinicians. provision of health care for veterans, which is generally provided by VA clinicians.
On June 24, 2022, the U.S. Supreme Court issued its opinion in On June 24, 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s
Health Organization, a case challenging the constitutionality of Mississippi’s Gestational Age , a case challenging the constitutionality of Mississippi’s Gestational Age
Act, which generally prohibits an abortion once a fetus’s gestational age is greater than 15 weeks. Act, which generally prohibits an abortion once a fetus’s gestational age is greater than 15 weeks.
A majority of the Court not only upheld the Mississippi law but also overruled the Court’s prior A majority of the Court not only upheld the Mississippi law but also overruled the Court’s prior

1 Department of Veterans Affairs, 1 Department of Veterans Affairs, FY2023 Congressional Submission, Medical Programs and Information Technology
Programs, vol. 2 of 4, March 2022, p. VHA-21. , vol. 2 of 4, March 2022, p. VHA-21.
2 Ibid., p. VHA-39. 2 Ibid., p. VHA-39.
3 38 U.S.C. §7301. 3 38 U.S.C. §7301.
4 Department of Veterans Affairs, 4 Department of Veterans Affairs, FY2023 Congressional Submission, Medical Programs and Information Technology
Programs, vol. 2 of 4, March 2022, p. VHA-21. , vol. 2 of 4, March 2022, p. VHA-21.
5 VHA does pay for care in the community (i.e., non-VA providers) under certain circumstances. The VA Maintaining 5 VHA does pay for care in the community (i.e., non-VA providers) under certain circumstances. The VA Maintaining
Internal Systems and Strengthening Integrated Outside Networks Act of 2018 (VA MISSION Act; P.L. 115-182) Internal Systems and Strengthening Integrated Outside Networks Act of 2018 (VA MISSION Act; P.L. 115-182)
established the Veterans Community Care Program (VCCP), which requires VHA to provide for care in the community established the Veterans Community Care Program (VCCP), which requires VHA to provide for care in the community
to all enrolled veterans who meet specified criteria. to all enrolled veterans who meet specified criteria.
6 38 C.F.R. §17.38. 6 38 C.F.R. §17.38.
7 For more information on VA health care in general, see CRS Report R42747, 7 For more information on VA health care in general, see CRS Report R42747, Health Care for Veterans: Answers to
Frequently Asked Questions. .
8 For more information on CHAMPVA, see CRS Report RS22483, 8 For more information on CHAMPVA, see CRS Report RS22483, Health Care for Dependents and Survivors of
Veterans. .
9 38 U.S.C. §1781(b). 9 38 U.S.C. §1781(b).
For more information on TRICARE, see CRS Report R45399, Military Medical Care: Frequently Asked Questions. Congressional Research Service Congressional Research Service

1 1
Department of Veterans Affairs: Abortion Policy

decisions in decisions in Roe v. Wade and and Planned Parenthood of Southeastern Pennsylvania v. Casey, ,
concluding that the U.S. Constitution does notconcluding that the U.S. Constitution does not confer a right to an abortion.10confer a right to an abortion.10
Shortly after the Supreme Court’s decision in Shortly after the Supreme Court’s decision in Dobbs, Adam M. Robinson, Director of the VA , Adam M. Robinson, Director of the VA
Pacific Islands Health Care System, stated that VA will continue to deliver reproductive health Pacific Islands Health Care System, stated that VA will continue to deliver reproductive health
care consistent with the department’s legal authority.11 care consistent with the department’s legal authority.11 VA is currently prohibited from providing
abortions and abortion counseling.12 Questions have been raised regarding VA’s authority to Questions have been raised regarding VA’s authority to
provide abortions particularly since March 2021, when VA Secretary McDonough stated that the provide abortions particularly since March 2021, when VA Secretary McDonough stated that the
provision of abortion services is a “regulatory matter” in a hearing before the House Committee provision of abortion services is a “regulatory matter” in a hearing before the House Committee
on Veterans’ Affairs.on Veterans’ Affairs.1312 Secretary McDonough’s statements on the topic have generated responses Secretary McDonough’s statements on the topic have generated responses
from some Members of Congress stating that VAfrom some Members of Congress stating that VA’s prohibition on abortions is required by
statute.14
This report (1) describes VA’s current abortion policy and authority to provide abortions, (2)
presents considerations for Congress regarding VA’s authority to provide abortion services, and
(3) summarizes recent legislation related to VA abortion policy being considered in the 117th
Congress.
VA Abortion Policy
The VA medical benefits package expressly prohibits both abortion and abortion counseling.15
VHA does not provide abortions, abortion counseling, or medication to induce an abortion (e.g.,
mifepristone, also known as RU-486).16
Section 106 of the Veterans Health Care Act of 1992 (P.L. 102-585; Title 38 U.S.C. 1710 note)
expressly excluded abortions, among other services, from the health care services it authorized
the VA Secretary to provide. Furthermore, VA explicitly excluded abortion and abortion
counseling from the medical benefits package when it was initially established through the
rulemaking process in October 1999.17
is prohibited from providing abortions by statute.13 VA’s standard medical benefits package generally prohibits VA from providing abortion services.14 On September 9, 2022, VA published an interim final rule (IFR), effective immediately upon publication, which provided for exceptions to the prohibition on abortions within the standard medical benefits package.15 While VA continues to prohibit abortions generally within the standard medical benefits package, the IFR created exceptions to this prohibition. VA justified this regulatory change based on medical necessity stating the following: As abortion bans come into force across the country, veterans in many States are no longer assured access to abortion services in their communities, even when those services are needed. VA has determined that an abortion is “needed” pursuant to 38 U.S.C. 1710, when sought by a veteran, if determined needed by a health care professional, when the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term or when the pregnancy is the result of an act of rape or incest. Unless VA removes its existing prohibitions on abortion-related care and makes clear that needed abortion-related care is authorized, these veterans will face serious threats to their life and health.16 This report (1) describes VA’s current abortion policy and authority to provide abortions, (2) presents considerations for Congress regarding VA’s authority to provide abortion services, and (3) summarizes legislation related to VA abortion policy in the 118th and 117th Congresses. 10 For more information on the Dobbs decision, see CRS In Focus IF12269, Regulating Reproductive Health Services After
10 For more information on the Dobbs decision, see CRS Legal Sidebar LSB10768, Supreme Court Rules No
Constitutional Right to Abortion in Dobbs v. Jackson Women’s Health Organization. .
11 Adam M Robinson Jr., Director, “Directors Message,” press release, July 1, 2022, https://www.va.gov/pacific-11 Adam M Robinson Jr., Director, “Directors Message,” press release, July 1, 2022, https://www.va.gov/pacific-
islands-health-care/stories/directors-message-july-1-2022/. islands-health-care/stories/directors-message-july-1-2022/.
12 12 38 C.F.R. §17.38(c)(1).
13 U.S. Congress, House Committee on Veterans’ Affairs, U.S. Congress, House Committee on Veterans’ Affairs, Restoring Faith by Building Trust: VA’s First 100 Days, ,
117th Cong., 1st sess., March 25, 2021. 117th Cong., 1st sess., March 25, 2021.
1413 Office of United States Senator Jerry Moran, “Sen. Moran: VA’s Prohibition on Abortion Services is the Law,” press Office of United States Senator Jerry Moran, “Sen. Moran: VA’s Prohibition on Abortion Services is the Law,” press
release, August 4, 2021, https://go.usa.gov/xJK4k. release, August 4, 2021, https://go.usa.gov/xJK4k.
1514 38 C.F.R. §17.38(c)(1). 15 Department of Veterans Affairs, “Reproductive Health Services,” 87 Federal Register 55287-55296, September 9, 2022, https://www.federalregister.gov/documents/2022/09/09/2022-19239/reproductive-health-services. When an agency finds that it has good cause to issue a final rule without first publishing a proposed rule, it often characterizes the rule as an “interim final rule,” or “interim rule.” This type of rule becomes effective immediately upon publication. In most cases, the agency stipulates that it will alter the interim rule if warranted by public comments. If the agency decides not to make changes to the interim rule, it generally will publish a brief final rule in the Federal Register confirming that decision; see https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf. 16 Ibid. 38 C.F.R. §17.38(c)(1).
16 VA, VHA, Health Care Services for Women Veterans, VHA Directive 1330.01(2), February 15, 2017.
17 Department of Veterans Affairs, “Enrollment Provisions and Medical,” 64 Federal Register 54210, October 6, 1999.
https://www.govinfo.gov/content/pkg/FR-1999-10-06/pdf/99-25871.pdf
Congressional Research Service Congressional Research Service

2 2
Department of Veterans Affairs: Abortion Policy

Medically necessary procedures for the management of a miscarriage are covered under the
medical benefits package.18 In addition, VA provides care under the medical benefits package for
ectopic pregnancies (i.e., pregnancy occurring outside the uterine cavity).19
The VA prohibition isVA Abortion Policy Historically, the VA medical benefits package expressly prohibited both abortion and abortion counseling.17 VHA generally did not provide abortions, abortion counseling, or medication to induce an abortion (e.g., mifepristone, also known as RU-486).18 Section 106 of the Veterans Health Care Act of 1992 (P.L. 102-585; Title 38 U.S.C. 1710 note) expressly excluded abortions, among other services, from the health care services it authorized the VA Secretary to provide. Furthermore, VA explicitly excluded abortion and abortion counseling from the medical benefits package when it was initially established through the rulemaking process in October 1999.19 The VA prohibition was more restrictive than prohibitions required by Hyde-type amendments to more restrictive than prohibitions required by Hyde-type amendments to
appropriations measures, which generally restrict federal funds from being used to pay for appropriations measures, which generally restrict federal funds from being used to pay for
abortions except in cases of rape, incest, or life endangerment of the mother.20 The VA medical abortions except in cases of rape, incest, or life endangerment of the mother.20 The VA medical
benefits package benefits package doesdid not cover abortions or abortion counseling in any circumstance. Medically necessary procedures for the management of a miscarriage are covered under the medical benefits package.21 In addition, VA provides care under the medical benefits package for ectopic pregnancies (i.e., pregnancy occurring outside the uterine cavity).22 Policy Changes Under Recent Rulemaking As stated previously, on September 9, 2022, VA published an IFR, effective immediately upon publication, which provided for exceptions to the prohibition on abortions within the standard medical benefits package.23 Under the new rule, VA abortions continue to be prohibited except when  the life or the health of the pregnant veteran would be endangered if the pregnancy were carried to term; or 17 38 C.F.R. §17.38(c)(1). 18 VA, VHA, Health Care Services for Women Veterans, VHA Directive 1330.01(2), February 15, 2017. 19 Department of Veterans Affairs, “Enrollment Provisions and Medical,” 64 Federal Register 54210, October 6, 1999, https://www.govinfo.gov/content/pkg/FR-1999-10-06/pdf/99-25871.pdf. 20 For more information, see CRS In Focus IF12167, The Hyde Amendment: An Overview. Annual VA appropriations measures generally have not included a Hyde-type amendment restricting funds from being used for providing abortion services. 21 not cover abortions or abortion counseling in any circumstance.
CHAMPVA Abortion Policy21
Unlike the medical benefits package for veterans, the CHAMPVA program – providing health
care to certain dependents, spouses, and caregivers of veterans – covers abortions and abortion
counseling in limited circumstances. Specifically, the CHAMPVA program will cover the cost of
abortion counseling or abortion procedures only if a physician certifies that the life of the mother
would be endangered should the fetus be carried to term.22 In those cases, CHAMPVA will
provide coverage for (1) spontaneous, missed, or threatened abortions and abortions related to
ectopic pregnancies, or (2) fetal death due to natural causes.23 Dilation and evacuation (D&E) and
dilation and curettage (D&C) procedures may be covered when done surgically for a
gynecological diagnosis or covered abortion.24 CHAMPVA will not cover any abortion related to
incest or rape.25
Legal Authority for VA Abortion Prohibition
It is unclear whether VA abortion services are strictly prohibited by statute or solely limited
through the regulations establishing the standard medical benefits package. The lack of clarity

18 A miscarriage, or pregnancy loss, is also called a spontaneous abortion, which is “the unexpected loss of a fetus A miscarriage, or pregnancy loss, is also called a spontaneous abortion, which is “the unexpected loss of a fetus
before the 20th week of pregnancy, or gestation.” (Source: https://www.nlm.nih.gov/medlineplus/miscarriage.html.) For before the 20th week of pregnancy, or gestation.” (Source: https://www.nlm.nih.gov/medlineplus/miscarriage.html.) For
clinical purposes, “spontaneous abortion often is subdivided into threatened abortion, inevitable abortion, incomplete clinical purposes, “spontaneous abortion often is subdivided into threatened abortion, inevitable abortion, incomplete
abortion, missed abortion, septic abortion, recurrent spontaneous abortion, and complete abortion.” (Source: Craig P. abortion, missed abortion, septic abortion, recurrent spontaneous abortion, and complete abortion.” (Source: Craig P.
Griebel et al., “Management of Spontaneous Abortion,” Griebel et al., “Management of Spontaneous Abortion,” American Family Physician, vol. 72, no. 7, October 1, 2005, , vol. 72, no. 7, October 1, 2005,
pp. 1243-1250). In some cases, the procedures used for management of a miscarriage are the same as those used for an pp. 1243-1250). In some cases, the procedures used for management of a miscarriage are the same as those used for an
abortion (i.e., dilation and curettage). abortion (i.e., dilation and curettage). Health Care Services for Women Veterans, VHA Directive 1330.01(2), February , VHA Directive 1330.01(2), February
15, 2017. 15, 2017.
1922 VA, VHA, Maternity Health Care and Coordination, VHA Directive 1330.03, November 3, 2020, p. 2. VA directives VA, VHA, Maternity Health Care and Coordination, VHA Directive 1330.03, November 3, 2020, p. 2. VA directives
do not describe the type of care provided for ectopic pregnancy. VA Secretary McDonough stated in a press conference do not describe the type of care provided for ectopic pregnancy. VA Secretary McDonough stated in a press conference
that VA provides lifesaving care for some complications of early pregnancy such as an ectopic pregnancy. The that VA provides lifesaving care for some complications of early pregnancy such as an ectopic pregnancy. The
Secretary stated that this care is not abortion services. VA, VA Secretary Press Conference, July 20, 2022, Secretary stated that this care is not abortion services. VA, VA Secretary Press Conference, July 20, 2022,
https://www.youtube.com/watch?v=UpFKk5NFhF0. https://www.youtube.com/watch?v=UpFKk5NFhF0.
20 For more information, see CRS In Focus IF12167, The Hyde Amendment: An Overview . Annual VA appropriations
measures generally have not included a Hyde-type amendment restricting funds from being used for providing abortion
services.
21 This section was written by Sidath Viranga Panangala, CRS Specialist in Veterans Policy.
22 38 CFR §17.272(a)(67),(68). Also see Department of Veterans Affairs, Office of Community Care, CHAMPVA
Operational Policy Manual, Chapter: 2 Section: 14.2 Title: Abortions, available at https://www.vha.cc.va.gov/
23 38 C.F.R. §17.270(a). 38 C.F.R. §17.272(a).
24 Department of Veterans Affairs, Office of Community Care, CHAMPVA Operational Policy Manual, Chapter: 2
Section: 14.2 Title: Abortions, available at https://www.vha.cc.va.gov/.
25 TRICARE covers the cost of abortion when there is a threat to the life of the mother or in cases of rape or incest, as
directed by 10 U.S.C. §1093 (a) and (b). For more information, see CRS Insight IN11960, FY2023 NDAA: Military
Abortion Policies.
Congressional Research Service

3
Department of Veterans Affairs: Abortion Policy

stems from two laws enacted in the 1990s: (1) Section 106 of the Veterans Health Care Act of
1992 (P.L. 102-585; Title 38 U.S.C. 1710 note), which expressly excluded abortion services,
among other services, from the health care services it authorized VA to provide,26 and (2) the
Veterans’ Health Care Eligibility Reform Act of 1996 (P.L. 104-262), which requires the VA
Secretary to provide medical services determined to be “needed.”2723 Department of Veterans Affairs, “Reproductive Health Services,” 87 Federal Register 55287-55296, September 9, 2022, https://www.federalregister.gov/documents/2022/09/09/2022-19239/reproductive-health-services. Congressional Research Service 3 Department of Veterans Affairs: Abortion Policy  the pregnancy is the result of an act of rape or incest. Self-reporting from the pregnant veteran constitutes sufficient evidence that an act of rape or incest occurred.24 These exceptions bring VA policy closer to those of other federal agencies that provide abortion services under restrictions required by a Hyde-type amendment. In addition, the IFR authorized VA to provide abortion counseling, which was previously explicitly prohibited under the standard medical benefits package. Religious Accommodations for VHA Employees The IFR does not discuss reasonable accommodations for providers who object to providing abortions due to religious belief. Some critics of the IFR have raised concerns that reasonable accommodations will not be considered.25 However, VA has long-standing policies to provide accommodations for religious exemption requests from its employees.26 On October 17, 2022, VA’s Under Secretary for Health informed VHA employees that VA is committed to respecting individuals’ sincere religious objections to participation in abortions or abortion counseling.27 VA later issued a memorandum to staff that detailed the religious accommodation and reasonable accommodation policy and provided guidance for employees with respect to abortions and abortion counseling.28 CHAMPVA Abortion Policy Unlike the medical benefits package for veterans, the CHAMPVA program—providing health care to certain dependents, spouses, and caregivers of veterans—had covered abortions and abortion counseling in limited circumstances prior to any changes authorized under the IFR. Specifically, the CHAMPVA program would cover the cost of abortion counseling or abortion procedures only if a physician certifies that the life of the mother would be endangered should the fetus be carried to term.29 In those cases, CHAMPVA would provide coverage for (1) spontaneous, missed, or threatened abortions and abortions related to ectopic pregnancies, or (2) fetal death due to natural causes.30 Dilation and evacuation (D&E) and dilation and curettage (D&C) procedures may be covered when done surgically for a gynecological diagnosis or 24 38 C.F.R. § 17.38(c)(1). 25 Letter from Lynn Fitch, Attorney General of Mississippi, et al. to Denis R. McDonough, Secretary of Veterans Affairs, November 17, 2022, https://www.ago.state.ms.us/2022/11/17/attorneys-general-put-biden-va-on-notice-about-lawless-and-hasty-abortion-rule-111722/. 26 For VA policy on religious and reasonable accommodations, see VA Directive 5975, Diversity and Inclusion, April 29, 2021, https://www.va.gov/vapubs/viewPublication.asp?Pub_ID=668&FType=2. For VA policy on processing accommodation requests, see VA Handbook 5975.1, Processing Requests for Reasonable Accommodation and Personal Assistance Services for Employees and Applicants with Disabilities, April, 18, 2022, https://www.va.gov/vapubs/viewPublication.asp?Pub_ID=732&FType=2. 27 Carter v. McDonough, 6:22-cv-01275 pp. 6-7 (Texas Western 2023). 28 Ibid. 29 38 C.F.R. §17.272(a)(67),(68). Also see Department of Veterans Affairs, Office of Community Care, CHAMPVA Operational Policy Manual, Chapter: 2 Section: 14.2 Title: Abortions, available at https://www.vha.cc.va.gov/. 30 38 C.F.R. §17.270(a). 38 C.F.R. §17.272(a). Congressional Research Service 4 Department of Veterans Affairs: Abortion Policy covered abortion.31 Prior to publication of the IFR, CHAMPVA would not cover any abortion related to incest or rape.32 CHAMPVA Policy Changes under Recent Rulemaking The IFR provided for additional circumstances under which abortion services are authorized for CHAMPVA beneficiaries. Specifically, the IFR authorizes abortions if the health of the CHAMPVA beneficiary is at risk. This policy change is a deviation from the TRICARE benefit, which authorizes abortions only when the life of the beneficiary is at risk. In addition, under the IFR, CHAMPVA provides coverage for abortions related to incest or rape.33 Legal Authority for VA Abortion Prohibition It is unclear whether VA abortion services are strictly prohibited by statute or solely limited through the regulations establishing the standard medical benefits package. The lack of clarity stems from two laws enacted in the 1990s: (1) Section 106 of the Veterans Health Care Act of 1992 (P.L. 102-585; Title 38 U.S.C. 1710 note), which expressly excluded abortion services, among other services, from the health care services it authorized VA to provide,34 and (2) the Veterans’ Health Care Eligibility Reform Act of 1996 (P.L. 104-262), which requires the VA Secretary to provide medical services determined to be “needed.”35
Section 106 of the Veterans Health Care Act of 1992 (P.L. 102-585; 38 U.S.C. 1710 note) Section 106 of the Veterans Health Care Act of 1992 (P.L. 102-585; 38 U.S.C. 1710 note)
authorizes the VA Secretary to provide certain specified health care services for women, including authorizes the VA Secretary to provide certain specified health care services for women, including
general reproductive health services. The section excludes the provision of infertility services, general reproductive health services. The section excludes the provision of infertility services,
abortions, and most pregnancy care.abortions, and most pregnancy care.2836 VA has since included pregnancy care in the standard VA has since included pregnancy care in the standard
medical benefits package. VA has also included infertility services to a certain extent.medical benefits package. VA has also included infertility services to a certain extent.2937
The Veterans’ Health Care Eligibility Reform Act of 1996 (P.L. 104-262) provided new eligibility The Veterans’ Health Care Eligibility Reform Act of 1996 (P.L. 104-262) provided new eligibility
criteria for VA hospital care and medical services. Previously, VA’s general authority limited the criteria for VA hospital care and medical services. Previously, VA’s general authority limited the
Secretary to providing hospital and outpatient care deemed “needed for the care of a ‘disability.’” Secretary to providing hospital and outpatient care deemed “needed for the care of a ‘disability.’”
The 1996 law removed this barrier and allows the Secretary to provide health care determined to The 1996 law removed this barrier and allows the Secretary to provide health care determined to
be “medically needed.” be “medically needed.”
The medical benefits package was created through rulemaking following enactment of the The medical benefits package was created through rulemaking following enactment of the
Veterans’ Health Care Eligibility Reform Act of 1996 (P.L. 104-262). VA included some fertility Veterans’ Health Care Eligibility Reform Act of 1996 (P.L. 104-262). VA included some fertility
31 Department of Veterans Affairs, Office of Community Care, CHAMPVA Operational Policy Manual, Chapter: 2 Section: 14.2 Title: Abortions, available at https://www.vha.cc.va.gov/. 32 TRICARE covers the cost of abortion when there is a threat to the life of the mother or in cases of rape or incest, as directed by 10 U.S.C. §1093 (a) and (b). For more information, see CRS Insight IN11960, FY2023 NDAA: Military Abortion Policies. 33 38 C.F.R. §17.272. 34 Section 106 authorized general reproductive health care, including the management of menopause, but did not include 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. 38 U.S.C. §1710 note. 35 P.L. 104-262 §101, 38 U.S.C. §1710(a). 36 Section 106 of P.L. 102-585 authorized pregnancy care for such care relating to a pregnancy that is complicated or in which the risks of complication are increased by a service-connected condition. 37 Pregnancy care: Title 38 C.F.R. §17.38(a)(1)(xii). In vitro fertilization is excluded in the medical benefits package [38 C.F.R. §17.38(c)(2)] but Congress has authorized a narrow exception has in annual appropriations measures since FY2017 (38 C.F.R. §17.380). Congressional Research Service 5 Department of Veterans Affairs: Abortion Policy services and maternity care in the original iteration of the standard medical benefits package. services and maternity care in the original iteration of the standard medical benefits package.
There is little in-depth discussion or rationale as to why VA included or excluded certain services There is little in-depth discussion or rationale as to why VA included or excluded certain services
from the medical benefits package when it was established. from the medical benefits package when it was established. However, VA provided the following VA provided the following
rationale for the inclusion of pregnancy and infertility services: rationale for the inclusion of pregnancy and infertility services:
The Secretary has authority to provide healthcare as determined to be medically needed. In The Secretary has authority to provide healthcare as determined to be medically needed. In
our view, medically needed constitutes care that is determined by appropriate healthcare our view, medically needed constitutes care that is determined by appropriate healthcare
professionals to be needed to promote, preserve, or restore the health of the individual and 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. The care included in to be in accord with generally accepted standards of medical practice. The care included in
the proposed ‘medical benefits package’ is intended to meet these criteria. the proposed ‘medical benefits package’ is intended to meet these criteria.
Commenters asserted that infertility services, pregnancy and delivery, surgical Commenters asserted that infertility services, pregnancy and delivery, surgical
implantation of penile prostheses, and membership in spas and health clubs should be implantation of penile prostheses, and membership in spas and health clubs should be
included in the medical benefits package. As noted above, the medical benefits package included in the medical benefits package. As noted above, the medical benefits package
would include care that is determined by appropriate healthcare professionals to be needed would include 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 to promote, preserve, or restore the health of the individual and to be in accord with
generally accepted standards of medical practice. Upon reconsideration, we conclude that generally accepted standards of medical practice. Upon reconsideration, we conclude that
pregnancy and delivery services (to the extent we have legal authority to provide such pregnancy and delivery services (to the extent we have legal authority to provide such
services) meet these criteria and should be included in the medical benefits package. We services) meet these criteria and should be included in the medical benefits package. We
also conclude that membership in spas and health clubs does not meet these criteria and also conclude that membership in spas and health clubs does not meet these criteria and
should not be included. Further, under these criteria, we have determined that reproductive should not be included. Further, under these criteria, we have determined that reproductive
sterilization, surgery to reverse voluntary sterilization, infertility services (other than in sterilization, surgery to reverse voluntary sterilization, infertility services (other than in
vitro fertilization), and surgical implantation of penile prostheses should not be excluded. vitro fertilization), and surgical implantation of penile prostheses should not be excluded.

26 Section 106 authorized general reproductive health care, including the management of menopause, but did not
include 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. 38 U.S.C §1710 note.
27 P.L. 104-262 §101, 38 U.S.C. §1710(a).
28 Section 106 of P.L. 102-585 authorized pregnancy care for such care relating to a pregnancy that is complicated or in
which the risks of complication are increased by a service-connected condition.
29 Pregnancy care: Title 38 C.F.R. § 17.38(a)(1)(xii). In vitro fertilization is excluded in the medical benefits package
[38 C.F.R. § 17.38(c)(2)] but Congress has authorized a narrow exception has in annual appropriations measures since
FY2017 (38 C.F.R. § 17.380).
Congressional Research Service

4
Department of Veterans Affairs: Abortion Policy

Appropriate changes are made to the medical benefits package to reflect these Appropriate changes are made to the medical benefits package to reflect these
determinations.determinations.3038
This excerpt explains that VA included services prohibited under Section 106 of the 1992 law This excerpt explains that VA included services prohibited under Section 106 of the 1992 law
because it deemed those services to be ‘‘care that is determined by appropriate healthcare because it deemed those services to be ‘‘care that is determined by appropriate healthcare
professionals to be needed to promote, preserve, or restore the health of the individual and to be 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.’’ in accord with generally accepted standards of medical practice.’’
Regarding infertility services, which the 1992 law also expressly prohibited, Congress has Regarding infertility services, which the 1992 law also expressly prohibited, Congress has
included funds for the provision of in vitro fertilization in annual appropriations language since included funds for the provision of in vitro fertilization in annual appropriations language since
FY2017.FY2017.3139 This service is provided with narrow eligibility related to a service-connected This service is provided with narrow eligibility related to a service-connected
disability that prevents procreation. disability that prevents procreation.
VA’s justification for including pregnancy care and infertility services in its medical benefits VA’s justification for including pregnancy care and infertility services in its medical benefits
package suggests that VA could potentially interpret the 1996 law as similarly allowing VA to package suggests that VA could potentially interpret the 1996 law as similarly allowing VA to
provide “medically needed” abortion coverage.32 However, some maintain that the 1992 law
continues to prohibit abortion coverage.33
Legislative Activity in the 117th Congress
The Reproductive Health Information for Veterans Act (H.R. 345, 117th Congress), if enacted,
would require the VA Secretary to provide abortion counseling to a veteran who has an unwanted
pregnancy. As noted above, abortion counseling is currently prohibited by the standard medical
benefits package, though it is not specifically prohibited by the 1992 law.
The legislation would specify that abortion counseling must include (1) options for veterans with
unwanted pregnancies, including abortion; (2) accurate health information based on the health of
the veteran regarding those options; and (3) information regarding the nearest location where a
veteran can safely receive an abortion.
The House Veterans’ Affairs Committee held a hearing on H.R. 345 on June 22, 2022.34 In written
testimony, VA expressed support for the bill with technical amendments. VA noted that VA

30 Department of Veterans Affairs, “Enrollment Provisions and Medical,” 64 Federal Register 54210, October 6, 1999.
https://www.govinfo.gov/content/pkg/FR-1999-10-06/pdf/99-25871.pdf
31 Section 260 of the Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies
Appropriations Act, 2017, and the Zika Response and Preparedness Act (P.L. 114-223) permitted the VA to use funds
from the Medical Services account for this purpose for FY2017. Section 236 of Division J of the Military Construction,
Veterans Affairs, and Related Agencies Appropriations Act, 2018 (P.L. 115-141), continued this policy for FY2018
and FY2019. Section 235 of the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs
Appropriations Act, 2019 (P.L. 115-244), continued this policy for FY2019 and FY2020. Section 235 of the Military
Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2020 (Division F of the Further
Consolidated Appropriations Act, 2020; P.L. 116-94), allows the VHA to use FY2020 appropriations and FY2021
advance appropriations to continue providing IVF services to certain veterans and their spouses. Section 234 of
Division J of the Consolidated Appropriations Act, 2021 (P.L. 116-260), continued allowing the use of FY2021
appropriations and FY2022 advance appropriations for this purpose. Section 234 of Division J of the Consolidated
Appropriations Act, 2022 (P.L. 117-103) continued allowing the use of FY2022 appropriations and FY2023 advance
appropriations for this purpose.
32 38 Department of Veterans Affairs, “Enrollment Provisions and Medical,” 64 Federal Register 54210, October 6, 1999. https://www.govinfo.gov/content/pkg/FR-1999-10-06/pdf/99-25871.pdf. 39 The following appropriations acts have provided authority to use funds for in vitro fertilization since FY2017: Section 260 of the Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and the Zika Response and Preparedness Act (P.L. 114-223); Section 236 of Division J of the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2018 (P.L. 115-141); Section 235 of the Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019 (P.L. 115-244); Section 235 of the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2020 (Division F of the Further Consolidated Appropriations Act, 2020; P.L. 116-94); Section 234 of Division J of the Consolidated Appropriations Act, 2021 (P.L. 116-260); Section 234 of Division J of the Consolidated Appropriations Act, 2022 (P.L. 117-103); and Section 234 of Division J of the Consolidated Appropriations Act, 2023 (P.L. 117-328). Congressional Research Service 6 Department of Veterans Affairs: Abortion Policy provide “medically needed” abortion coverage.40 Some maintain that the 1992 law continues to prohibit abortion coverage.41 Legislative Activity in the 117th and 118th Congress 118th Congress Members have introduced joint resolutions of disapproval under the Congressional Review Act (CRA; Title II, Subtitle E, P.L. 104-121) in both the House (H.J.Res 31) and the Senate (S.J.Res. 10) to overturn the interim final rule (IFR).42 If enacted, the IFR would immediately go out of effect. The VA standard medical benefits package would revert to prohibiting abortion services with no exception. It would also prohibit VA from providing abortion counseling. In addition, CHAMPVA would be prohibited from covering the cost of abortions in all cases except when the life of the CHAMPVA beneficiary is at risk. Disapproval of a rule under the CRA also prohibits an agency from issuing a disapproved rule in “substantially the same form” unless Congress provides subsequent statutory authorization.43 117th Congress The Reproductive Health Information for Veterans Act (H.R. 345, 117th Congress) would have required the VA Secretary to provide abortion counseling to a veteran who has an unwanted pregnancy. As noted above, abortion counseling was recently authorized under the interim final rule. The bill specified that abortion counseling must include (1) options for veterans with unwanted pregnancies, including abortion; (2) accurate health information based on the health of the veteran regarding those options; and (3) information regarding the nearest location where a veteran can safely receive an abortion. The House Veterans’ Affairs Committee held a hearing on H.R. 345 on June 22, 2022.44 In written testimony, VA expressed support for the bill with technical amendments. VA noted that VA providers face an ethical challenge, as they must adhere to professional standards and clinical practice guidelines regarding abortion counseling while also complying with VA’s regulations prohibiting such counseling.45 40 VA Secretary McDonough states that the abortion counseling prohibition is a regulatory matter. U.S. Congress, VA Secretary McDonough states that the abortion counseling prohibition is a regulatory matter. U.S. Congress,
House Committee on Veterans’ Affairs, House Committee on Veterans’ Affairs, Restoring Faith by Building Trust: VA’s First 100 Days., 117th Cong., 1st sess., , 117th Cong., 1st sess.,
March 25, 2021. March 25, 2021.
3341 Office of United States Senator Jerry Moran, “Sen. Moran: VA’s Prohibition on Abortion Services is the Law,” press Office of United States Senator Jerry Moran, “Sen. Moran: VA’s Prohibition on Abortion Services is the Law,” press
release, August 4, 2021, https://go.usa.gov/xJK4k. release, August 4, 2021, https://go.usa.gov/xJK4k.
34 U.S. Congress, House Committee on Veterans’ Affairs, Subcommittee on Health, Legislative Hearing, 117th Cong.,
2nd sess., June 22, 2022.
Congressional Research Service

5
Department of Veterans Affairs: Abortion Policy

providers currently face an ethical challenge, as they must adhere to professional standards and
clinical practice guidelines regarding abortion counseling while also complying with VA’s
regulations prohibiting such counseling.35
An identical bill was introduced in the 116th Congress (H.R. 5568).



42 Interim final rules are considered final rules that carry the force and effect of law, and an interim final rule that satisfies the CRA’s definition of rule will be subject to the CRA. For more information, see CRS In Focus IF10023, The Congressional Review Act (CRA): A Brief Overview. 43 5 U.S.C. §801(b)(2). The CRA does not define “substantially the same.” For a discussion of this issue, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions. 44 U.S. Congress, House Committee on Veterans’ Affairs, Subcommittee on Health, Legislative Hearing, 117th Cong., 2nd sess., June 22, 2022. 45 Testimony of VA representatives, in U.S. Congress, House Committee on Veterans’ Affairs, Subcommittee on Health, Legislative Hearing, 117th Cong., 2nd sess., June 22, 2022, p. 2. https://docs.house.gov/meetings/VR/VR03/20220622/114857/HHRG-117-VR03-Wstate-MillerM-20220622-U1.pdf VA raised four technical issues with the bill as written: (1) the language does not limit counseling to veterans enrolled Congressional Research Service 7 Department of Veterans Affairs: Abortion Policy in VA health care; (2) the bill does not define “unwanted pregnancy” and VA suggests revising the language as to not limit counseling to certain types of pregnancies; (3) VA suggests revising the language to authorize VA to provide counseling on the full range of options regarding pregnancy; and (4) it is unclear how it would obtain information on the nearest location where a veteran can receive an abortion. Congressional Research Service 8 Department of Veterans Affairs: Abortion Policy This bill has not been introduced in the 118th Congress. Author Information

Jared S. Sussman Jared S. Sussman

Analyst in Health Policy Analyst in Health Policy



Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material. copy or otherwise use copyrighted material.


35 Testimony of VA representatives, in U.S. Congress, House Committee on Veterans’ Affairs, Subcommittee on
Health, Legislative Hearing, 117th Cong., 2nd sess., June 22, 2022, p.2.
https://docs.house.gov/meetings/VR/VR03/20220622/114857/HHRG-117-VR03-Wstate-MillerM-20220622-U1.pdf
VA raised four technical issues with the bill as written: (1) the language does not limit counseling to veterans enrolled
in VA health care; (2) the bill does not define “unwanted pregnancy” and VA suggests revising the language as to not
limit counseling to certain types of pregnancies; (3) VA suggests revising the language to authorize VA to provide
counseling on the full range of options regarding pregnancy; and (4) it is unclear how it would obtain information on
the nearest location where a veteran can receive an abortion.
Congressional Research Service
R47191 · VERSION 3 · UPDATED
6 Congressional Research Service R47191 · VERSION 5 · UPDATED 9