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Veterans Affairs says it controls veterans’ abortion access, not states

Denis McDonough, Secretary of Veterans Affairs. (Sarah Silbiger/Pool/Abaca Press/TNS)
September 27, 2022

Veterans Affairs Secretary Denis McDonough defended the VA’s decision to offer abortions to pregnant veterans and VA beneficiaries for the first time ever, even in states where abortion is banned, arguing that “reproductive services” for veterans is a federal matter.

During a hearing on Wednesday before the Senate Veterans Affairs Committee, Sen. Mazie Hirono’s (D-Hawaii) asked McDonough if VA employees who perform abortions are protected from criminal or civil liability in states where the procedure is banned.  

“I’d just reiterate the principle that led us to take this step is veteran patient safety. We take that very, very seriously. Every health decision we make flows from that principle,” McDonough said. “As it relates to [abortion], VA requested and has received now, just in the last couple of hours, an opinion from the Justice Department’s Office of Legal Counsel concluding that VA’s interim final rule on access to reproductive health services is a lawful exercise of VA’s authority. The OLC opinion further concludes that states may not impose criminal or civil liability on VA employees, including doctors, nurses, administrative staff who provide or facilitate abortions or related services in a manner authorized by federal law.”

A VA press release published earlier this month explained that the taxpayer-funded department will provide access to abortions when “the life or health” of a veteran or beneficiary “would be endangered if the pregnancy were carried to term,” or if the pregnancy is due to rape or incest.

The release said that the VA will determine if the life and health of the mother is at risk on a case-by-case basis through a “careful consultation between VA health care providers and the Veterans they serve.”

“In cases of rape or incest, self-reporting from a Veteran or VA beneficiary will constitute sufficient evidence that an act of rape or incest occurred,” the release added.

The VA also claimed that “access to medically necessary abortions is essential for preserving the life and health of Veterans and VA beneficiaries.”

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