a The new VA law sets up a major clash between conservative states and the federal government, as Republican lawmakers vow to fight the policy that VA will provide abortion services even in states that have banned the procedure.
Under the new law, which took effect on September 9, the Department of Veterans Affairs will provide counseling about abortions and abortions in cases of rape, incest or when pregnancy threatens a patient’s life to veterans and their eligible family members. This represents a historic change: The Department of Veterans Affairs did not previously provide abortions to veterans under any circumstances and did not allow its providers to advise patients about the procedure.
This move is a direct result of the Supreme Court coup Raw vs. Wade This summer, which led to a wave of abortion bans and restrictions across the country. VA leaders said these restrictions created “urgent risks” for veterans and forced the agency to act. “This expansion is a patient safety decision first and foremost,” Dr. Sherif Al-Nahal, Undersecretary of Health for Veterans Affairs, told members of the House Veterans Affairs Committee on Thursday. “It is important to emphasize that the VA is taking these steps with our primary mission in mind: to preserve the lives and health of veterans.”
This policy has been encouraged by Democrats, who have been pressing President Joe Biden to find ways to expand access to abortion since the Supreme Court’s decision in Dobbs vs Women’s Health Jackson Abolished the federal right to abortion. They said they hope the VA move will gain broad traction, given that the rule only allows abortions in circumstances that are in line with other federal policies. Democratic Senator Patty Murray of Washington called the change a “common sense policy” at a news conference on the subject last week, while Senator Tammy Duckworth of Illinois, who lost both legs while serving in Iraq, questioned why the government was comfortable letting it use her body for war but It is not for her choosing how and when to raise a family. When will American women have the right to physical independence? She asked.
Republicans disagree. Many countries that have enacted a near-total ban on abortion do not have Rape and incest exceptions, so conservatives argue that the Department of Veterans Affairs is overstepping its authority. Alabama Attorney General Steve Marshall said last week that he would enforce his state’s abortion ban, which bans all abortions except for those that threaten the life of a pregnant woman, against any practitioner who violates it. “I have no intention of waiving my duty to enforce the Fetal Life Protection Act against any practitioner who illegally performs abortions in the state of Alabama,” he said in a statement. “The power of nations to protect the life that has not yet been born.” Leslie Rutledge, the attorney general of Arkansas, whose abortion ban allows only abortions in life-threatening situations, told TIME that she would enforce her ban despite VA policy. “I am prepared to challenge the Biden administration for its attempt to circumvent the Arkansas law,” Routledge said in a statement.
The Hyde Amendment prohibits federal funding for most abortion-related services, but allows similar exceptions to the VA rule—and applies only to funds earmarked for the Departments of Labor, Health, Human Services, and Education, not the Department of Veterans Affairs. Republicans argue that the VA’s policy violates other laws, including the 1992 Veterans’ Health Care Act, which excluded abortions from the medical care the VA was allowed to provide. Democrats oppose that the Veterans Health Care Eligibility Reform Act of 1996 allows the Secretary of Veterans Affairs to “provide hospital care and medical services” that have been identified as “essential,” including abortion.
VA officials and legal experts say the agency is on a solid legal footing as it establishes the new policy, particularly because of the legal principle of federal pre-emption. “The federal government has to make the law and states can’t say, ‘We don’t want to follow that,'” says David Cohen, professor of law at Drexel University. contrary to this fundamental principle of American law.”
The outcome of the legal debate can affect thousands of women who seek care. About 260,000 female combatants of childbearing age live in states with strict abortion restrictions, according to Kayla Williams, a RAND researcher and former director of the Virginia Veterans’ Center, who testified at the hearing. It estimated that about 96,200 VA patients could be affected by the policy change. The beekeeper said he initially expects to perform about 1,000 VA-assisted abortions annually, but that could increase in the coming years as the number of female veterans grows rapidly.
Republicans said during Thursday’s committee hearing that they would support legal challenges to the policy and threatened to pursue the VA budget if they regain control of Congress in November. “It’s not just wrong, it’s illegal,” said high-level panel member Mike Post, an Illinois Republican. He said he is working with colleagues on the House Appropriations Committee and the Senate on potential sanctions. “Abortion is not health care, no matter what those on the other side of this problem might feel.”
Legal and logistical challenges
Regardless of whether the victim assistance policy is challenged in court, its implementation will be complicated, and its providers are unlikely to be immediately ready to provide a range of abortion services.
One of the biggest challenges is the fact that VA essentially builds the plan infrastructure in real time. The Department of Veterans Affairs did not say when its facilities would begin providing abortions. Al-Nahal told lawmakers that the agency is working to ensure that facilities have adequate staff and training to implement the policy, make pregnancy testing available at all locations, and survey the availability of ultrasound machines. “we believe medical abortion It will be the first available and most common type of abortion offered, so we are working to ensure providers have the training as well as the necessary medications.”
If VA is not able to provide needed care immediately, the beekeeper said that veterans and beneficiaries can use community service providers or travel to community facilities or other VA facilities, and the VA will cover the cost of such transportation where appropriate. but the Legal scene Complex. As for providers operating in VA facilities on federal property, the beekeeper said “they will be protected by federal sovereignty and the full power of the federal government will be there for them if they are challenged.” But he said the same legal protections “would not necessarily be available” to providers who work in non-victim assistance program facilities in states that have outlawed abortion.
This can make it difficult to find community providers willing to help in states that have banned abortion, especially since many abortion clinics in those states have closed or stopped offering the procedure. “Given the continued shutdown of abortion and care infrastructure across the country as a result of the statewide ban, the VA will have real difficulty enforcing this policy,” Lindsey Church, executive director of Minority Veterans of America who testified at Thursday’s hearing , for Time magazine.
Cohen and other legal experts say the Constitution provides some protections for people who travel to federal lands to do federal business. The privileges or immunities clause of the Fourteenth Amendment can be used to protect patients or providers if states try to prosecute people for providing abortions in Virginia facilities. But Rachel Riboshi, dean of Temple University’s Beasley School of Law and an expert in reproductive health law, says the provision has been narrowly interpreted in the past and it’s unclear how far the protections will go.
Even if states do not take this legal path, Riboshi says it has the potential to make doctors’ lives difficult if they get involved. “States can target you in other ways. They can say it’s unethical, or they can attack your license. State medical boards really have broad power to determine what ethical practice is,” she says.
“It will really highlight the tensions between federal and state regulations,” adds Reboshi. “This will really test our basic assumptions about federalism, about how states treat each other, about the role of federal law in the abortion field.”
More must-read stories from TIME
More must-read stories from TIME