Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 15451 

This subsection is also amended to 

broaden the group of individuals who 

may act as Deputy Ethics Officials 

pursuant to delegations from the DAEO. 

Finally, 38 CFR 0.735–1(b)(2) is 

amended to include a citation to 5 CFR 

2638.104(e) as the existing citation to 5 

CFR 2638.204 is outdated. 

Administrative Procedure Act 

This final rule is a procedural rule 

that does not impose new rights, duties, 

or obligations on affected individuals 

but, rather, explains that the Secretary 

appoints Agency ethics officials and 

identifies the employees that may serve 

as Agency ethics officials. Therefore, it 

is exempt from the prior notice-andcomment and delayed-effective-date 

requirements of 5 U.S.C. 553. See 5 

U.S.C. 553(b)(A) and (d)(3). This rule 

merely updates information regarding 

the delegation of Agency ethics officials, 

the employees who may serve in those 

roles, and the names of certain offices 

and employees in the Office of General 

Counsel. 

Paperwork Reduction Act 

This final rule contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501–3521). 

Regulatory Flexibility Act 

The initial and final regulatory 

flexibility analyses requirements of 

sections 603 and 604 of the Regulatory 

Flexibility Act, 5 U.S.C. 601–612, are 

not applicable to this rule because a 

notice of proposed rulemaking is not 

required for this rule. Even so, 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. This rule will affect only: (1) Office 

of General Counsel (OGC) and VA 

employees who serve as Agency ethics 

officials, and (2) VA employees seeking 

ethics advice from these Agency ethics 

officials. 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. 

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 rulemaking is not 

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 

www.regulations.gov. 

Assistance Listing 

There are no Assistance Listing 

numbers and titles for the programs 

affected by this document. 

Congressional Review Act 

Pursuant to 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). 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, 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 final rule will have no 

such effect on State, local, and tribal 

governments, or on the private sector. 

List of Subjects in 38 CFR Part 0 

Core Values, Characteristics and 

Customer Experience Principles of the 

Department, General Provisions, 

Standards of Ethical Conduct, and 

Related Responsibilities of Employees. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, approved 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 

electronically as an official document of 

the Department of Veterans Affairs. 

Consuela Benjamin, 

Regulations Development Coordinator, Office 

of Regulation Policy & Management, Office 

of General Counsel, Department of Veterans 

Affairs. 

For the reasons set out in the 

preamble, the Department of Veterans 

Affairs amends 38 CFR part 0 as follows: 

PART 0—VALUES, STANDARDS OF 

ETHICAL CONDUCT, AND RELATED 

RESPONSIBILITIES 

■ 1. The authority citation for part 0 

continues to read as follows: 

Authority: 5 U.S.C. 301; 38 U.S.C. 501; see 

sections 201, 301, and 502(a) of E.O. 12674, 

54 FR 15159, 3 CFR, 1989 Comp., p. 215 as 

modified by E.O. 12731, 55 FR 42547, 3 CFR, 

1990 Comp., p. 306. 

■ 2. Amend § 0.735–1 by revising 

paragraphs (a), (b)(1), and (b)(2) to read 

as follows: 

§ 0.735–1 Agency ethics officials. 

(a) Designated Agency Ethics Official 

(DAEO). The Secretary will designate 

attorneys from the Office of General 

Counsel to serve as the Designated 

Agency Ethics Official (DAEO) and 

Alternate Designated Agency Ethics 

Official (ADAEO). 

(b) * * * 

(1) The District Chief Counsels and 

attorneys on the Ethics Specialty Team 

are Deputy Ethics Officials. They have 

been delegated the authority to act for 

the DAEO pursuant to 5 CFR 

2638.104(e). 

(2) Other officials may also act as 

Deputy Ethics officials pursuant to 

delegations of one or more of the 

DAEO’s duties from the DAEO. 

[FR Doc. 2024–04442 Filed 3–1–24; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AR57 

Reproductive Health Services 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

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 


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15452 Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 

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 §§ 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 ‘‘CHAMPVAcovered 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 


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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, 


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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 § 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 


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Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 15455 

When Providing Certain Abortion 

Services, 46 Op. O.L.C., l, 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 pregnancyrelated 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 


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(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 nonveterans). 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– 


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1H.R. REP. NO. 104–690, at 11. 

2 Id. at 4. 

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. 

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., l, 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 § 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 


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15458 Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 

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 § 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., l, 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., l, 

(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. 


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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 nonDepartment 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. 


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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. l (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., l, 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 


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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 


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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 nonexhaustive examples, the IFR identified 

conditions such as ‘‘severe 

preeclampsia, newly diagnosed cancer 

requiring prompt treatment, and 

intrauterine infections, and . . . preexisting 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 


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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 healthsaving 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 § 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, caseby-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). 


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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 


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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 § 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 


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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 selfreports 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 longlasting 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 


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3Martha 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). 

4Elizabeth 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). 

5Abortion Can Be Medically Necessary, Am. 

College of Obstetricians and Gynecologists, Sep. 25, 

2019. http://www.acog.org/news/news-releases/ 

2019/09/abortion-can-be-medically-necessary (last 

visited Aug. 22, 2022). 

6Abortion Access Fact Sheet. The American 

College of Obstetrics and Gynecology. 2023. https:// 

www.acog.org/advocacy/abortion-is-essential/comeprepared/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). 

8Abortion Access Fact Sheet. The American 

College of Obstetrics and Gynecology. 2023. https:// 

www.acog.org/advocacy/abortion-is-essential/comeprepared/abortion-access-fact-sheet (last visited 

May 15, 2023). 

9The 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-safetyand-quality-of-abortion-care-in-the-united-states. 

10 Id. 

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. 

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

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

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

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 highquality 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 


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11Providing Quality Family Planning Services: 

Recommendations of CDC and the U.S. Office of 

Population Affairs. Centers for Disease Control and 

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 consciencebased protections, including under the 

First Amendment, the Religious 

Freedom Restoration Act, the Public 

Health Service Act (including the CoatsSnowe 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 consciencebased 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 nonVA 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. l 

(Sept. 21, 2022); www.justice.gov/olc/ 

opinion/intergovernmental-immunitydepartment-veterans-affairs-and-itsemployees-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, 


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Prevention. April 25, 2014. https://www.cdc.gov/ 

mmwr/preview/mmwrhtml/rr6304a1.htm?s_

cid=rr6304a1_w (last visited December 6, 2023). 

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. 

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 

§ 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 


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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 InHouse 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 


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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/abortionservices.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/abortionservices.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-needsconditions/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. 


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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 postpartum 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 


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Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 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. 

■ 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 


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15474 Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 

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 

POSTAL SERVICE 

39 CFR Part 20 

International Mail Manual; 

Incorporation by Reference 

AGENCY: Postal ServiceTM. 

ACTION: Final rule. 

SUMMARY: The Postal Service announces 

the issuance of the Mailing Standards of 

the United States Postal Service, 

International Mail Manual (IMM®) 

dated January 21, 2024, and its 

incorporation by reference in the Code 

of Federal Regulations. 

DATES: This rule is effective March 4, 

2024. The incorporation by reference of 

certain material listed in this rule is 

approved by the Director of the Federal 

Register as of March 4, 2024. 

FOR FURTHER INFORMATION CONTACT: Dale 

Kennedy, (202) 268–6592. 

SUPPLEMENTARY INFORMATION: The 

International Mail Manual (IMM) 

provides our standards for all 

international mailing services and 

references for the applicable prices. It 

was issued on January 21, 2024, and 

was updated with Postal Bulletin 

revisions through December 28, 2023. It 

replaces all previous editions. 

The IMM continues to enable the 

Postal Service to fulfill its long-standing 

mission of providing affordable, 

universal mail service. It continues to: 

(1) increase the user’s ability to find 

information; (2) increase the user’s 

confidence that he or she has found the 

information they need; and (3) reduce 

the need to consult multiple sources to 

locate necessary information. The 

provisions throughout this issue support 

the standards and mail preparation 

changes implemented since the version 

of July 10, 2022. The International Mail 

Manual is available to the public on the 

Postal Explorer® internet site at https:// 

pe.usps.com. 

List of Subjects in 39 CFR Part 20 

Administrative practice and 

procedure, Foreign relations, 

Incorporation by reference. 

In view of the considerations 

discussed above, the Postal Service 

hereby amends 39 CFR part 20 as 

follows: 

PART 20—INTERNATIONAL POSTAL 

SERVICE 

■ 1. The authority citation for part 20 

continues to read as follows: 

Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– 

307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 

401, 403, 404, 407, 414, 416, 3001–3011, 

3201–3219, 3403–3406, 3621, 3622, 3626, 

3632, 3633, and 5001. 

■ 2. Amend § 20.1 by revising 

paragraphs (a)(3) and (b) to read as 

follows: 

§ 20.1 Incorporation by reference; Mailing 

Standards of the United States Postal 

Service, International Mail Manual. 

(a) * * * 

(3) Inspection—NARA. You may view 

this material at the National Archives 

and Records Administration (NARA). 

For information on the availability of 

this material at NARA, visit 

www.archives.gov/federal-register/cfr/ 

ibr-locations or email fr.inspection@

nara.gov. 

(b) The Director of the Federal 

Register approved the IMM, updated 

January 21, 2024, for incorporation by 

reference as of March 4, 2024. 

■ 3. Revise § 20.2 to read as follows: 

§ 20.2 Effective date of the International 

Mail Manual. 

The provisions of the International 

Mail Manual issued January 21, 2024 

(incorporated by reference, see § 20.1), 

are applicable with respect to the 

international mail services of the Postal 

Service. 

■ 4. Amend § 20.4 by adding an entry 

for ‘‘IMM’’ at the end of table 1 to read 

as follows: 

§ 20.4 Amendments to the International 

Mail Manual. 

* * * * * 

TABLE 1 TO § 20.4—INTERNATIONAL

MAIL MANUAL

International mail 

manual Date of issuance 

* * * * * 

IMM ............................ January 21, 2024. 

Sarah E. Sullivan, 

Attorney, Ethics and Legal Compliance. 

[FR Doc. 2024–04420 Filed 3–1–24; 8:45 am] 

BILLING CODE 7710–12–P 

POSTAL SERVICE 

39 CFR Part 111 

Domestic Mail Manual; Incorporation 

by Reference 

AGENCY: Postal ServiceTM. 

ACTION: Final rule. 

SUMMARY: The Postal Service announces 

the issuance of the Mailing Standards of 

the United States Postal Service, 

Domestic Mail Manual (DMM®) dated 

January 21, 2024, and its incorporation 

by reference in the Code of Federal 

Regulations. 

DATES: This rule is effective March 4, 

2024. The incorporation by reference of 

certain material listed in this rule is 

approved by the Director of the Federal 

Register as of March 4, 2024. 

FOR FURTHER INFORMATION CONTACT: Dale 

Kennedy (202) 268–6592. 

SUPPLEMENTARY INFORMATION: The 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM) provides the United States 

Postal Service’s official prices and 

standards for all domestic mailing 

services. The most recent issue of the 

DMM is dated January 21, 2024. This 

issue of the DMM contains all Postal 

Service domestic mailing standards and 

continues to: (1) increase the user’s 

ability to find information; (2) increase 

confidence that users have found all the 

information they need; and (3) reduce 

the need to consult multiple chapters of 

the Manual to locate necessary 

information. The issue dated January 21, 

2024, sets forth specific changes, 

including new standards throughout the 

DMM to support the standards and mail 

preparation changes implemented since 

the version issued on July 10, 2022. 

Changes to mailing standards will 

continue to be published through 

Federal Register documents and the 

Postal Bulletin and will appear in the 

next online version available via the 

Postal Explorer® website at: https://

pe.usps.com. 

List of Subjects in 39 CFR Part 111 

Administrative practice and 

procedure, Incorporation by reference. 

In view of the considerations 

discussed above, the Postal Service 

hereby amends 39 CFR part 111 as 

follows: 

PART 111—GENERAL INFORMATION 

ON POSTAL SERVICE 

■ 1. The authority citation for 39 CFR 

part 111 continues to read as follows: 

Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– 

307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 


khammond on DSKJM1Z7X2PROD with RULES