90 FR 147 pgs. 36415-36417 - Reproductive Health Services
Type: PRORULEVolume: 90Number: 147Pages: 36415 - 36417
Pages: 36415, 36416, 36417FR document: [FR Doc. 2025-14687 Filed 8-1-25; 4:00 pm]
Agency: Veterans Affairs Department
Official PDF Version: PDF Version
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AS31
Reproductive Health Services
AGENCY:
Department of Veterans Affairs.
ACTION:
Proposed rule.
SUMMARY:
The Department of Veterans Affairs (VA) is proposing to reinstate the full exclusion on abortions and abortion counseling from the medical benefits package, which was removed in 2022. Before that time, this exclusion had been firmly in place since the medical benefits package was first established in 1999. VA is also proposing to reinstate the exclusions on abortion and abortion counseling for Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) that were removed in 2022. We take this action to ensure that VA provides only needed medical services to our nation's heroes and their families.
DATES:
Comments must be received on or before September 3, 2025.
ADDRESSES:
Comments must be submitted through www.regulations.gov . Except as provided below, comments received before the close of the comment period will be available at www.regulations.gov for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on www.regulations.gov as soon as possible after they have been received. VA will not post on Regulations.gov public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm an individual. VA encourages individuals not to submit duplicative comments; however, we will post comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period's closing date is considered late and will not be considered in the final rulemaking. A plain language summary (not more than 100 words in length) of this rule is available at www.regulations.gov, under RIN 2900-AS31.
FOR FURTHER INFORMATION CONTACT:
Dr. Steven L. Lieberman, Acting Under Secretary for Health, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-0373. (This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION:
Today, VA is proposing to return VA's medical package and CHAMPVA benefits to where they were on September 8, 2022, before VA issued an interim final rule that removed long-standing restrictions against abortions.
[top] From 1999, when VA established the medical benefits package in 17.38 of title 38, Code of Federal Regulations (CFR) until September 8, 2022, VA's "medical benefits package" did not authorize abortion services because they were not "needed" medical services under section 1710 of title 38 of the United States Code (U.S.C.). For decades, VA had consistently interpreted abortion services as not
Footnotes:
1 ?The medical benefits package was established in 1999 based on the comprehensive Veterans Benefits Act of 1997, which established, inter alia, 38 U.S.C. 1710. Until 2022, VA had never interpreted its authority under the 1999 extensive revisions to title 38 as allowing abortions.
As a matter of law, it is without question that VA has the authority to bar provision of abortion services through the VA medical benefits package to veterans. From 1999 until 2022 that is in fact what VA did. It was not until 2022 when the VA Secretary reversed this course. The stated reason for doing so was a reaction to a Supreme Court decision, Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022), that itself was intended to prevent federal overreach and return to States control over the provision of abortion services. Yet, the last administration used Dobbs to do the exact opposite of preventing overreach, creating a purported Federal entitlement to abortion for veterans where none had existed before and without regard to State law. In doing so, the administration predicted a high demand for VA abortions that never materialized. 2
Footnotes:
2 ?As part of the September 9, 2022 IFR and March 4, 2024 final rule, VA estimated that VA would provide abortions to more than 1,000 veterans and CHAMPVA beneficiaries per year. See Regulatory Impact Analysis for Interim Final Rule (2900-AR57) published September 9, 2022, and Final Rule (2900-AR57) published March 4, 2024. Regulations.gov . https://www.regulations.gov (last visited July 14, 2025). However, the average number of veterans who receive abortions from VA is 100 per year, and the average number of CHAMPVA beneficiaries who receive abortions from VA is 40 per year, which are significantly lower than the more than 1,000 per year VA previously projected. See the Regulatory Impact Analysis for this proposed rule. Regulations.gov . https://www.regulations.gov .
The regulatory determination that abortion is not a "needed" service for veterans was accepted by every Secretary and Presidential administration for over 20 years. The stated basis for determination that abortions were now a needed service was an anticipated rise in demand as a result of the Dobbs decision.
But this conclusion contradicted decades of Federal policy against forced taxpayer funding for abortion. Considerations about whether abortion is "needed" for purposes of VA-provided services necessarily involves the question of whether taxpayers should pay for abortion. For nearly fifty years, and across a slew of Federal programs, including Medicaid, the Child Health Insurance Program, TriCare, Federal Employee Health Benefits Program, and others, Congress has consistently drawn a bright line between elective abortion and health care services that taxpayers would support.
VA has never understood this policy to prohibit providing care to pregnant women in life-threatening circumstances, including treatment for ectopic pregnancies or miscarriages, which were covered under the VA's medical benefits package prior to the 2022 IFR. 3 For the avoidance of doubt, the proposed rule would make clear that the exclusion for abortion does not apply "when a physician certifies that the life of the mother would be endangered if the fetus were carried to term." This is also consistent with the pre-2022 regulations for the CHAMPVA program.
Footnotes:
3 ?Maternity Health Care and Coordination, VHA Directive 1330.03 (November 3, 2020) available at https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=9095 . See also Secretary Denis McDonough, Press Conference, (July 20, 2022), available at https://www.youtube.com/watch?v=UpFKk5NFhF0 at 52:00:000.
No State law prohibits treatment for ectopic pregnancies or miscarriages to save the life of a mother. 4
Footnotes:
4 ? https://www.justia.com/constitutional-law/50-state-survey-on-abortion-laws/ .
Taken together, claims in the prior administration's rule that abortions throughout pregnancy are needed to save the lives of pregnant women are incorrect. The lives of pregnant women will continue to be protected without regard for the previous administration's rule. Thus, prior Administrations recognized that lifesaving procedures would still be performed under the medical benefits package, and this was explicit in the prior versions of the CHAMPVA regulation.
We now turn to address VA's legal authority in more depth.
VA's exclusion against abortion was legally established in 1999 and existed until the 2022 revisions. Under 38 U.S.C. 1710(a)(1) through (3), VA is authorized to furnish hospital care and medical services that the Secretary determines to be needed. VA implements this general treatment authority and the Secretary determines what care is needed by regulation through VA's medical benefits package. See 64 Federal Register (FR) 54207, 54217 (October 6, 1999); 38 CFR 17.38. Prior to September 9, 2022, abortions and abortion counseling were excluded from the medical benefits package, with no exceptions. 87 FR 55288 (September 9, 2022).
We believe the 2022 interim final rule was not only inappropriate as a matter of fact but also was legally questionable. The only time Congress has specifically addressed VA's authority to provide abortions was in 1992 in section 106 of the Veterans Health Care Act of 1992 (VHCA), Public Law 102-585, which authorized VA to provide under chapter 17 of title 38, U.S.C., "[p]apanicolaou tests (pap smears)," "[b]reast examinations and mammography," and "[g]eneral reproductive health care" but excluded "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."
In 1996, Congress extensively revised Chapter 17. The specific statute, 38 U.S.C. 1710, was changed to cover eligibility for hospital care and medical services, whereas in 1992 it had solely covered hospital and nursing home care. While it is possible that Congress intended the 1992 restriction to continue to apply after the dramatic revisions of 1996, it is also possible to conclude that Congress' intent in 1996 was to provide a new, full, and expansive set of laws governing authorization for VA care.
While the wholesale revision of Chapter 17 in 1996 and the specific limitations of section 106 may limit the continued force and effect of section 106 (as VA argued in 2022, see 87 FR 55289), we need not reach that decision today as our actions fully comply with its abortion exclusion. We discuss these competing legal provisions only to demonstrate that VA's authority to provide abortions is, at least, dubious and, at most, nonexistent. Our decision to restore VA's medical benefits package to its pre-2022 state is consistent with VA's decades-long interpretation of the law, the reversal of which served only to unnecessarily redefine VA's medical benefits package based on politics instead of science. This proposed rule restores VA to its proper role as the United States' provider of needed medical services to those who served, delivered on behalf of a grateful nation.
[top] We now turn to the CHAMPVA health benefits program, which provides medical care to eligible spouses, children, survivors, and caregivers of veterans. Prior to September 9, 2022, CHAMPVA coverage excluded abortions except when a physician certified that the abortion was performed because the life of the mother would be endangered if the fetus were carried to term. These exclusions were previously codified in 38 CFR 17.272(a)(64) and (65). On September 9, 2022, as part of the IFR discussed above that amended VA's
VA now proposes to restore the pre-September 9, 2022, abortion restrictions within the CHAMPVA program, just as we are proposing to restore the long-standing restrictions to the medical benefits package.
Under 38 U.S.C. 1781(a), CHAMPVA benefits are provided "in the same or similar manner and subject to the same or similar limitations as medical care is" provided by the Department of Defense through its TRICARE (Select) program. 87 FR 55290; 89 FR 15459; 38 U.S.C. 1781(b); see 32 CFR 199.1(r), 199.17(a)(6)(ii)(D). VA has established its own specific coverage for CHAMPVA that is similar, but not identical, to TRICARE. See 38 CFR 17.270(b) (defining CHAMPVA-covered services and supplies) and 17.272 (setting forth benefits limitations and exclusions). VA has consistently maintained that "similar" does not mean "identical". 87 FR 55291; 89 FR 15459. Moreover, the medical care provided under CHAMPVA would be consistent with the care that was provided to CHAMPVA beneficiaries prior to the September 9, 2022, IFR, which VA had long understood and interpreted to be the same or similar care as the care provided under TRICARE (Select).
VA's regulations for CHAMPVA coverage allow medical services that are medically necessary and appropriate for the treatment of a condition and that are not specifically excluded. 38 CFR 17.270(b). This language, while not identical to the "needed" requirement for veteran coverage under VA's medical benefits package, is not different in any meaningful way. In short, abortion is not a "needed" VA service for the same reasons that it is not "medically necessary and appropriate for the treatment of a condition" under CHAMPVA. The changes made by the September 2022 IFR to the CHAMPVA regulation were not medically necessary or appropriate pursuant to 38 U.S.C. 1781(a) and 38 CFR 17.270(b) and must be undone.
VA's legal authority to "un-do" the changes made in September 2022 is beyond doubt. This proposal will restore VA's medical benefits package and the CHAMPVA program to their proper, long-standing positions.
Executive Orders 12866, 13563, and 14192
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). 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 14192 (Unleashing Prosperity Through Deregulation) promotes prudent financial management and alleviates unnecessary regulatory burdens. The Office of Information and Regulatory Affairs has determined that this rulemaking would be a significant regulatory action under Executive Order 12866 and would be a regulatory action under Executive Order 14192. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov .
Regulatory Flexibility Act (RFA)
The Secretary hereby certifies that this proposed rule would 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 proposed rule would only impact veterans and CHAMPVA beneficiaries, who are not small entities. 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 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 proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act (PRA)
This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
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.
Signing Authority
Douglas A. Collins, Secretary of Veterans Affairs, approved this document on July 24, 2025, 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.
Jennifer Williams,
Alternate Federal Register Liaison Officer, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 17 as set forth below:
PART 17-MEDICAL
1. The authority citation for part 17 continues to read as follows:
Authority:
38 U.S.C. 501, and as noted in specific sections.
2. Amend §?17.38 by revising paragraph (c)(1) and removing paragraphs (c)(1)(i) and (ii) to read as follows:
§?17.38 Medical Benefits Package.
(c) * * *
(1) Abortions and abortion counseling.
3. Amend §?17.272 by:
a. Revising paragraph (a)(58).
b. Removing paragraphs (a)(58)(i) and (ii).
c. Adding paragraph (a)(78).
The revision and addition read as follows:
§?17.272 Benefits limitations/exclusions.
(a) * * *
(58) Abortions, except when a physician certifies that the life of the mother would be endangered if the fetus were carried to term.
(78) Abortion counseling.
[FR Doc. 2025-14687 Filed 8-1-25; 4:00 pm]
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