The U.S. Department of Veterans Affairs issued an Interim Final Rule on Reproductive Health Services (IFR) on September 3 that would modify VA’s medical benefits package by removing the existing exclusion on abortion counseling and establishing exceptions to the exclusion on abortion care for veterans and Civilian Health and Medical Program of the VA (CHAMPVA) beneficiaries. The VA previously did not provide abortions for veterans under any circumstances and did not allow its providers to counsel patients about abortion. Under this rule, pregnant veterans and VA beneficiaries will be able to get abortions if their life or health would be in danger if the pregnancy went to term. Abortion care will also be available to patients whose pregnancies were the result of rape or incest.

The move is a direct result of the Supreme Court’s decision in Dobbs, which set off a wave of abortion bans and restrictions around the country. VA leaders said those restrictions created “urgent risks” for veterans compelling the agency to act.

On October 11, we supported law professors Greer Donley (U of Pittsburgh), David Cohen (Drexel University), and Rachel Rebouche (Temple University) in a comment that expands on the Rule’s finding that any attempts by states to prevent Department employees from providing the authorized reproductive health services would violate the Constitution’s Supremacy Clause. 

Because the VA unequivocally intends to displace conflicting state law with the Interim Final rule—which is itself a lawful exercise of the Department’s statutory authority—any state laws that would prevent Department health officials from providing the authorized care are preempted. This conclusion is consistent with preexisting Department regulations, which have determined that State and local laws that conflict with the Department’s ability to provide “complete health care and hospital services to beneficiaries in all States . . . are without any force or effect[.]” 

The comment also notes that, under the Intergovernmental Immunity doctrine, the Department and its employees enjoy immunity from any state law that prohibits the healthcare services authorized by the IFR. 

Read the law professors’ comment here.