The VA Has Expansive Abortion Powers. Why Isn't It Using Them?
Perhaps no agency is better equipped than the Department of Veterans Affairs to offer reproductive health services. Why is its top leader refusing to act?
In late April, the House Veterans Affairs Committee held a relatively sleepy hearing on the VA’s Fiscal Year 2023 budget. Midway through the proceedings, U.S. Rep. Lois Frankel, a Florida Democrat, shifted topics and asked VA Secretary Denis McDonough if the department was allowed to provide abortion services.
Many federal agencies are expressly prohibited from offering such healthcare under the Hyde Amendment. But not the VA, which runs America’s largest integrated healthcare system.
McDonough acknowledged this remarkable fact in his remarks. “Our statute would allow us to provide abortion services,” he said, adding that VA doesn’t offer abortion due to longstanding regulatory rules. When Frankel asked McDonough why he hadn’t moved to rewrite these rules, he struggled for an answer:
It's not been, uh, VA policy now for several decades, notwithstanding the permissive legal structure for it. I have just, uh, not changed what is existing, uh, VA policy across Republican and Democratic administrations now for decades. And so, again, if I, if I were to make that change, I would do that in full light of day, and in full consultation with this committee.
Six days after this awkward exchange, Politico published a draft Supreme Court opinion overturning Roe v. Wade. In the wake of this shock, U.S. Rep. Julia Brownley, a California Democrat, quietly urged McDonough to issue an interim final rule enabling VA to offer an array of reproductive services, including abortion. McDonough didn’t budge. Then the court made good on its draft, and the constitutional right to abortion was eliminated.
In the hours after the decision, a wave of White House officials and cabinet secretaries tweeted out support for abortion rights. McDonough was suspiciously silent.
He eventually released a tepid statement saying that VA had no major changes to announce. Unlike other agencies, the VA didn’t quickly issue guidance on the decision, nor did it appear to be seeking membership on an interagency task force meant to push back against it.
Under pressure, the VA has since issued guidance, and, according to VA Spokesperson Terrence Hayes, will now be a member of the task force. And yet McDonough has so far refused to harness his department’s national healthcare infrastructure to in any way bolster reproductive services.
There are surely numerous reasons for his hesitance, including legal concerns as well as surefire lobbying coming from Republican lawmakers and the major veterans service organizations, which are historically white, male, and conservative.
Rumors are also swirling that McDonough’s hesitance on these matters may be partially explained by his religious beliefs. He’s a devout Catholic who previously served as both President Barack Obama’s Chief of Staff and also his “spiritual advisor.” He’s a man “fond of massaging his Rosary in times of stress” whose brother, Kevin, was once Vicar General of the Archdiocese of Saint Paul, Minnesota.
There is, of course, nothing inherently wrong about a person of any faith holding a senior government post. But unlike other prominent Catholic Democrats in America — Tim Kaine, Nancy Pelosi, Joe Biden, etc. — McDonough has, as best I can tell, never publicly expressed a belief in the right to abortion.
The Catholic League believes McDonough tilts toward the pro-abortion stance. The VA Secretary himself confirmed this in a 2006 post blog post in which he reflected on the upcoming U.S. Conference of Catholic Bishops. He wrote:
We can also expect that the Bishops will call on the new Congress to take steps to reduce the number of abortions in this country. Congress should do so, but it should not believe that criminalizing the procedure or threatening to imprison women or their doctors is the answer. Indeed, we hope the Bishops will call on Congress and the Bush administration to address the broader social issues in the abortion debate.
What exactly McDonough defines as “broader social issues” is unclear. An interview request sent to McDonough through a spokesperson wasn't answered.
As he faced Senate confirmation to be VA Secretary in 2020, McDonough said his marching orders from the president were clear: "to fight like hell for our veterans."
Whereas Trump’s former VA Secretary Robert Wilkie exhibited racist, sexist, and homophobic tendencies, McDonough pledged inclusivity. He stated that his top priorities included “making our VA more welcoming to all veterans, including our women veterans, veterans of color and LGBTQ veterans.”
As part of this, he promised to change the VA’s exclusionary motto — “to care for him who shall have borne the battle” — and to address the problem of racism and sexual harassment inside some VA facilities. He said he’d open up benefits for LGBTQ+ vets spurned by “Don’t Ask, Don’t Tell.” And he supported increasing access to certain women’s health services, like OB-GYN and maternal care.
In addition to ensuring equity, these initiatives address the needs of the fastest-growing veteran constituency: women. The National Partnership for Women and Families recently estimated that more than half of all female veterans — nearly 400,000 people — will be directly impacted by state abortion bans. This does not include transgender men and nonbinary vets in those states who could become pregnant.
McDonough’s inclusive agenda has been mixed, and slow-moving. Two years into the Biden administration, the VA motto hasn’t changed, harassment persists in some places, and healthcare options for women and the LGBTQ+ community remain inadequate. A few weeks ago, the National Veterans Legal Services Program filed a legal complaint contending that promised VA policy changes meant to open up benefits for LGBTQ+ veterans were nowhere to be found.
“There was all this attention with the announcement, then we started asking around, and no one had a copy of the policy,” Renee Burbank, the group’s director of litigation, told The Washington Post. “What does it actually say? What does it actually change or do? For all we know, it could be perfect. It could be great. But we don’t know unless we see it.” More recently, dozens of veterans signed an open letter to Biden, McDonough, and other administration officials demanding they secure the reproductive rights of veterans and service members.
The VA’s restrictive abortion policies date back to the Veterans Health Care Act of 1992, a policy accomplishment of President George H.W. Bush. This law enacted abortion restrictions far more severe than Hyde. Specifically, it banned abortion care, abortion counseling, and made mifepristone, a form medication abortion, unavailable in VA pharmacies. Unlike Hyde, this law created no exceptions for veterans who seek abortion — like those who have been raped or were victims of incest.
A tool to knock out these restrictive policies was provided six years later with the passage of the Veterans’ Health Care Eligibility Reform Act of 1996. This Clinton-era law broadly authorized the VA Secretary to offer whatever medical services were considered necessary. And yet no VA Secretary has since used these powers to provide reproductive health services. McDonough could.
This would require the drafting and promulgation of new directives that reverse the current rules on the books. Under normal circumstances, this could take a year or more. Yet there are creative ways to speed up this process. The Trump administration, for instance, often managed to move rules through the regulatory process in a matter of months. Some believe McDonough could issue an interim rule tomorrow.
McDonough appears worried that these moves would spur litigation and could potentially jeopardize the women’s healthcare services the VA currently offers, like birth control or in vitro fertilization. He may be right, or wrong. A lawsuit could prevail or fail. Maybe a judge grants an immediate injunction that stops services, or maybe a judge doesn’t, and the VA is given a window to help.
“Litigation can go any number of ways,” Peter Perkowski, the Legal & Policy Director for Minority Veterans of America, told me. “It’s frustrating and profoundly disappointing to see the VA’s lack of urgency on comprehensive reproductive health care and reproductive access. They should do whatever they can do to save lives.”
Absent any regulatory changes, the VA could still help patients in need. I’m told that the VA’s Office of General Counsel believes the powers set forth in the ‘96 law provides the authority to immediately begin providing abortions when urgent health concerns arise. Hayes disputed this claim in a roundabout way, noting that VA cannot provide abortion “when that is the intention of the procedure, even when the life of the pregnant individual is at risk.” He added:
What we can do, and do currently, is provide medical intervention when the life of the mother is imminently at risk, such as an ectopic pregnancy or hemorrhaging from an incomplete miscarriage.
Absent any rulemaking to allow abortion care, the VA could offer abortion counseling and overturn regulations that mandate contraceptive copays for veterans, a ridiculous roadblock virtually eliminated for civilians under the Affordable Care Act. Brownley has introduced legislation to eliminate the VA’s contraceptive copays and allow abortion counseling. Brownley said she believes these rules could likely be eliminated through regulatory changes, noting that VA unilaterally eliminated copays during the pandemic. (It’s worth nothing here that McDonough reportedly pushed Obama to exclude some religious groups from having to pay Affordable Care Act-mandated contraceptive co-pays.)
Several Democratic lawmakers have suggested far bolder action by the VA, namely that these federal facilities could be deputized as islands of care in states that have outlawed or severely restricted the procedure.
There are legitimate and potentially dangerous ramifications of this plan, namely that doctors and patients could be immediately arrested after leaving VA facilities. Complicating things further is the fact that the VA police often hold jurisdictional agreements with municipal departments, and some federal VA facilities are on land leased from state or local bodies.
Still, the fact that the VA doesn’t appear to be meaningfully exploring these options is strange and troubling. In response to a series of detailed questions, Hayes deviated little from his boss’ previous pronouncements.
“VA recognizes this is a rapidly evolving landscape, and we are monitoring the situation closely while remaining in close contact with Veterans and their families,” he said. Such vague pronouncements provide little clarity, and have led to confusion among veterans, lawmakers, and advocates. “The way [McDonough] frames things to some degree is not exactly clear,” observed Brownley. “What’s clear is the right thing to do for the women who have served our country. They should have the right to control their bodies.”