Abortion services to remain available at the VA after close U.S. Senate vote

WASHINGTON — The Department of Veterans Affairs can continue providing service members with access to abortion in cases of life-threatening complications, rape or incest, after the U.S. Senate narrowly blocked a measure Wednesday that would have scrapped a new Biden administration rule.

The VA policy, which also includes abortion counseling, was established after the U.S. Supreme Court struck down nearly 40 years of the federally protected right to abortion.

The Senate vote occurred against the backdrop of another looming Supreme Court decision, expected Friday, that could limit access nationwide to mifepristone, a Food and Drug Administration-approved pill used for abortion, and to treat incomplete miscarriages.

The Senate measure was blocked almost entirely along party lines in a 48-51 vote after a day of dueling press conferences and messaging from each side of the aisle.

Sen. Joe Manchin III of West Virginia, the lone Democrat to co-sponsor the bill, voted in favor, as did Republican South Dakota Sens. John Thune and Mike Rounds. GOP Sens. Susan Collins of Maine and Lisa Murkowski of Alaska voted against.

President Joe Biden had promised a veto.

Tuberville leads opposition

The joint resolution — spearheaded by Republican Sen. Tommy Tuberville of Alabama and co-sponsored by three dozen GOP senators and Manchin — aimed to overturn the September 2022 rule issued by the VA following the U.S. Supreme Court’s Dobbs decision that revoked the constitutional right to an abortion. 

The June 2022 decision overturning Roe v. Wade and Planned Parenthood v. Casey returned to state legislatures the decision to allow or ban abortion.

The Biden administration rule permits VA employees, working in their federal capacity, to offer abortion services with narrow exceptions, regardless of the location of the VA facility. The VA did not previously provide the service.

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Tuberville, the retired Auburn University football coach, argues the new rule violates the Veterans Health Care Act of 1992.

Section 106 of the law that states the VA “may provide” for women pap smears, mammograms and general reproductive care, including menopause management, “but not including 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.”

Tuberville introduced the bill under the Congressional Review Act, a tool that Congress can use to overturn some federal actions and rules.

“It’s illegal. Congress banned abortion in the VA 30 years ago, and it was unanimous. One of the senators who voted for that bill was President Joe Biden. We have never repealed this law, 30 years, we’ve never repealed it. It’s still on the books, and the administration needs to follow the law,” Tuberville said at a Wednesday press conference alongside Sen. Roger Marshall of Kansas and Manchin.

Senators approved the bill on a voice vote in 1992; the White House did not respond when asked if Biden, then a member of the Senate, was present for the vote.

Tuberville also argued that taxpayer dollars should not be used by the VA to pay for the abortions because Congress did not specifically appropriate the funding.

Congress does not appropriate dollar amounts for each specific category of medical procedures or medications.

Hyde amendment

Additionally, government health care programs included under Congress’ annual funding bills are subject to the Hyde Amendment, which prohibits taxpayer-funded abortions except in the case of a life-threatening pregnancy complication, or for pregnancies that are a result of rape or incest. 

Since 1977, all versions of the Hyde Amendment have included, at minimum, a life-saving exception for the pregnant person.

When asked whether he supports the exceptions outlined in the Hyde Amendment, Tuberville said, “This is not about, not really about abortion as much as it’s about the law and the process in which they’re taking (at) the VA.”

According to a report in Bloomberg Law, the VA has performed 34 abortions since the rule was issued in September.

The VA declined to confirm that number to States Newsroom. 

In a statement, the agency said, “VA remains committed to providing Veterans reproductive health services to ensure their health and well-being, including access to abortion counseling (as part of our pregnancy-options counseling) and abortions when the life or health of the pregnant Veteran or VA beneficiary would be endangered if the pregnancy were carried to term or when the pregnancy is the result of rape or incest.”

“As VA Secretary Denis McDonough has said, ‘Pregnant Veterans and VA beneficiaries deserve to have access to medically necessary world-class reproductive care when they need it most. That’s what our nation owes them, and that’s what we at VA will deliver,’” continued the statement from VA Press Secretary Terrance Hayes.

Tuberville’s resolution comes as he also blocks nearly nearly 200 military promotions, in need of Senate approval, as a protest of the Defense Department’s policy that grants service members leave and travel allowances for “non-covered reproductive health care,” including abortion procedures. 

Outrage from Democrats

Democrats gathered outside the Capitol Wednesday with veterans and reproductive care advocates to speak out against Tuberville’s bill.

Led by Majority Leader Chuck Schumer of New York and Sen. Tammy Baldwin of Wisconsin, lawmakers at the press conference characterized the bill as “cruel.”

“The Biden administration has taken steps to make sure women who have served our country in uniform can get the basic reproductive care they need when their health is at risk, or in cases of rape or incest. And now Republicans want to overturn that policy and force women to stay pregnant. That is what we are talking about,” said Sen. Patty Murray of Washington, who sits on the Senate Committee on Veterans’ Affairs. 

“Women veterans have risked their lives for this country, and they’re now being told by Republicans if you need an abortion care to save your life, tough. That is unthinkably cruel,” she said. 

Sen. Tammy Duckworth, an Iraq war veteran who lost her legs and the use of her right arm in combat, said she wants to know “what exactly was the moment that Republicans in the Senate no longer believe that I have the right to bodily autonomy?”

“Here’s what I know, this country and those Republicans were certainly all right with me making the choice to use my body as I saw fit when I signed up to fight wars on this country’s behalf,” continued the Illinois Democrat. “They were just fine for me to decide to use my arms and legs to fly a Black Hawk helicopter into combat, and no one minded, and in fact honored me, when I lost those limbs in defense of this great nation.”