Sen. Tommy Tuberville, R-Ala., criticized the Biden administration for acting without direct congressional consent. 

Sen. Tommy Tuberville, R-Ala., criticized the Biden administration for acting without direct congressional consent.  Tom Williams/CQ-Roll Call, Inc via Getty Images

Senate Republicans Fail in Bid to Block VA From Providing Abortions

Lawmakers called the rule allowing limited access to the procedure illegal and damaging to workforce morale.

The Senate on Wednesday failed to advance a measure that would have blocked the Veterans Affairs Department from providing abortions in limited circumstances. 

The Biden administration in September announced that it would offer the procedure in cases of rape, incest or when the mother’s life is at risk, following the Supreme Court overturning Roe v. Wade and many states placing significant restrictions on abortion access. The decision elicited immediate pushback from Republican lawmakers who accused VA of overstepping its statutory constraints. They were able to force a vote through the Congressional Review Act process, but ultimately fell short of the simple majority needed to walk back VA’s interim rule. One Democrat, Sen. Joe Manchin, W.Va., joined most Republicans in voting for the measure, but Republican Sens. Lisa Murkowski, Alaska, and Susan Collins, Maine, joined Democrats in defeating it in a 48-51 vote.

Ahead of the vote, Manchin joined Sen. Tommy Tuberville, R-Ala., in criticizing the Biden administration for acting without direct congressional consent. 

“We're going to vote to overturn it because it's illegal, it's wrong and it's an abuse of taxpayer dollars,” Tuberville said at the Capitol Building on Tuesday. “This administration doesn't get to change the law just because they feel like it. There's gotta be a vote here in this building.” 

McDonough has said VA has not provided any abortions since at least 1989, but noted VA provides care to 300,000 child-bearing age female veterans. Some Republican lawmakers have noted the the 1992 Veterans Health Care Act appears to mostly ban abortions at VA. The law says VA may provide to women "general reproductive health care, including the management of menopause, but not including under this section infertility services, abortions, or pregnancy care" except in cases relating to pregnancy complications. Another statutory provision known as the Hyde Amendment has for decades prevented any federal funds from going toward abortions, though it allows for exceptions in cases of rape, incest and when the mother’s life is at risk.

The department has said the 1992 law prevented abortion services at VA only within the context of that statute, but did not limit its authorities “under any other statutory provision.” It added a 1996 update to that law has also provided it more leeway.

VA Secretary Denis McDonough recently reiterated that a legal opinion from the Justice Department’s Office of Legal Counsel made clear the interim rule authorizing abortion services “is fully legal and consistent with existing federal laws.” VA is providing abortions and abortion counseling for veterans and beneficiaries who qualify for care from its network. The department has said it provides care for 300,000 child-bearing age female veterans. 

Had the provision passed, it would have gone to the Republican-controlled House. If the measure had gone to President Biden's desk he would have vetoed it, the White House said on Tuesday. 

"This interim final rule was a direct response to abortion restrictions that were creating serious risks to the life and health of our nation’s veterans," the White House said, adding that a repeal of it "would mean that veterans who are raped would not have access to the care they need." 

Tuberville said VA was spending money on abortions not specifically appropriated for that purpose while also damaging recruiting and retention efforts. 

“This is an attack on doctors and nurses who have moral objections,” the senator said. 

Following a lawsuit from a Texas-based VA nurse who said performing abortions would violate her rights, the department issued guidance earlier this year clarifying that employees could cite religious objections to opt out of providing any abortion-related services. Still, Tuberville said there could be a chilling effect at the department. 

“We've got a lot of Christian doctors and nurses across this country that now are afraid that they're gonna be fired from the VA because of opting out,” he said. “We do not need to eliminate the doctors and nurses from the VA. We're having a tough enough problem as it is. We want to attract people to the VA, not run them off.” 

Marshall added some VA health care professionals may have chosen to work at the department specifically because it did not provide abortions. VA did not respond to a request for comment on the vote. 

Sen. Catherine Cortez Masto, D-Nev., called the measure a “cruel attack on veterans’ health care access.” 

“It’s outrageous that far-right Republicans want to put the lives of women veterans at risk by prohibiting the VA from providing abortion care, even in life-threatening emergencies,” Cortez Masto said. 

The offering is so far seldom used. VA has so far provided 24 abortions since the rule went into effect in September, according to a letter the department sent to lawmakers and obtained by Bloomberg.