The U.S. Department of Veterans Affairs (VA) is making permanent a policy to provide abortions in certain circumstances to service members even in states where abortion is illegal.

The policy, which has been in place since 2022, was made final in a rule posted in the federal register on Monday.

Under the rule, the VA is authorized to perform abortions on service members and their family members in its health facilities in cases of rape and incest and to preserve the life or health of the mother. The rule also allows VA facilities to provide service members with abortion counseling.

Though the policy has already been in effect on a temporary basis, the new rule will take permanent effect on April 3. The department reported providing 88 abortions under this policy in the first year of it being in effect.

This is in addition to a U.S. military policy laid out by Secretary of Defense Lloyd Austin in October 2022 that provides paid leave and travel-cost reimbursements for service members seeking abortions.

Will VA doctors be forced to commit abortions?

The rule has been criticized as not having any conscience protections for doctors or health care workers who object to providing abortions.

In its final rule, the VA responded to those accusations, saying that the VA “adheres to all applicable federal laws relating to employee rights and protections, including protections based on an employee’s religious or conscience-based objection to abortion” and that it “has a policy in place for reasonable accommodation requests, where employees may request to be excused from providing, participating in, or facilitating an aspect of clinical care, including reproductive health clinical care authorized by this rule.”

The VA said that “if excusal is requested, supervisors should grant interim excusal for employees from duties or training regarding reproductive health care while requests are being processed.”

Though the VA says that supervisors should grant excusals, it does not appear to mandate that conscience objections be respected.

Is this legal?

The U.S. Senate rejected a resolution by Alabama Republican Sen. Tommy Tuberville to overturn the VA rule in a 51-48 vote in May 2023. However, some experts believe that military expenditures on abortion violate the Hyde Amendment, which bans federal tax dollars from being used for abortion.

Though he said he believes the rule is illegal, Robert Destro, former assistant secretary of state for the Bureau of Democracy, Human Rights and Labor under the Trump administration, told CNA that making the rule permanent makes it very hard to reverse.

According to Destro, reversing the rule would likely now require litigation or perhaps an act of Congress.

For its part, the VA explicitly said in its rule on Monday that it “is not subject to the Hyde Amendment,” which it says “addresses federal funds available to the Departments of Labor, Health and Human Services, and Education in legislation on annual appropriations,” not military spending.

When it comes to providing abortions in states where it is illegal, the VA argues that abortion is “medically necessary and appropriate” for the health of VA beneficiaries and that the “supremacy clause of the United States Constitution prohibits states from restricting federal agencies and their employees acting within the scope of their federal authority from providing abortion services.”

Will this impact U.S. military readiness?

As the U.S. military is undergoing a dramatic shortage of recruits, leading some to label the problem a national “crisis,” Destro said that the military’s abortion policies indicate that it is “more concerned about sex than they are about readiness and weapons.”

“Abortion advocates think that access to abortion paid by government will improve recruiting. It doesn’t,” he said, adding that the “hyper-sexualizing” of the military is “destroying the military’s ability to recruit.”

Nonetheless, the military’s new abortion policies received praise from progressive groups such as the National Women’s Law Center (NWLC), which celebrated the rule as a “critical action” in a press release published Monday.

Fatima Goss Graves, president of the NWLC, argued in the statement that “access to abortion is necessary for the health and safety of veterans — and for all people — to determine their futures.”

Archbishop Timothy Broglio, head of the Archdiocese for the Military Services, USA, and president of the U.S. Conference of Catholic Bishops, has previously strongly condemned the military’s new abortion policies, saying in an April 2023 letter that they are “morally repugnant” and that they “fail to incorporate basic conscience protections” for military commanders and VA employees.

He added: “To deny the life of a baby in utero is to deny the Incarnation, and thus, the very source of our hope for salvation.”