II. EXISTING FEDERAL LAW MANDATES THAT ABORTION MAY BE USED IN CASES OF RAPE, INCEST, AND THE WELFARE OF THE MOTHER.

The Hyde Amendment was enacted September 30, 1976. The law states that federal funds could not generally be used to pay for an abortion, but in all versions of the amendment passed since 1994, provides exceptions for the life of the mother and when the pregnancy results from rape or incest. [1]

Since the Supreme Court overturned Roe v. Wade, states have been able draft state-specific abortion laws that may not include exceptions for the life of the mother or for rape or incest. The Hyde Amendment, however, has not been modified to remove these exceptions. [2] As the federal government is not bound to a singular state’s decision on abortion, it must look to federal law concerning the medical procedure. Should VA choose to expand or restrict abortion at all, it must comply with federal law. This includes the Hyde Amendment.

The Proposed Rule states that VA will allow for the provision of abortion only “when a physician certifies that the life of the mother would be endangered if the fetus were carried to term.” It contains no mention of what happens if a woman is raped or if a family member’s assault on them results in pregnancy. While the Hyde Amendment clearly states that abortion can be paid for with federal funding in these cases, the Proposed Rule would do away with these essential exclusions.

In these cases, women veterans would be left to deal with pregnancies resulting from sexual assault or incest, incidents that are traumatic unto themselves without the addition of a pregnancy. In states where abortion is illegal, women veterans would be forced to carry these pregnancies to term at great mental harm and potential physical risk. Military sexual trauma is far too common, with 38.4% of women veterans reporting MST [3], for pregnancy resulting from sexual assault to be an abstract hypothetical.

Even more worrying is the requirement that women must have a medical professional certify that their life is in danger before performing an abortion. This certification process is not made clear in the proposed rule and seems to run contrary to the availability of the procedure in these instances as dictated in the Hyde Amendment. Should a doctor order that a woman receive an abortion due to hemorrhage, a severe birth defect, or a miscarriage, that order should be self-evident. If a doctor must certify that this abortion would save the life of the mother, it will have a chilling effect on doctors practicing medicine and providing the best care possible for their patients.

Miscarriages occur in nearly 30% of pregnancies [4] – and now that abortion is no longer readily accessible in many states, women are dying from the condition. Joseli Barnica [5] suffered a miscarriage at 17 weeks, but her medical team refused to intervene as the fetus still had a heartbeat. For 40 hours, Ms. Barnica suffered in excruciating pain as her uterus was filled with bacteria and infection. Three days after she delivered, she died. Porsha Ngumezi [6] suffered the same fate. She required two blood transfusions following a miscarriage at 11 weeks. Rather than perform the simple surgical procedure that would have removed the remaining tissue from her uterus, her doctor gave her misoprostol – a typically safe drug used to begin the process of abortion, but risky when miscarriage has already taken place. Three hours later, Porsha was dead.

It is hard to see how the veteran community will not suffer the same fate with the proposed rule. It is only a matter of time before a physician must weigh their patient’s life against their own livelihood. This proposed exclusion will only exacerbate a growing epidemic of maternal death that disproportionately impacts our nation’s veterans.