VA Doctors Performing Certain Abortions May Not Be Penalized by States: DOJ

A pro-life activist holds plastic unborn babies during a protest on Capitol Hill in Washington, on July, 29, 2010. Jim Watson/AFP via Getty Images

The Justice Department’s Office of Legal Counsel (OLC) issued a memorandum opinion for the Department of Veterans Affairs (VA) saying that U.S. states cannot restrict or penalize VA doctors for performing abortions “in a manner authorized by federal law.”

“States may not impose criminal or civil liability on VA employees—including doctors, nurses, and administrative staff—who provide or facilitate abortions or related services in a manner authorized by federal law, including VA’s rule,” Christopher Schroeder, the assistant attorney general for the OLC, wrote in the memorandum opinion (pdf) published on Sept. 21.

Schroeder also wrote in his opinion that the VA’s rule “is a lawful exercise of VA’s authority,” affirming an interim final rule the VA had submitted to the Federal Register on Sept. 1.

The rule would allow the VA to “provide access to abortion counseling and—in certain cases—abortions to pregnant Veterans and VA beneficiaries ... regardless of state restrictions,” the department said on its website on Sept. 2.

“Specifically, VA will provide access to abortions when the life or health of the pregnant Veteran would be endangered if the pregnancy were carried to term, or when the pregnancy is the result of rape or incest,” it said.

Supremacy Clause Cited

Schroeder in the memorandum opinion cited the Supremacy Clause of the U.S. Constitution, which gives federal laws priority over state laws.

Schroeder asserted that the clause means that state officials cannot penalize VA employees “for performing their federal functions.”

Specifically, he said state officials should be barred from pursuing “criminal prosecution, license revocation proceedings, or civil litigation” against VA employees who carry out abortions in cases of rape, incest, or threat to the life or health of the mother.

Before the VA issued its rule, “this Office advised VA that the rule represented a reasonable exercise of the VA Secretary’s discretion to provide medical services,” Schroeder said.

The legal opinion comes two months after the Justice Department in July established a task force dubbed “Reproductive Rights Task Force” to “identify ways to protect access” to abortion. It comes after the Supreme Court overturned Roe v. Wade on June 24.

The Justice Department at the time said the task force will “monitor and evaluate all state and local legislation and enforcement actions” on abortion and “coordinate appropriate federal government responses, including proactive and defensive legal action where appropriate.”

Self-Reporting is ‘Sufficient Evidence’ for Rape, Incest: VA

According to the VA, “self-reporting from a Veteran or VA beneficiary will constitute sufficient evidence that an act of rape or incest occurred.”

Meanwhile, the determination as to whether carrying the pregnancy to term would harm the life and health of the mother “will be made on a case-by-case basis and will be the result of careful consultation between VA health care providers and the Veterans they serve,” the department said on Sept. 2.

VA Secretary Denis McDonough said in a statement at the time that the rule “is a patient safety decision.”

Secretary of Veterans Affairs Denis McDonough testifies during a Senate Veterans' Affairs Committee hearing on Capitol Hill, in Washington, on Dec. 1, 2021. Drew Angerer/Getty Images

Late on Wednesday, McDonough confirmed to members of the Senate VA Committee that the OLC had issued the memorandum opinion just hours prior to his testimony. “I think this OLC opinion makes very clear the protections that are afforded VA providers,” he told the senators.

The VA previously did not provide abortion services but it decided to do so after Roe v. Wade was overturned.

Dr. Shereef Elnahal, VA’s Under Secretary for Health, previously said in a statement on Sept. 2 that the VA’s decision came after its officials listened to VA health care providers and veterans across the country, who contended that “abortion restrictions are creating a medical emergency for those we serve.” He said that providing abortion counseling and abortions in certain cases “will save Veterans’ health and lives.”

McDonough told senators late on Wednesday that the VA’s medical system has carried out its first abortion procedure at one of its medical centers. A spokesperson declined to provide further details, citing the privacy of the mother who aborted her child, reported NBC.