In an internal government opinion, Justice Department lawyers said that a recently adopted Department of Veterans Affairs policy permitting employees to provide abortion services to veterans and their eligible relatives is legally sound and can continue. The Veterans Affairs agency started offering abortions at its federal facilities earlier this month in the wake of a June Supreme Court decision that overturned Roe v. Wade, upending the right to terminate a pregnancy that had been enshrined in federal law for nearly 50 years.
In some states, including Alabama, officials have threatened to punish Veterans Affairs workers who perform abortions, saying it would violate state law. Alabama prohibits abortions in instances of rape and incest, but allows the procedure if the patient’s life is at risk. The opinion from the Justice Department’s Office of Legal Counsel — which serves as a legal directive on another agency’s policies — says states may not penalize any Veterans Affairs doctor or nurse for performing an abortion in certain circumstances. Associate Attorney General Vanita Gupta said the Justice Department would represent those medical workers if they are penalized for following their agency’s abortion guidance.
“The rule is a lawful exercise of VA’s authority,” the opinion says. “Moreover, states may not restrict VA and its employees acting within the scope of their federal authority from providing abortion services as authorized by federal law, including VA’s rule.”
The Justice Department opinion represents the Biden administration’s latest attempt to try to protect access to abortion, to some degree, after the Supreme Court decision, though it would apply to relatively few women because it addresses only rare circumstances.
The United States has 19 million veterans, about 2 million of whom are women. About 9 million veterans are enrolled in VA care, along with their eligible family members. While the new abortion policy is an expansion of veteran health-care benefits, the regulations closely resemble existing care within the Defense Department, which for years has provided abortions at military hospitals using the same criteria. The active-military care is not widely used, with fewer than two dozen abortion cases on average every year, according to Pentagon data.
This narrowness of both policies — applying only to pregnancies that pose a high risk or stem from rape or incest — underscores just how few legal tools the Biden administration has since the Dobbs v. Jackson Women’s Health Organization decision. In August, the Justice Department persuaded a judge to block the portion of an Idaho law that criminalizes performing abortions to protect the pregnant patient’s health.
The Justice Department hinged its Idaho lawsuit on the Emergency Medical Treatment and Active Labor Act. Officials say the federal law, known as EMTALA, requires that hospitals participating in the federally funded Medicare program provide necessary, health-stabilizing treatment to all patients, even if that treatment is an abortion.
After Dobbs, the Department of Health and Human Services issued guidance to state officials and hospitals reminding them of requirements mandated by EMTALA, saying that abortions are considered “stabilizing treatment.” Texas successfully sued the government over that guidance and the Justice Department said this month that it intends to file an appeal. With the conflicting rulings from Idaho and Texas, it is possible the question of whether EMTALA includes abortions will ultimately end up before the Supreme Court.
Gupta said in an interview Thursday that the Justice Department is monitoring evolving state laws to ensure that they do not conflict with what the federal law enforcement agency views as guaranteed federal rights. Gupta heads a reproductive rights task force launched by the Biden administration in July. It aims to marshal federal resources to prevent overreach from state and local governments seeking to impose new abortion restrictions.
“We will not hesitate to act where we see violations of federal law,” Gupta said. “This remains a top priority for the department.”
On Monday, the Justice Department announced that a man had pleaded guilty to federal charges after breaking windows and destroying property at a Planned Parenthood clinic in Oregon.
In the Veterans Affairs opinion, the federal government argues that the Veterans Health Administration has a federally mandated duty to provide proper medical care to the nation’s veterans. Restricting abortion access in the prescribed circumstances would violate that mandate, the 10-page opinion states. It cites the Constitution’s “supremacy clause,” which essentially says that when state laws conflict with federal laws, federal laws prevail.
Lawrence Gostin, a professor of global health law at Georgetown University who has been pushing for the government to find legal avenues to protect abortion access, said he agreed with the Justice Department’s reading of the Veteran Affairs’ policy.
“If the federal law gives a right or even a duty to provide medical services then that supersedes any contrary state law,” Gostin said. “A reasonable judge should uphold that point of view because the supremacy clause makes that very clear.”
Alex Horton contributed to this report.