In an internal government advisory, Justice Department lawyers said a policy recently adopted by the Department of Veterans Affairs allowing employees to provide abortion services to veterans and their eligible relatives is legally valid and can continue. The veterans agency began offering abortions at its federal facilities earlier this month following a June Supreme Court ruling that overturned Roe vs. Wadeupsetting the right to terminate a pregnancy that had been enshrined in federal law for nearly 50 years.
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In some states, including Alabama, officials have threatened to punish veteran workers who perform abortions, saying it would violate state law. Alabama prohibits abortions in cases of rape and incest, but allows the procedure if the patient’s life is in danger. The opinion from the Department of Justice’s Office of Legal Counsel — which serves as a legal guideline on another agency’s policies — says states cannot penalize any Veterans Affairs doctor or nurse for performing an abortion under certain circumstances. . The federal law enforcement agency said it would represent those medical workers if they were penalized.
“The rule is a lawful exercise of VA authority,” the opinion reads. “Further, states cannot prevent VA and its employees acting within their federal authority from providing abortion services as authorized by federal law, including the VA Rule.”
The Justice Department opinion represents the latest attempt by the Biden administration to try to protect access to abortion, to some degree, after the Supreme Court ruling, although it would apply to relatively few women because it deals only with rare circumstances.
The United States has 19 million veterans, about 2 million of them 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 veterans’ health care benefits, the regulations closely resemble existing care within the Department of Defense, which for years provided abortions at military hospitals using the same criteria. Active military care is not widely used, with fewer than two dozen abortion cases on average each year, according to Pentagon data.
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This narrowness of the two policies — only applying to high-risk pregnancies or those resulting from rape or incest — underscores how few legal tools the Biden administration has had since the Dobbs v. Jackson Women’s Health Organization decision. In August, the Ministry of Justice persuaded a judge to block the portion of an Idaho law that criminalizes performing abortions to protect the health of the pregnant patient.
The Justice Department hinged its lawsuit in Idaho on the Emergency Medical Treatment and Active Labor Act. Officials say the federal law, known as EMTALA, requires hospitals participating in the federally funded Medicare program to 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 the requirements imposed by EMTALA, saying that abortions are considered “stabilizing treatment.” Texas successfully sued the government over the guidelines, and the Justice Department said this month it intended to file a lawsuit. With the conflicting rulings from Idaho and Texas, it’s possible that the question of whether EMTALA includes abortions will eventually end up in the Supreme Court.
Associate Attorney General Vanita Gupta said in an interview Thursday that the Justice Department is monitoring changes in state laws to make sure they don’t conflict with what the federal agency in charge of Law enforcement considers federal rights guaranteed. Gupta leads a reproductive rights task force launched by the Biden administration in July. It aims to mobilize federal resources to prevent state and local governments from imposing new restrictions on abortion.
“We will not hesitate to act where we find violations of federal law,” Gupta said. “It remains a top priority for the department.”
On Monday, the Justice Department announced that a man pleaded guilty to federal charges after smashing windows and destroying property at a Planned Parenthood clinic in Oregon.
In the opinion of Veterans Affairs, the federal government argues that the Veterans Health Administration has a federal duty to provide proper medical care to veterans nationwide. Restricting access to abortion in prescribed circumstances would violate that mandate, the 10-page opinion states. He cites the Constitution’s “supremacy clause,” which basically says that where state laws conflict with federal laws, federal laws prevail.
Lawrence Gostin, a professor of global health law at Georgetown University who has lobbied for the government to find legal avenues to protect access to abortion, said he agreed with the Department of Justice reading of veterans policy.
“If federal law gives the right or even the duty to provide medical services, that supersedes any contrary state law,” Gostin said. “A reasonable judge should support this view because the supremacy clause says so very clearly.”
Alex Horton contributed to this report.