In an internal government advisory, Justice Department lawyers said: a recently adopted Department of Veterans Affairs policy Allowing employees to provide abortion services to veterans and their eligible relatives is legally responsible and can be continued. The Veterans Affairs agency began offering abortions at its federal facilities earlier this month in the wake of a June Supreme Court decision that was overturned. Roe v. Wadeeliminating 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 employees who perform abortions, alleging that doing so would violate state law. Alabama bans abortion in cases of rape and incest, but allows the procedure if the patient’s life is in danger. The opinion of the Department of Justice’s Office of Legal Counsel — which serves as a legal guideline for another agency’s policy — says states should 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 sanctioned for following their agency’s abortion guidelines.
“The rule is a lawful exercise of VA’s authority,” the advisory says. “In addition, states may not restrict VA and its employees acting within the scope of their federal authority from providing abortion services as permitted by federal law, including VA’s rule.”
The Justice Department opinion represents the Biden administration’s latest attempt to protect access to abortion to some extent, following the Supreme Court decision, although it would apply to relatively few women because it is only available in rare instances. cases.
The United States has 19 million veterans, of whom approximately 2 million are women. About 9 million veterans are enrolled in VA care along with their eligible relatives. While the new abortion policy is an extension of health care benefits for veterans, the regulations are very similar to existing care within the Department of Defense, which has for years performed abortions in military hospitals based on the same criteria. Active military care is not widely used, with an average of less than two dozen abortions per year, according to Pentagon data.
This narrow-mindedness of both policies — only applicable 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 convinced 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 federal law known as EMTALA requires hospitals participating in the federally funded Medicare program to provide all patients with necessary, health-stabilizing treatment, even if that treatment is an abortion.
After dobbsthe Department of Health and Human Services issued guidance to state officials and hospitals to remind them of the requirements imposed by EMTALA, saying that abortions are considered “stabilizing treatment”. Texas has successfully sued the government over those guidelines, and the Justice Department said this month it plans to appeal. With the conflicting rulings from Idaho and Texas, it’s possible that the question of whether EMTALA includes abortions will eventually end up before the Supreme Court.
Gupta said in an interview Thursday that the Justice Department is monitoring evolving state laws to ensure they do not conflict with what federal law enforcement considers guaranteed federal rights. Gupta heads a reproductive rights task force set up by the Biden administration in July. It is intended to pool federal resources to prevent state and local governments from adopting new abortion limits.
“We will not hesitate to act if 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 advisory, the federal government states that the Veterans Health Administration has a federal mandate to provide the country’s veterans with proper medical care. Restricting access to abortion in the prescribed circumstances would violate that mandate, the 10-page opinion says. 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 urged the government to find legal avenues to protect access to abortion, said he agreed with the Justice Department’s reading of the policy of Veterans Affairs.
“If federal law gives the right or even the obligation to provide medical services, that supersedes any conflicting state law,” Gostin said. “A reasonable judge should defend that position because the supremacy clause makes that very clear.”
Alex Horton contributed to this report.