The Justice Department has issued a legal opinion in defense of the recent decision by the Department of Veterans Affairs to provide abortions to veterans in some cases.
The decision was controversial because of the recent Supreme Court decision striking down Roe v. Wade and returning decision making authority regarding abortion law to the states.
Shortly after the Court’s ruling was issued, the VA announced that it would offer abortions to veterans “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” even in states where it would not be legal to provide the services.
In a recent legal opinion, the Justice Department states:
VA’s rule lawfully eliminated earlier regulatory exclusions that had prevented VA from providing abortion services and abortion counseling to veterans whom VA serves pursuant to VA’s general treatment authority, 38 U.S.C. § 1710. VA’s rule also lawfully eliminated regulatory exclu- sions that had prevented VA from providing certain abortion services and abortion counseling to beneficiaries of the Civilian Health and Medical Program of the Department of Veterans Affairs (“CHAMPVA”) whom VA serves pursuant to 38 U.S.C. § 1781.
DOJ came to this conclusion based on analysis of historic cases. One concept it looked at was intergovernmental immunity. According to USLegal.com, intergovernmental immunity “…prevents federal government and individual state governments from intruding on each others sovereignty. This is a principle established under Constitutional law.”
In its legal opinion, DOJ wrote:
The doctrine is “subject to nuances,” Disaster Assistance and the Su- premacy Clause, 5 Op. O.L.C. 198, 199 (1981) (“Disaster Assistance”), and “[o]ver time” it has “evolved,” Washington, 142 S. Ct. at 1984. As relevant here, the doctrine “prohibit[s] state laws that . . . ‘regulate the United States directly,’” absent any federal law consenting to the applica- tion of state law. Id. (alterations omitted) (quoting North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality opinion)).
In determining whether a state law is invalid as a direct regulation of the United States, courts look to whether the provision “seeks to regulate the federal function itself.” Immunity of Smithsonian Institution from State Insurance Laws, 21 Op. O.L.C. 81, 85 (1997) (citing North Dakota, 495 U.S. at 436–37 (plurality opinion)). For example, in North Dakota, the Supreme Court held that state liquor laws, as applied to suppliers of U.S. military facilities, did not violate the immunity doctrine, in part because they operated against suppliers rather than directly against the federal government and did not otherwise implicate “concerns about direct inter- ference” with federal functions. 495 U.S. at 437 (plurality opinion) (citing City of Detroit v. Murray Corp. of America, 355 U.S. 489, 504–05 (1958) (opinion of Frankfurter, J.)).
DOJ concludes in the opinion:
Applying these general principles to potential state interference with VA’s provision of abortion services as authorized by VA’s rule, 87 Fed. Reg. 55,287, raises two questions: First, does federal law authorize VA and its employees to provide the specified abortion services? We conclude that it does and that state attempts to interfere would thus constitute direct regulation of an authorized federal function. Second, does federal law clearly and unambiguously authorize states to restrict VA and its employees from providing the specified abortion services? We conclude that it does not.
The bottom line is that the Biden administration is outlining its legal basis as to why it believes that federal employees at the VA who provide abortion services would be legally protected in the event that those services are provided in violation of state law. Any federal employees who might find themselves facing this situation and have concerns would probably be wise to seek legal counsel to address any concerns or questions they may have.
