Fifteen Republican state attorneys general have warned the Department of Veterans Affairs that they will “act decisively” if VA doctors perform abortions in violation of state law.
In a Thursday letter organized by the Mississippi Attorney General to VA Secretary Denis McDonough, the Attorney General said the VA’s abortion policy, which went into effect earlier this year, was “seriously flawed” and that the federal department had “formally enacted it.” He argued that he could not “overturn the state law that was made.”
“We reserve the VA’s clarification on the limited application of the rule,” the AG wrote. “We do not authorize the use of this rule to create a regime of selective abortion contrary to state law. Enforces and binds you to applicable state laws and is responsible for violations of federal law.
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“Those who perform abortions under the interim final rule, and those who perform abortions in defiance of state or federal law, do so at their own risk,” they added.
Other states that signed the letter included Arkansas, Arizona, Florida, Georgia, Indiana,
Kentucky, Nebraska, North Dakota, Ohio, South Carolina, Tennessee, Texas,
Utah and West Virginia.
Asked for comment on the letter, VA spokesperson Terrence Hayes said the department is “committed to providing veterans of childbearing age with a full range of reproductive health services to ensure their health and well-being. There are,” he said.
“As Secretary of Veterans Affairs Dennis McDonough said, ‘Pregnant veterans and veteran beneficiaries deserve access to world-class reproductive care when they need it most. That’s what the country owes them, and that’s what we veterans provide,'” Hayes added.
In September, the VA began offering abortions for the first time when a mother’s life or health is endangered by rape, incest, or pregnancy.
The change was made in response to a Supreme Court decision in the Dobbs v. Jackson Women’s Health Organization that overturned abortion rights nationwide. Since the June decision, at least 13 states have banned abortion entirely or almost entirely, and several others have moved to ban abortion, but were at least temporarily blocked by courts.
Veterans and their allies claim the department has the authority to provide abortions under a 1996 law that “should” provide veterans with “necessary” medical care.
However, Republicans in Congress and state AGs, in their letter, stated that the VA does not provide reproductive health care, except for “fertility services, abortion, or pregnancy care,” unless a service-related condition requires it. It claims a 1992 law that directed it to provide Ministry’s new abortion policy.
The Justice Department has issued a legal analysis that supports the VA’s position that federal law permits the new policy. In its analysis, the Justice Department also noted that federal law takes precedence over state law, and that “either through criminal prosecution, civil proceedings, or license revocation proceedings, VA employees cannot be punished for providing such services. ‘ said.
But Democrats in Congress who support the new policy warn that VA staff may not be protected from state law enforcement.
Alabama’s attorney general, who did not sign the latest letter, had previously suggested he could prosecute VA doctors who performed abortions in violation of state laws that do not allow abortions for rape or incest.
In addition to citing the 1992 law, the 15 state AGs that signed Thursday’s letter also have constitutional supremacy clauses establishing that federal law takes precedence over the state laws the Justice Department cited in its analysis. They argue that it does not apply in this case. Quoting Dobbs’ judgment, they wrote.
“Like many of the administration’s abortion-related efforts, this new rule is an illegal attempt to deprive people of that power,” the AG wrote. “That attempt will fail.”
— Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on her Twitter @reporterkheel.
Related: VA staff who offer abortions may not be protected in some states, Democratic lawmakers warn
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