The Justice Department’s Office of Legal Counsel (OLC) issued a memorandum opinion for the Department of Veterans Affairs (VA) saying that U.S. states cannot restrict or penalize VA doctors for performing abortions “in a manner authorized by federal law.”
Supremacy Clause CitedSchroeder in the memorandum opinion cited the Supremacy Clause of the U.S. Constitution, which gives federal laws priority over state laws.
Schroeder asserted that the clause means that state officials cannot penalize VA employees “for performing their federal functions.”
Specifically, he said state officials should be barred from pursuing “criminal prosecution, license revocation proceedings, or civil litigation” against VA employees who carry out abortions in cases of rape, incest, or threat to the life or health of the mother.
Before the VA issued its rule, “this Office advised VA that the rule represented a reasonable exercise of the VA Secretary’s discretion to provide medical services,” Schroeder said.
Self-Reporting is ‘Sufficient Evidence’ for Rape, Incest: VAAccording to the VA, “self-reporting from a Veteran or VA beneficiary will constitute sufficient evidence that an act of rape or incest occurred.”
Meanwhile, the determination as to whether carrying the pregnancy to term would harm the life and health of the mother “will be made on a case-by-case basis and will be the result of careful consultation between VA health care providers and the Veterans they serve,” the department said on Sept. 2.
VA Secretary Denis McDonough said in a statement at the time that the rule “is a patient safety decision.”
The VA previously did not provide abortion services but it decided to do so after Roe v. Wade was overturned.
Dr. Shereef Elnahal, VA’s Under Secretary for Health, previously said in a statement on Sept. 2 that the VA’s decision came after its officials listened to VA health care providers and veterans across the country, who contended that “abortion restrictions are creating a medical emergency for those we serve.” He said that providing abortion counseling and abortions in certain cases “will save Veterans’ health and lives.”