15 Republican Attorneys General Warn of Legal Challenge to VA Abortion Policy

Mississippi Attorney General Lynn Fitch.
Republican Attorney General Lynn Fitch speaks about the state's successful lawsuit before the U.S. Supreme Court that helped overturn Roe v. Wade, before the audience at the pavilion in Founders Square at the Neshoba County Fair in Philadelphia, Miss., Thursday, July 28, 2022. (AP Photo/Rogelio V. Solis)

Fifteen Republican state attorneys general are warning the Department of Veterans Affairs they will "act decisively" if department doctors perform abortions that violate state law.

In a letter Thursday to VA Secretary Denis McDonough organized by the attorney general of Mississippi, the attorneys general argued that the VA's abortion policy implemented earlier this years is "deeply flawed" and that a federal department cannot "override duly enacted state laws."

"We will hold you to the VA's representations about the rule's limited application," the AGs wrote. "We will not allow you to use this rule to erect a regime of elective abortions that defy state laws. We stand ready to move decisively against departures from the rule's terms or its promises. And we will enforce our duly enacted state laws and hold you accountable for violations of federal law.

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"Those who perform abortions based on the interim final rule -- and in defiance of state or federal laws -- do so at their own risk," they added.

The other states that signed the letter include 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 "the full range of reproductive health services to ensure their health and well-being."

"As VA Secretary Denis McDonough has said, 'Pregnant veterans and VA beneficiaries deserve to have access to world-class reproductive care when they need it most. That's what our nation owes them, and that's what we at VA will deliver,'" Hayes added.

In September, the VA for the first time started offering abortions in cases of rape, incest or where the life or health of the mother is at risk from the pregnancy.

The change came in response to the Supreme Court ruling in Dobbs v. Jackson Women's Health Organization that overturned nationwide abortion rights. Since the June decision, at least 13 states have put total or near-total abortion bans in effect, while several other states have moved to ban the procedure but been blocked at least temporarily by courts.

The VA and its allies argue the department has the authority to provide abortions under a 1996 law that says the VA "shall" provide "needed" medical care to veterans.

But congressional Republicans, and the state AGs in their letter, argue a 1992 law that directed the VA to provide reproductive health care except for "infertility services, abortions or pregnancy care" unless that care is needed because of a service-connected condition bars the department's new abortion policy.

The Justice Department has issued a legal analysis supporting the VA's stance that federal law allows the new policy. In the analysis, the Justice Department also held that federal law supersedes state law and that states "may not penalize VA employees for providing such services, whether through criminal prosecution, civil litigation or license revocation proceedings."

But congressional Democrats who support the new policy have warned that VA staff may not be protected from enforcement of state laws.

Alabama's attorney general, who is not a signatory on the latest letter, has previously suggested he could prosecute VA doctors who perform abortions contrary to his state's law, which does not allow abortions in cases of rape or incest.

In addition to citing the 1992 law, the 15 state AGs who signed Thursday's letter argue the Constitution's Supremacy Clause, the section that establishes that federal law takes precedence over state law that the Justice Department cited in its analysis, does not apply in this case. That's because their abortion laws "represent legitimate exercises of traditional state authority to 'serve legitimate state interests,'" they wrote, quoting the Dobbs ruling.

"Like many of the administration's abortion-related efforts, this new rule is an unlawful attempt to wrest that authority from the people," the AGs wrote. "That attempt will fail."

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

Related: VA Staff Providing Abortions May Not Be Protected in Some States, Democratic Lawmakers Warn

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