VA Abortion Policy Faces Congressional, Legal Challenges

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Anti-abortion protester attempts to talk to a clinic escort.
Anti-abortion protester attempts to talk to a clinic escort, Thursday, July 7, 2022, at WE Health Clinic in Duluth, Minn. (AP Photo/Derek Montgomery)

Challenges are mounting to the Department of Veterans Affairs' recently enacted abortion policy, intended to provide access to abortion services at VA facilities, with both a lawsuit and a bill in Congress against the policy now filed.

On Tuesday, Republican members of the House and Senate introduced a resolution that would reverse the policy. The resolution was introduced under the Congressional Review Act, meaning Republican senators could force a vote on it even though Democrats control the chamber.

Meanwhile, a VA employee in Texas filed a lawsuit Tuesday alleging the policy violates her religious liberties and asking the court to prevent it from being implemented in the facility she works in.

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The lawsuit and the resolution are some of the first concrete actions taken since the VA began providing abortions earlier this year, prompting outcry and allegations from Republicans that the department was circumventing the law.

The VA announced in September it would for the first time offer 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 June Supreme Court ruling in Dobbs v. Jackson Women's Health Organization that overturned Roe v. Wade and allowed states to ban abortion.

The VA implemented the policy through the federal rulemaking process, and the Congressional Review Act, or CRA, allows lawmakers to overturn rules issued by federal agencies.

Under the CRA, senators can force a vote on a resolution to undo a rule if they introduce it within 60 days of the rule being formally transmitted to Congress or the start of a new congressional session, and at least 30 senators sign what's called a "discharge petition."

While not enough time is left to force a vote this congressional session, the resolution's lead Senate sponsor, Sen. Tommy Tuberville, R-Ala., plans to reintroduce it next year and collect signatures for the discharge petition then, a Tuberville aide confirmed to Military.com.

"The interim final rule from the U.S. Department of Veterans Affairs to provide taxpayer-funded abortions at its facilities is the latest subversion in a long line of actions from this administration that points to complete contempt for the law," Tuberville said in a statement. "It betrays the convictions of many Americans who value the sanctity of life and don't want their tax dollars paying for abortions."

In the House, the resolution is being sponsored by Republican Reps. Michael Cloud of Texas; Mike Bost of Illinois, the likely next chairman of the House Veteran Affairs Committee; and Andrew Clyde of Georgia. Republicans will hold a majority in the House next year, improving the measure's chances in the lower chamber.

The CRA also sets the bar for advancing the resolution in the Senate at a simple majority, rather than the 60 votes needed for most legislation in the upper chamber. Still, Democrats will hold a 51-seat majority next year, and President Joe Biden would likely veto any resolution undoing the VA policy, meaning a two-thirds majority would be needed to get the resolution into law.

Asked about the resolution, VA spokesperson Terrence Hayes said the department remains committed to providing veterans "the full range of reproductive health services to ensure their health and well-being."

"That is our commitment to women veterans as they deserve nothing less than access to world-class reproductive care when they need it most," he said. "That's what our nation owes them, and that's what we at VA will deliver."

Meanwhile, a nurse practitioner at the Olin E. Teague Veterans' Center in Temple, Texas, is alleging the policy violates her religious liberties because her beliefs prevent her from working "in a facility that performs abortion services for reasons other than to save the life of the mother because, in her view, unborn babies are created in the image of God and should be protected," according to her lawsuit.

The lawsuit was filed in federal court in Texas on behalf of the employee, Stephanie Carter, by conservative Christian legal group First Liberty Institute, which has also led legal challenges to other contentious Biden administration policies such as the military's COVID-19 vaccine mandate.

The lawsuit says that Carter requested a religious accommodation two separate times in October to exempt her from having to provide abortion medication or counseling. She was told by her supervisor that there was no process in place yet for religious accommodations and, after the second time, to "just wait," the lawsuit alleges.

"It is unconscionable that the Biden administration would force health care workers at VA facilities to violate their consciences," Danielle Runyan, senior counsel for First Liberty Institute, said in a statement. "The VA should be focused on caring for the men and women who bravely served to protect our country, not on performing illegal abortions."

The lawsuit does not seek to stop the abortion policy nationwide, but rather seeks to prevent the policy from applying to Carter and the entire Temple VA facility.

Hayes declined to comment directly on the lawsuit, but said VA Secretary Denis McDonough "has made clear to all employees that their religious beliefs are protected here at VA."

"VA does provide accommodation for VA employees who wish to opt out of providing abortion counseling or services," Hayes said. "We are currently honoring exemption requests that come through VA supervisors. We have provided all VA health care employees with this information -- including information for how to exercise those protections through VA's Office of Resolution Management Diversity and Inclusion -- and we have encouraged employees to inform their supervisors of any requests for exemptions."

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

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

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