Following Hirono-led push, DOJ Confirms VA’s legal Authority to provide abortion care

The US Department of Justice confirmed in a legal opinion that the VA has the legal authority to provide abortion services in cases of rape, incest, and the life or health of the patient.

Additionally, DOJ concluded that VA doctors and health care providers who perform abortion services are protected from prosecution, including in states that have outlawed abortion in the wake of the Supreme Court’s disastrous Dobbs decision overturning Roe v. Wade.

This comes following a push led by US Senator Mazie K. Hirono, member of the Senate Veterans Affairs Committee, to get the Department of Veterans Affairs to begin providing abortion services.

In a Sept. 21 opinion, Christopher H. Schroeder, Assistant Attorney General for the Office of Legal Counsel, concluded that, “The rule issued by the Department of Veterans Affairs on Reproductive Health Services is a lawful exercise of VA’s authority.”

After the VA issued an Interim Final Rule to allow the Veterans Health Administration to provide abortions in certain instances—which Senator Hirono called for in a letter in July—the Attorney General of Alabama said that he “would enforce the law against any practitioner in the state who performs an abortion.” However, the OLC opinion makes clear that VA providers cannot be prosecuted under state laws banning abortion.

“States may not impose criminal or civil liability on VA employees—including doctors, nurses, and administrative staff—who provide or facilitate abortions or related services in a manner authorized by federal law, including VA’s rule,” Schroeder continued in his memo. “The Supremacy Clause of the US Constitution bars state officials from penalizing VA employees for performing their federal functions, whether through criminal prosecution, license revocation proceedings, or civil litigation.”

“The VA’s decision to provide abortion services in instances of rape, incest, and the life or health of the mother will save lives,” said Senator Hirono. “This OLC opinion confirms that VA has the authority to provide abortion care, and that VA providers cannot be prosecuted simply for doing their jobs. While Republicans sow chaos and fear as they work to ban abortion nationwide, I’ll continue fighting to make sure all Americans can access comprehensive reproductive and abortion care.”

Earlier this month, Senator Hirono introduced the Let Doctors Provide Reproductive Health Care Act to protect doctors against Republicans’ non-stop attacks and ensure they can safely provide abortion care in states where it is still legal. She also led a letter to the Department of Health and Human Services urging them to make medication abortion more easily accessible.

In July, she introduced the Right to Contraception Act, as well as the Expanding Access to Family Planning Act, to protect access to critical reproductive health care services, like birth control, and cancer screenings. Senator Hirono also introduced the Freedom to Travel for Health Care Act of 2022, which clarifies that it is illegal for anti-choice states to limit travel for abortion services, and would empower impacted individuals to bring civil action against those who restrict a woman’s right to cross state lines to receive legal reproductive care.