Updated Sep 22, 2022 - Politics & Policy

DOJ: States can't penalize VA doctors and nurses for legal abortions

The Department of Veterans Affairs seal.

Photo: Salwan Georges/The Washington Post via Getty Images

States cannot impose civil or criminal penalties on Department of Veterans Affairs doctors and nurses who provide abortion services that are allowed by federal law, a Department of Justice task force said in a new memo released Thursday.

Why it matters: The memo comes after the VA said earlier this month it plans to provide abortions to beneficiaries when pregnancy is the result of rape or incest and when birth may present a danger to a pregnant person's health.

  • The memo said VA doctors and nurses are protected from state-imposed criminal or civil liability when providing federally sanctioned abortion by the Supremacy Clause of the Constitution.

What they're saying: "The Supremacy Clause of the U.S. Constitution bars state officials from penalizing VA employees for performing their federal functions, whether through criminal prosecution, license revocation proceedings, or civil litigation," reads the memo, written by Christopher Schroeder, assistance attorney general of the DOJ's Office of Legal Counsel.

Our thought bubble, via Axios’ Oriana Gonzalez: This is the Biden administration’s latest effort to protect abortion access by arguing that federal law preempts state law.

  • After red states’ reaction to the administration’s rule on EMTALA (including Texas’ lawsuit), the DOJ is getting ahead of potential legal threats and asserting that states cannot invalidate VA’s rule.

The big picture: The Supreme Court's decision to overturn Roe v. Wade earlier this year forced the VA to issue a new rule on abortions provided to veterans and other VA beneficiaries, as dozens of states have since banned the procedure.

  • While VA hospitals are located in every state and U.S. territory, the facilities themselves are federal property and their employees are federal employees.
  • Congressional Republicans led by Sen. Lindsey Graham (R-S.C.) last week introduced a bill which would ban abortion nationally after 15 weeks with exceptions for situations involving rape, incest or risks to the life and physical health of the pregnant person.

Go deeper: Judge temporarily blocks Indiana's near-total abortion ban

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