DOJ will defend Alabama VA doctors threatened with abortion prosecutions

The Justice Department said Thursday that it will provide legal defense if necessary to Veterans Affairs medical workers who perform abortions to save a patient’s life, protect the mother’s health or in instances when the pregnancy is a result of rape or incest — even if performed in a state where the procedure is illegal in those circumstances.

In an internal government opinion, Justice Department lawyers said that a recently adopted Department of Veterans Affairs policy permitting employees to provide abortion services to veterans and their eligible relatives is legally sound and can continue. The Veterans Affairs agency started offering abortions at its federal facilities earlier this month in the wake of a June Supreme Court decision that overturned Roe v. Wade, upending the right to terminate a pregnancy that had been enshrined in federal law for nearly 50 years.

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In some states, including Alabama, officials have threatened to punish Veterans Affairs workers who perform abortions, saying it would violate state law. Alabama prohibits abortions in instances of rape and incest, but allows the procedure if the patient’s life is at risk. The opinion from the Justice Department’s Office of Legal Counsel — which serves as a legal directive on another agency’s policies — says states may not penalize any Veterans Affairs doctor or nurse for performing an abortion in certain circumstances. Associate Attorney General Vanita Gupta said the Justice Department would represent those medical workers if they are penalized for following their agency’s abortion guidance.

“The rule is a lawful exercise of VA’s authority,” the opinion says. “Moreover, states may not restrict VA and its employees acting within the scope of their federal authority from providing abortion services as authorized by federal law, including VA’s rule.”

The Justice Department opinion represents the Biden administration’s latest attempt to try to protect access to abortion, to some degree, after the Supreme Court decision, though it would apply to relatively few women because it addresses only rare circumstances.

The United States has 19 million veterans, about 2 million of whom are women. About 9 million veterans are enrolled in VA care, along with their eligible family members. While the new abortion policy is an expansion of veteran health-care benefits, the regulations closely resemble existing care within the Defense Department, which for years has provided abortions at military hospitals using the same criteria. The active-military care is not widely used, with fewer than two dozen abortion cases on average every year, according to Pentagon data.

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This narrowness of both policies — applying only to pregnancies that pose a high risk or stem from rape or incest — underscores just how few legal tools the Biden administration has since the Dobbs v. Jackson Women’s Health Organization decision. In August, the Justice Department persuaded a judge to block the portion of an Idaho law…

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