Veterans Affairs Secretary Denis McDonough is making it clear who has the final say in deciding whether veterans in states with abortion bans can still access abortion care.
He does, not Republican state attorneys general.
During a Wednesday hearing before the Senate Veterans Affairs Committee, Sen. Mazie Hirono (D-Hawaii) praised McDonough for changing VA rules this month, for the first time, to provide abortion care to veterans in cases involving rape, incest or when the life of the patient is at risk. There are currently about 300,000 female veterans of childbearing age who receive their health care under the VA health system, and many live in states where abortion is no longer available.
Hirono noted that Alabama GOP Attorney General Steve Marshall is already threatening to prosecute any VA doctor who provides abortion services in his state, where abortion is now entirely banned.
“I would expect other Republican attorney generals, in the states where abortion is now provided, to follow suit,” Hirono told McDonough. “Mr. Secretary, what legal protections do federal employees at VA have under the interim final rule?”
McDonough said the Justice Department’s Office of Legal Counsel had just released an opinion hours earlier, one that he requested, that concluded it is entirely “a lawful exercise of VA’s authority” to provide veterans with access to reproductive health care.
The Justice Department opinion also concluded that “states may not impose criminal or civil liability on VA employees ― including doctors, nurses, administrative staff ― who provide or facilitate abortions or related services in a manner authorized by federal law,” he said. “The supremacy clause of the Constitution bars state officials from penalizing VA employees for performing their federal functions, whether through criminal prosecution, license revocation proceedings, or civil litigation.”
“This [Office of Legal Counsel] opinion makes very clear the protections that are afforded VA providers,” McDonough added.
A Marshall spokesman did not immediately respond to a request for comment.
The Justice Department’s Office of Legal Counsel did not immediately respond to a request for a copy of its legal opinion on the VA providing abortion care.
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Unlike the Department of Health and Human Services, the VA is not bound by the Hyde Amendment, the legislative provision that bars the use of federal funds for abortion except in cases where a pregnancy is caused by rape, incest or when the woman’s life is at risk. But VA leaders chose to put Hyde-like restrictions in place despite the agency not being required to do so.
HuffPost asked the VA earlier this month why McDonough decided to limit the VA’s abortion services to cases of rape, incest or the patient’s life being at risk. A department spokesman said, “At this time, VA is responding to the emergency need to protect the life and health of our nation’s Veterans.”
McDonough said Wednesday that the decision to provide abortion services to veterans at all was in response to safety concerns.
“I’d just reiterate the principle that led us to take this step is veteran patient safety,” he said. “We take that very, very seriously. Every health decision we make flows from that principle.”