Opinion: Justice Department takes action to help VA ensure access to abortion for veterans

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The Department of Justice recently confirmed the Department of Veterans Affairs has the authority to provide abortions in limited circumstances, even if the pregnant veteran is located in a state that entirely bans abortions.

As access to abortion becomes increasingly fragile across large swaths of the country, the Biden administration is taking steps to ensure that veterans will continue to have reproductive health options.

The Department of Justice recently issued a legal opinion that confirms the Department of Veterans Affairs has the authority to provide abortions in limited circumstances, even if the pregnant veteran is located in a state that entirely bans abortions. A recent estimate provided by VA Secretary Denis McDonough states that the VA currently provides health care to 300,000 people of childbearing age and ability.

At root, the guidance is based on the supremacy clause of the U.S. Constitution, which states that federal laws are the "supreme law of the land" and therefore take precedence over state laws — including abortion bans. In practice, this means that states can’t criminally charge nor impose civil liability on a VA employee who provides an abortion or facilitates someone getting an abortion.

If a state attempts to regulate the conduct of a VA employee who performs an abortion, it would be considered an attempt by the state to regulate the federal government directly, which the supremacy clause prohibits. Since no federal law prohibits abortions, states with abortion bans can’t regulate federal employees who provide or facilitate abortions.

To be fair, the protections are somewhat limited in scope. Abortions can only be provided in situations in which "the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term" or when "the pregnancy is the result of an act of rape or incest."

However, the VA is reading the "life or health" exception broadly, including situations in which continuing a pregnancy might result in a loss of future fertility, for example. The VA is also now providing abortion counseling as part of "comprehensive, patient-centered, high quality reproductive health care."

Limited as this may be, it does expand upon earlier VA health care options around abortion services and counseling, which used to be fully prohibited. But, of course, Republicans have attacked the effort, asserting that the department doesn’t have the authority to provide abortions.

In making this move, the Biden administration is displaying a commitment to maximizing the nonlegislative tools at its disposal in holding the line on abortion access in the face of state bans.

The administration has already issued an executive order supporting people who must travel out of state to obtain abortions, increasing research on maternal health outcomes. The Department of Health and Human Services has also issued guidance to pharmacies to ensure continued access to contraception.

At times, such efforts may feel meager. However, executive action can provide real protection at a time when Congress seems unable to take action to codify abortion rights.