15 Republican attorneys general warn of legal challenge to VA abortion policy

15 Republican attorneys general warn the Veterans Affairs Department They will “act decisively” when unit physicians perform abortions that violate state law.

in one letter Thursday To VA Secretary Denis McDonough, organized by the Mississippi Attorney General, the attorney generals argued that the VA’s abortion policy, introduced earlier this year, was “deeply flawed” and that a federal agency could “override duly enacted state statutes.”

“We will hold you to the representations of the VA for the limited application of the rule,” wrote the AGs. “We will not allow you to use this rule to establish a regime of elective abortion that defies state law. We stand ready to take firm action against any deviation from the terms of the rule or its promises. And we will enforce our duly enacted state laws and hold you accountable for violations of federal laws.

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“Those who perform abortions based on the interim final rule — and in defiance of state or federal law — do so at their own risk,” they added.

Other states that have signed the letter include Arkansas, Arizona, Florida, Georgia, Indiana,

Kentucky, Nebraska, North Dakota, Ohio, South Carolina, Tennessee, Texas,

Utah and West Virginia.

Asked for comment on the letter, VA spokesman Terrence Hayes said the department is “committed to providing veterans of childbearing age “the full spectrum of reproductive health services to ensure their health and well-being.”

“As VA Secretary Denis McDonough said, ‘Pregnant veterans and VA beneficiaries deserve access to world-class reproductive care when they need it most. It is what our nation owes them and we will at VA deliver'”, Hayes added.

In September, the VA offers abortions for the first time in cases of rape, incest or if the life or health of the mother is endangered by the pregnancy.

The change came in response to the Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the statewide right to abortion. Since the June decision, at least 13 states have enacted total or near-total abortion bans, while several other states have sought to ban the procedure but have been blocked, at least temporarily, by courts.

The VA and its allies argue that the department has the authority to perform abortions under a 1996 law that says the VA is to “provide” “necessary” medical care for veterans.

But congressional Republicans and state AGs, in their letter, argue against a 1992 law directing the VA to provide reproductive health care other than “infertility services, abortions, or pregnancy treatments” unless that treatment is required by a service-related condition , which rules out The department’s new abortion policy.

The Justice Department has issued a legal analysis that supports the VA’s stance that federal law allows for the new policy. In the analysis, the Justice Department also noted that federal laws supersede state laws and that states “may not penalize VA employees for providing such services, whether through criminal prosecution, civil litigation, or license revocation proceedings.”

But congressional Democrats who support the new policy have warned the VA staff may not be protected from enforcement of state laws.

Alabama’s Attorney General, who did not sign the recent letter, has previously suggested he could prosecute VA doctors who perform abortions in violation of his state’s law, which does not allow abortions in cases of rape or incest.

In addition to invoking the 1992 law, the 15 state AGs that signed Thursday’s letter argue that the primacy clause of the constitution, the section that establishes federal law takes precedence over state law, which the Justice Department cites in its analysis , not applicable in this case. That’s because their abortion laws “represent legitimate exercises of traditional state authority to serve ‘legitimate state interests,'” they wrote, citing the Dobbs ruling.

“Like many of the government’s abortion-related efforts, this new rule is an unlawful attempt to wrest that authority from the people,” the AGs wrote. “This attempt will fail.”

— Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

Related: VA employees who perform abortions may not be protected in some states, Democratic lawmakers warn

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