WASHINGTON — Doctors and nurses who perform abortions for the Department of Veterans Affairs in states where the practice is banned should be immune from criminal prosecution and other civil penalties, such as license revocation, according to a legal opinion VA Secretary Denis McDonough said he received from the U.S Justice Department.

McDonough testified before the Senate Veteran Affairs Committee on Tuesday about a new rule that allows the VA to provide abortion services to veterans and other beneficiaries in cases of rape or incest or when health of the pregnant individual is in jeopardy.

VA Secretary Denis McDonough testifies before a Senate committee about a new rule that allows the VA to provide abortion services to veterans under certain circumstances. Screenshot/2022

In response to questions from Hawaii U.S. Sen. Mazie Hirono, McDonough said the DOJ reviewed the new rule and found it to be a “lawful exercise of VA’s authority.”

He also said that he was told that the supremacy clause in the U.S. Constitution is what protects VA workers from being penalized by state officials for “performing their federal functions.”

The supremacy clause essentially states that federal law trumps state law.

“The principle that led us to take this step is our veteran patient safety,” McDonough said during the hearing. “We take that very, very seriously and every decision we make flows from that principle.”

The VA pursued the new abortion rule after the U.S. Supreme Court overturned Roe v. Wade, the landmark court decision that had made abortion legal throughout the country.

The rule, which took effect Sept. 9, is expected to face legal challenges, including from attorneys general in conservative states where abortion is already illegal due to trigger bans that were put in place ahead of the high court’s decision.

For instance, Alabama’s attorney general, Steve Marshall, has vowed to uphold that state’s abortion law, which says that doctors who perform abortions could face up to 99 years in prison.

“The power of states to protect unborn life is settled,” he said earlier this month.

McDonough made clear during Tuesday’s hearing that the VA’s new policy will only apply to veterans and eligible family members whose health is at risk or who are the victims of rape or incest. He said that the VA currently serves about 300,000 women veterans who are of childbearing age.

When asked by Alabama Sen. Tommy Tuberville, a Republican, how many abortions the VA has conducted so far, McDonough replied only one.

Hirono said during the hearing that the Supreme Court’s decision “created fear and chaos throughout the country,” including for veterans living in conservative states, such as Alabama.

She also lauded McDonough’s efforts in pushing the new rule, stating that she was one of the lawmakers who urged his agency to take action after the high court’s ruling.

“There is absolutely no question that this will save lives,” she said.

Support Civil Beat during the season of giving.

As a small nonprofit newsroom, our mission is powered by readers like you. But did you know that less than 1% of readers donate to Civil Beat?

Give today and support local journalism that helps to inform, empower and connect.

About the Author