Mississippi Attorney General Lynn Fitch and more than a dozen other state attorneys general voiced opposition in court earlier this month to the Biden administration’s attempt to allow taxpayer-funded abortion for military veterans and their beneficiaries in conflict with longstanding law and the more recent Dobbs ruling.
Fitch, along with Alabama Attorney General Steve Marshall and 16 others AGs filed an amicus brief Jan. 17 opposing the Department of Veterans Affairs’ (VA) new abortion rule intended to authorize taxpayer-funded abortion as a veterans’ benefit.
“In September 2022, the Department of Veterans Affairs adopted an interim final rule that purports to authorize taxpayer funded abortions and abortion counseling for certain veterans and their beneficiaries,” the brief states.
The rule exceeds the VA's authority and amounts to an end run around the Dobbs v. Jackson Women’s Health Organization ruling on the part of the Biden administration, the AGs argue, and where Dobbs overturned Roe v. Wade, sending the matter of abortion back to the states, the administration is defying the law to take the issue back away from U.S. citizens.
“Rather than respect the Constitution and the Supreme Court’s decision, the Biden Administration has sought to wrest control over abortion back from the people,” the brief states. “The rule at issue in this case typifies that effort.”
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Fitch expounded on this in a press release.
“In direct contravention of the Supreme Court’s opinion in Dobbs, President Biden has taken abortion policy away from state legislators, Congress, and, most importantly, the people and given it to political appointees in his own Administration,” Fitch said. “The Dobbs decision was about the rule of law. This VA rule is precisely the opposite.”
The Dobbs case concerned the Mississippi Gestational Age Act, which passed in 2018 and bans abortion after 15 weeks with some exceptions. The case hinged on the constitutionality of limits on abortion before viability. Fitch had appealed the case to the U.S. Supreme Court after an abortion facility challenged the law and prevailed in court, ultimately leading to the overturn of Roe v. Wade. The Jun. 24, 2022, Dobbs ruling struck down Roe and the subsequent 1992 Planned Parenthood v. Casey decision as well.
The Biden administration's September 2022 VA interim final rule regarding abortion was one of numerous actions on the part of the administration to protect and push abortion since the Dobbs decision's release.
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The plaintiff in the case, Carter v. McDonough, is Stephanie Carter, a VA nurse who opposes the VA’s new rule. Fitch’s brief was filed in support of Carter in the Western District of Texas. The McDonough in the case is VA Secretary Denis McDonough.
In November 2022, Fitch and 14 other state AGs wrote the VA with a warning that it did not have the authority to impose the abortion rule and advised the agency the states would monitor the situation and take action if the VA flouted the law.
“This rule is deeply flawed,” the letter said. “It rests on a claim of legal authority that the VA does not have and it purports to override duly enacted state laws on matters within traditional state authority. We are prepared to respond decisively and to enforce the laws of our States.”
The lack of a policy response to the letter moved the expanded group of AGs to file the Jan. 17 amicus brief.
The brief argues that public interest and equities call for injunctive relief against the VA rule for these reasons:
• The rule was enacted “without statutory authority and so it disserves the public interest.”
• The rule “defies the public interest determinations made by the amici States, which are entrusted with balancing the relevant policy and equitable considerations in this area.”
• The rule “obstructs and hinders the amici States’ enforcement of duly enacted laws and thus undercuts the public interest that those laws promote.”
VA regulations previously excluded abortion and abortion counseling, changing this policy inherently imposes legal authority which the VA does not possess, the brief argues. VA policy for decades has acknowledged state laws and to claim otherwise without Congressional enactment is unconstitutional.
The AGs point to the Veterans Health Care Act of 1992 as the primary law prohibiting the VA funding abortions, and the brief notes how this is consistent with other federal laws.
“Because the rule lacks a lawful basis," it says, "the VA cannot claim any public interest in its enforcement.”
The brief addresses the fact that states can and do handle this issue, stating that state abortion laws universally include provisions to protect a woman’s life, and therefore, these laws, “reflect considered determinations about how to balance interest in life, physical health, mental health, the medical profession’s integrity, and other important interests.”
“The resulting state laws thus already account for the public interest that the VA’s rule purports to address—and they do so with the benefit of democratic legitimacy,” the group of AGs note.
The brief further argues that the VA rule shows a disregard for democracy as it intrudes on state laws and the authority of the states. By extension this is a violation of the Supreme Court’s decision to return authority to the states via the Dobbs decision.
In addition to this disregard, the brief argues, the VA rule harms the states by forcing the diversion of resources to investigating and prosecuting violations of their abortion laws.
“The amici States are entitled to enforce duly enacted laws, including those that prohibit conduct—such as clearly elective abortions—that the VA’s rule purports to allow,” it says.
“State laws also address other important matters,” the brief says further, “such as informed consent, waiting periods, parental notification, and reporting requirements—that the rule does not.”
The VA rule is in essence expects its medical personnel to violate state law and ignore what the state has governance over which is their medical licensing, registration, certification and other state requirements.
“The VA’s endorsement of violations of state law confirms that the VA is devoted to concealing that law-breaking from state authorities, increasing the cost and difficulty of enforcement,” the AGs argue.
They call for injunctive relief from the VA rule, noting the motivation behind the rule is, “to create a mechanism for allowing purely elective abortions that States have properly prohibited or to send a political signal to the Administration’s political base—or both.”
The brief is signed by the Attorneys General of Mississippi, Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.
Editor's note: This article has been updated.
