In the months following the U.S. Supreme Court’s watershed decision in Dobbs v. Jackson Women’s Health Organization,REF which recognized that women do not have a constitutional right to an abortion, the Biden Administration has undertaken increasingly creative efforts to establish a federal “right” to abortion by other means. One such effort is the Department of Veterans Affairs’ (VA) interim final rule (IFR) on “Reproductive Health Services,” issued on September 9, 2022. The interim rule is no routine exercise of regulatory authority: it bypasses the usual public notice-and-comment process, lays out unprecedented and unsupportable claims of statutory authority, and forces taxpayers to fund elective, on-demand abortions in violation of various federal funding prohibitions.
The aim: to enable VA doctors to circumvent state laws restricting elective abortions and to immunize the doctors from liability for violating state law. The IFR does this by using the nation’s veterans’ medical system as a conduit for a national abortion-on-demand policy that supplants any contrary state laws—something never envisioned by Congress when it enacted laws the VA cites as justification for its action.
The Department of Veterans Affairs IFR
The VA’s IFR amends its pre-existing medical regulations to allow veterans to receive an abortion as a “medical benefit.” It also removes the ban on abortion counseling and allows abortions to be covered for beneficiaries of the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA)—which covers spouses, children, survivors, and caregivers of veterans. The IFR allows abortion on demand until birth—with no gestational limits whatsoever—and the VA has already boasted about the performance of the first abortion in its history.REF
To justify this rule, the VA contends that immediate abortion access is needed to protect the livesREF and healthREF of veterans. The VA now takes the position that an abortion is “needed” and “medically necessary” whenever a veteran or a CHAMPVA beneficiary seeks one.REF
Last, and perhaps most concerning, is the VA’s additional claim not only to be able to provide abortions, but to be able to do so in defiance of contrary state laws. The IFR essentially provides a get-out-of-jail-free card to federal abortionists who would otherwise be committing an illegal act. And all of this is ostensibly sanctioned by the VA’s vague statutory mandate to “provide medical care.”
But the VA’s words do not butter any constitutional parsnips.REF The VA’s asserted authority—to provide abortion, to insulate itself from normal notice-and-comment procedures, and to nullify state law—is without basis in law. That is because the VA lacks a statutory basis for its asserted powers and it fails to comply with the clear standards governing administrative rulemaking.
The IFR’s Legal Deficiencies
This Legal Memorandum discusses the primary legal infirmities of the VA’s IFR.
Lack of Statutory Authority. The VA’s intended expansion of abortion access is a naked power grab with no statutory basis—an ultra vires act. Existing federal law makes it clear that the federal government cannot provide abortions, except in limited circumstance. The IFR fails to explain its mandate to categorically waive the otherwise unanimous rule of no taxpayer-funded abortions.REF
Lack of Good Cause. The IFR also fails to present good cause for why it must use an interim final rule—an extraordinary procedure with limited opportunity for public input—rather than using the procedure laid out in the Administrative Procedure Act (APA). The courts have established clear standards for assessing when an agency may proceed via IFR; these prevent agencies from resorting to the easy convenience of IFRs except where exigent circumstances demand an immediate response. But the VA meets none of those traditional standards here.
Arbitrary and Capricious. The VA fails to justify its rule as an effective response to a concrete problem, and the limited explanations it provides are more speculative than factual. The VA asserts (without providing evidence) that state restrictions on elective abortions have, in fact, created an emergency health crisis for veterans and their beneficiaries. The VA proceeds from this unfounded assumption to another equally dubious one, that abortions and abortion counseling are the only effective means of addressing certain pregnancy-related health risks. The deficiency of the VA’s reasoning is compounded by its evident failure to consider less drastic alternatives for addressing the supposed health risks.
Lack of Power to Unilaterally Pre-empt Contrary State Law. Last, assuming the IFR could overcome its other fatal defects, the VA is wrong in claiming to possess carte blanche to invalidate whatever state law it pleases. To begin, a regulation that expressly pre-empts state law is inherently dubious; if an agency purports to wield the power to supplant valid state laws it should be able to ground its assertion in clear statutory language demonstrating that Congress in fact gave the agency that power.
As the Court affirmed in Dobbs v. Jackson Women’s Health Organization,REF regulating matters of health and medicine—like abortion—are the unique domain of the people and their elected representatives. A state’s inherent sovereignty to legislate in this area should not be lightly displaced; if it must be, it should be by Congress, not an administrative agency.
These deficiencies, jointly and severally, are fatal to the VA’s attempt to make veterans’ hospitals across the country havens for elective abortion. When agencies seek to enact transformative regulations, they must respect the manifest intent of Congress, the procedural restraints imposed by the APA, and the delicate balance of state–federal power. The VA has plainly failed to do so in this case.
The IFR: Unlawful
Under the aegis of numerous federal statutes—namely, the Veterans’ Health Care Eligibility Reform Act of 1996 and the Deborah Sampson Act of 2020—the VA claims the authority to provide abortions within its hospitals, even when a State’s law clearly forbids it. Not only does this violate core principles of federalism, but it is an ultra vires act. The plain text of the VA’s claim to authority (Title 38, Chapter 16) forecloses the provision of abortion.
Most pertinently, § 106 of the Veterans Health Care Act of 1992 contains a clear restriction on the VA providing abortion as a “medical service.” In relevant part, it states that “[i]n furnishing hospital care and medical services under chapter 17 of title 38, United States Code, the Secretary of Veterans Affairs may provide to women…[g]eneral reproductive health care…but not including under this section infertility services, abortions, or pregnancy care” (emphasis added).
The Veterans Administration reads this restriction as being relegated only to the general grant of authority under § 106. This means that the VA may furnish abortions under an alternative grant of authority, which the VA claims § 1710 of the U.S. Code provides. But this reading can be doubly refuted: It ignores the text’s clear scope of coverage, and it renders superfluous later appropriations amendments to the law.
- Section 106 itself contains a statement of its scope: “In furnishing hospital care and medical services under chapter 17 of title 38” (emphasis added). This prefatory clause suggests that its conditions are applicable to all reproductive care rendered under Chapter 16.
- This reading would render superfluous the Murray AmendmentREF that provides explicit § 106 carve-outs for certain fertility treatments. If § 106 was already superseded by more expansive provisions, such as § 1710, then it is unclear why this carve-out is continually authorized year-after-year.
Abortion Explicitly Prohibited. Section 106 of the Veteran Health Care Act of 1992 prohibits abortions and abortion counseling in no uncertain terms. All authority on which the VA relies, therefore, argues for the VA to immediately cease its implementation of the IFR. The VA is arguing that the 1996 law makes § 106 null and void, citing the Deborah Sampson Act of 2020. But far from giving the VA the authority to include abortions in VA programs, Congress has placed significant limitations on taxpayer-funded abortions vis-à-vis military personnel and veterans. The statutes that exist on this subject are in direct contravention of the IFR.
Care included in the medical benefits package is “provided to individuals only if it is determined by appropriate health care professionals that the care is needed to promote, preserve, or restore the health of the individual and is in accord with generally accepted standards of medical practice.”REF Some care is specifically excluded from the medical benefits package because the Secretary has determined it is not “needed” within the meaning of 38 U.S.C. § 1710(a)(1)–(3).REF
Among other services, “[a]bortions and abortion counseling” are currently excluded from the medical benefits package with no exceptions.REF The fact that the Deborah Sampson Act of 2020 did not reference § 106 of the Veterans Health Care Act and only referenced the VA’s medical benefits package clearly indicates that Congress did not amend § 106 to include abortion or abortion counseling services when it established the VA’s authority to provide care to “women veterans.”
The IFR: No Good-Cause Basis
As the VA rightly notes, “An agency may forgo notice if the agency for good cause finds that compliance would be impracticable, unnecessary, or contrary to the public interest.”REF But it also claims that “[t]he Secretary of Veterans Affairs finds that there is good cause under the provisions of 5 U.S.C. §553(b)(B) to publish this rule without prior opportunity for public comment because it would be impracticable and contrary to the public interest and finds that there is good cause under 5 U.S.C. §553(d)(3) to bypass the 30-day delay requirement. The Secretary also finds that the 30-day delay is inapplicable as this rule removes restrictions on abortion, in certain, limited circumstances, and on abortion counseling. 5 U.S.C. §553(d)(1).”
The Secretary has failed to offer adequate justification for implementing the interim rule without the required opportunity for notice and comment. The notice fails to offer a factual basis supporting the conclusions that “good cause” exists to dispense with notice and comment or that affording such an opportunity would be “impractical.”
The Secretary asserts that the interim rule had to take immediate effect to address risks to the life and health of veterans and non-veteran beneficiaries arising from their inability to access abortions. The notice does not explain how the VA interprets “health,” but the word is broad and malleable enough to encompass a range of concerns—physical, psychological, etc.—that are neither imminent nor life-threatening.REF Both agencies and courts are constrained to interpret the APA’s concept of good cause “narrowly” and to countenance exceptions “only reluctantly.”REF
Therefore, the fact that a rule addresses health-related concerns does not exempt the agency from the strictures of notice and comment unless there is something in the nature of those concerns that make them a true “emergency.”REF Thus, the VA’s invocation of pregnancy-related health concerns can only serve as good cause to the extent those conditions pose an imminent, serious risk to patients.
Lack of Evidence. But it is not enough for the VA to invoke serious health risks; the required showing of good cause is made only when the agency substantiates the asserted risks with evidence.REF The VA’s legal conclusion that good cause exists receives no deference,REF and “because notice-and-comment rulemaking is the default, the onus is on the agency to establish that notice and comment should not be given, and any agency faces an uphill battle to meet that burden.”REF
Although the Dobbs decision, which the VA cites as the source of the relevant risks, was released months ago, the Secretary has failed to identify a single instance since then of a veteran or covered beneficiary being denied a medically necessary abortion. Even a single instance, “while not insubstantial, is a thin reed on which to base a waiver of the APA’s important notice and comment requirements.”REF But the VA offers none. Left without concrete evidence of a problem, the Secretary instead makes predictions about the immediate effects of state abortion restrictions on the health of veterans and their beneficiaries. Yet the premises underlying the Secretary’s prediction of dire consequences are, in several respects, flawed.
Much of the notice evinces an uncritical assumption that abortions are either the sole or the best means of addressing certain pregnancy-related health concerns. For instance, the Secretary cites a variety of pregnancy-related health risks including “hypertension,” “hemorrhage,” “newly diagnosed cancer requiring prompt treatment, and intrauterine infections.” But it is not evident from the notice how state restrictions on elective abortions inhibit medical professionals from effectively treating these conditions, which arise and are routinely treated in patients who are not pregnant. For other conditions unique to pregnancy such as “severe preeclampsia,” “placenta accreta spectrum, and peripartum hysterectomy,” the Secretary gives no indication of whether abortions are the sole or even the most effective means of preventing or treating these conditions.
Instead, the Secretary is content to speculate that “an abortion may be the only treatment available to protect the health of the pregnant [veteran or] CHAMPVA beneficiary.” Nothing in the notice’s discussion of pregnancy-related health risks demonstrates why this would be so. The Secretary makes no effort to identify situations in which abortion is the only treatment available, and to the extent such situations exist, how frequently they arise. Failure to apprise the public of the actual frequency in which dire health issues can only be addressed via abortion prevents meaningful assessment of and comment on the merits of the rule, as well as the Secretary’s assertion of good cause.
Failure to Assess Alternatives. Absent from the IFR notice is any consideration of how the VA’s doctors or medical professionals could adjust their patient-care regimens to account for less reliable access to abortion. The Secretary offers no explanation for why preventative care cannot mitigate the health issues associated with high-risk pregnancies or why the risks, once they have manifested, cannot be managed effectively through existing non-abortion treatments.
Also absent from the notice is acknowledgement of the fact that where consensual relations are concerned, pregnancy is plannable or avoidable. An array of readily available contraceptive methods, natural family planning, or simple abstention ensure that in all but the rarest of cases pregnancy is a matter within the control of the potential parents. If pregnancy-related risks are unacceptably high for a given individual, the best means of mitigating those health risks is simply not to get pregnant—a strategy, which among its many advantages, obviates the need for abortions entirely. No consideration of these facts is evident in the Secretary’s assessment of the health risks facing veterans and their beneficiaries.
For purposes of the good-cause inquiry, the question is whether the Secretary’s conclusion—that abortion is the only means of addressing certain types of serious health risks—has evidentiary support in the VA’s record.REF An agency’s “conclusory invocation of its subject-matter expertise…does not excuse the agency’s failure to cite such examples in support of its claim.”REF And citations to general studies about mortality rates do not address the more nuanced concerns at issue here, namely, whether veterans face imminent, unavoidable, pregnancy-related health risks that only abortions can address. Consequently, the lack of evidence in the notice supporting the Secretary’s sweeping conclusion on the medical need for abortions undermines the Secretary’s assertion of good cause. If the supposed need for abortion as a medical procedure is doubtful, it is more doubtful still that the need for abortion counseling is sufficiently urgent to make notice and comment impractical.
Lack of Causal Connection. Similarly unsupported is the putative causal connection the Secretary draws between state laws restricting elective abortions and an imminent risk to the health and lives of veterans. The notice frequently refers to any new or newly revived state laws restricting abortions as “bans,” implying (inaccurately) that an abortion is never legally permissible in these jurisdictions. Among the supposedly numerous state bans, the Secretary identifies only one Idaho law that criminalizes performing an abortion while providing an affirmative defense when the abortion was performed to save the life of the mother.
Otherwise, the Secretary supports the contention that states are indiscriminately banning abortion with a citation to a single Washington Post article. A single “newspaper article alone does not provide good cause to bypass notice-and-comment rulemaking procedures,” even where that article supports the agency’s reasoning.REF Here, however, the cited article merely confirms that states have restricted access to “elective abortions,” which, by definition, occur in situations where the pregnancy poses no serious or imminent risk to the life of the mother. In reality, no state law prohibits pregnant women from receiving lifesaving care, and many state laws have exceptions for rape/incest.
What is more, the notice acknowledges that under CHAMPVA regulations before the interim rule, abortions were already available “when a physician certifies that the abortion was performed because the life of the woman would be endangered if the fetus were carried to term.”REF Taken together, these facts reveal that the dire health concerns forming the basis for “good cause” are imagined, and there is no emergency need for the VA to provide abortions, which veterans and non-veterans can already get.REF
Lack of Confusion on Medically Necessary Abortions. The Secretary, unable to sustain the contention that abortions have been banned, falls back on the hazy notion that either veterans or medical providers are confused about whether abortion remains legal in cases of medical necessity. Apart from the Washington Post article, the Secretary offers scant evidence of the supposed confusion or of its realistic capacity to prevent pregnant women from seeking and receiving life-saving medical care.
Rather, this prediction is inherently speculative and depends heavily on an unsupported assumption of general ignorance among medical professionals about what the law allows. To the extent confusion presents an actual problem, there are more direct and less dramatic means of addressing that problem than what the interim rule requires. Uncertainty regarding the availability of abortions could be addressed by public relations and information campaigns aimed at educating both medical professionals and the individuals whom the VA serves.
As such, putative confusion regarding the legality of abortions is an insufficient basis for showing good cause to bypass notice and comment.
Lack of Imminence. While the Secretary maintains that “[t]ime is  of the essence,” the supposed imminence and seriousness of the alleged risks is undercut by the VA’s own delay in issuing a responsive rule. The notice points to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health as the cause of the risks the VA seeks to address with its interim rule. The Supreme Court issued its opinion in Dobbs on June 24, 2022, and the notice contends that the decision’s negative effects on the availability of abortion was “immediate.” Nonetheless, the VA’s rule requiring abortion access was not forthcoming until September 9, 2022, a delay of over two-and-one-half months. The VA’s delay in implementing a rule undercuts its ability to invoke a “good cause” or impracticability exception to notice and comment.REF
The VA’s actual delay is longer when one considers the fact that the Court’s draft majority opinion in Dobbs, holding that the Constitution did not afford a right to abortion, was leaked to the public on May 2, 2022. From that point on, the VA had notice that abortions could soon be restricted in certain states. It is no answer to say that the Court’s opinion was not yet final when leaked. If, as the VA now contends, abortion is an indispensable form of health care on which lives depend, then the VA’s failure to have a contingency plan to respond to the Supreme Court’s probable ruling would have put lives at risk and, by the VA’s current logic, resulted in unnecessary injury or death.REF The lack of such a plan and the resulting delay suggests that the VA does not take its own assessment of health risks at face value and indicates that the agency has no substantial basis for bypassing the notice-and-comment process.
Lack of Appropriate Authority. Finally, it is inappropriate for the VA to use an interim rule to implement an expansive “previously unused authority.”REF Public comment may be less important where the interim rule is “less expansive,” but here, the Secretary asserts a previously unused authority to require access to abortions nationwide notwithstanding state laws restricting the availability of elective abortions.REF
The expansive authority asserted here, requiring the availability of a procedure that the VA had until recently excluded—and displacing any contrary laws wherever they may be found—is not appropriate for an interim rule that has not benefitted from public input and due consideration. This, in tandem with the lack of an exigent need, argues against finding that the VA had the requisite good cause for bypassing notice and comment or that opportunity for comment would have been impracticable.
The IFR: Arbitrary and Capricious
Agencies are required to “engage in reasoned decision-making, and…to reasonably explain…the bases for the actions they take and the conclusions they reach.”REF All agency actions are presumptively reviewable and will be set aside if they are “arbitrary” or “capricious.”REF A “rule is arbitrary and capricious if (1) the agency ‘has relied on factors which Congress has not intended it to consider’; (2) the agency ‘entirely failed to consider an important aspect of the problem’; (3) the agency’s explanation ‘runs counter to the evidence before the agency’; or (4) the explanation ‘is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’”REF Although reviewing courts are not entitled to “substitute [their] own judgment for that of the agency,”REF neither are courts permitted to “rubber stamp” agency actions. Instead, courts “must ensure that the agency considered all of the relevant factors.”REF
Many of the same defects which defeat the VA’s showing of good cause also make the rule itself an arbitrary and capricious exercise of decision-making. Again, the VA has not identified a single instance of a covered veteran or beneficiary being denied access to a medically necessary abortion as result of state law. Thus, the Secretary has failed to demonstrate a causal connection between state restrictions on elective abortions and increased risk of severe health complications for veterans and covered beneficiaries. The lack of evidence demonstrating the supposed harm to pregnant women also suggests that procedures and treatment methods other than abortions have thus far proven adequate to address the medical needs of pregnant women seeking medical care through the VA.
These evidentiary gaps raise a significant concern about whether the VA has a well-reasoned basis for its action. The VA is not entitled to base its regulation on “unsupported speculation,” but instead must provide some “factual basis for this belief” that state legislation post-Dobbs will prevent veterans and their beneficiaries from receiving medically necessary care.REF
Finally, the Secretary does little, even in the abstract, to explain the medical necessity of an abortion; that is, to justify why abortions are an indispensable medical response to particularly dire pregnancy-related health risks. “Conclusory statements” about veterans’ need for abortions “do not suffice to explain the [VA’s] decision.”REF Thus, the notice affords very little basis for concluding that mandating abortion access will alleviate the risks cited, and therefore creates doubt that the rule will address the problem at which it aims.
Moreover, the speculative, generalized support the Secretary offers for this rule suggests that the VA is inventing a problem rather than responding to a demonstrated need of veterans. And a regulation responding to a specific problem is “highly capricious if that problem does not exist.”REF
The Pre-emption Argument: A Legal Failure
If the Department of Veterans Affairs IFR was to survive the preceding (fatal) defects—namely that the VA lacks the statutory authority to provide abortions to veterans and CHAMPVA beneficiaries through the medical benefits package (38 U.S.C. § 1710), that the IFR’s totally deficient showing of “good cause” does not entitle it to emergency rulemaking, and that the IFR itself is arbitrary and capricious—the VA’s leading pre-emption argument still fails as a matter of law.
The VA represents:
[T]he VA is acting to help to ensure that, irrespective of what laws or policies States may impose, veterans who receive the care set forth in the medical benefits package will be able to obtain abortions, if determined needed by a health care professional, when the life or the health of the pregnant veteran would be endangered if the pregnancy were carried to term or the pregnancy is the result of an act of rape or incest. Similarly, the VA is acting to ensure CHAMPVA beneficiaries will be able to obtain abortions, if determined medically necessary and appropriate, when the health of the pregnant CHAMPVA beneficiary would be endangered if the pregnancy were carried to term or the pregnancy is the result of an act of rape or incest. VA is taking this action because it has determined that providing access to abortion-related medical services is needed to protect the lives and health of veterans.REF
The VA has argued that its IFR is sufficient to pre-empt “state and local laws, rules, regulations, or requirements that unduly interfere with VA’s provision of reproductive health care [and that they therefore] have no force or effect, [and consequently,] there are no actual or possible violations of such laws related to VA programs, operations, facilities, contracts, or information technology systems that would necessitate mandatory reporting by VA employees.”REF
But the VA’s unilateral statutory expansion is particularly egregious considering the U.S. Supreme Court’s recent reassertion in Cameron v. EMW Women’s Surgical Center, P.S.C., that “[p]aramount among the States’ retained sovereign powers is the power to enact and enforce any laws that do not conflict with federal law.”REF A state’s “opportunity to defend its laws in federal court” and to exercise its sovereign power to enact laws governing its own citizens “should not be lightly cut off.”REF
After all, “a State ‘clearly has a legitimate interest in the continued enforceability of its own statutes.’”REF And should the VA’s IFR be subject to a future legal challenge, a federal court would likely determine that the VA has vastly exceeded its authority to authorize elective abortions when the statutory exceptions are explicit and unambiguous.REF
Historical Data. According to data from the Centers for Disease Control and Prevention,REF the annual number of abortions performed in the United States increased by nearly 80 percent in the five years after Roe v. Wade. Despite the decision and the abortion surge, states continued their legislative efforts to protect human beings before birth, and cases challenging pro-life laws continued coming before the Supreme Court. In Planned Parenthood v. Casey,REF the Court in 1992 reaffirmed Roe’s “central holding” that a woman has a constitutional right “to choose to have an abortion before viability.”REF
Three decades later, in Dobbs v. Jackson Women’s Health Organization, a case challenging a Mississippi ban on most abortions after 15 weeks of pregnancy, the Supreme Court overruled both Roe and Casey, holding that “the Constitution does not confer a right to abortion.”REF The “authority to regulate abortion,” Justice Samuel Alito wrote for the majority, “must be returned to the people and their elected representatives.”REF With the Supreme Court’s blockade lifted, legislatures are pursuing this goal in both traditional and new ways.
Under the 10th Amendment, states have all powers that are not “delegated to the United States by the Constitution, nor prohibited by it to the States.”REF These state powers include what is often referred as a general “police power” to provide for “[p]ublic safety, public health, morality, peace and quiet, [and] law and order.”REF Relevant to the subject of this Legal Memorandum, the states’ police power includes both: (1) regulating the medical profession by proscribing certain procedures or setting standards for performing them,REF and (2) regulating, restricting, or prohibiting abortion.
A pro-life law, the Supreme Court held in Dobbs, is constitutional “if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”REF
The Constitution’s requirement that federal law pre-empt conflicting state law is guided by Supreme Court precedents that establish some ground rules:
- “Congress has the power to pre-empt state law,”REF and the “purpose of Congress is the ultimate touchstone” in pre-emption cases.REF
- “[F]ederal law should not be read to pre-empt state law ‘unless that is the clear and manifest purpose of Congress.’”REF
- This general presumption against pre-emption is stronger when the “‘historic police powers of the States,’”REF such as regulating the medical profession,REF are involved.
- As a result, “the presumption [is] that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause.”REF
- With Roe v. Wade overruled, the states may again exercise their traditional police power to restrict or prohibit abortion.REF
The presumption against pre-emption in general—and particularly when state police powers are involved—counsel against finding any conflict between the VA’s IFR and state laws that may restrict abortion. Medical practice laws fall squarely within the states’ general police powers, including regulatingREF the practice of medicine,REF which the Supreme Court has repeatedly held federal regulation is presumed not to pre-empt. In fact, the Supreme Court has explicitly acknowledged that the states’ power to regulate the medical profession includes the very kinds of restrictions that states are imposing on abortion today. The “Constitution gives the States broad latitude to decide that particular [medical] functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others.”REF These are the very restrictions that states today are applying to abortion. While the right to abortion created in Roe and maintained in Casey tilted the balance against the states, Dobbs tilted that balance back in their favor by overruling those precedents.
There is no clear or manifest purpose within any of the statutory authority cited by the VA to pre-empt state laws that regulate abortion.REF In fact, the statutory authority cited supports precisely the opposite conclusion: Congress did not envision elective abortions to be procedures covered by the VA, and that states should be free to make their own laws concerning the regulation of abortion. Here, the VA possesses no authority to displace state law in an area historically recognized as the rightful purview of the states.
Congress has declined to rewrite CHAMPVA’s regulations and 38 U.S.C. § 1710 to include elective, on-demand abortion and abortion counseling. Therefore, the VA now seeks to expand its medical coverage benefits through a unilateral IFR, making law where none exists, and masquerading as a process of clarification that elective abortion is a “medical need” and that protecting the “life and health” of its beneficiaries requires provision of abortion-on-demand with taxpayer money.
No Pre-emption of State Criminal Law
Even if the Secretary had the authority to permit abortion as a covered “medical service” and could pre-empt state law restricting access to those services, it does not have the ancillary power to sweep away any state law that stands in its way. The pre-emptive power that the VA claims in attempting to immunize federal abortionists from state criminal law is plainly without basis.REF
Here, the VA invokes express pre-emption authority. But there are several reasons to think that such a simple calculus does not apply to this unprecedented emergency rule.
No Deference Without Inherent Conflict. Keeping in mind that “the best way of determining whether Congress intended the regulations of an administrative agency to displace state law is to examine the nature and scope of the authority granted by Congress to the agency,”REF nothing in the statutory authority, structure, or mandates of the VA gives legitimacy to the sweeping power that they claim. And even in the unlikely scenario that the VA is not barred from providing abortions by § 106, it does not follow that the VA can nullify disfavored state laws. Simply because the VA claims that the IFR is sufficient to pre-empt all state law does not make it so. In particular, the authorities the VA invoke and the “nature and scope” of the VA’s statutory authority do not support the idea that any of its regulations would affect a state’s criminal law.
To the contrary, the Court has been careful to note that “[w]here an administrative interpretation of a statute invokes the outer limits of Congress’ power, [the Court] expect[s] a clear indication that Congress intended that result,”REF and that this clear-statement rule is “heightened where the administrative interpretation alters the federal–state framework by permitting federal encroachment upon a traditional state power.”REF Indeed, to invoke the outer limits of Congress’ power and nullify state laws on the moral acceptability of abortion would require a clear statement of authority to do so.
Ability to Pre-empt Criminal Law: Absent in Cited Law. Far from having a “clear indication” of authority from Congress, almost nothing about the system established in Chapter 17 gives any indication that setting aside state criminal law is within the ambit of the VA’s authority to provide medical services. Perhaps if the criminal provision in question pertained to something that necessarily speaks to the practice of medicine—such as requirements of medical licensing, standards of care, malpractice liability, etc.—then they could fairly be said to conflict with the VA’s general regulatory authority.
But the laws that the VA seeks to pre-empt are both medical and moral in nature, both of which have been recognized for decades by the Supreme Court as wholly within the purview of a state’s plenary power to legislate and govern its citizens. Because the VA’s purposes and powers do not speak to general laws governing morals and criminal liability, they have no authority to invade a state’s traditional powers and set them aside—much less in the name of a vague mandate to “provide medical services.”
Finally, the VA’s purported ability to pre-empt laws for medical purposes is found in 38 C.F.R. § 17.419, which the VA invokes as a further argument supporting its pre-emption claim. But subsection (b), which lists enumerated examples of where pre-emption attaches, does not address federal duties in contradiction of every State law. Rather, it addresses only “licenses,” “certifications,” and abiding by a “a national standard of practice,” none of which have anything to do with a state’s general criminal laws.
This further reinforces the idea that the VA’s pre-emptive authority is restrained to laws that speak only to the VA’s mandate and purposes—i.e., bona fide medical regulations. But criminal laws are plainly outside the VA’s statutory authority—as evidenced by the plain letter of law, the Supreme Court’s precedents on pre-emption, and C.F.R. § 17.419—and so the regulation is void as unlawful.
The VA tries to convince the public that somewhere within its constellation of unclear statutory language and ill-defined pre-emption regulations lies the authority to implement an unheard-of vision for the nation’s medical system. It asserts that the federal government may provide abortions—practically on demand—and with no guardrails for State involvement whatsoever.
But the VA misses the mark by a mile. The law the VA cites to argue that it must provide abortions, instead contains prohibitions on abortion and abortion counseling. The process that the VA used to rush its rule into effect is devoid of the good cause demanded by law. The rule itself fails the basic standards of reasoned decision-making. And aside from all the deficiencies, the IFR cannot set aside contrary state laws on abortion without contradicting long-standing precedent and the basic operation of federalism.
The VA should cease implementation of its rule. To do otherwise would render the cherished pillars of our government—rule of law, federalism, and participatory democracy—to be mere “parchment guarantees,”REF and nothing more than empty letters.
Sarah Parshall Perry is Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation Jack Fitzhenry is Senior Legal Policy Analyst in the Edwin Meese III Center. Jameson Payne is a Research Associate in the Edwin Meese III Center.