EXCLUSIVE: The Department of Veterans Affairs is being sued over a new agency rule authorizing abortion services. The plaintiff in the lawsuit argued that the provision violates the First Amendment’s protections for religious freedom.
Following the Supreme Court’s decision in June to overturn the landmark abortion case Roe v. Wade, the VA adopted a new interim final rule to provide taxpayer-funded abortions for eligible veterans. The rule, titled Reproductive Health Services, was released on Sept. 9 and removes barriers or exceptions to abortion services provided by the department.
“The Department of Veterans Affairs (VA) is amending its medical regulations to remove the abortion counseling exemption and to establish and remove the exemption for abortions in the medical benefits package for veterans who receive the assistance provided in this package amends for abortion counseling and expand exemptions from abortion exemptions for beneficiaries of the Department of Civilian Health and Veterans Affairs’ (CHAMPVA) medical program,” the published rule states.
“VA is taking this action because it has determined that providing access to abortion-related medical services is necessary to protect the lives and health of veterans,” it said. Before the rule went into effect, abortions were not covered under veterans’ medical benefits.
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Veterans Affairs Secretary Denise McDonough
(Leigh Vogel/Pool via AP)
VA nurse practitioner Stephanie Carter, an Army veteran, is the plaintiff in the case and is represented by First Freedom Institute. Under the new rule, Carter would have been able to ask pregnant veterans for abortion counseling or a prescription for the abortion pill.
As a result, he asked the VA for a religious exemption from the rule, but the department allegedly said there was “no process” for handling such requests.
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Carter, who has worked at the VA for 23 years, lives in Texas, where abortion after six weeks is illegal, so if she assists or performs the procedure beyond six weeks, she faces criminal charges under Texas law, her attorneys said. Penalties include a felony, fines of up to $100,000 and the loss of a nursing license.
In the first known lawsuit against the rule On Tuesday, the District Court for the Western District of Texas sought a preliminary injunction to block the First Liberty Institute VA rule. If granted, the injunctive relief would prevent Carter from enforcing the rule at the institution where he works in Texas and protect his religious beliefs.
Following the Supreme Court’s decision in June to overturn the landmark abortion case Roe v. Wade, the VA adopted a new interim final rule to provide taxpayer-funded abortions for eligible veterans.
(AP Photo/Susan Walsh)
The lawsuit alleges that the Secretary of Veterans Affairs did not follow the rulemaking process of the Administrative Procedure Act (APA) because the provision was enacted by Congress through the Veterans Health Care Act of 1992 to allow abortions. ignores the limits on . Clearly limited the VA secretary’s authority to determine what medical services veterans need and prohibited abortion as a service that VA facilities could provide.
In a Sept. 21 memo, Biden’s Office of Justice Department legal counsel supported the VA rule, saying states would not be allowed to prosecute VA employees for facilitating abortions.
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“States may not impose criminal or civil liability on VA employees, including physicians, nurses, and administrative staff, who provide or assist in abortion or related services as permitted by federal law, including VA regulations,” the OLC memo said.
However, First Freedom counsel Danielle Runyan, an Air Force reservist, argues that because the VA does not comply with the APA, the provision is invalid and therefore the arguments presented in the Biden administration’s OLC opinion are flawed.
A group of pro-life protesters disrupt the Women’s March for Reproductive Rights at Mariachi Plaza on October 8, 2022 in Los Angeles.
(David McNew/AFP via Getty Images)
“This is yet another example of the Biden administration’s disregard for the law and, in this case, forcing healthcare workers at VA facilities to violate their consciences,” Runyan said.
“They didn’t care to take notice or comment to understand that there were a lot of employees before the rule was introduced. This rule doesn’t take into account the Religious Freedom Restoration Act. It doesn’t take into account. Religious conscience. About it nothing will be said. So this is another example of First Amendment and RFRA rights being ignored, and it can’t be,” he said.
However, VA spokesman Terrence Hayes said in a response to the lawsuit that the VA respects the religious beliefs of all employees.
“Ever since VA announced this new rule, Secretary McDonough has told all employees that their religious beliefs are protected at VA. While we cannot comment on ongoing litigation, VA has made accommodations for employees who wish to opt out of VA coverage. provides abortion counseling or services,” Hayes said.
“We are currently processing waiver requests that come in through VA supervisors,” Hayes continued. “We have made this information available to all VA health care workers, including information on how to use these protections through the VA’s Office of Diversity and Inclusion Management Resolutions — and we encourage employees to release their supervisors.” We encourage you to notify us of any inquiries.”