A Battle Over Abortion Services

In what could be the first of numerous legal challenges to the Department of Veterans Affairs’ (VA) new abortion access policy, a nurse practitioner employed by the VA is suing the agency, claiming the policy violates her religious beliefs.

Filed on behalf of Stephanie Carter, MSN, RN, an Army veteran and nurse practitioner at the Olin E. Teague Veterans’ Center in Temple, Texas, the suit alleges that Carter’s “sincerely held religious beliefs prohibit her from offering abortion services and providing counseling required by application” of the agency’s policy. Carter also contends that the policy violates her rights under the Religious Freedom Restoration Act, and that the VA has no process in place to receive religious accommodation requests from healthcare workers, according to Becker’s Hospital Review.

The lawsuit requests a court to rule that the policy is illegal, and to block the VA from enforcing it at the center where Carter works. The VA disputed this claim, saying it provided VA healthcare employees with information on how to file exemption requests through their supervisors, Becker’s reports.

“From the moment VA announced this new rule, Secretary [Denis] McDonough has made clear to all employees that their religious beliefs are protected here at VA,” a Veteran Affairs spokesperson told Becker’s. “While we cannot comment on ongoing litigation, VA does provide accommodation for VA employees who wish to opt out of providing abortion counseling or services. We are currently honoring exemption requests that come through VA supervisors.”

The VA announced the new policy in September 2022, not quite two months after the U.S. Supreme Court overturned the landmark Roe v. Wade decision, which legalized abortion nationwide.

Per an interim final rule the department submitted to the Federal Register, the VA will provide access to abortion counseling and, in some cases, abortions to pregnant veterans and VA beneficiaries. Specifically, the VA will provide access to abortions when the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term, or when the pregnancy is the result of rape or incest. VA beneficiaries enrolled in CHAMPVA will also have access to this care.

In a September statement describing the new policy’s implementation as “a patient safety decision,” Secretary McDonough said that “pregnant veterans and VA beneficiaries deserve to have access to world-class reproductive care when they need it most. That’s what our nation owes them, and that’s what we at VA will deliver.”

Allowing for Exceptions

The abortion access policy the VA recently adopted resembles the one in place at Department of Defense (DoD) medical facilities, said Mary Kuntz, a Washington, D.C.-based partner at employment law firm Kalijarvi, Chuzi, Newman & Fitch.

What’s new, she said, is the VA policy that seeks to allow exceptions for religious objections by medical staff at VA facilities.

“This, of course, is intended to be compliant with the Religious Freedom Restoration Act (RFRA) and address First Amendment concerns,” Kuntz told HR News.  “However, it appears that the VA has failed to provide a policy for employees to follow in seeking religious waivers or a process for determining the outcome of these.”

The Carter claim takes aim at the VA’s abortion policy itself “at length,” she continued, “filling the facts with a review of the history of abortion rules at the VA and the effect of [Dobbs v. Jackson Women’s Health Organization]. Nevertheless, the causes of action allege nothing about the policy on abortion, but rather allege violations of the RFRA and the First Amendment.”

The plaintiff in this case has no standing to challenge an agency policy through the courts, according to Kuntz, adding that Carter and her attorneys have instead used Carter’s private right of action under RFRA and the First Amendment to mount a collateral attack on the VA’s new rule.

“The interesting question, then, is not whether other challenges to the VA’s new rule on abortion services will come—surely the answer to that is yes—but whether the courts will allow a case alleging violations of the RFRA and the First Amendment to be used to mount a collateral attack on an agency’s policy.”

Keeping the Policy in Place

Carter is the first VA employee to file a lawsuit related to the organization’s new abortion access policy. But, as Kuntz pointed out, the agency can count on more legal challenges in the days ahead.

For example, a group of 15 Republican attorneys general has made clear that it plans to fight the VA’s policy in court, sending a Nov. 17 letter to McDonough criticizing the administration’s “lawless and hasty executive actions taken at the behest of its political base” concerning abortion, as Military Times reported at the time.

The coalition, which included officials from states such as Arizona, Florida, Georgia and West Virginia, warned McDonough that “we will not allow you to use this rule to erect a regime of elective abortions” in defiance of state laws.

“And we will enforce our duly enacted state laws and hold you accountable for violations of federal law,” the group wrote, warning that those who perform abortions based on the new rule and in violation of state or federal laws “do so at their own risk.”

Less than one month after that letter surfaced, Republican members of the House and Senate introduced a resolution that would reverse the VA’s abortion policy, according to a Military.com report.

Introducing the resolution under the Congressional Review Act, Republican senators could force a vote on the measure even though Democrats control the chamber. And, while not enough time was left to force a vote this most recent congressional session, the resolution’s lead Senate sponsor, Sen. Tommy Tuberville of Alabama, plans to reintroduce it in 2023 and collect signatures for the discharge then, Military.com’s Rebecca Kheel wrote.

For its part, the Department of Veterans Affairs has thus far stood firm, and has declared its intention to keep its new abortion policy in place.

The agency aims to remain “committed to providing veterans the full range of reproductive health services,” read a VA statement issued in response to the aforementioned attorneys general letter, “to ensure their health and well-being.”