ACLJ Submits Public Comment Opposing Veterans Affairs Rule Illegally Requiring It To Perform Abortions

This week, the ACLJ submitted its formal public comments and legal analysis on behalf of itself and over 137,000 of its supporters who oppose the Interim Final Rule issued by the Department of Veterans Affairs (VA) that attempts to override state laws and policies that protect preborn children by restricting abortion.

As our readers may know, when the Supreme Court recently handed down its decision in Dobbs v. Jackson Women’s Health Organization, it restored the state legislatures’ constitutional authority to restrict or prohibit abortion. However, President Biden has made it clear that his Administration will do everything in its power (or outside of it, as the case may be) to advance a policy of abortion on demand.

We previously informed you of President Biden’s July 2022 Executive order intended to “protect and expand access to abortion. . . .” President Biden has also stated: “I commit to the American people that we’re doing everything in our power to safeguard . . . the right to choose [abortion]. . . .”

The VA’s announcement that it would amend its rules to allow abortions to be committed through VA hospitals, clinics, and other facilities is just one of the many steps that Biden’s Administration has taken to advance the agenda he has publicly announced. On September 9, 2022, the VA published an Interim Final Rule, deviating from the general notice and comment period that is required for rule-making, because “the Secretary has concluded that ordinary notice and comment procedures would be impracticable and contrary to the public interest and there is good cause to issue this interim final rule with an immediate effective date.”

In response to the VA’s attempt to circumvent not only state law, but the public’s input on a rule that affects them greatly, the ACLJ submitted its comment stating:

Interim Final Rule should be repealed because (a) the Rule exceeds the authority that Congress granted to the Department, whereas the previous regulations were in alignment with the restrictions that Congress placed on the ability of the Department to perform or authorize abortions; and (b) the process the Department used to implement the Interim Final Rule violated the Administrative Procedure Act (APA).

As we point out, not only does “[t]he Department’s Interim Final Rule create[] an intentional conflict with the law of States that value and protect preborn human life, [it] also circumvents the limitations placed on the Department by Congress.”

In implementing its Interim Final Rule, the VA is directly violating clear federal law that prohibits the VA from performing abortions.

For example:

[E]ven during the timeframe in which abortion was incorrectly considered to be protected under the federal constitution, Congress chose to prohibit the Department from performing abortions. Title I, Section 106 of the VHCA is entitled “Health Care Services for Women.” Within that section, Congress granted general authority to the Secretary of the VA to furnish hospital care and medical services under Chapter 17 of Title 38. These services were to include “[g]eneral reproductive health care,” but were not to include “infertility services, abortions, or pregnancy care (including prenatal and delivery care). . . .” And, in the thirty years prior to September 2022 that the VHCA restriction on abortion has been in place, the VA correctly never interpreted this provision as allowing any abortions.

In our comment, we also note:

The Department cannot override or ignore federal statutes. Indeed, “[a]gencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’” West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (citations omitted). Moreover, “[a]n agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”  Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2445 (2014). Further, an agency may not act “contrary to constitutional right, power, privilege, or immunity; . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] . . . without observance of procedure required by law.” 5 U.S.C. § 706(2).

Thus, as we concluded:

The ACLJ unequivocally opposes the Department’s attempt to subvert the will of Congress and of the States who value and protect innocent human life. The Department’s Interim Final Rule, if not repealed, will have profoundly negative impacts on the lives of preborn babies, the women who carry them, federalism, and the rule of law. It is contrary to law and the Constitution. The ACLJ asks that the Interim Final Rule be repealed completely.

The submission of this public comment is just one of many actions that the ACLJ has taken in the recent months to further its goal of protecting preborn lives, and the rights of those who seek to speak out on their behalf, against the advances and attacks of radical abortionists. We have also been in contact with state officials, who are in the best position to challenge this regulation in court, providing a roadmap for litigation. We will continue to press on in our fight for life and liberty, and we need you to join us.