Reconsidering the Authority of the Department of Veterans Affairs to Provide Abortion Services

(Slip Opinion)

Reconsidering the Authority of the Department of Veterans

Affairs to Provide Abortion Services

The Department of Veterans Affairs may not provide abortion services under any provi-

sion of chapter 17 of title 38 of the U.S. Code.

The portions of our opinion in Intergovernmental Immunity for the Department of Veter-

ans Affairs and Its Employees When Providing Certain Abortion Services, 46 Op.

O.L.C. __ (Sept. 21, 2022), that held to the contrary are withdrawn and superseded by

this opinion.

December 18, 2025

MEMORANDUM OPINION FOR THE SECRETARY

DEPARTMENT OF VETERANS AFFAIRS

In 2022, this Office advised that federal law authorizes the Department

of Veterans Affairs (“VA”) and its employees to provide abortion ser-

vices. See Intergovernmental Immunity for the Department of Veterans

Affairs and Its Employees When Providing Certain Abortion Services,

46 Op. O.L.C. __, at *4 (Sept. 21, 2022) (“Abortion Services”). Our

opinion, which memorialized and expanded on earlier advice, interpreted

federal law as conferring “broad discretion” on the Secretary of Veterans

Affairs in this area. Id. at *9 (citation omitted). And its logic suggested

the unprecedented conclusion that VA could lawfully provide taxpayer-

funded abortions for any reason and at any stage of pregnancy—including

after fetal viability and until birth. See id. at *7–9.

In response to our advice, VA issued an interim final rule that departed

from longstanding practice. For the first time, it expressly authorized VA

to provide abortions to veterans and certain other VA beneficiaries as part

of its medical authority under chapter 17 of title 38 of the U.S. Code. See

Reproductive Health Services, 87 Fed. Reg. 55,287, 55,296 (Sept. 9,

2022) (codified as amended at 38 C.F.R. § 17.38(c)(1)(i)–(ii)). It also

enabled VA to provide abortion counseling. See id. at 55,288. Although

VA exercised its newfound authority to provide abortions sparingly, the

scope of the rule and our Office’s subsequent opinion supporting it swept

more broadly. See Abortion Services at *9.

In August 2025, VA proposed a new rule “to reinstate the full exclusion

on abortions and abortion counseling from the medical benefits package,

which was removed in 2022.” Reproductive Health Services, 90 Fed. Reg.

1

49 Op. O.L.C. __ (Dec. 18, 2025)

36,415, 36,415 (Aug. 4, 2025). That proposed rule observed that the 2022

interim final rule “was legally questionable.” Id. at 36,416. You have now

asked us to reconsider whether federal law authorizes VA to provide

abortion services under any provision of chapter 17 of title 38 of the U.S.

Code. It does not, so we withdraw in part our prior opinion. 1

I.

Federal law requires VA to “furnish” qualifying veterans with “hospital

care and medical services which the Secretary determines to be needed.”

38 U.S.C. § 1710(a)(1). VA implements this treatment scheme through

regulations defining the contours of its “medical benefits package.”

38 C.F.R. § 17.38(a). VA also “is authorized to provide medical care” to

certain spouses, children, and caregivers of veterans as part of the Civilian

Health and Medical Program of the Department of Veterans Affairs—

commonly known as “CHAMPVA” beneficiaries. See 38 U.S.C. § 1781(a).

Medical care provided to CHAMPVA beneficiaries must be provided “in

the same or similar manner,” and is “subject to the same or similar limita-

tions,” as medical care furnished to family members of active-duty per-

sonnel and others under the Department of War’s TRICARE (Select)

program. Id. § 1781(b). VA regulations implementing CHAMPVA specif-

ically limit the provision of abortion. See 38 C.F.R. § 17.272(a)(58).

In 1992, Congress amended title 38 “to improve health care services for

women veterans” and for other purposes. Veterans Health Care Act of

1992, Pub. L. No. 102-585, 106 Stat. 4943, 4943 (“VHCA”). With respect

to VA’s authority to furnish hospital care and medical services, sec-

tion 106 of the VHCA made clear that VA could provide “[g]eneral re-

productive health care” to women. Id. § 106(a)(3), 106 Stat. at 4947. But

Congress carved out from that authority “infertility services, abortions, or

pregnancy care (including prenatal and delivery care), except for such

care relating to a pregnancy that is complicated or in which the risks of

complication are increased by a service-connected condition.” Id. This

1 Our earlier opinion also offered advice about federal immunity derived from the Su-

premacy Clause. See Abortion Services at *1–4, *9–10. While we now reconsider VA’s

statutory authority to provide abortions, you did not ask us to, and therefore we do not,

reconsider the portions of the opinion relating to intergovernmental immunity.

2

VA Authority to Provide Abortion Services

statutory language thus barred VA’s provision of abortions and limited its

provision of pregnancy care to situations that were “complicated.”

Consistent with section 106 of the VHCA, VA’s regulations for dec-

ades provided that “the ‘medical benefits package’ does not include . . .

[a]bortions and abortion counseling” for veterans. 38 C.F.R. § 17.38(c)

(2008); accord id. (2011); id. (2019); id. (2021); see also 87 Fed. Reg. at

55,288 (explaining that the abortion exclusion had existed since 1999, the

year during which VA first established the medical benefits package). VA

regulations applicable to CHAMPVA beneficiaries likewise consistently

excluded abortion services and clarified that physicians could perform an

abortion only if they “certifie[d] that the life of the mother would be

endangered if the fetus were carried to term.” 38 C.F.R. § 17.272(a)(67)

(2008); see also id. § 17.272(a)(68) (excluding “[a]bortion counseling”);

accord id. § 17.272(a)(67)–(68) (2022). That life-of-the-mother exception

was substantially similar to federal law governing TRICARE, which

prohibits the use of Department of War funds for abortions “except where

the life of the mother would be endangered if the fetus were carried to

term.” 10 U.S.C. § 1093(a). 2

VA changed course in 2022. When promulgating an interim final rule,

VA explained that it was

amend[ing] its medical regulations to remove the exclusion on abor-

tion counseling and establish exceptions to the exclusion on abor-

tions in the medical benefits package for veterans who receive care

set forth in that package, and to remove the exclusion on abortion

counseling and expand the exceptions to the exclusion on abortions

for [CHAMPVA] beneficiaries.

2 VA had never understood the VHCA or its regulations “to prohibit providing care to

pregnant women in life-threatening circumstances, including treatment for ectopic

pregnancies or miscarriages, which were covered under the VA’s medical benefits

package prior to the 2022 [regulation].” 90 Fed. Reg. at 36,416. VA’s 2025 proposed rule

“make[s] clear that the exclusion for abortion [for CHAMPVA beneficiaries] does not

apply ‘when a physician certifies that the life of the mother would be endangered if the

fetus were carried to term.’” Id. We conclude that VA’s longstanding approach to life-

saving medical interventions accords with the plain meaning of “abortion,” as informed

by common legal and medical usage. See Nicholas Colgrove, Defining ‘Abortion’: A Call

for Clarity, Theoretical Med. & Bioethics, No. 46, 137–69 (2025). Nothing in our opinion

today prohibits VA from providing care to pregnant women in life-threatening circum-

stances.

3

49 Op. O.L.C. __ (Dec. 18, 2025)

87 Fed. Reg. at 55,287. VA left no doubt that provision of such services

would have been impermissible under its then-existing regulations: “Un-

less VA remove[d] its existing prohibitions on abortion-related care,” it

said, the Department would be unable to provide the specified services.

Id. at 55,288.

VA’s medical benefits package was thus amended to include express

authorization for abortions when “[t]he life or the health of the pregnant

veteran would be endangered if the pregnancy were carried to term” or

“[t]he pregnancy is the result of an act of rape or incest.” 38 C.F.R.

§ 17.38(c)(1)(i)–(ii) (2022); accord id. (2023). VA’s regulations for

CHAMPVA beneficiaries were also amended to allow for abortion in

cases where “[t]he life or the health of the pregnant beneficiary would be

endangered if the pregnancy were carried to term” and where “[t]he

pregnancy is the result of an act of rape or incest.” Id. § 17.272(a)(58)

(2022); accord id. (2024).

Before VA issued its interim final rule, we considered, among other

questions, whether the rule was a lawful exercise of VA’s authority. See

Abortion Services at *1. We concluded that it was and published an opin-

ion that the new VA rule was consistent with the VHCA’s authorization

of general reproductive health care for veterans under section 106. See id.

at *1, *10. We explained that “[t]he text of section 106 specifies that its

exclusions” for abortions “only limit VA’s authority ‘under [that] sec-

tion,’” but we believed that “[t]hose exclusions do ‘not limit VA’s author-

ity to provide care under any other provision of law,’” such as 38 U.S.C.

§ 1710. Id. at *7 (second alteration in original) (citations omitted). Under

our interpretation of VA authority, there seemed to be no limit to VA’s

discretion for determining that abortion was “needed” for veterans. See id.

at *9 (citing 38 U.S.C. § 1710(a)(1)–(3)). Although we were focused on

whether VA’s regulations were reasonable exercises of the Secretary’s

“broad discretion,” id., our opinion’s logic suggested that VA could

lawfully provide abortions for nearly any reason and at any stage of

pregnancy—including after fetal viability and until birth—even in states

that had otherwise enacted laws against abortion, see id. at *1, *4–7.

VA has now retreated from the 2022 interim final rule and proposed a

new rule restoring VA’s medical benefits package and CHAMPVA cover-

age to their pre-2022 states. See 90 Fed. Reg. at 36,416–17. Nevertheless,

VA has continued to express doubt about the legal basis for its 2022

4

VA Authority to Provide Abortion Services

interim final rule and the scope of VA’s legal authority. See id. at 36,416.

You have now asked us to reconsider whether VA may provide abortion

services under any provision of chapter 17 of title 38 of the U.S. Code.

II.

“We do not lightly depart from our precedents, and we have given the

views expressed in our prior opinion careful and respectful considera-

tion.” Reconsidering Whether the Wire Act Applies to Non-Sports Gam-

bling, 42 Op. O.L.C. 158, 159 (2018) (“Wire Act”). But considering “the

plain language of the statute,” id., we are compelled to conclude that VA

may not provide abortions under any provision of chapter 17 of title 38 of

the U.S. Code, contrary to the conclusion of our 2022 opinion.

A.

“Statutory construction must begin with the language employed by

Congress and the assumption that the ordinary meaning of that language

accurately expresses the legislative purpose.” Expenditure of Appropriat-

ed Funds for Informational Video News Releases, 28 Op. O.L.C. 109, 119

(2004) (citation omitted). “When the words of a statute are unambiguous,

this first canon is also the last.” Transmission of Electoral-College Certif-

icates by “Registered Mail,” 44 Op. O.L.C. 138, 141 (2020) (cleaned up).

The 2022 interim final rule cannot be reconciled with the VHCA’s

plain text. As explained above, VA offers medical benefits packages

pursuant to its general authority to “furnish hospital care and medical

services which the Secretary determines to be needed” for qualified veter-

ans. 38 U.S.C. § 1710(a)(1). “[T]he Secretary has broad discretion to

determine the precise hospital or medical services to be supplied.” Abor-

tion Services at *5 (citation omitted). But that discretion is not limitless.

Section 106(a) of the VHCA makes clear that VA may “not” provide

“infertility services, abortions, or pregnancy care (including prenatal and

delivery care), except for such care relating to a pregnancy that is compli-

cated or in which the risks of complication are increased by a service-

connected condition.” 106 Stat. at 4947. That language is unambiguous.

Our prior opinion acknowledged this prohibition but evaded its impli-

cations. We advised that VA may still provide abortion services “pursuant

to its general treatment authority” because section 106’s restriction limits

5

49 Op. O.L.C. __ (Dec. 18, 2025)

VA’s authority only “‘under [that] section.’” Abortion Services at *7–8

(alteration in original) (citation omitted). But that conclusion did not

follow. Section 106 applies whenever VA “furnish[es] hospital care and

medical services under chapter 17 of title 38 . . . to women.” VHCA

§ 106(a), 106 Stat. at 4947. VA’s general treatment authority—

section 1710—falls under chapter 17 of title 38 of the U.S. Code. The

“section” at issue in the VHCA—section 106—thus governs VA’s general

authority to furnish medical care, including under 38 U.S.C. § 1710. So

VA cannot invoke its general treatment authority under section 1710 to

avoid the VHCA’s abortion limitation. In fact, section 106 of the VHCA

was codified as a note to section 1710. See 106 Stat. at 4947; 38 U.S.C.

§ 1710 note (1992).

If VA could provide abortions under its general authority to provide

medical care, section 106’s exclusions would be meaningless. But “Con-

gress would not ordinarily introduce a general term that renders meaning-

less the specific text that accompanies it.” Fischer v. United States, 144

S. Ct. 2176, 2184 (2024). After all, “general language of a statutory

provision, although broad enough to include it, will not be held to apply to

a matter specifically dealt with in another part of the same enactment.”

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 646

(2012) (alteration and citation omitted). The statute before us unambigu-

ously commands that VA may not provide abortions when furnishing

medical care under 38 U.S.C. § 1710 or any other provision in chapter 17

of title 38. 3

3 It is irrelevant that, when section 106 of the VHCA was codified in 1992, sec-

tion 1710 was only one of the provisions governing VA’s medical benefits authority. At

the time, section 1712 allowed VA to provide certain ambulatory and outpatient services,

whereas section 1710 applied primarily to the provision of hospital, nursing home, and

domiciliary care. One could argue that because section 106 was codified as a note after

section 1710, its limitation to “this section” could perhaps refer only to section 1710, and

that VA could have provided abortions under section 1712. But as we have explained, that

is not the best reading of the statute, because “this section” in section 106 most naturally

refers to the reproductive health services authorized by section 106. Moreover, Congress

in 1996 consolidated section 1712 into section 1710 to create a unified provision for VA’s

medical benefits authority, and there is no doubt that section 106 limits VA’s authority

under 38 U.S.C. § 1710. See Pub. L. No. 104-262, § 101, 110 Stat. 3177, 3178 (1996).

When Congress consolidated those provisions, it did not repeal section 106, confirming

that the abortion restriction applies to all hospital care and medical services provided

pursuant to chapter 17.

6

VA Authority to Provide Abortion Services

An alternative interpretation of the VHCA would be incongruous with

other provisions of federal law, such as those restricting federal employ-

ees’ activities relating to abortion. See, e.g., 18 U.S.C. § 552; 19 U.S.C.

§ 1305. It would also “contradict[] decades of Federal policy against

forced taxpayer funding for abortion.” 90 Fed. Reg. at 36,416. We en-

deavor to read federal statutes consistently with other federal laws dealing

with the same subject, absent indications of congressional intent to the

contrary. “‘Basic principles of statutory interpretation require’ construing

statutory provisions ‘in harmony,’” not setting statutory provisions at

cross-purposes. Whether Eluding Inspection Under 8 U.S.C. § 1325(a)(2)

Is a Continuing Offense, 49 Op. O.L.C. __, at *8 (June 21, 2025) (quoting

Jones v. Hendrix, 143 S. Ct. 1857, 1868 (2023)).

Neither can the complicated-pregnancy exception to section 106 of the

VHCA be used to justify VA’s performance of abortions. See VHCA

§ 106(a)(3), 106 Stat. at 4947 (excluding “infertility services, abortions,

or pregnancy care (including prenatal and delivery care), except for such

care relating to a pregnancy that is complicated or in which the risks of

complication are increased by a service-connected condition”). That

exception applies only to pregnancy care, not abortions. To start, the

phrase “such care” must refer to pregnancy care, because “such” “refer[s]

to the last antecedent.” Black’s Law Dictionary (6th ed. 1990). Moreover,

by referring to “such care relating to a pregnancy,” the exception tracks

the language of the last antecedent—“pregnancy care.” The last-

antecedent canon instructs that, as here, “a limiting clause or phrase

should ordinarily be read as modifying only the noun or phrase that it

immediately follows.” Lockhart v. United States, 577 U.S. 347, 351

(2016) (alteration and citation omitted); accord Wire Act, 42 Op. O.L.C.

at 164–65; Antonin Scalia & Bryan A. Garner, Reading Law: The Inter-

pretation of Legal Texts 144, 152 (2012).

The series-qualifier canon—which teaches that a limiting phrase some-

times applies to an entire list—does not overcome our semantic reading or

the last-antecedent’s default rule. Although a modifier may sometimes

“sweep beyond the nearest referent” when readers are accustomed to

applying the modifier to each item, Wire Act, 42 Op. O.L.C. at 166, that is

not the case here. Applying the “care relating to pregnancy” exception to

each of section 106’s enumerated exclusions would nonsensically extend

an exception about “care relating to a pregnancy that is complicated” to

7

49 Op. O.L.C. __ (Dec. 18, 2025)

“infertility services,” even though infertility services necessarily precede

pregnancy. Nor does the fact that a comma separates the list from the

limiting phrase change our conclusion, because the comma merely offsets

an “unexpected internal modifier[].” Id.; see also U.S. Nat’l Bank of Or. v.

Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (“No more than

isolated words or sentences is punctuation alone a reliable guide for

discovery of a statute’s meaning.”).

Nothing about our interpretation of section 106 undermines VA’s au-

thority to provide infertility services or authorized pregnancy care, howev-

er. Since enacting section 106, Congress authorized VA to provide infertil-

ity services, see Pub. L. No. 114-223, § 260, 130 Stat. 857, 897 (2016);

approved a medical benefits package that included pregnancy care, see

Deborah Sampson Act of 2020, Pub. L. No. 116-315, § 5101(b)(1), 134

Stat. 5021, 5022 (2021); created maternity care coordination programs at

VA, see Pub. L. No. 117-69, 135 Stat. 1495 (2021); and authorized care

for newborn children born to women receiving maternity care from VA,

see 38 U.S.C. § 1786. These later-enacted laws irreconcilably conflict

with, and were designed to supersede, the specific prohibitions on those

services expressed in section 106 of the VHCA. See Carcieri v. Salazar,

555 U.S. 379, 395 (2009) (“[A]n implied repeal will only be found where

provisions in two statutes are in ‘irreconcilable conflict,’ or where the

latter Act . . . ‘is clearly intended as a substitute.’” (citation omitted)). But

none of these authorities supersedes section 106 with respect to abor-

tions—that bar has been unmodified since it was enacted in 1992. And

because Congress has shown that it knows how to supplant the prohibi-

tions in section 106, it is implausible that Congress repealed section 106’s

abortion restriction by mere implication.

B.

Our 2022 opinion also found support for the 2022 interim final rule in

the history of VA’s regulations. But to the extent that history is relevant, it

reinforces our reading of section 106. “Until 2022, VA had never inter-

preted its authority under the 1999 extensive revisions to title 38 as allow-

ing abortions.” 90 Fed. Reg. at 36,416 n.1. Indeed, “[t]he regulatory deter-

mination that abortion is not a ‘needed’ service for veterans was accepted

by every Secretary and Presidential administration for over 20 years.” Id. at

36,416; see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

8

VA Authority to Provide Abortion Services

120, 146 (2000) (noting that the agency at issue had “never asserted [the]

authority . . . until it promulgated the regulations at issue”). In 2022, VA for

the first time “claimed to discover in a long-extant statute an unheralded

power” to provide abortions, West Virginia v. EPA, 142 S. Ct. 2587, 2610

(2022) (alteration and citation omitted)—notwithstanding a clear indication

that Congress intended to proscribe just that.

Our 2022 opinion tried to blunt the force of this history in two ways.

First, it observed that “VA did not explain the rationale” behind its exclu-

sion of abortion. Abortion Services at *6 (citation omitted). But it would

have made little sense for VA to explain why abortions are not medically

“needed,” 38 U.S.C. § 1710(a)(1)–(3), when section 106 forecloses VA

from providing abortion services altogether.

Second, we noted that VA “for decades offered general pregnancy care

and certain infertility services under its general treatment authority,”

Abortion Services at *7 (cleaned up), even though section 106 proscribes

the provision of such services. From that, we concluded that VA had long

interpreted section 106 not to limit its general treatment authority under

38 U.S.C. § 1710, and that this interpretation was “entitled to ‘considera-

ble weight.’” Id. (citation omitted). But this argument, too, cannot over-

come the unambiguous text of the statute. After all, “statutes . . . have a

single, best meaning.” Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244,

2266–68 (2024). Although “the contemporary and consistent views” of an

agency “can provide evidence of the law’s meaning,” Bondi v. VanDer-

Stok, 145 S. Ct. 857, 874 (2025), we may not ascribe great weight to a

regulation “that conflicts with the statutory language it purports to imple-

ment,” City & County of San Francisco v. EPA, 145 S. Ct. 704, 720

(2025). That VA previously has offered general pregnancy care and some

infertility services under its general treatment authority demonstrates at

most that VA sometimes departed from section 106’s constraints—not

that those constraints do not exist. And as we have explained, the better

reading of section 106’s text is that VA may not provide abortions pursu-

ant to its general treatment authority.

C.

The 2022 interim final rule offered two additional bases for why VA

could provide certain abortion services under federal law: ratification and

implied repeal. Our prior opinion did not expressly invoke these reasons

9

49 Op. O.L.C. __ (Dec. 18, 2025)

in defense of its conclusion, but we have considered them for complete-

ness. Neither persuades.

1.

The 2022 interim final rule asserted that “Congress has ratified VA’s

interpretation that section 106 of the VHCA does not limit the medical

care that the VA may provide pursuant to its authority under 38 U.S.C.

1710.” 87 Fed. Reg. at 55,289. The argument works as follows. Section

106 limited VA’s ability to provide “pregnancy care,” among other ser-

vices. See VHCA § 106(a)(3), 106 Stat. at 4947. But “general pregnancy

and delivery services were included in the medical benefits package when

it was established in 1999 pursuant to VA’s authority in 38 U.S.C. 1710.”

87 Fed. Reg. at 55,289 (citing 38 C.F.R. § 17.38(a)(1)(xiii) (1999)). In the

Deborah Sampson Act of 2020, Congress could have—but did not—

clarify that VA’s provision of pregnancy care was unlawful. Instead,

Congress created “a central office” to, among other things, “encourag[e]

the activities of the Veterans Health Administration with respect to the

provision, evaluation, and improvement of health care services provided to

women veterans by the Department.” Pub. L. No. 116-315, § 5101(b)(1),

134 Stat. at 5022 (codified at 38 U.S.C. § 7310(b)(1)). And Congress

specified that its use of the term “health care” in this context was designed

to encompass the services “included in the medical benefits package pro-

vided by the Department” as of the date of enactment in early 2021. Id.

§ 5101(b)(2) (codified at 38 U.S.C. § 7310 note). “Given that VA’s medi-

cal benefits package as of that date included services that were excluded

from the coverage of [VHCA’s] Section 106”—namely, pregnancy care,

the argument goes—“Congress ratified VA’s interpretation that it may

provide for [abortions] pursuant to its authority under 38 U.SC. 1710,

notwithstanding section 106.” 87 Fed. Reg. at 55,289.

This argument is a nonstarter. At most, Congress incorporated and au-

thorized the pregnancy care services that VA “included in the medical

benefits package” as of January 2021. It did not ratify VA’s legal interpre-

tation of section 106 or any purported authority to provide abortion ser-

vices. To the contrary, the medical benefits package in January 2021

expressly excluded abortion services. See 38 C.F.R. § 17.38(c) (2019).

Because “[a]bortion presents a profound moral issue on which Americans

hold sharply conflicting views,” Dobbs v. Jackson Women’s Health Org.,

10

VA Authority to Provide Abortion Services

142 S. Ct. 2228, 2240 (2022), we are especially hesitant to infer from

Congress’s approval of pregnancy care that it blessed such a capacious

and controversial interpretation of VA’s treatment authority under

38 U.S.C. § 1710. After all, medical care offered in the medical benefits

package is provided only when “needed to promote, preserve, or restore

the health of the individual.” 38 C.F.R. § 17.38(b). Consistent with the

purposes underlying section 106, Congress might reasonably have deemed

abortions to be antithetical to the goal of promoting, preserving, or restor-

ing the health of individual veterans. See, e.g., Dobbs, 142 S. Ct. at 2284

(acknowledging the government’s “legitimate interest[]” in, among other

things, “the protection of maternal health and safety” (citations omitted));

Gonzales v. Carhart, 550 U.S. 124, 158–59 (2007) (recognizing an inter-

est in preventing the “[s]evere depression and loss of esteem [that] can

follow” an abortion). We thus cannot conclude that Congress’s approval of

pregnancy care in the January 2021 medical benefits package ratified a

qualitatively distinct class of services not offered in that package—services

relating to abortions. If there is any inference to be drawn from the Debo-

rah Sampson Act, it runs in the opposite direction of our 2022 opinion.

2.

The 2022 interim final rule also posited that “[t]he Veterans’ Health

Care Eligibility Reform Act [of 1996] effectively overtook section 106 of

the VHCA.” 87 Fed. Reg. at 55,289; see also Pub. L. No. 104-262, 110

Stat. 3177 (1996) (“VHCERA”). This argument fails for much the same

reason as the congressional ratification argument. VHCERA amended

38 U.S.C. § 1710(a) to establish new eligibility criteria for veterans. See

VHCERA § 101(a), 110 Stat. at 3178. But it said nothing at all about the

abortion limitation in section 106 the VHCA. In fact, VHCERA did

expressly repeal or amend other provisions of the 1992 Act, but left

section 106 untouched. See id. § 302(a)(2), 110 Stat. at 3193 (amending

section 201 and repealing section 204 of the VHCA); id. § 324, 110 Stat.

at 3197 (amending sections 107(a) and (b) of the VHCA).

Basic principles of statutory interpretation counsel against reading

VHCERA as an implied repeal of VHCA section 106. “When confronted

with two Acts of Congress allegedly touching on the same topic,” inter-

preters “must . . . strive ‘to give effect to both.’” Epic Sys. Corp. v. Lewis,

584 U.S. 497, 510 (2018) (citation omitted). In such a situation, “we come

11

49 Op. O.L.C. __ (Dec. 18, 2025)

armed with the strong presumption that repeals by implication are disfa-

vored and that Congress will specifically address pre-existing law when it

wishes to suspend its normal operations in a later statute.” Id. (cleaned up);

see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 240 (2009) (requir-

ing “a clear expression . . . of Congress’ intent to repeal” before conclud-

ing that a provision has been repealed by implication). That presumption

carries substantial force here. Abortion is deeply controversial, see Dobbs,

142 S. Ct. at 2240, so we would not expect Congress to “use oblique or

elliptical language to empower” VA to provide abortion services in the

face of VHCA’s clear prohibition, West Virginia, 142 S. Ct. at 2609.

III.

“We do not depart from our past views lightly.” Reconsidering the Ap-

plication of the Hyde Amendment to the Provision of Transportation for

Women Seeking Abortions, 49 Op. O.L.C. __, at *17 (July 11, 2025). But

after careful consideration, we think it appropriate to do so here. “[A]s

with any system of precedent, reconsideration of our prior opinions is

appropriate where, for example, we have identified errors in the support-

ing legal reasoning.” Id. (cleaned up); see also Wire Act, 42 Op. O.L.C. at

178; id. at 178 n.15 (collecting examples). We have described already the

legal errors in our 2022 opinion, and the reasoning with which we disa-

gree was conspicuously shallow in its attention to the text and scope of

section 106, among other flaws. Further, the magnitude of any reliance

interests vis-à-vis our 2022 opinion is minimal. That opinion “is of rela-

tively recent vintage,” and it “departed from established [VA] practice”—

spanning decades—of not providing abortion services. Wire Act, 42 Op.

O.L.C. at 179. Restoring the status quo ante will not be unnecessarily

destabilizing. “We acknowledge that some may have relied on the views

expressed in our” previous opinion, but “in light of our conclusion about

the plain language of the statute, we do not believe that such reliance

interests are sufficient to justify continued adherence” to that decision.

Id. at 180. 4

4 Government officers and employees may have relied upon our prior advice when

providing abortions, notwithstanding contrary state law. We note that “[t]he Constitu-

tion’s Supremacy Clause generally immunizes the Federal Government from state laws

that directly regulate or discriminate against it.” United States v. Washington, 142 S. Ct.

12

VA Authority to Provide Abortion Services

VA may not provide abortion services under any provision of chap-

ter 17 of title 38, including 38 U.S.C. § 1710. Because the statutory

scheme supporting the provision of care to CHAMPVA beneficiaries is

also part of chapter 17, the same rule applies to the CHAMPVA program.

See 38 U.S.C. § 1781(b). The portions of our opinion in Abortion Services

that advised otherwise are hereby withdrawn and superseded by this

opinion.

JOSHUA J. CRADDOCK

Deputy Assistant Attorney General

Office of Legal Counsel

1976, 1982 (2022). And the entrapment-by-estoppel defense “applies to a defendant who

reasonably relies on the assurance of a government official that specified conduct will not

violate the law.” United States v. Votrobek, 847 F.3d 1335, 1344 (11th Cir. 2017) (citation

omitted); accord United States v. Miles, 748 F.3d 485, 489 (2d Cir. 2014). These doc-

trines ensure that when this Office reasonably advises an officer or employee that his

conduct is immune from state regulation and he reasonably relies on that legal advice, that

employee generally will remain immune from state-law liability, even if the advice is later

found to be erroneous. Although we believe our earlier opinion’s analysis of VA’s

statutory authority was erroneous, our withdrawal of that opinion in relevant part does not

upset these reliance interests.

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