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

> Department of Justice Office of Legal Counsel · December 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11237139

## Case

- **Court:** Department of Justice Office of Legal Counsel
- **Decided:** December 18, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11237139

## How later opinions describe it (automated extraction)

- recognizing an inter- est in preventing the “[s]evere depression and loss of esteem [that] can follow” an abortion
- acknowledging the government’s “legitimate interest[]” in, among other things, “the protection of maternal health and safety” (citations omitted)

## Opinion text

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O.L.C. __ (Sept. 21, 2022), that held to the contrary are withdrawn and superseded by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

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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

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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

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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.,

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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

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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.

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11237139. Public record. Not legal advice.