Intergovernmental Immunity for the Department of Veterans Affairs and Its Employees When Providing Certain Abortion Services

(Slip Opinion)

Intergovernmental Immunity for the Department of

Veterans Affairs and Its Employees When Providing

Certain Abortion Services

The rule issued by the Department of Veterans Affairs on Reproductive Health Services is

a lawful exercise of VA’s authority. States may not impose criminal or civil liability

on VA employees—including doctors, nurses, and administrative staff—who provide

or facilitate abortions or related services in a manner authorized by federal law, includ-

ing VA’s rule. The Supremacy Clause bars state officials from penalizing VA employ-

ees for performing their federal functions, whether through criminal prosecution, li-

cense revocation proceedings, or civil litigation.

September 21, 2022

MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL

DEPARTMENT OF VETERANS AFFAIRS

The Department of Veterans Affairs (“VA”) has issued an interim final

rule permitting VA to provide veterans and certain other VA beneficiaries

with access to abortion services when the life or health of the pregnant

individual would be endangered if the pregnancy were carried to term or

when the pregnancy is the result of rape or incest. Reproductive Health

Services, 87 Fed. Reg. 55,287, 55,287–88 (Sept. 9, 2022) (the “rule”).

VA’s rule also permits VA to provide abortion counseling. See id. Prior to

VA’s issuance of the rule, this Office advised VA that the rule represented

a reasonable exercise of the VA Secretary’s discretion to provide medical

services. We also advised that states may not impose criminal or civil

liability on VA employees—including doctors, nurses, and administrative

staff—who provide or facilitate abortions or related services in a manner

authorized by federal law, including VA’s rule. The Supremacy Clause of

the U.S. Constitution bars state officials from penalizing VA employees

for performing their federal functions, whether through criminal prosecu-

tion, license revocation proceedings, or civil litigation. See id. at 55,293–

94. This memorandum memorializes and expands upon our prior advice.

I.

“The Constitution’s Supremacy Clause generally immunizes the Feder-

al Government from state laws that directly regulate or discriminate

against it,” unless federal law authorizes such state regulation. United

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46 Op. O.L.C. __ (Sept. 21, 2022)

States v. Washington, 142 S. Ct. 1976, 1982 (2022); see U.S. Const. art.

VI, cl. 2. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819),

“Chief Justice John Marshall explained that, under the Supremacy Clause,

‘the States have no power, by taxation or otherwise, to retard, impede,

burden, or in any manner control, the operations of the constitutional

laws enacted by Congress to carry into execution the powers vested in

the general government.’” Washington, 142 S. Ct. at 1983–84 (quoting

McCulloch, 17 U.S. (4 Wheat.) at 436). “The Court thus interpreted the

Constitution as prohibiting States from interfering with or controlling the

operations of the Federal Government.” Id. at 1984.

This principle is often referred to as intergovernmental immunity.

The doctrine is “subject to nuances,” Disaster Assistance and the Su-

premacy Clause, 5 Op. O.L.C. 198, 199 (1981) (“Disaster Assistance”),

and “[o]ver time” it has “evolved,” Washington, 142 S. Ct. at 1984. As

relevant here, the doctrine “prohibit[s] state laws that . . . ‘regulate the

United States directly,’” absent any federal law consenting to the applica-

tion of state law. Id. (alterations omitted) (quoting North Dakota v. United

States, 495 U.S. 423, 435 (1990) (plurality opinion)).

In determining whether a state law is invalid as a direct regulation of

the United States, courts look to whether the provision “seeks to regulate

the federal function itself.” Immunity of Smithsonian Institution from State

Insurance Laws, 21 Op. O.L.C. 81, 85 (1997) (citing North Dakota, 495

U.S. at 436–37 (plurality opinion)). For example, in North Dakota, the

Supreme Court held that state liquor laws, as applied to suppliers of U.S.

military facilities, did not violate the immunity doctrine, in part because

they operated against suppliers rather than directly against the federal

government and did not otherwise implicate “concerns about direct inter-

ference” with federal functions. 495 U.S. at 437 (plurality opinion) (citing

City of Detroit v. Murray Corp. of America, 355 U.S. 489, 504–05 (1958)

(opinion of Frankfurter, J.)).

By contrast, state laws purporting to regulate the functions of federal

agencies themselves are direct regulations of the United States. See id. at

435 (plurality opinion). For example, in Mayo v. United States, 319 U.S.

441 (1943), the Supreme Court held that certain state inspection fees

could not be applied to the federal government’s distribution of fertilizer,

observing that the fees were “laid directly upon the United States” and

operated “like a tax upon the right to carry on the business of the post

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Intergovernmental Immunity for VA When Providing Certain Abortion Services

office or upon the privilege of selling United States bonds through federal

officials,” id. at 447. The Court stated that the federal government’s

freedom from state regulation “is inherent in sovereignty.” Id. Where “the

governmental action is carried on by the United States itself and Congress

does not affirmatively declare its instrumentalities or property subject to

regulation or taxation, the inherent freedom continues.” Id. at 448.

Similarly, in Johnson v. Maryland, 254 U.S. 51 (1920), the Court held

that a state lacks the power to require a federal postal employee to obtain

a license and pay a fee “before performing his official duty in obedience

to superior command,” id. at 55; see also id. at 57. The Court character-

ized the question as whether a state “can interrupt the acts of the general

government itself.” Id. at 55. The Court acknowledged that federal em-

ployees do not have “a general immunity from state law while acting in

the course of [their] employment,” and might be subject to state laws

“affect[ing] incidentally the mode of carrying out the employment,” such

as “a statute or ordinance regulating the mode of turning at the corners

of streets.” Id. at 56. The Court observed, however, that “even the most

unquestionable and most universally applicable of state laws, such as

those concerning murder, will not be allowed to control the conduct of a

marshal of the United States acting under and in pursuance of the laws of

the United States.” Id. at 56–57 (citing In re Neagle, 135 U.S. 1 (1890)).

The Court held that the state law at issue in Johnson could not be applied

to the postal employee, describing the statute as not “merely touch[ing]”

federal employees “remotely by a general rule of conduct,” but rather as

“lay[ing] hold of them in their specific attempt to obey orders” and as

“requir[ing] qualifications in addition to those that” the federal govern-

ment had “pronounced sufficient.” Id. at 57.

Consistent with these cases, in Disaster Assistance, our Office conclud-

ed that the Federal Emergency Management Agency (“FEMA”) would not

be subject to state prohibitions while administering disaster relief under

the Disaster Relief Act of 1974, 42 U.S.C. §§ 5121–5202. Disaster Assis-

tance, 5 Op. O.L.C. at 198. We observed that when Congress “place[s]

responsibility for the execution of [federal] law in a federal official or

instrumentality,” that “execution of the law by the responsible official or

agency is no less a federal activity than was the delivery of the mail in

Johnson . . . , the operation of a bank in McCulloch . . . , or the sale of

fertilizer in Mayo.” Id. at 199–200. In other words, when a federal agency

“perform[s] a federal function pursuant to a law validly enacted by Con-

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46 Op. O.L.C. __ (Sept. 21, 2022)

gress[,] . . . under the Supremacy Clause, the states may not prohibit or,

by regulation, significantly burden the manner of its execution without the

consent of the United States.” Id. at 200. We cautioned that this “does not

mean that [agencies] may totally ignore state law in all cases and on all

subjects.” Id. We cited Johnson, where the Supreme Court remarked that

a state law “‘regulating the mode of turning at the corners of streets’”

could still apply to federal employees undertaking their federal functions.

Id. (quoting Johnson, 254 U.S. at 56). We also cited lower court decisions

“refus[ing] to excuse, on Supremacy Clause grounds, federal employees

who violated routine state (or local) traffic laws from prosecution when

the violations were not necessary to the accomplishment of their federal

functions.” Id. (collecting cases). “In light of this case law, caution dic-

tates that federal employees . . . should, to the extent possible, obey . . .

state or local laws, the violation of which is not necessary to the accom-

plishment of the federal function.” Id. Nonetheless, we concluded that “in

exigent circumstances in which violations of such laws are necessary

to permit FEMA to perform essential disaster relief activities under

the [Disaster Relief Act], the federal interest would . . . prevail.” Id. at

200–01.

As noted above, Congress (or an agency acting pursuant to statutory

authorization) can authorize state regulation of federal functions that

would otherwise violate the federal government’s intergovernmental

immunity, but such an authorization must be “‘clear and unambiguous.’”

Washington, 142 S. Ct. at 1984 (quoting Goodyear Atomic Corp. v. Mil-

ler, 486 U.S. 174, 180 (1988)); see also Hancock v. Train, 426 U.S. 167,

179 (1976) (“Because of the fundamental importance of the principles

shielding federal installations and activities from regulation by the States,

an authorization of state regulation is found only when and to the extent

there is a clear congressional mandate, specific congressional action that

makes this authorization of state regulation clear and unambiguous.”

(footnotes and internal quotation marks omitted)).

II.

Applying these general principles to potential state interference with

VA’s provision of abortion services as authorized by VA’s rule, 87 Fed.

Reg. 55,287, raises two questions: First, does federal law authorize VA

and its employees to provide the specified abortion services? We conclude

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Intergovernmental Immunity for VA When Providing Certain Abortion Services

that it does and that state attempts to interfere would thus constitute direct

regulation of an authorized federal function. Second, does federal law

clearly and unambiguously authorize states to restrict VA and its employ-

ees from providing the specified abortion services? We conclude that it

does not.

A.

VA’s rule lawfully eliminated earlier regulatory exclusions that had

prevented VA from providing abortion services and abortion counseling

to veterans whom VA serves pursuant to VA’s general treatment authori-

ty, 38 U.S.C. § 1710. VA’s rule also lawfully eliminated regulatory exclu-

sions that had prevented VA from providing certain abortion services and

abortion counseling to beneficiaries of the Civilian Health and Medical

Program of the Department of Veterans Affairs (“CHAMPVA”) whom

VA serves pursuant to 38 U.S.C. § 1781.

1.

“The primary function” of the Veterans Health Administration within

VA “is to provide a complete medical and hospital service for the medical

care and treatment of veterans, as provided in” title 38 of the U.S. Code

“and in regulations prescribed by the Secretary pursuant to” title 38. 38

U.S.C. § 7301(b); see also id. § 501(a) (authorizing the Secretary “to

prescribe all rules and regulations which are necessary or appropriate

to carry out the laws administered by the Department and are consistent

with those laws”). Pursuant to VA’s general treatment authority, VA

“shall furnish” specified veterans with “hospital care and medical ser-

vices” that “the Secretary determines to be needed.” Id. § 1710(a)(1)–

(2). For veterans not described in paragraphs (1) and (2), the Secretary

“may,” subject to certain limitations, similarly “furnish hospital care” and

“medical services . . . which the Secretary determines to be needed.” Id.

§ 1710(a)(3). As relevant here, such “medical services” include “medical

examination, treatment,” “[s]urgical services,” and “[p]reventive health

services.” Id. § 1701(6). “Except where the [statute] requires specific

services or care for [a] designated medical condition, the Secretary has

broad discretion to determine the precise hospital or medical services to

be supplied.” E. Paralyzed Veterans Ass’n, Inc. v. Sec’y of Veterans Affs.,

257 F.3d 1352, 1362 (Fed. Cir. 2001).

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46 Op. O.L.C. __ (Sept. 21, 2022)

VA implements its general treatment authority, and the Secretary de-

termines what care is “needed,” 38 U.S.C. § 1710(a)(1)–(3), by regulation

establishing the scope of VA’s “medical benefits package,” 38 C.F.R.

§ 17.38. VA’s medical benefits package consists of a wide range of basic

and preventive care. See id. “Care included in the medical benefits pack-

age is ‘provided to individuals only if it is determined by appropriate

health care professionals that the care is needed to promote, preserve, or

restore the health of the individual and is in accord with generally accept-

ed standards of medical practice.’” 87 Fed. Reg. at 55,288 (quoting 38

C.F.R. § 17.38(b)).

Before VA issued its recent rule, the medical benefits package had ex-

pressly excluded abortions and abortion counseling. Id. Such exclusions

are not compelled by statute, and “VA did not explain the rationale be-

hind” them when VA introduced them as part of the establishment of the

medical benefits package in 1999. Id.; see also Enrollment—Provision of

Hospital and Outpatient Care to Veterans, 64 Fed. Reg. 54,207, 54,217

(Oct. 6, 1999).

In its new rule, VA’s Secretary has determined that access to abortion

“is ‘needed’ within the meaning of VA’s general treatment authority”

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 an act of rape or incest.” 87 Fed. Reg. at 55,288 (quoting 38 U.S.C.

§ 1710(a)). VA explained that pregnancy and childbirth can result in

physical harm for certain pregnant individuals, and that individuals with

pregnancy complications who lack access to abortion may risk loss of

future fertility, significant morbidity, or death. Id. at 55,291. VA also

explained the “severe health consequences associated with being forced to

carry a pregnancy that is the result of rape or incest to term.” Id. at

55,292. VA therefore concluded that access to abortion in such circum-

stances is “needed” medical care. 38 U.S.C. § 1710(a). Similarly, VA’s

Secretary determined that access to abortion counseling “is needed to

ensure that [veterans] can make informed decisions about their health

care.” 87 Fed. Reg. at 55,288 (“Abortion counseling is a part of pregnancy

options counseling and is a component of comprehensive, patient-

centered, high quality reproductive health care both as a responsibility of

the provider and a right of the pregnant veteran.”).

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Intergovernmental Immunity for VA When Providing Certain Abortion Services

Accordingly, VA eliminated the medical benefits package’s exclusions

for abortions and abortion counseling. See id. at 55,296; 38 C.F.R.

§ 17.38(c). This means that VA must now provide veterans access to

abortions in the circumstances the rule specifies “if an appropriate health

care professional determines that such care is needed to promote, pre-

serve, or restore the health of the individual and is in accord with general-

ly accepted standards of medical practice.” 87 Fed. Reg. at 55,288 (citing

38 C.F.R. § 17.38(b)(1)–(3)). It also means that “abortion counseling will

be provided as part of conversations a veteran has with their provider

related to pregnancy options care, when appropriate.” Id. at 55,292.

As VA explained in its rule, section 106 of the Veterans Health Care

Act of 1992, Pub. L. No. 102-585, 106 Stat. 4943 (“VHCA”), does not

prohibit VA from providing abortion care under its general treatment

authority, 38 U.S.C. § 1710. See 87 Fed. Reg. at 55,288–89. As relevant

here, section 106 of the VHCA states:

In furnishing hospital care and medical services under chapter 17 of

title 38, United States Code, the Secretary of Veterans Affairs may

provide to women the following health care services: . . . [g]eneral

reproductive health care, including the management of menopause,

but not including under this section 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.

106 Stat. at 4947. The text of section 106 specifies that its exclusions for

“infertility services, abortions,” and certain “pregnancy care” only limit

VA’s authority “under [that] section.” Id. Those exclusions do “not limit

VA’s authority to provide care under any other provision of law.” 87 Fed.

Reg. at 55,289. Since 1993—shortly after the VHCA’s enactment—VA

has consistently interpreted section 106 in this fashion. Id. at 55,289 &

n.5. VA’s interpretation is therefore entitled to “considerable weight.”

Davis v. United States, 495 U.S. 472, 484 (1990) (courts “give an agen-

cy’s interpretations and practices considerable weight where they involve

the contemporaneous construction of a statute and where they have been

in long use” (citing Norwegian Nitrogen Products Co. v. United States,

288 U.S. 294, 315 (1933))). Consistent with VA’s longstanding interpre-

tation, VA has “for decades . . . offered general pregnancy care and cer-

tain infertility services under” its general treatment authority, 38 U.S.C.

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46 Op. O.L.C. __ (Sept. 21, 2022)

§ 1710, notwithstanding the exclusions that apply to services provided

under section 106. 87 Fed. Reg. at 55,289. In its recent rule, VA also

explained that Congress has legislated consistent with VA’s interpreta-

tion, that section 106 has effectively been overtaken by subsequent legis-

lation, and that VA no longer relies on section 106 to provide any ser-

vices. See id. at 55,289–90. We agree that section 106 does not prohibit

VA from providing abortion services to veterans pursuant to its general

treatment authority, 38 U.S.C. § 1710.

2.

Pursuant to VA’s statutory CHAMPVA authority, VA’s “Secretary

is authorized to provide” specified “medical care” to certain spouses,

children, survivors, and caregivers of veterans who meet specific eligibil-

ity criteria. 38 U.S.C. § 1781(a). VA provides medical services to

CHAMPVA beneficiaries that VA determines by regulation to be “medi-

cally necessary and appropriate for the treatment of a condition and that”

VA has not “specifically excluded.” 87 Fed. Reg. at 55,290 (citing 38

C.F.R. § 17.270(b)). VA also “must provide ‘for medical care’ under

CHAMPVA ‘in the same or similar manner and subject to the same or

similar limitations as medical care is’ provided by the Department of

Defense to active-duty family members, retired service members and their

families, and others under” a health benefits program known as TRICARE

(Select). Id. (quoting 38 U.S.C. § 1781(b); citing 32 C.F.R. §§ 199.1(r),

199.17(a)(6)(ii)(D)).

Prior to VA’s issuance of its rule, VA’s CHAMPVA regulations ex-

cluded abortions except when a physician certified that the life of the

woman would be endangered if the fetus were carried to term. 87 Fed.

Reg. at 55,291. VA’s CHAMPVA regulations also excluded abortion

counseling. Id. at 55,292. Neither exclusion was compelled by statute. In

its recent rule, VA’s Secretary “determined that when the health of the

pregnant CHAMPVA beneficiary would be endangered if the pregnancy

were carried to term, access to abortions is . . . medically necessary and

appropriate,” id. at 55,291, for reasons similar to those summarized

above, see id. at 55,291–92. VA’s Secretary likewise “determined that

access to abortion when the pregnancy is the result of an act of rape or

incest is medically necessary and appropriate,” id. at 55,292, again for

reasons similar to those summarized above, see id. VA’s Secretary also

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Intergovernmental Immunity for VA When Providing Certain Abortion Services

determined that providing CHAMPVA beneficiaries with abortion coun-

seling “is medically necessary to ensure that they can make informed

decisions about their health.” Id. at 55,293. Finally, VA explained how

each category of newly authorized care is “the same or similar” as that

provided by the Department of Defense under TRICARE (Select). 38

U.S.C. § 1781(b); see 87 Fed. Reg. at 55,290–93. VA therefore revised

its CHAMPVA regulations to authorize such care. See 87 Fed. Reg. at

55,296; 38 C.F.R. § 17.272(a)(64).

3.

VA has “broad discretion,” E. Paralyzed Veterans Ass’n, 257 F.3d at

1362, to determine what care is “needed” for veterans, 38 U.S.C.

§ 1710(a)(1)–(3), and has similarly broad discretion to determine what

care is medically necessary and appropriate for CHAMPVA beneficiaries,

see 38 U.S.C. § 1781(a); 38 C.F.R. § 17.270(b). VA has reasonably exer-

cised its discretion in the rule, explaining why abortion counseling must

be provided and access to abortion services must be provided when the

life or health of the pregnant individual is endangered or in cases of rape

or incest. Accordingly, federal law authorizes VA and its employees to

provide the abortion and abortion counseling services specified in the

rule. Moreover, states’ attempts to restrict VA or its employees from

providing such services would “‘regulate the United States directly,’” and

therefore would be invalid absent any federal law consenting to the appli-

cation of state law. Washington, 142 S. Ct. at 1984 (alterations omitted)

(quoting North Dakota, 495 U.S. at 435). In other words, because in

providing these services VA is “performing a federal function pursuant to

a law validly enacted by Congress,” the Supremacy Clause precludes

states from “prohibit[ing] or, by regulation, significantly burden[ing] the

manner of” VA’s “execution” of that function “without the consent of the

United States.” Disaster Assistance, 5 Op. O.L.C. at 200.

B.

Consistent with VA’s representation to us, we are not aware of any fed-

eral law that authorizes states to restrict VA and its employees from

providing access to abortion services, let alone any law that does so

“clear[ly] and unambiguous[ly].” Washington, 142 S. Ct. at 1984 (internal

quotation marks omitted). To the contrary, VA’s regulations provide

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46 Op. O.L.C. __ (Sept. 21, 2022)

that state laws that “unduly interfere[]” with VA health care profession-

als’ federal duties are preempted. 38 C.F.R. § 17.419(b)(1); see id.

§ 17.419(c). As a general matter, VA determines whether a state law

“unduly interferes on a case-by-case basis.” Authority of VA Profession-

als to Practice Health Care, 85 Fed. Reg. 71,838, 71,842 (Nov. 12, 2020).

In its recent rule, VA determined that, consistent with 38 C.F.R. § 17.419,

“State and local laws, rules, regulations, or requirements that restrict,

limit, otherwise impede access to, or regulate the provision of health care

provided by VA pursuant to Federal law, would unduly interfere with VA

health care professionals’ practice within the scope of VA employment.”

87 Fed. Reg. at 55,294 (brackets and internal quotation marks omitted).

“Accordingly, consistent with [38 C.F.R.] § 17.419,” VA’s rule “con-

firm[ed] that a State or local civil or criminal law that restricts, limits, or

otherwise impedes a VA professional’s provision of care permitted by”

the rule—i.e., certain abortion and abortion counseling services—“would

be preempted.” Id. VA did bring to our attention its regulation governing

“[s]ecurity and law enforcement at VA facilities,” 38 C.F.R. § 1.218,

which disclaims abrogation of “State or local laws and regulations appli-

cable to the area in which the property is situated,” id. § 1.218(c)(3). But

that regulation is limited to matters involving security and law enforce-

ment, not medical practice. It therefore does not subject VA and its em-

ployees to state restrictions on any forms of medical care.

* * * * *

In conclusion, and as we previously advised, the rule is a lawful exer-

cise of VA’s authority. Moreover, states may not restrict VA and its

employees acting within the scope of their federal authority from provid-

ing abortion services as authorized by federal law, including VA’s rule.

States may not penalize VA employees for providing such services,

whether through criminal prosecution, civil litigation, or license revoca-

tion proceedings.

CHRISTOPHER H. SCHROEDER

Assistant Attorney General

Office of Legal Counsel

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