(Slip Opinion)

1 

### Intergovernmental Immunity for the Depar tment 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. S ta tes may not impose criminal or civil liability
on VA employees

— including doctors, nurses, and administrative staff

— who provideor facilitate abortions or related services in a manner authorized by federal law, includin g VA’s rule

. The Supremacy Clause bars state officials from pena lizing VA employees for performing their federal functions, whether through criminal prosecution, license revocation proceedings, or civil litigation

.
September 21 , 20 2 2

M EMORANDUM O PINION FOR THE A CTING G ENERAL C OUNSEL D EPARTMENT O F V ETER A NS A FFAIRS

The Department of Veterans Affairs (“VA”) has issued a n interim final rule permitting VA to provide veterans and certain other VA b eneficiaries with access to abortion services when the life or hea lth of the pregnant individual would b e 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 permit s VA to provide abortion counseling. S ee 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 t o provide medical services. We also advised that states may not impose criminal or civil liability on VA emp loyees

— including doctors, nurses, and administrative staff

— who provide or facilitate abortions or related services in a manner authorized by federa l law , including VA’s rule

. The Supremacy Clause of the U.S. Constituti on bars state officials from penalizin g VA employeesfor performing their federal functions, whether through criminal prosecution, license revocation proceedings, or civil litigation. See id. at 55,293

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

.

I

.

“T he Constitution ’ s Supremacy Clause generally immunizes the Federal Government from state laws that directly regulate or discriminate against it ,” unless federal law authorizes such state regulation. United4 6 Op. O.L.C. __ ( Sept. 21

, 202 2 )

2 States v. Washington

, 142 S. C t. 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 Cla use, ‘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 Co urt thus interpreted the Constitutio n 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 nuan ces ,” Disaster Assistance and the Supr emacy 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 Un ite d States directly,’” absent any fed eral law consenting to the application of state law. Id. (alterations omitted) (quoting North Dakota v. United States , 49 5 U.S. 423, 435 (1990) (plurality opinion))

. In determining whether a state law is invalid as a dir ect regulation of the United States , courts look to whether the provision “seeks to regulate the federal function itself.” Immunity of Smithsonian Institu tion from State
Insurance Laws , 21 Op. O.L.C. 81, 8 5 (1997) (citing North Dakota , 495 U.S. at 436

– 3 7 ( plurality opinion)). For example, i n North Dakota , the Supreme Court held that state liquor laws, as applied to suppliers of U.S. military facilities, di d not violate the immunity doctrine, in part because they operated against suppliers rather than dir ect ly against the federal government a nd did not otherwise implicate “concerns about direct interference” with federal functions. 495 U.S. at 437 (pluralit y opinion) (citing City of Detroit v. Murray Corp. of America , 355 U.S. 489, 504

– 05 (1958) (opinion o f F rankfurter, J.))

. By contrast, sta te laws purporting to regulate the functions of federal agencies themselves are direct regulations of the United State s. See id . at 435 (plurality opinion). For example, in Mayo v. United States , 319 U.S. 441 (1943), t he Supreme Court held that certain sta te inspection fees could not be applied to the federal government’s distribution of fertilizer, observing that the f ees were “laid directly upon the United States” and operated “like a tax upon the right to carry on th e b usiness of the postIntergovernmental Immunity for VA When Providing Certain Abortion Services

3 office or upon the privilege of selling United States bonds through federal officials,” id. at 447. The Court stated that the fede ral government’s freedom from state regulation “is inherent in sovereignty.” Id. Where “the governmenta l a ction is carried on by the United S tates 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 (1 920), the Court held that a state l acks the power to require a federal postal employee to obtain a license and pay a fee “before performing his offi cial duty in obedience to superior command,” id. at 55; see also id. at 57. The Court characterized the q ues tion as whether a state “can interr upt the acts of the general government itself.” Id. at 55. The Court acknowledged that federal employees do no t have “a general immunity from state law while acting in the course of [their] employment,” and might be su bje ct to state laws “affect[ing] incid entally the mode of carrying out the employment,” such as “a statute or ordinance regulating the mode of turni ng at the corners of streets.” Id. at 56. The Court observed, however, that “even the most unquestionable a nd m ost universally applicable of stat e laws, such as those concerning murder, will not be allowed to control the conduct of a marshal of the Unite d 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 tha t 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 government had “pron ounced sufficient.” Id. at 57

. Consistent with these cases, in Disaster Assistance , our Office concluded that the Federal Emergency Management Agenc y (“FEMA”) would not be subject to state prohibitions while administering disaster relief under the Disaste r Relief Act of 1974, 42 U.S.C. §§ 5121

– 5202. Disaster Assistance , 5 Op. O.L.C. at 198. We observed that when C ongr ess “place[s] responsibility for t he execution of [federal] law in a federal official or instrumentality,” that “execution of the law by th e responsible official or agency is no less a federal activity than was the delivery of the mail in Johnson

. . . , t he operation of a bank in McCulloc h

. . . , or the sale of fertilizer in Mayo .” Id. at 199

– 200. In other words, when a federal agency “pe rform[s] a federal function pursuant to a law validly enacted by Con-4 6 Op. O.L.C. __ ( Sept. 21

, 202 2 )

4 gress[,] . . . under the Supremacy Clause, the stat es may not prohibit or, by regulat ion, significantly burden the manner of its execution without the consent of the United States.” Id. a t 200. We cautioned that this “does not mean that [agencies] may totally ignore state law in all cases and on all

su bjec ts.” Id. We cited Johnson , where t he Supreme Court remarked that a state law “‘regulating the mode of turning at the corners of stree ts’” 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 fun ctio ns.” Id. (collecting cases). “In l ight of this case law, caution dictates that federal employees .

. . should, to the extent poss ible, obey .

. .state or local laws, the violation of which is not necessary to the accomplishment of the federal function .” I d. Nonetheless, we concluded that “in exigent circumstances in which violations of such laws are necessary to permit FEMA to pe rform 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 m ust be “‘cle ar and unambiguous.’” Wash ington , 142 S. Ct. at 1984 (quoting Goodyear Atomic Corp. v. Miller , 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 fe deral insta llations and activities fro m 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 regulat ion cl ear a nd unambiguous.” (footnotes and internal quotation mark s 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 quest ions : Firs t, does federal law authoriz e VA and its employees to provide the specified abortion services? We concludeIntergovernmental Immunity for VA When Providing Certain Abortion Services

5 that it does and that state attempts to interfere would thus constitute direct regulation of an authorized federal function. Second, does f ederal l aw clearly and unambiguously a uthorize states to restrict VA and its employees 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 p rovidi n g abortion services and abortio n counselingto veterans whom VA serves pursuant to VA’s general treatment authority, 38 U.S.C. § 1710. VA’s rule also lawfully eliminated regulatory exclusions that had prevented VA from providing certain abortion ser vices and abortion counseling to benef iciaries 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 a nd 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. § 5 01(a) (authorizing the Secretary “ to
p rescribe 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 furni sh ” specified veterans with “hosp ital care and medical services” 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 “fur nish hospital care” and “medical s ervices .

. . 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 [s tatute] 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, I n c. v. Se c’y of Veterans Affs.

, 257 F.3 d 1352, 1362 (Fed. Cir. 2001).4 6 Op. O.L.C. __ ( Sept. 21

, 202 2 )

6VA implements its general treatment authority, and the Secretary determines what care is “needed,” 38 U.S.C. § 1710(a)(1)

– (3), by regulation establishing the scope of VA’s “medical benef its pack age,” 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 package is ‘provided to individuals only if it is determined by appropriat e health care pro fessiona ls that the care is needed to promote, preserve, orrestore the health of the individual and is in accord with generally accepted standards of medical practice.’” 87 Fed. Reg. at 55,288 (quoting 38 C.F.R. § 17.38(b)).
Before VA is sued its recent ru le, the medical benefits package had e xpressly excluded abortions and abortion counseling. Id. Such exclusionsare not compelled by statute, and “VA did not explain the rationale behind” them when VA introduced them as part of the estab lishment of the medi cal bene fits 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 ‘neede d’ 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 55,28 8 (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, sign ificant morbidity, or d eath. 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 circumstances 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 55,2 88 (“Abortion counseling is a part of pregnancy options counseling a nd 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.”).Intergovernmental Immunity for VA When Providing Certain Abortion Services

7 Accordingly, VA eliminated the medical benefi ts packa ge’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 appropri ate health care professional det ermines that such care is needed to pr omote, preserve, or restore the health of the individual and is in accord with generally 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 “abortio n counse ling 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 medica l servic es under chapter 17 of title 3 8, 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 se ction infertility services, ab ortions, 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 increa sed 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 a ny 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 agency’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 P roducts Co. v. United States

, 288 U.S. 294, 315 (1933)) )

. Consistent with VA’s longstanding interpretation, VA has “for decades .

. . offered general pregnancy care and certain infertility services under” its general treatment authority, 38 U.S.C.4 6 Op. O.L.C. __ ( Sept. 21

, 202 2 )

8 § 1710, notwiths tanding the exclusions that ap ply to services provided under section 106. 87 Fed. Reg. at 55,289. In its recent rule, VA alsoexplained that Congress has legislated consistent with VA’s interpretatio n, that section 106 has effectively been overtake n by sub sequent legislation, and that VA no longer relies on section 106 to provide any services. See id. at 55,289

– 90. We agree that section 106 does not prohibit VA from providing abortion services to ve terans 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 wh o meet specific eligibility criteria. 38 U.S.C. § 1781(a). VA provides medical services toCHAMPVA beneficiaries that VA determines by regulation to be “medically necessary and appropriate for the treatment of a condition and that” VA has not “specifical ly excluded.” 87 Fed. Reg. at 55,290 (citing 38 C.F. R. § 17.2 70(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 De fense to active

- duty family members, retired service m embers an d 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 excluded ab ortions e xcept when a physician certif ied 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 b y statute

. In its recent rule, VA’s Se cretary “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 reaso ns similar to those summarize d above, see id. at 55,291

– 92. VA’s Secretary likewise “determined that access to abortion when the pregnancy i s the r esult of an act of rape or incest is medically necessary and appropriate,” id. at 55,292, again for

reasons s imilar to those summarized ab ove, see id. VA’s Secretary alsoIntergovernmental Immunity for VA When Providing Certain Abortion Services

9determined that providing CHAMPVA beneficiaries with abortion counseling “is medical ly necessary to ensure that they can make informed decisions about their health.” Id. at 55,293. Fina lly, VA e xplained 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 136 2, to determine what care is “needed” for veterans, 38 U.S.C. § 1710(a)(1)

– (3), and has similarly broad d iscretion to determine what care is me dically necessary and appropriate for CHAMPVA beneficiaries,

see 38 U.S.C. § 1781(a); 38 C.F.R. § 17.270(b). VA has reasonably exercised its discretion in the rule, explaining why abortion counseling must be provided a nd 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. Accor dingly, federal law authorizes VA and its employees to provide the abortion and abortion counseling service s specifie d in the rule. Moreover, s ta te s’ attempts to restrict VA or its employees from providing such services would “‘regulate the United States directly,’” andtherefore would be invalid absent any federal law consenting to the application of state law

. Washingt on , 142 S. Ct. at 1984 (alte rations omitted) (quoting North Dakota , 495 U.S. at 435). In other words, because in providing these service s VA is “performing a federal function pursuant to a law validly enacted by Congress,” the Supremacy Clause pr ecludes

st ates from “prohibit[ing] or, by regulation, significantly burden[ing] the manner of” VA’s “execution” of that function “without the cons ent of the United States.” Disaster Assistance , 5 Op. O.L.C. at 200.

B.

Consistent with VA’s representation to us, w e ar e not aware of any federal l aw that authoriz es states to restrict VA and its employees from providing access to abortion services, let alone any law that does so “clear[ly] and unambigu ous[ly].” Washington

, 142 S. Ct. at 1984 (internal quotation marks omi tted). To the contrary, VA’s regulations provide4 6 Op. O.L.C. __ ( Sept. 21

, 202 2 )

10that state laws that “unduly interfere[]” with VA health care professionals’ 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 la w “unduly interferes on a ca se

- by

- case basis.” Authority of VA Professionals 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, reg ulations, or requirements th at restrict, limit, otherwise impede access to, or regulate the provision of health care provi ded by VA pursuant to Federal law, would unduly interfere with VA health care professionals’ practice within the scope of VA employmen t.” 87 Fed. Reg. at 55,294 ( brackets and internal quotation marks omitted). “Accordingly, consistent with [38 C.F.R.] § 17.419,” VA’s rule “confirm[ed] that a State or local civil or criminal law that restricts, limits, or otherwise impedes a VA profession al’s provision of care permi tted by” the rule

— i.e., certain abortion and abortion counseling services

— “would be preempte d.” Id. VA did bring to our attention its regulation governing “[s]ecurity and law enforcement at VA facilities,” 38 C.F.R. § 1.218, whi ch disclaims abrogation of “ State or local laws and regulations applicable to the area in which the property is situat ed,” id. § 1.218(c)(3). Butthat regulation is limited to matters involving security and law enforcement, not medical practice. It therefo re does not subject VA and i ts employees to state restrictions on any forms of medical care.

* * * * *

In co nclusion, and as we previously advised, the rule is a lawful exercise of VA’s authority. Moreover, s tates may not restrict VA and its employ ees acting within the scope of their federal authority from providing abortion services as authorized by federal la w , including VA’s rule

. S tates may not penalize VA employees for providing such services

, whether through criminal prosecution, civ il litigat ion, or license revocation p roceedings

.

CHRISTOPHER H. SCHROEDER Assistant Attorney General

Office of Legal Co unsel