Veterans Affairs sued over new abortion rule after Roe rollback that allegedly violates religious liberty

EXCLUSIVE: The Department of Veterans Affairs faces a lawsuit over a new agency rule that allows it to provide abortion services. The plaintiff of the suit says the rule violates the First Amendment's religious freedom protections for providers seeking a religious exemption to the rule.

Following the Supreme Court's decision to overturn landmark abortion case Roe v. Wade in June, the VA enacted a new interim final rule to provide taxpayer-funded abortions for eligible veterans. The rule, titled "Reproductive Health Services," was published Sept. 9 and removed barriers or exclusions to abortion services provided by the department.

"The Department of Veterans Affairs (VA) amends its medical regulations to remove the exclusion on abortion counseling and establish exceptions to the exclusion on abortions 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 Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) beneficiaries," the published rule said.

"VA is taking this action because it has determined that providing access to abortion-related medical services is needed to protect the lives and health of veterans," it said. Before the rule went into effect, abortions were not covered under veteran's medical benefits.

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A VA nurse practitioner, Army veteran Stephanie Carter, is the plaintiff in the case and is being represented by First Liberty Institute. Under the new rule, Carter could be asked for abortion counseling from pregnant veterans or to prescribe the abortion pill.

As a result, she asked the VA for religious accommodation from the rule but allegedly was told by the department that there is "no process" that exists to review such requests.

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Carter, who has worked for the VA 23 years, lives in Texas, where abortions after six weeks are illegal, so she is subject to prosecution under Texas law if she assists or performs the procedure beyond six weeks, her attorneys argue. Penalties could include a felony conviction, a fine of up to $100,000 and the loss of her nursing license.

In the first known lawsuit challenging the rule filed in the District Court for the Western District of Texas Tuesday, First Liberty Institute is seeking a preliminary injunction to block the VA rule. If secured, the injunctive relief would prevent the rule from being enforced in Texas at the facility where Carter works and protect her religious beliefs.

The lawsuit argues that the secretary of Veterans Affairs did not follow the Administrative Procedure Act (APA)'s rulemaking process, because the rule disregards the boundaries put on abortion by Congress through the Veterans Health Care Act of 1992. That law explicitly limited the authority of the VA secretary to determine what medical services are needed for veterans and banned abortion as a service VA facilities can provide.

The Biden Department of Justice's office of legal counsel backed up the VA's rule in a memo from Sept. 21, saying that states would not be allowed to prosecute VA employees for facilitating abortions.

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"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 OLC memo states.

However, First Liberty counsel Danielle Runyan, an Air Force reserve member, argues that because the VA did not follow the APA, the rule is invalid and, therefore, the argument made in the Biden administration OLC opinion is inaccurate.

"This is another instance of the Biden administration ignoring the law, and, in this instance, forcing health care workers at VA facilities to violate their consciences," said Runyan.

"They didn't care to take notice or comment before the rule was implemented to understand that there are many employees out there who have these concerns. The rule doesn't account for the Religious Freedom Restoration Act. It doesn't take into account religious conscience. It says nothing about that. So it's just another instance where First Amendment and RFRA rights are being ignored and that just can't be," she said.

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However, Terrence Hayes, press secretary for the VA, told Fox News Digital in a statement response to the lawsuit that the VA is respecting the religious beliefs of all employees.

"From the moment VA announced this new rule, Secretary McDonough has made clear to all employees that their religious beliefs are protected here at VA. While we cannot comment on ongoing litigation, VA does provide accommodation for VA employees who wish to opt out of providing abortion counseling or services," said Hayes.

"We are currently honoring exemption requests that come through VA supervisors," Hayes continued. "We have provided all VA health care employees with this information – including information for how to exercise those protections through VA’s Office of Resolution Management Diversity and Inclusion – and we have encouraged employees to inform their supervisors of any requests for exemptions."