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Fitch files amicus brief opposing VA’s New Abortion Rule

Credit: Attorney General Lynn Fitch news release

Attorney General Lynn Fitch and Attorney General Steve Marshall, along with 16 Attorneys General, yesterday afternoon filed an amicus brief in the Western District of Texas in the case of Carter v McDonough.

In September 2022, the Department of Veterans Affairs (VA) reversed long-standing agency practice and adopted an interim final rule that purports to authorize taxpayer-funded abortions and abortion counseling for veterans and their beneficiaries. The plaintiff, Stephanie Carter, is a VA nurse who opposes the VA’s new rule. Fitch’s brief was filed in support of Nurse Carter.

“In direct contravention of the Supreme Court’s opinion in Dobbs,” said Attorney General Lynn Fitch, “President Biden has taken abortion policy away from state legislators, Congress, and, most importantly, the people and given it to political appointees in his own Administration. The Dobbs decision was about the rule of law. This VA rule is precisely the opposite.”

In the brief, the Attorneys General write, “Rather than respect the Constitution and the Supreme Court’s decision, the Biden Administration has sought to wrest control over abortion back from the people.” The brief explains that the rule is deeply flawed because the VA does not have the legal authority it claimed to use in support of this rule.

“​​[The VA’s rule] reflects disregard for the democratic process, intrusion on areas of traditional state authority, and defiance of the Supreme Court’s recognition that the hard questions in this area have been ‘return[ed]’ to ‘legislative bodies,’” wrote the Attorneys General. “[T]he VA justifies the rule not because of the absence of state laws on the subject of abortion but because of the Department’s disapproval of them on policy grounds.”

In November, Attorney General Lynn Fitch led a coalition of 15 Attorneys General warning the VA that it lacked the authority to impose this new rule and putting the agency on notice that states would be monitoring and ready to act if the VA defied the law. A copy of that letter is available here.

In addition to General Fitch (MS) and General Marshall (AL), the brief was joined by Attorneys General from the states of Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.

Read the brief here.

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