TEMPLE, TX — When VA announced in September that it would be allowing department clinicians to provide abortions and abortion counseling in response to the overturning of Roe v. Wade, it was widely anticipated that there would be lawsuits from state governments that restrict abortion access. Surprisingly, the highest profile lawsuit currently under consideration by the court is coming from one of the department’s own employees.
In December, First Liberty Institute, a conservative Christian nonprofit legal organization, filed a federal lawsuit on behalf of Stephanie Carter, a nurse at the Olin E. Teague Veterans Center in Temple. First Liberty and Carter contend that the VA’s decision impinges on the nurse’s religious freedom.
“Overnight, Ms. Carter found herself working at a medical facility whose mission now included providing abortions and abortion counseling. Because of her religious beliefs, Ms. Carter cannot perform, prescribe, or counsel for abortions, or work in a facility that performs abortion services for reasons other than to save the life of the mother,” the complaint states. “The Rule does not account for medical providers’ religious liberties [and] as-applied requires Ms. Carter to participate in abortions and counsel women about abortion.”
The lawsuit also contends that, because of Texas state laws banning abortion—some of the strictest in the nation—the VA is putting Carter and the rest of its staff in legal jeopardy.
“In addition to this crisis of conscience, Ms. Carter … is faced with the prospect of being prosecuted and held civilly liable under Texas State Law,” the lawsuit states. “Ms. Carter could face a felony conviction, steep civil penalties, and the loss of her nursing license if she engages in the breadth of abortion services required by the Rule.”
The attorneys general of 17 other states have filed an AMICUS brief in support of Carter’s lawsuit, stating that, “The VA’s rule is deeply flawed. It rests on a claim of legal authority the VA does not have, it flouts the public-interest determinations that states have properly made, and it undermines the public interest in the enforcement of validly enacted state laws.”
Shortly after First Liberty and Carter filed the lawsuit, VA released a set of guidelines outlining the process for staff to request religious exemptions to providing abortion-related services at department facilities.
“The communication to employees needs to specifically identify the Reasonable Accommodation Coordinators for your VISNs who will be assisting with the process,” a memo accompanying the guidelines stated. “If excusal is requested, supervisors should grant interim excusal for employees from duties or training regarding reproductive healthcare while requests are being processed.”
In a brief filed by the department and VA Secretary Denis McDonough, VA said that it has offered to move Carter to a facility that does not perform abortions, effectively making her moral and legal concerns moot. According to VA, Carter has not responded.
VA implies that lack of response suggests the lawsuit is less about a single employee’s moral concerns and more about a larger political agenda.
“Ms. Carter is not required to personally provide such abortion care or counseling, she is therefore not personally forced to engage in conduct with which she disagrees,” the VA noted in the brief. “[She] continues to seek an emergency injunction from this Court, seeking to prevent Temple VA facility from providing any abortions–including those necessary to save a pregnant patient’s life.”
The brief further notes that granting Carter’s injunction request would be “granting a single employee veto power over the spectrum of medical services offered by other employees to covered veterans and their beneficiaries at a VA facility.”
VA added abortion and abortion counseling to the services its facilities provide, because the department believed that, with the overturning of Roe v. Wade in June, the enforcement of abortion bans in states like Texas creates a clear danger to the health of women veterans. VA leaders believe that immediate medical danger supersedes the 1980 Hyde Amendment restricting federal funding for abortions and a 1992 law prohibiting VA from providing abortion services.
