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Reproductive Rights

For Attorneys

Attorneys interested in the work of the Reproductive Rights Task Force can find helpful information and resources below.

Court Filings By the United States

 

Office of Legal Counsel Opinions

The Office of Legal Counsel drafts legal opinions of the Attorney General and provides its own written opinions and other advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and other components of the Department of Justice. The Attorney General has directed the Office of Legal Counsel to publish selected opinions for the convenience of the Executive, Legislative, and Judicial Branches of the government, and of the professional bar and the general public.

Linked below are Office of Legal Counsel opinions that the Office has determined are appropriate for publication and that relate to the work of the Reproductive Rights Task Force.

Federal employees performing their duties in a manner authorized by federal law, while on a federal enclave within a state that criminalizes such authorized conduct, would not violate the Assimilative Crimes Act and could not be prosecuted by the federal government under that law.

Application of the Assimilative Crimes Act to Conduct of Federal Employees Authorized by Federal Law

The rule issued by the Department of Veterans Affairs on Reproductive Health Services, 87 Fed. Reg. 55,287 (Sept. 9, 2022), 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, including VA’s rule. The Supremacy Clause bars state officials from penalizing VA employees for performing their federal functions, whether through criminal prosecution, license revocation proceedings, or civil litigation.

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

The Hyde Amendment’s prohibition barring the Department of Health and Human Services from expending covered funds for any abortion does not bar HHS from expending covered funds to provide transportation for women seeking abortions in circumstances in which HHS has the requisite statutory authority and appropriations to provide such transportation.

Application of the Hyde Amendment to the Provision of Transportation for Women Seeking Abortions

The Department of Defense may lawfully expend funds to pay for service members and their dependents to travel to obtain abortions that DoD cannot itself perform due to statutory restrictions. DoD may lawfully expend funds to pay for such travel pursuant to both its express statutory authorities and, independently, the necessary expense doctrine.

Authority of the Department of Defense to Use Appropriations for Travel by Service Members and Dependents to Obtain Abortions

Section 1461 of title 18 of the U.S. Code does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully. Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.

Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions

Legal Assistance Convening

The President’s Executive Order on Protecting Access to Reproductive Healthcare Services directed the Attorney General and the Counsel to the President to convene a meeting of private pro bono attorneys, bar associations, and public interest organizations in order to encourage lawyers to represent and assist patients, providers, and third parties lawfully seeking these services throughout the country. That convening occurred on July 29, 2022, and the Department has continued to engage with the legal community since then on access to justice and legal representation issues.

Email questions about this work to LAC@usdoj.gov

Updated March 25, 2024