U.S. court panel hears Navy
Both sides admitted the case was a tragedy: A teenage Navy wife
from Everett carrying a fetus that had no chance at life.
Government wants wife to reimburse cost of procedure
By MIKE BARBER:SEATTLE POST-INTELLIGENCER REPORTER
Thursday, April 7, 2005
But there, the agreement ended. The woman's lawyer says the
government should have to pay for her abortion. The government says no,
and even though it was forced to provide an abortion, it wants to be
paid back for the procedure.
In 2002, the woman, then just 19 and identified only as Jane Doe
in her case, won a strongly worded order from U.S. District Judge
Thomas Zilly to compel the military's Tricare medical system to pay
$3,000 to abort an anencephalic fetus she carried, instead of forcing
her to look outside the military health system to obtain one.
Anencephaly is a defect that causes a fetus to develop without a
forebrain, cerebellum or cranium or consciousness, and which is always
fatal to the fetus, although not to the mother, medical experts say.
The government has aggressively appealed Doe's victory ever
since, and yesterday the case was heard in Seattle before a three-judge
panel of the 9th U.S. Circuit Court of Appeals. Last month, the Seattle
Post-Intelligencer told the woman's story and detailed her legal battle.
Federal law based upon the 1979 Hyde Amendment forbids use of
public money for abortions except in cases of incest, rape or if the
mother's life is endangered -- but not for fetal anomalies. Tricare
regulations also specifically exclude anencephalic pregnancies.
Critics contend that the strict law focuses upon what a woman
carries and not upon her well-being. Essentially, denying a woman
carrying an anencephalic baby coverage for an abortion could condemn
her to a death watch, critics say.
August Flentje, assistant U.S. attorney for the Justice
Department's appellate division, agreed that Jane Doe's case "is
tragic, very tragic, but the law is straightforward."
The government was not challenging the right to an abortion,
Flentje stressed, but is opposed to using taxpayer money to fund one.
An anencephalic baby's life might be extremely short, it might have no
consciousness or brain activity, but it was still a viable though brief
life under the law, he said.
Arguing on Doe's behalf, Rita Latsinova, a Seattle cooperating
attorney with the Northwest Women's Law Center, challenged the
government regulations as " irrational" and therefore open to
Financially limiting such coverage to a woman whose husband
placed himself and his family under the military health system when he
volunteered to serve his country is denying her equal protection under
the Constitution, Latsinova said.
She said it also is tantamount to government limiting abortion
-- which Flentje said it was not doing. While a woman carrying an
anencephalic fetus might not be in imminent danger of losing her life,
her mental and physical health is at risk, Latsinova added. Women who
chose to carry anencephalic babies to term sometimes have experienced
hardship pregnancies lasting more than a year because there is no brain
in their baby to trigger delivery. The emotional roller coaster of joy
crashing to agony is psychologically damaging, Latsinova said.
Jane Doe, who continues to decline interviews, and her husband
have gone on to have another child who is healthy, said Lisa Stone,
spokeswoman for the Northwest Women's Law Center. While Doe continues
to fight the case, she wants to put the pain behind and get on with her
In 2002, Doe's husband was deployed overseas only two days after
she terminated her pregnancy that August.
Together, the couple made $21,000 a year between his low-ranking
enlisted job and her minimum-wage job working at the Naval Exchange --
and needed help from food stamps, Stone said. They scarcely could
afford the $3,000 to go outside Tricare to terminate her pregnancy,
Had Doe carried the baby to term, taxpayers would have picked up
her maternity and child care, and quite possibly life support, until
the baby died, Stone said.
At the time, Doe's feelings were more those of a heartbroken
mother-to-be. "I am really terrified of the prospect of giving birth,
then watching the baby die," she told Zilly.
The 9th Circuit is expected to decide on the case later this