U.S. court panel hears Navy abortion case
 Government wants wife to reimburse cost of procedure
By MIKE BARBER:SEATTLE POST-INTELLIGENCER REPORTER
Thursday, April 7, 2005

  Both sides admitted the case was a tragedy: A teenage Navy wife from Everett carrying a fetus that had no chance at life.
  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 exceptions.
  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 life.
  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, Stone said.
  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 year.