Wife of sailor battles U.S. over
Navy won't pay for procedure for woman who carried severely
By MIKE BARBER: SEATTLE POST-INTELLIGENCER REPORTER
March 23, 2005
When she learned that she was carrying a baby with almost no
brain and no chance of survival, a devastated young Navy wife from
Everett pleaded with a federal court in Seattle to force her military
medical program to pay for an abortion.
"I could not imagine going through five more months of
pregnancy, knowing that the baby will never survive or have any kind of
life whatsoever," the woman, then 19, told a federal judge in August
2002. "I understand that even if the baby is born alive, it will
probably die after it takes a few breaths. I am really terrified of the
prospect of giving birth, then watching the baby die."
She won her case and had the abortion. But more than two years
later, the federal government continues to fight her, trying to get the
woman and her sailor husband to pay back the $3,000 the procedure cost
and trying to cast in stone a ban on government-funded abortions.
The case of Jane Doe. v. the United States will be argued before
a federal appeals court next month. Like the Terri Schiavo case in
Florida, involving a severely brain-damaged adult, this matter involves
questions of what is human life, when can family decide to end it and
how far can the government go to block that decision.
Federal lawyers have aggressively appealed the Navy wife's case,
often using moral arguments against abortion. The case focuses on the
Hyde Amendment regulations, which forbid use of public funds for
abortions except if a mother's life is endangered, or in cases of
incest or rape -- but not for lethal fetal ailments.
After a lengthy tug of war in which Jane Doe's case bounced
between two courts of appeal, on the East and West coasts, arguments
will be heard April 6 before the 9th U.S. Circuit Court of Appeals,
which is based in San Francisco. (Editor's Note: The original version
of this story contained an incorrect court date.)
"It's a sleeper case that no one is talking about because it's
so far from over, but when it hits, it's going to be a big one,"
predicted Maureen Britell, former executive director of the now-defunct
Voters for Choice lobby in Washington, D.C.
An Air Force wife, Britell filed the only similarly known case
involving anencephaly, abortion and military health coverage 11 years
ago. It is the case upon which Jane Doe's is based -- Britell v. the
Anencephaly is a neural tube defect that causes a fetus to
develop without a forebrain, cerebellum or cranium and which is 100
percent fatal to the fetus, although not to the mother, medical experts
The Everett woman, named Jane Doe in court documents to protect
her privacy, has declined to be interviewed. She and her husband now
have a healthy baby.
Her attorney, Seattle lawyer Vanessa Soriano Power, has built
the case on constitutional grounds, arguing that federal regulations
violate the equal protection clause of the Constitution by denying
abortion coverage concerning cases where fetuses, not just the mother,
are certain to die.
"I can't understand the impetus behind the government pursuing
this case," Power said of the time and expense federal lawyers have
invested. Power, with lawyer Rita Latsinova, first argued the case
successfully in 2002 as a cooperating attorney for the Northwest
Women's Law Center. (Editor's Note: Ms. Latsinova's name was misspelled
in the original version of this story.)
"This young woman didn't have the money to pay for it herself,"
Power said. "Her husband is an enlisted man, and she was essentially
earning minimum-wage working at the Navy Exchange, and the procedure
becomes more expensive and risky to the mother the further along the
pregnancy is carried. We essentially asked the court to force the
government to stop withholding payment."
U.S. District Judge Thomas Zilly in Seattle agreed, issuing a
strongly worded decision in February 2003 and ordering the military's
Tricare medical system to pay for the abortion.
But the battle continues.
Justice Department officials say they are forbidden to talk
about pending litigation. "There is nothing we can say in that this is
ongoing," department spokesman Charles Miller said from Washington,
In court documents, federal lawyers cite the Hyde Amendment and
a Tricare regulation that specifically denies payment to terminate
In 2003, the government lawyers also cited moral arguments for
denying military medical coverage. Prohibiting federal funding of
abortions "reflects and effectuates a moral judgment to value all human
life, including the life of an anencephalic infant."
The government's refusal to fund abortion "furthers the
government's interest in protecting human life in general and promoting
respect for life," the lawyers said in their appeal.
When federal lawyers said the government could not pay for an
activity contrary to the "moral objections of many Americans," Zilly
responded that "this argument has no merit. The government funds many
activities such as the death penalty over the moral objections of many
Jane Doe told Zilly her story on Aug. 6, 2002. She and her
husband were overjoyed when they learned in April that she was
"We told our families and friends. Because my husband is
enlisted in the Navy, and I worked at the Naval Exchange, we didn't
have a lot of income. So we decided to start buying diapers every time
we went to the grocery store, so we would have a good supply when the
baby was born. There's an extra room in our apartment, which we painted
pale blue in anticipation that this would be the baby's room."
But 18 weeks into the pregnancy, a problem indicating
anencephaly surfaced in a routine protein test, then in an ultrasound.
A second ultrasound at the University of Washington Medical Center
confirmed the diagnosis.
"I talked to the medical staff and counselors, and then my
husband and I discussed what we should do," Jane Doe told the court.
"We talked about it with our families. Finally, we all agreed that it
would be best for me to end the pregnancy now."
They realized that they could ill afford the $3,000 for the
But the military medical provider refused to pay for it.
The Doe case began following footsteps similar to those Britell
first made a decade before.
For Britell, a Roman Catholic who once participated in
anti-abortion rallies, the battle with the government transformed her
into an outspoken advocate of abortion rights.
Britell learned in 1994 that the fetus she was carrying was
anencephalic. Like Jane Doe, she and her husband, Andrew, then a
captain called to active duty with the Massachusetts Air National
Guard, agonized over their choices.
"Your world just sort of stops. Suddenly, you aren't living your
life. I was terrified of just going to the grocery store. You might see
other women, especially pregnant women. Someone might ask, 'When's your
baby due?' " Britell said.
Britell thought she would answer: "The day before its funeral."
What many people don't realize, she said, "is that an
anencephalic pregnancy could be over a year in gestation. One of the
nasty things not many know is that because the brain is not developed,
the fetus doesn't send a signal that it is ready to come out."
Dr. Thomas Easterling, who specializes in maternal-fetal
medicine and high-risk pregnancies at the UW Medical Center, said
The fetus' "labor mechanism is entirely impaired," said
Easterling, who provided information for Zilly to consider in the Jane
Easterling said medicine has no procedures to cure anencephaly
or to save an anencephalic fetus. The lack of a cerebrum means that the
baby never attains consciousness.
Two-thirds of anencephalic fetuses carried to term are born
without a heartbeat and fewer than 2 percent survive longer than seven
days, he said.
Easterling said it is standard to offer a woman who learns she
is carrying an anencephalic baby counseling and a range of options that
include abortion. Most mothers choose abortion, he said.
In its appeal, the government said that "although anencephaly is
ultimately fatal," some anencephalic babies have lasted a few months,
and in one noted case more than two years. "Although anencephalic
infants are 'permanently unconscious,' they 'maintain a heartbeat and
respiration without medical assistance,' " the government argued,
quoting from medical journals.
Britell believes that the government's fight shows that the case
is being watched at the highest levels.
Acting upon a clause that allows cases involving military and
public employees to be appealed to U.S. Court of Appeals for the
Federal Circuit in Washington, D.C., government lawyers sought to have
that court hear both the Britell and the Jane Doe cases. That court is
considered conservative and is best known for hearing patent cases.
After years of winning before judges appointed by President
Clinton, Britell tasted her first loss when her case was moved to the
D.C. court. Instead of appealing to the U.S. Supreme Court, however,
the Air Force wife deferred to the Navy wife, letting Jane Doe continue
with the test case.
Power, Jane Doe's lawyer, successfully argued last year that the
9th Circuit was the proper venue, and the Everett case returned to the
A victory for the Navy wife at the 9th Circuit may well mean a
date before the U.S. Supreme Court.
"It's not close to being over," Britell said.
P-I reporter Mike Barber can be reached at 206-448-8018 or