Military Not Required To Pay for Abortion of Nonviable Fetus Under Federal Law, 9th Circuit Court of Appeals Rules

Main Category: Abortion
Article Date: 21 Aug 2005 - 0:00 PDT

email to a friend   printer friendly   opinions  

The US Navy is not responsible for the cost of an abortion for an Everett, Washington, woman whose fetus was missing part of its brain, a three-judge panel of the 9th US Circuit Court of Appeals in San Francisco unanimously ruled on Thursday, the... San Francisco Chronicle reports (Egelko, San Francisco Chronicle, 8/19). Anencephaly -- a neural tube defect that causes fetuses to develop without a forebrain, cerebellum or cranium -- is fatal 100% of the time, with two-thirds of infants born without a heartbeat and only 2% surviving longer than seven days after birth, according to medical experts. However, because the fetal condition is not considered life-threatening for women, the woman's health insurance through her husband, a Navy sailor, refused to pay for an abortion, citing the 1976 Hyde amendment, which forbids the use of federal funds to pay for the cost of an abortion except in cases of rape or incest or when a woman's life is in danger. But because the woman, who was 19 years old and 21 weeks pregnant at the time and is known as Jane Doe in court documents, could not afford the approximately $3,000 cost of an abortion, she and her husband in August 2002 filed a case in federal court requesting that the military health plan TRICARE pay for the abortion. U.S. District Judge Thomas Zilly in August 2002 ruled that TRICARE must pay for the abortion, and Doe underwent the procedure. Zilly upheld his previous ruling in February 2003. However, the Department of Justice appealed the ruling, requesting that the woman and her husband reimburse the government for the cost of the procedure (Kaiser Daily Reproductive Health Report, 3/24). DOJ lawyers argued that the law promotes the government's interest in preserving human life and warned against a "slippery slope" if courts decided that certain defects justified abortion (Murphy, New York Times, 8/19).

Ruling Details
The court acknowledged that the ruling might come across as "callous and unfeeling" but said they were not judging the "wisdom, fairness or logic" of the congressional legislation restricting abortion under military medical plans (Kravets, AP/Contra Costa Times, 8/19). "Abortions performed for suspected or confirmed fetal abnormality ... do not fall within the exceptions permitted within the language of the statute and are not authorized for payment," according to the court (AP/Contra Costa Times, 8/19). The court said that precedent set forth 25 years ago in the Supreme Court case Harris v. McRae applied to the case. In that case, the court upheld federal legislation that prohibits Medicaid from paying for abortions except when the woman's life is in danger.

Reaction, Next Steps
Lisa Stone, who represented the woman, called the argument "irrational at best and cruel at worst" because it was indisputable that the fetus had no chance of survival (New York Times, 8/19). "This is about the government making this principle that is irrational and tragic," Stone said (Shukovsky, Seattle Post-Intelligencer, 8/19). NARAL Pro-Choice America President Nancy Keenan said, "Americans believe their insurance will cover health care their doctors recommend, but women in the military don't have those same rights." She added, "Politicians have intervened, and this case is just one consequence of a callous law." However, antiabortion groups praised the ruling. "While a disability is a tragedy, Americans don't want to be complicit in killing the disabled even if that disabled person is inside the womb," Wendy Wright, senior policy director of Concerned Women for America, said (Hendren, Los Angeles Times, 8/19). Stone said her client cannot afford to pay the $3,000 if the government pushes for reimbursement, but she has not decided whether to appeal the ruling (San Francisco Chronicle, 8/19).

"Reprinted with permission from http://www.kaisernetwork.org. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at http://www.kaisernetwork.org/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation . © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.

• Additional
• References
• Citations