Armed forces medical plan limits abortions
- By DAVID KRAVETS, AP Legal Affairs Writer
Friday, August 19, 2005
(08-19) 00:04 PDT San Francisco (AP) --
A federal appeals court ruled that U.S. armed forces medical benefits should cover abortion costs only when a mother's life is at risk, a decision that the judges acknowledged was "callous and unfeeling."
The ruling Thursday by a three-judge panel of the 9th U.S. Circuit Court of Appeals came in the case of a Navy sailor's wife from Bremerton, Wash., whose fetus had a fatal birth defect. She had an abortion five months into her pregnancy, but coverage for the procedure was denied.
She filed a lawsuit claiming an armed forces health plan owed her $3,000 for the procedure. The government argued that refusing to cover such services "furthers the government's interest in protecting human life in general and promoting respect for life."
In Thursday's 3-0 ruling, judges said they were not judging the "wisdom, fairness or logic" of congressional legislation that limited abortions under military medical plans.
Lawmakers served a legitimate governmental purpose by denying such benefits because of "an interest in potential life," Judge Richard C. Tallman wrote for the San Francisco-based court.
Tests in 2002 showed the baby had anencephaly, a defect that causes a fetus to develop without a forebrain, cerebellum or cranium. An ultrasound at the University of Washington Medical Center confirmed the diagnosis.
Coverage for the abortion was denied, so she sued, claiming an armed forces health plan then known as Civilian Health and Medical Program for the Uniformed Services, now known as TRICARE, owed her $3,000 for the procedure.
The government paid her after a judge ruled in her favor, but then appealed to get its money back.
The appeals court, reprinting coverage regulations, wrote: "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."
The court cited a 1980 Supreme Court decision in which the justices upheld Medicaid legislation forbidding payment for abortions unless the "the life of the mother would be endangered if the fetus were carried to term."
Some rape and incest victims also qualified for coverage under Medicaid, but such coverage is not available under the TRICARE program, which covers members of all the armed forces.
Lisa Stone, executive director of the Northwest Women's Law Center, which represented the sailor's wife, said the case was a long shot because federal funds generally cannot pay for abortions except in limited circumstances.
"We believe it was worth it to pursue it because the basis for upholding the government's ban — the interest in potential human life — does not apply here," Stone said. "There is no potential for human life. There is no rational basis for the regulation as it applies to women with anencephaly."
Stone said the center was considering its next move. Options include letting the decision stand, asking the court to rehear the case with 11 judges or seeking Supreme Court review.
The Justice Department, which defended the government's position in court, had no comment, according to spokesman Charles Miller.
The case is Doe v. United States, 04-35810.
I hope this case makes it to the Supreme Court (although who knows how a confirmed Roberts would sway the outcome). Perhaps if this case does make it to the SCOTUS, the court will have a much needed moral deliberation over personhood, "fetal" rights, and the fuzzy language of "potential life."