Military Not Required To Pay for Abortion of Nonviable Fetus Under Federal Law

Some stories are simply disturbing. And sometimes the law is wrong. From the front page of the Seattle PI (but almost no other coverage by using Google News and CNN), a Federal case has been reversed by the 9th U.S. Circuit Court of Appeals (San Francisco)

Court sides with Navy in dispute over abortion – Judges couldn’t consider fact that deformed fetus would die (Seattle PI)

Calling its own decision “callous and unfeeling,” a federal appeals court ruled Thursday against a Navy sailor’s wife from Everett who aborted a horribly deformed fetus that was destined to die. The woman wanted her military health insurance plan to pay for the procedure, but the three-judge panel of the 9th U.S. Circuit Court of Appeals held that its hands were tied: U.S. armed forces medical benefits don’t cover abortions unless the pregnant woman’s life is at risk. The court ruled that it must defer to a congressional mandate, saying it could not “judge the wisdom, fairness or logic of legislative choices.”
In its 3-0 ruling, the court said the U.S. Supreme Court upheld the constitutionality of congressional bans on federal funding of abortion in its ruling on the Hyde Amendment almost 25 years ago.

The panel’s opinion concluded on a sympathetic note: “While recognizing that the foregoing discussion may seem at times callous and unfeeling, we express our deepest sympathy for the families who must face this difficult ordeal.”

For background, Kaisernetwork has a discussion of the fetus̢۪ condition:

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.

From the PI, we have the response of the non-profit organization that brought the lawsuit:

Lisa Stone, executive director of the women’s law center slammed Thursday’s appeals court ruling, saying the standard of review it used in deciding the case “is not a rubber stamp for whatever Congress does.” “The rational basis behind the prohibition on termination of pregnancy is the preservation of potential human life,” Stone said. “With an anencephalic fetus, there is no life. Therefore, it’s irrational, and I would say cruel, to apply the restriction in a case like Jane Doe’s. This is about the government making this principle that is irrational and tragic.”

Note the director of the law center called for judical activism, and it didn’t happen (This case was appealed to the 9th Circuit Court of Appeals, the one most maligned for judicial activism). I suggest she follow the rules of a democracy, rather than call for an autocratic judiciary. She should contact Senators Cantwell and Murray (WA), and her Seattle Representative (probably “Baghdad Bob” McDermott) and try to get the law changed.

Looking at, we find an entirely different set of “facts” reported last March 28, just before the case was heard (bolded emphasis mine)

U.S. Wants Navy Woman to Reimburse Abortion Expenses

The U.S. is trying to get a Navy wife to reimburse the government for the cost of her abortion. The woman sought the abortion more than two years ago after discovering that the baby she was carrying was disabled. “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, who was then 19, told a federal judge in August of 2002. . . .

Anencephaly causes an unborn baby to develop without a forebrain, cerebellum, or cranium. The condition often leads to the death of the baby. . . .

But 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. The government also argued that, although anencephalic infants are “permanently unconscious,” they “maintain a heartbeat and respiration without medical assistance.”

Fanatics only hear (and report) what they want to hear (all sides). But the above did give background and quote Jane Doe regarding her concerns.

There is indeed a slippery slope to have courts “adjust” laws to what feels right, as the government lawyers argued. How society operates is not for judges to decide outside the law based on what they “feel” is right. The decision in this case is that this application of the Hyde Amendment prohibiting Federal funding of this abortion is Constitutional and legal (awaiting Supreme Court appeal?). But is the law right? If you don’t think it is, you should work to get the law changed in Congress (I‘ve already emailed my Congressman and Senators). There are already exceptions to the Hyde Amendment, such as incest and rape; this could be another.

The descriptions I’ve seen of this condition show there is no humanity, consciousness, nor soul in a baby born in such a state – (for those that are actually born alive). After this case, a military woman’s health care insurance (Tricare) will not cover ending such a pregnancy, and require her to continue carring a baby (5 more months in this case, unless she is able to afford going outside her medical insurance, which isn’t likely for Junior enlisted) that will most likely be still-born, and almost certainly not survive beyond 1 week (98%).

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Richard Gardner
About Richard Gardner
Richard Gardner is a “retired” Navy Submarine Officer with military policy, arms control, and budgeting experience. He contributed over 100 pieces to OTB between January 2004 and August 2008, covering special events. He has a BS in Engineering from the University of California, Irvine.


  1. bryan says:

    such as incest and rape; this could be another.

    Indeed, the exception for rape seems much more of a “slippery slope” than this one. After all, the child of rape is not responsible for the circumstances of its birth, nor is it necessarily going to be born with defects (not so much in the case of incest).

    Irony, thy name is abortion politics.

  2. McGehee says:

    I have to agree with you, Richard. Here we have a clear case where the notorious description of a human fetus — “a blob of protoplasm” — is actually close to correct, but the proper response is to call upon Congress to make the necessary adjustment.

    If I learn that such a bill is proposed and am satisfied that it is not itself fatally deformed by amendments, I will encourage my Representative and Senators to support it.