Sailor’s wife fights U.S. over abortion of anencephalic fetus

SEATTLE – Learning that her fetus had little chance of survival, a young Navy wife decided in 2002 her best option was abortion. She’s still embroiled in a federal court battle to force her military health insurance to cover the costs.

The case of Jane Doe vs. the United States will be argued April 6 in Seattle before a three-judge panel of the San Friancisco-based 9th U.S. Circuit Court of Appeals.

Doe won approval for federal coverage of the costs two years ago in U.S. District Court. The pregnancy was terminated at five months in August 2002.

But the government is still fighting Judge Thomas Zilly’s order that it provide $3,000 for the procedure.

Justice Department attorneys contend federal law forbids use of public funds for abortion unless the mother’s life is endangered, or in cases of incest or rape.

There is no exception for lethal fetal ailments.

Jane Doe, whose name is withheld in court documents to protect her privacy, has declined interviews, the Seattle Post-Intelligencer reported Wednesday.

Her attorney, Vanessa Soriano Power of Seattle, argues that federal regulations violate the equal protection clause of the Constitution by denying abortion in cases where the fetus, not the mother, is certain to die.

“I can’t understand the impetus behind the government pursuing this case,” said Power, who with lawyer Rita Latsinova argued the case successfully before Zilly for the Northwest Women’s Law Center.

Doe learned she was pregnant in April 2002, but 18 weeks later tests revealed the baby had anencephaly, a neural tube 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.

The defect is invariably fatal to the fetus, according to medical experts.

“I talked to the medical staff and counselors, and then my husband and I discussed what we should do,” Doe told Zilly in August 2002.

“We talked about it with our families. Finally, we all agreed that it would be best for me to end the pregnancy now.”

The judge agreed. In February 2003, Zilly issued a strongly worded written order requiring the military’s Tricare medical system to pay for the procedure.

Justice Department officials refused to discuss the case pending before the 9th Circuit.

“There is nothing we can say in that this is ongoing,” agency spokesman Charles Miller said from Washington, D.C.

In court documents, lawyers cite government regulations and a Tricare rule that specifically denies payment to terminate anencephalic fetuses.

In 2003, the government also raised moral arguments, arguing that barring federal funds for most abortions “reflects and effectuates a moral judgment to value all human life, including the life of an anencephalic infant.”

That refusal “furthers the government’s interest in protecting human life in general and promoting respect for life,” government lawyers said on appeal.

Doe’s case parallels that of Maureen Britell, an Air Force wife in Massachusetts who filed a similar case 11 years ago when she learned her fetus was anencephalic.

The government sought to have both cases argued before the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., a more conservative panel.

Britell had her first loss before the D.C. Court, but decided not to appeal while Doe’s case was pending.

Doe’s attorney successfully argued that the 9th Circuit was the proper venue for her case.

The outcome will likely be challenged to the U.S. Supreme Court.

“It’s not close to being over,” Britell said.