Court Upholds Restrictions on Pentagon Coverage of Abortions

Times Staff Writer

A federal appeals court in San Francisco upheld sweeping restrictions on insurance coverage of abortion under the Pentagon’s health system, ruling Thursday that the procedure would not be covered even if physicians had diagnosed fatal birth defects.

The woman in the case, whose husband is in the Navy, had the abortion in 2002.

Acknowledging that their ruling might seem callous given the severity of the defects, a three-judge panel of the U.S. 9th Circuit Court of Appeals rejected the argument of the woman, known in court records as Jane Doe, that the government’s interest in preserving life did not apply when death was certain.

The ruling, which can be appealed, left intact the Pentagon’s two-decade policy of refusing to cover abortions unless the woman’s life is directly endangered.


Jane Doe’s lawyers did not challenge the Pentagon policy, arguing instead that the government’s reasoning -- a federal interest in protecting life -- was invalid in this case because the fetus was not expected to live long after birth. The fetus had been diagnosed in July 2002 with anencephaly, a condition in which the brain does not develop.

When Doe was five months pregnant, she had an abortion at the University of Washington Medical Center in Seattle. The military health system, known as Tricare, refused to pay for the procedure and the couple sued. After a U.S. District Court judge in western Washington ruled in their favor, the government paid for the $3,000 operation but then appealed.

Government lawyers did not contest the diagnosis, confirmed by an ultrasound at the medical center, or the prognosis -- that the child was unlikely to live long after birth. Instead, they cited laws passed by Congress and federal regulations that specifically excluded anencephaly as a reason for getting an abortion under military medical plans.

The case, which was argued not by the regional U.S. attorney but by Justice Department lawyer August Flentje, demonstrated the high priority the Bush administration placed on ensuring that courts did not roll back the government’s limits on abortion funding.


“We are very disappointed,” said Lisa Stone, executive director of the Northwest Women’s Law Center in Washington state, the legal organization that represented Jane Doe. “In the case of anencephaly -- which is 100% diagnosable and 100% lethal -- there is no human life. So the reason the government puts forward does not apply.”

Abortion rights groups said the ruling highlighted the shortcomings of the federal policy.

“Americans believe their insurance will cover healthcare their doctors recommend, but women in the military don’t have those same rights,” said Nancy Keenan, president of NARAL Pro-Choice America. “Politicians have intervened, and this case is just one consequence of a callous law.”

Antiabortion groups celebrated the ruling, which was written by Judge Richard C. Tallman for Judges William C. Canby Jr. and Johnnie B. Rawlinson.


“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,” said Wendy Wright, senior policy director of Concerned Women for America, an antiabortion group based in Washington, D.C.

A Pentagon spokesman said he was unfamiliar with the case and could not comment.

The sailor’s wife has not decided whether to drop the case, seek a review of the decision by a larger, 11-judge panel of the 9th Circuit or appeal directly to the U.S. Supreme Court, Stone said.

Abortions have been restricted at military hospitals since Congress acted in 1979 to prohibit the use of government funds to pay for them unless the mother’s life was directly endangered. In subsequent years, military officials also cut off the practice of permitting abortions at military hospitals even if the women paid for them.


That “private pay” option was considered particularly important for the estimated 100,000 American servicewomen and military wives stationed abroad. Although women in the United States may have the option of going to an outside medical facility, many in other countries have no medical alternatives.

Physicians at military hospitals may perform abortions in cases of rape or incest, but the patient must pay. A legislative effort this year by three California Democratic congresswomen -- Susan A. Davis of San Diego, Loretta Sanchez of Santa Ana and Jane Harman of Venice -- to permit “private pay” abortions at military hospitals in cases other than rape or incest was defeated.

The restrictions have drastically reduced the number of abortions at military hospitals, which had performed upward of 10,000 abortions a year before the 1979 ban. After 1980, abortions at Pentagon health facilities dwindled to several dozen a year. There were no figures available for the number sought in the case of birth defects.