THE RIGHTS OF A BRAIN STEM

Anencephaly case tests military's rule on abortion

By Jessica Kowal
Special to the Chicago Tribune
Fri May 27, 9:40 AM ET
http://news.yahoo.com/s/chitribts/20050527/ts_chicagotrib/anencephalycasetestsmilitarysruleonabortion


It was the first pregnancy for the 19-year-old, whose husband was an enlisted man in the Navy and stationed at the base in Everett. The couple learned in July 2002 that their 4-month-old fetus was anencephalic, or lacking the cerebellum, forebrain and dome of the skull. Instead of continuing the pregnancy for the full nine months, only to watch the child die after delivery, the woman and her husband opted for abortion.

But the U.S. military's health-insurance provider refused to pay. Under federal guidelines in place for more than 25 years, the government will not pay for abortions except when the mother's life is at risk. The couple, whose income was low enough that they qualified for food stamps, said they could not afford the $2,000 abortion fee.


The government has refused to pay for Medicaid abortions, except to save the mother's life, since the 1976 passage of the Hyde Amendment, named for Rep. Henry Hyde (R-Ill.). Congress allowed exceptions for rape and incest in 1993. In 1979, the Defense Department issued its regulation, based on the Hyde guidelines, to restrict abortion funding for members of the military and their families.

Using the name "Jane Doe," the woman sued the federal government, Defense Secretary Donald Rumsfeld and the military's Tricare health insurance system. Her lawsuit--now on appeal before the 9th U.S. Circuit Court of Appeals in San Francisco--is viewed by reproductive rights advocates as a significant legal challenge to the federal government's ban on abortion funding.

U.S. District Judge Thomas Zilly ordered the government to pay for Doe's abortion in late summer in 2002, after the woman told the judge she could not imagine carrying a fetus to term knowing that it would "never survive or have any kind of life whatsoever. I desperately want this to be over so I can move on with my life."

The woman terminated the pregnancy in August 2002.

In February 2003, the Seattle-based judge formally ruled in herfavor. He derided the government's position as "the very antithesis of protecting life" because anencephaly is "fundamentally incompatible with both life and consciousness."

In its appeal, the Justice Department is demanding a refund for Doe's medical costs and has argued that even a baby without a working brain merits government protection. In a hearing before the 9th Circuit last month, August Flentje, a Justice Department attorney, compared an anencephalic infant with a person in a persistent vegetative state.

"The life might be short, and . . . there might be no consciousness, although there is brain activity," Flentje told the court. "By leaving the line between life and death that's well established, you'd create a slippery slope as to which abnormalities are so severe as to negate a state's interest in life."

The government has not disputed the medical facts of Doe's pregnancy. Anencephaly, which occurs in fewer than 1 in 1,000 births in the U.S., is always fatal. If carried to term, two-thirds of these babies are born without a heartbeat. Fewer than 2 percent survive beyond one week.

Dr. Nathan Hoeldtke, an obstetrician-gynecologist in Honolulu who co-founded the Pro-Life Maternal-Fetal Medicine Focus Group among like-minded obstetricians, said he has seen a half-dozen women complete their pregnancies, which he believes is the more ethical course. Hoeldtke compared Jane Doe's decision to that of parents who consider euthanizing a 1-year-old child diagnosed with terminal cancer.

With abortion, "you're actively moving to cause the death prematurely" instead of "letting nature take its course," Hoeldtke said. "From a moral standpoint, when are you allowed to kill someone?"