Judge Expands Military Insurance Abortion Coverage

Pregnant women covered by U.S. military's health insurance have a right to end their pregnancies when carrying a fetus with a fatal anomaly-anencephaly-that is, without a brain, a federal judge ruled. The Defense Department may appeal.

Maureen Britell

(WOMENSENEWS)-Military health insurance must cover abortions for women carrying fetuses that have the fetal anomaly of anencephaly-one in which there is no “potential life”-a federal judge in Boston ruled. This is the first decision in the country to expand the military's coverage of the procedure beyond the rigid limits imposed by Congress and the Department of Defense.

Under congressional legislation and restrictions dating to 1982, health care funding for abortion has been exceptionally restricted for women dependents or service members to cases in which the pregnant woman would otherwise die. The May 29 ruling by U.S. District Judge Nancy Gertner provides a narrow exception to the near-total abortion restriction under military health insurance, requiring that it provide funding for abortions chosen by women with anencephalic fetuses, a condition in which the fetus has no brain or cranium and therefore no chance of survival outside the womb.

The 37-page decision is notable for its rebuke of the military, assertion of women's moral decision-making and its possible application to Medicaid restrictions on abortion. It is the first time a court has found that the constitution requires military health policies to provide expanded coverage for abortion beyond the rigid limits established by Congress and the Department of Defense. An estimated 2 million women of reproductive age are eligible for health benefits under military insurance.

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Gertner said that military health insurance could not refuse to pay for the 1994 abortion requested by Maureen Britell after the diagnosis of a severe fetal anomaly during her 20th week of pregnancy. At the time, Britell's husband was on active duty in the Air National Guard.

“We had the nursery painted; we had teddy bears in the crib,” Britell said of the anticipation surrounding her second pregnancy.

“The ultrasound began normally, with the technician slowing moving the wand across my stomach. Suddenly, she stopped moving the wand and focused on one part of the baby. She said that she was unable to locate my daughter's brain,” Britell explained in testimony to a U.S. Senate subcommittee.

Anencephaly diagnoses occur in 1 in 1,000 pregnancies. Termination of Britell's pregnancy was counseled by doctors, medical professionals and even the couple's parish priest. Britell, a self-described Irish-Catholic who had, on occasion, joined anti-abortion protests, underwent an abortion in the hospital followed by emergency surgery to remove the placenta. Six months later, bill collectors began calling when the couple's military insurance denied the hospital's $5,000 claim.

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“It is clear from the outset that the Britells' situation was tragic-a horrifying diagnosis, the termination of a wanted pregnancy. And it is also clear that their tragedy was compounded by (the military insurance's) denial of coverage,” wrote Gertner, appointed to the bench by President Clinton.

Carrying the fetus to term would have caused “unimaginable emotional pain,” growing physical risks and additional medical costs, the judge said. “It is irrational, and worse yet, it is cruel,” she wrote.

“You'd have to have a cold heart not to be touched by that situation and what I went though,” Britell said. “First all your dreams are not going to happen, and then, ‘Oh, by the way, you're not entitled to the same constitutional protections as anyone else.' When we were getting calls from the bill collectors, I said, ‘My husband is a military officer. He's risking his life for the country.'”

Vincent M. Garvey, an attorney with the U.S. Department of Justice who handled the Britell case for the government, said a decision about appealing is under review. But attorneys for Britell say they expect the Bush administration to appeal.

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The decision in Britell's case is the first to find fault with military restrictions on abortion, said Brigitte Amiri, a staff attorney for the Center for Reproductive Law and Policy in New York, which represented Britell along with a Boston law firm.

Military personnel may not use their own funds to pay for abortions at military facilities, unless they are victims of rape or incest or will die from carrying to term. And, when overseas, military women seeking an abortion for reasons other than these must turn to potentially unsafe local facilities or fly home.

U.S. Rep. Loretta Sanchez, a California Democrat, introduced legislation last month that would have overturned this restriction. It was defeated by a vote of 215 to 202. Later this term, Washington Democratic Sen. Patty Murray and Maine Republican Sen. Olympia Snowe are expected to introduce legislation in the Senate to overturn the restriction, though such bills have failed in prior years.

Case Could Have Implications for Medicaid Limitations

Military restrictions parallel those that prevent poor women from getting abortions under Medicaid, but are stricter. Military personnel or spouses are only covered for abortion costs if the pregnant woman would die otherwise. Medicaid, in its current form, also permits abortions for women who are victims of rape or incest. Some states extend coverage to poor women beyond what Medicaid's boundaries.

Both policies, however, prohibit payment for abortion if it is the decision of the woman or the woman's health will be harmed but not kill her. Prior to Gertner's decision, both policies had prohibited coverage in cases of fetal anomaly.

Gertner's decision could potentially be applied to Medicaid's abortion coverage. “It sets a strong legal precedent that, when fatal anomalies occur, it's unconstitutional to refuse to fund them. It could provide the basis for further challenges,” said the Center's Amiri.

The U.S. Supreme Court upheld the restrictions on Medicaid in a 1980 decision. But in an extensive analysis of the 1980 ruling, Gertner found that the High Court left open situations such as Britell's, when furthering the pregnancy does not support potential life.

Gertner specifically rejected claims that the military policy could be justified on moral grounds. Anencephaly “is fundamentally incompatible with both life and consciousness,” the judge noted, eliminating any moral justification based on preserving potential life. In fact, the moral claim, she suggests, weighs on the side of the woman. “Since the fetuses' potential for life is ephemeral, one impact . . . is to stigmatize such women for their legitimate moral choice to terminate their anencephalic pregnancies,” the opinion states.

Britell gave birth to a second healthy baby after her abortion and became an activist for abortion rights after her experiences. She is now executive director of the Washington, D.C., nonprofit Voters For Choice, founded by Gloria Steinem. Britell said she decided to work for an abortion rights organization when, after she spoke out in public hearings in Massachusetts in 1997, anti-abortion protestors targeted her by standing outside her church on the day of her daughter's first Holy Communion.

She often counsels other military families. “It's so unbelievable to me that we can ask so much of military and their families, especially today, and treat them as second-class citizens because they seek reproductive health care,” Britell said.

Cynthia L. Cooper is an independent journalist in New York who frequently writes about reproductive rights.

For more information:

Center for Reproductive Law and Policy
“Court Finds Department of Defense ‘Irrational
and Cruel' for Refusing to Pay for Abortion”
May 31, 2002:

The National Abortion and Reproductive Rights Action League
“The Appropriations Process and Discriminatory Abortion Funding Restrictions”
(Adobe pdf format):

Voters for Choice: