When she learned that she was carrying a baby with almost no brain and no chance of survival, a devastated young Navy wife from Everett pleaded with a federal court in Seattle to force her military medical program to pay for an abortion.
"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, then 19, told a federal judge in August 2002. "I understand that even if the baby is born alive, it will probably die after it takes a few breaths. I am really terrified of the prospect of giving birth, then watching the baby die."
She won her case and had the abortion. But more than two years later, the federal government continues to fight her, trying to get the woman and her sailor husband to pay back the $3,000 the procedure cost and trying to cast in stone a ban on government-funded abortions.
The case of Jane Doe. v. the United States will be argued before a federal appeals court next month. Like the Terri Schiavo case in Florida, involving a severely brain-damaged adult, this matter involves questions of what is human life, when can family decide to end it and how far can the government go to block that decision.
Federal lawyers have aggressively appealed the Navy wife's case, often using moral arguments against abortion. The case focuses on the Hyde Amendment regulations, which forbid use of public funds for abortions except if a mother's life is endangered, or in cases of incest or rape -- but not for lethal fetal ailments.
After a lengthy tug of war in which Jane Doe's case bounced between two courts of appeal, on the East and West coasts, arguments will be heard April 8 before the 9th U.S. Circuit Court of Appeals, which is based in San Francisco.
"It's a sleeper case that no one is talking about because it's so far from over, but when it hits, it's going to be a big one," predicted Maureen Britell, former executive director of the now-defunct Voters for Choice lobby in Washington, D.C.
An Air Force wife, Britell filed the only similarly known case involving anencephaly, abortion and military health coverage 11 years ago. It is the case upon which Jane Doe's is based -- Britell v. the United States.
Anencephaly is a neural tube defect that causes a fetus to develop without a forebrain, cerebellum or cranium and which is 100 percent fatal to the fetus, although not to the mother, medical experts say.
The Everett woman, named Jane Doe in court documents to protect her privacy, has declined to be interviewed. She and her husband now have a healthy baby.
Her attorney, Seattle lawyer Vanessa Soriano Power, has built the case on constitutional grounds, arguing that federal regulations violate the equal protection clause of the Constitution by denying abortion coverage concerning cases where fetuses, not just the mother, are certain to die.
"I can't understand the impetus behind the government pursuing this case," Power said of the time and expense federal lawyers have invested. Power, with lawyer Lisa Ratsinova, first argued the case successfully in 2002 as a cooperating attorney for the Northwest Women's Law Center.
"This young woman didn't have the money to pay for it herself," Power said. "Her husband is an enlisted man, and she was essentially earning minimum-wage working at the Navy Exchange, and the procedure becomes more expensive and risky to the mother the further along the pregnancy is carried. We essentially asked the court to force the government to stop withholding payment."
U.S. District Judge Thomas Zilly in Seattle agreed, issuing a strongly worded decision in February 2003 and ordering the military's Tricare medical system to pay for the abortion.
But the battle continues.
Justice Department officials say they are forbidden to talk about pending litigation. "There is nothing we can say in that this is ongoing," department spokesman Charles Miller said from Washington, D.C.
In court documents, federal lawyers cite the Hyde Amendment and a Tricare regulation that specifically denies payment to terminate anencephalic fetuses.
In 2003, the government lawyers also cited moral arguments for denying military medical coverage. Prohibiting federal funding of abortions "reflects and effectuates a moral judgment to value all human life, including the life of an anencephalic infant."
The government's refusal to fund abortion "furthers the government's interest in protecting human life in general and promoting respect for life," the lawyers said in their appeal.
When federal lawyers said the government could not pay for an activity contrary to the "moral objections of many Americans," Zilly responded that "this argument has no merit. The government funds many activities such as the death penalty over the moral objections of many Americans."
Jane Doe told Zilly her story on Aug. 6, 2002. She and her husband were overjoyed when they learned in April that she was pregnant.
"We told our families and friends. Because my husband is enlisted in the Navy, and I worked at the Naval Exchange, we didn't have a lot of income. So we decided to start buying diapers every time we went to the grocery store, so we would have a good supply when the baby was born. There's an extra room in our apartment, which we painted pale blue in anticipation that this would be the baby's room."
But 18 weeks into the pregnancy, a problem indicating anencephaly surfaced in a routine protein test, then in an ultrasound. A second ultrasound at the University of Washington Medical Center confirmed the diagnosis.
"I talked to the medical staff and counselors, and then my husband and I discussed what we should do," Jane Doe told the court. "We talked about it with our families. Finally, we all agreed that it would be best for me to end the pregnancy now."
They realized that they could ill afford the $3,000 for the procedure.
But the military medical provider refused to pay for it.
The Doe case began following footsteps similar to those Britell first made a decade before.
For Britell, a Roman Catholic who once participated in anti-abortion rallies, the battle with the government transformed her into an outspoken advocate of abortion rights.
Britell learned in 1994 that the fetus she was carrying was anencephalic. Like Jane Doe, she and her husband, Andrew, then a captain called to active duty with the Massachusetts Air National Guard, agonized over their choices.
"Your world just sort of stops. Suddenly, you aren't living your life. I was terrified of just going to the grocery store. You might see other women, especially pregnant women. Someone might ask, 'When's your baby due?' " Britell said.
Britell thought she would answer: "The day before its funeral."
What many people don't realize, she said, "is that an anencephalic pregnancy could be over a year in gestation. One of the nasty things not many know is that because the brain is not developed, the fetus doesn't send a signal that it is ready to come out."
Dr. Thomas Easterling, who specializes in maternal-fetal medicine and high-risk pregnancies at the UW Medical Center, said that's possible.
The fetus' "labor mechanism is entirely impaired," said Easterling, who provided information for Zilly to consider in the Jane Doe case.
Easterling said medicine has no procedures to cure anencephaly or to save an anencephalic fetus. The lack of a cerebrum means that the baby never attains consciousness.
Two-thirds of anencephalic fetuses carried to term are born without a heartbeat and fewer than 2 percent survive longer than seven days, he said.
Easterling said it is standard to offer a woman who learns she is carrying an anencephalic baby counseling and a range of options that include abortion. Most mothers choose abortion, he said.
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. "Although anencephalic infants are 'permanently unconscious,' they 'maintain a heartbeat and respiration without medical assistance,' " the government argued, quoting from medical journals.
Britell believes that the government's fight shows that the case is being watched at the highest levels.
Acting upon a clause that allows cases involving military and public employees to be appealed to U.S. Court of Appeals for the Federal Circuit in Washington, D.C., government lawyers sought to have that court hear both the Britell and the Jane Doe cases. That court is considered conservative and is best known for hearing patent cases.
After years of winning before judges appointed by President Clinton, Britell tasted her first loss when her case was moved to the D.C. court. Instead of appealing to the U.S. Supreme Court, however, the Air Force wife deferred to the Navy wife, letting Jane Doe continue with the test case.
Power, Jane Doe's lawyer, successfully argued last year that the 9th Circuit was the proper venue, and the Everett case returned to the West Coast.
A victory for the Navy wife at the 9th Circuit may well mean a date before the U.S. Supreme Court.
"It's not close to being over," Britell said.
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