419 F.3d 1058 (9th Cir. 2005), 04-35810, Doe v. United States

Docket Nº:04-35810.
Citation:419 F.3d 1058
Party Name:Jane DOE, Plaintiff-Appellee, v. UNITED STATES of America; Donald Rumsfeld, in his capacity as Secretary of Defense; Tricare Management Activity, formerly Office of Civilian Health and Medical Programs of the Uniformed Services, Defendants-Appellants.
Case Date:August 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1058

419 F.3d 1058 (9th Cir. 2005)

Jane DOE, Plaintiff-Appellee,

v.

UNITED STATES of America; Donald Rumsfeld, in his capacity as Secretary of Defense; Tricare Management Activity, formerly Office of Civilian Health and Medical Programs of the Uniformed Services, Defendants-Appellants.

No. 04-35810.

United States Court of Appeals, Ninth Circuit.

August 18, 2005

Argued and Submitted April 6, 2005.

Page 1059

COUNSEL

August E. Flentje, Assistant United States Attorney, United States Department

Page 1060

of Justice, Civil Division, Washington, D.C., for the defendants-appellants.

Rita V. Latsinova, Stoel Rives LLP, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, D.C. No. CV-02-01657-TSZ, Thomas S. Zilly, District Judge, Presiding

Before: William C. Canby, Jr., Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

I

In July 2002, Jane Doe, the pregnant wife of a naval enlisted man stationed out of Everett, Washington, learned during a routine checkup with her obstetrician that her fetus was anencephalic. Anencephaly is a neural tube defect that occurs when the cephalic end of the neural tube fails to close. Closure usually completes between the third and fourth week of pregnancy. The tube's failure to fully close results in a fetus that develops without a forebrain or a cerebellum.

Anencephaly is an ultimately and unequivocally fatal birth defect. Approximately one-third of anencephalic fetuses carried to term are born alive. Fewer than two percent that are born alive survive more than seven days. There is no cure for anencephaly and even extensive medical intervention and continuous life support will not prolong the life of an anencephalic infant more than two months.

Following the initial diagnosis, Doe obtained a second opinion, which confirmed her obstetrician's assessment. Doe consulted with her doctor, medical staff, counselors, and her family. She and her husband then made the difficult decision to terminate her pregnancy.

Mrs. Doe was a covered federal beneficiary under the Civilian Health and Medical Program for the Uniformed Services ("CHAMPUS"), now known as TRICARE. The "purpose of [TRICARE] is to create and maintain high morale in the uniformed services by providing an improved and uniform program of medical and dental care for members and . . . their dependents." 10 U.S.C. § 1071. With respect to pregnancy, TRICARE may provide funding for "medically necessary services and supplies associated with maternity care[.]" 32 C.F.R. § 199.4(e)(16)(i). Maternity care, in turn, includes "[c]are and treatment related to conception, delivery, and abortion, including prenatal and postnatal care . . . and also including treatment of the complications of pregnancy." 32 C.F.R. § 199.2(b).

Congress has prohibited TRICARE, however, from providing federal funds for "abortions except where the life of the mother would be endangered if the fetus were carried to term." 10 U.S.C. § 1093(a). The regulation implementing this statutory prohibition declares:

The statute under which CHAMPUS operates prohibits payment for abortions with one single exception — where the life of the mother would be endangered if the fetus were carried to term. . . . Abortions performed for suspected or confirmed fetal abnormality (e.g., anencephalic) or for mental health reasons (e.g., threatened suicide) do not fall within the exceptions permitted within the language of the statute and are not authorized for payment under CHAMPUS.

32 C.F.R. § 199.4(e)(2).

Nonetheless, staff at the University of Washington Medical Center, where Doe went...

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