Britell v. U.S.

Decision Date24 June 2004
Docket NumberNo. 03-1282.,03-1282.
Citation372 F.3d 1370
PartiesMaureen M. BRITELL, Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant.
CourtU.S. Court of Appeals — Federal Circuit

Simon Heller, The Center for Reproductive Rights, of New York, NY, argued for plaintiff-appellee. With him on the brief were John H. Henn, Jessica M. Silbey and Seth Nesin, Foley Hoag LLP, of Boston, Massachusetts.

Gregory G. Katsas, Deputy Assistant Attorney General, Civil Division, Appellate Staff, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Eric D. Miller and Robert M. Loeb, attorneys.

Before MICHEL, BRYSON, and PROST, Circuit Judges.

MICHEL, Circuit Judge.

Defendant-Appellant United States ("the government") appeals from the May 29, 2002 Order of the United States District Court for the District of Massachusetts granting summary judgment to Plaintiff-Appellee Maureen M. Britell ("Britell") in this Little Tucker Act case seeking reimbursement for the cost of an abortion. The district court ruled that 10 U.S.C. § 1093(a) violated the Equal Protection Clause of the Fifth Amendment to the United States Constitution under a rational-basis review because its ban on funding abortions could not be justified on the basis of the state's interest in "potential human life" because such an interest was not relevant as to anencephalic fetuses. Britell v. United States, 204 F.Supp.2d 182, 192-93 (D.Mass.2002) ("Britell II"). Because we hold that under Supreme Court precedent section 1093(a)'s funding ban is rationally related to the state's legitimate interest in potential human life, even in cases of anencephaly, section 1093(a) does not violate the Equal Protection Clause under a rational-basis review, and so we must reverse.

BACKGROUND

In January 1994, Britell and her husband, a Captain in the Air National Guard, were expecting their second child. Id. at 183. A routine checkup about twenty weeks into her pregnancy revealed that Britell's fetus suffered from a rare condition called anencephaly;1 the diagnosis of anencephaly was confirmed by a second ultrasound. Id. at 186. Faced with this horrific diagnosis, and the certain death of the fetus or newborn, the Britells consulted their family, doctors, grief counselors, psychiatrists, and their parish priest, all of whom agreed that the Britells should abort the fetus. Id. On February 18, 1994, Britell had an abortion at the New England Medical Center — after thirteen hours of physically and emotionally painful labor, the fetus died during delivery. Id. The diagnosis of anencephaly was confirmed. Id.

After the abortion, the New England Medical Center sought payment for its services from Britell's insurer, the Civilian Health and Medical Program ("CHAMPUS"). Id. In fulfilling its statutory mandate to "provid[e] an improved and uniform program of medical and dental care for members ... of [the uniformed] services, and their dependents," 10 U.S.C. § 1071 (2000), CHAMPUS funds all "medically necessary services and supplies associated with maternity care." 32 C.F.R. § 199.4(e)(16)(i) (2003). In the present case, however, CHAMPUS denied the claim based on 10 U.S.C. § 1093(a) and corresponding regulations.2 Britell II, 204 F.Supp.2d at 186. Section 1093(a) provides in relevant part that "[f]unds available to the Department of Defense may not be used to perform abortions except where the life of the mother would be endangered if the fetus is carried to term." 10 U.S.C. § 1093(a) (2000). The CHAMPUS regulations specifically provide that abortions performed in the case of "fetal abnormalities" including anencephaly are not covered by CHAMPUS. 32 C.F.R. § 199.4(e)(2) (2003).

After the claim was denied by CHAMPUS, the New England Medical Center sued Britell in state court and obtained $4,000 through a settlement. Britell II, 204 F.Supp.2d at 186. Britell then filed suit against the United States in the United States District Court for the District of Massachusetts seeking "liquidated and unliquidated damages incurred when Defendant, pursuant to the Civilian Health and Medical Program of the Uniformed Services (hereinafter `CHAMPUS'), 10 U.S.C. § 1093(a) and 32 C.F.R. § 199.4(e)(2), refused to pay or reimburse any portion of $4,500 in medical costs incurred by plaintiff Maureen Britell relating to an abortion medical procedure performed upon her at New England Medical Center on February 18-19, 1994." In her complaint, Britell alleged that section 1093(a) "has no rational basis as applied to abortions performed where the fetus is suffering from a lethal anomaly, such as anencephaly (absence of all or significant part of the fetal brain)" and that "the section 1093 exclusion violates the Fifth Amendment of the United States Constitution." Britell's complaint alleged that the district court had jurisdiction pursuant to 28 U.S.C. § 1346(a) (the "Little Tucker Act") which provides that district courts have original jurisdiction over any civil action or claim against the United States, not exceeding $10,000 in amount, founded upon the Constitution, and also under 28 U.S.C. § 1331 because the action alleged a violation of the Fifth Amendment.

Because the Supreme Court had previously held, in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), that the language of the Hyde Amendment (language in the Medicaid statute prohibiting the use of federal funds to reimburse the cost of abortions "except where the life of the mother would be endangered if the fetus were carried to term") was facially constitutional under the Equal Protection Clause, Britell's challenge was narrow in scope. Britell argued that section 1093(a) was only unconstitutional "as applied" to her and similarly-situated pregnant women because the ban on CHAMPUS funding for abortions in cases of anencephaly does not further any of the legitimate state interests identified in McRae as supporting the facial constitutionality of congressional abortion funding restrictions. The government responded by arguing that there is no such thing as an "as applied" equal protection challenge to a statute whose facial constitutionality has been sustained, and that, in any event, the denial of funding in Britell's case passes muster under rational basis review because it encourages childbirth and is thus rationally related to the legitimate state interest in potential human life.

After several rounds of briefing, the district court issued a May 16, 2001 Memorandum and Order addressing the parties' arguments concerning as-applied equal protection challenges, and deferring the parties' motions for summary judgment pending further briefing. Britell v. United States, 150 F.Supp.2d 211 (D.Mass.2001) ("Britell I"). First, the district court rejected the government's argument that McRae was controlling, instead accepting Britell's argument that her case was distinguishable from the ruling in McRae, upholding the facial validity of the Hyde Amendment, because Britell's challenge was a valid as-applied constitutional challenge. Id. at 223. The district court traced the history of "as-applied" jurisprudence, noting that the Supreme Court had recognized as-applied challenges dating back to at least 1985, when it decided City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). After finding that Britell could make an as-applied challenge to a facially constitutional statute, the district court addressed the allegedly-unconstitutional statutory distinctions. Britell I at 226 ("I find that an as-applied challenge to CHAMPUS' funding regulations is entirely appropriate and is not precluded by the Supreme Court's holding in McRae."). Britell argued that two statutory distinctions were unconstitutional: (1) the broad distinction between medically necessary pregnancy services (funded) and the medically necessary abortion of an anencephalic fetus (unfunded); and (2) the narrower distinction between terminations of ectopic pregnancies or treatment of spontaneous, missed, or threatened abortions3 (funded), and abortions of anencephalic fetuses (unfunded). Id. at 223-26. The district court deferred resolution on the first distinction pending additional briefing by the parties, noting that "[s]ignificant questions of law remain, however, regarding the state interest advanced by denying funding for termination of anencephalic pregnancies, while allowing funding for other medically necessary pregnancy services," including whether the government's "`moral' justification for its funding scheme satisfies the equal protection standard" and "if not, does some other, as-yet-unidentified state interest justify that scheme?" Id. at 226. With regard to the second distinction, the court found that "CHAMPUS' decision to fund termination of ectopic pregnancies and treatment of spontaneous, missed, or threatened abortions is rationally related to the legitimate state objectives of preserving maternal health and protecting potential life." Id.

After allowing the parties to present additional briefing on the question "[e]ven if the failure to fund abortion of an anencephalic fetus was not rational — because it did not involve potential or even conscious life — was it still possible to justify the policy on moral grounds," the district court once again considered the parties' motions for summary judgment. Britell II, 204 F.Supp.2d at 188 n. 16. On May 29, 2002, the district court granted summary judgment to Britell, holding that the state's interest in potential human life was not legitimate in cases of anencephaly. Id. at 192-93. The district court also held that section 1093(a) could not be justified on the basis of a "moral interest in preserving the life" because Congress had not actually considered that interest when it enacted the statute. Id. at 195. The district court also noted that, even to the extent a moral interest in the sanctity of...

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