Britell v. U.S., No. CIV.99-11253-NG.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtGertner
Citation204 F.Supp.2d 182
PartiesMaureen M. BRITELL, Plaintiff, v. UNITED STATES of America.
Decision Date29 May 2002
Docket NumberNo. CIV.99-11253-NG.
204 F.Supp.2d 182
Maureen M. BRITELL, Plaintiff,
v.
UNITED STATES of America.
No. CIV.99-11253-NG.
United States District Court, D. Massachusetts.
May 29, 2002.

John H. Henn, Foley, Hoag & Eliot, Boston, MA, for Plaintiff.

Vincent M. Garvey, Department of Justice, Jean Lin, Department of Justice, Washington, DC, for Defendants.

TABLE OF CONTENTS
MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

GERTNER, District Judge.


Page 183

 TABLE OF CONTENTS
                 I. INTRODUCTION ................................................................... 183
                 II. FACTUAL BACKGROUND ............................................................. 185
                 A. Anencephaly ................................................................. 185
                 B. Britell's Abortion .......................................................... 186
                 C. CHAMPUS' Coverage ........................................................... 186
                III. PRIOR PROCEEDINGS .............................................................. 186
                 A. An As-Applied Equal Protection Challenge May Be Brought in This
                 Case ...................................................................... 187
                 B. Coverage of the Termination of Ectopic Pregnancies and the Treatment
                 of Spontaneous, Missed, or Threatened Abortions ........................... 188
                 IV. ANALYSIS ....................................................................... 188
                 A. Summary Judgment Standard ................................................... 188
                 B. The Significance of McRae ................................................... 189
                 C. The As-Applied Challenge .................................................... 190
                 1. The Justification: Potential Life ........................................ 190
                 a. Medical Status of Anencephaly ......................................... 190
                 b. Legal Status of Anencephaly ........................................... 191
                 c. Case Law .............................................................. 192
                 2. The Moral Interest in Preserving Life .................................... 193
                 3. Legislative Deference in Funding Cases ................................... 195
                 4. Whether "Invidious" Discrimination is Involved ........................... 196
                 5. Whether Allowing Insurance Coverage Here Raises the Specter of the
                 "Slippery Slope" ....................................................... 197
                 V. CONCLUSION ..................................................................... 198
                

I. INTRODUCTION

In January of 1994, Maureen M. Britell ("Britell") and her husband, a Captain in the Air National Guard, were happily anticipating the birth of their second child. A routine checkup with her doctor, however, revealed horrific news: The fetus was anencephalic. It had no forebrain or cranium, and no chance of survival outside the womb. It had no capacity for consciousness. No medical procedure could correct anencephaly. Indeed, because of the fetus' condition, the pregnancy would have to be terminated artificially, through an abortion in its early stages or by inducing birth at term. Either way, the fetus would die.

On the advice of her doctors and even her parish priest, Britell chose to undergo an abortion in February of 1994. Britell sought to have the abortion paid for by her husband's insurer, the Civilian Health and Medical Program of the Uniformed Service ("CHAMPUS" or "the Program"). CHAMPUS denied the claim. While CHAMPUS funds all medically necessary services in connection with pregnancy, it treats one medically necessary service— abortion—differently. Abortions are only covered when the life of the mother would be endangered if the fetus were carried to term. Abortions performed because of "fetal abnormalit[ies]"—anencephaly was mentioned explicitly—are excluded. 32 C.F.R. § 199.4(e)(2).

Britell filed this action, claiming that the statute1 and implementing regulations governing CHAMPUS' coverage of abortions, as they are applied to her, violate

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the Due Process Clause of the Fifth Amendment. Recognizing that the Supreme Court's decision in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), resolved the facial constitutionality of a statute analogous to the statute at issue here,2 Britell's challenge is a narrow one: She challenges neither the Supreme Court's determination that broad abortion funding restrictions are constitutional provided they survive rational-basis scrutiny, id. at 323, 100 S.Ct. 2671, nor its determination of the two most common state objectives for regulating abortion— preserving a woman's health and protecting a potential human life. Roe v. Wade, 410 U.S. 113, 162, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Rather, Britell alleges that CHAMPUS' regulations are unconstitutional as applied to her because denying funding for an abortion of an anencephalic fetus—one with no "potential life" or, indeed, consciousness—advances none of the legitimate state interests identified in McRae.

CHAMPUS argues first, that there is no such thing as an "as applied" equal protection challenge to a statute whose facial constitutionality has been sustained. In any case, CHAMPUS argues that the denial of funding in Britell's case is rational for the same reason discussed in McRae and Roe: Abortion is different from other medically necessary procedures because the latter do not involve the intentional termination of fetal life. McRae, 448 U.S. at 325, 100 S.Ct. 2671. The state can use its funding power to encourage childbirth, and encouraging childbirth is rationally related to the state's interest in potential life. Alternatively, even if the anencephalic fetus' life interest is ephemeral, and not a "potential life" within the meaning of McRae, CHAMPUS argues that the regulation is still constitutional. It is rationally related to the state's interest in encouraging women to make the "moral" choice— avoiding abortion at all cost. These justifications —"potential life" and "morality"— must be upheld because they are not motivated by invidious discrimination, the only limit imposed by a rational basis review. Moreover, to find an anencephalic fetus' short life not worth protecting, CHAMPUS argues, is to "start down a slippery slope" not warranted by the constitutional standards.

After substantial briefing, this complex issue is finally joined. 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 CHAMPUS' denial of coverage. Should Britell carry the pregnancy to term and then artificially induce birth—a normal "birth" was unlikely—producing an infant who would not survive? If she did, CHAMPUS would pay, but Britell would have to bear unimaginable emotional pain and the growing risks to her health as the pregnancy progressed. Or should she terminate the pregnancy early, having an abortion which also meant the death of the

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fetus? Then she would have the bear the substantial costs of the procedure, added to the already excruciating pain of her loss, but she would avoid risks to her own health.

Put in constitutional terms, is there a legitimate state interest, let alone a rational one, that is advanced by insuring one side of this heartbreaking Hobson's choice, but not the other? Since both the costs and the risks of an anencephalic pregnancy rise with time, while the fetus' chances of survival remain at zero throughout, why would the state wish to "encourage" a pregnant woman to carry an anencephalic fetus to term?

I have concluded that there is no rational, legitimate state interest in denying coverage under these circumstances. For the reasons discussed below, Britell's motion for summary judgment [docket entry # 17] is GRANTED, and CHAMPUS' motion for summary judgment [docket entry # 29] is DENIED.

II. FACTUAL BACKGROUND

A. Anencephaly3

Anencephaly is a neural tube defect in which the fetus develops without a fore-brain, cerebellum, or cranium. In place of the brain and skull, the crown of the head is covered by a gelatinous tissue. The condition is uniformly fatal. Most anencephalic fetuses die during pregnancy or birth. Thirty-two percent of anencephalic fetuses carried to term are born alive, but without any hope of survival. With continuous life support and intensive neonatal care, some anencephalic infants can live up to two months.

Without such care, however, fewer than two percent survive longer than seven days. Moreover, because anencephalics do not possess a cerebrum, they are permanently unconscious. They can never experience consciousness or sensory perception of any kind. There is no medical procedure, such as a brain transplant, that can save the life of an anencephalic fetus.

Women who carry anencephalic fetuses to term suffer heightened physical and psychological health risks. In late pregnancy, these women create excessive amniotic fluid, which increases the risk of placental abruption (premature separation of the placenta from the uterine wall). Placental abruption, in turn, can cause disseminated intravascular coagulopathy (abnormally accelerated blood clotting, with simultaneous uncontrolled bleeding), placing the woman at grave risk.

Anencephalic pregnancies are highly likely to require artificial termination, regardless of whether they are carried to term, because an anencephalic fetus has an abnormally small adrenal gland. Adrenal secretions play a key role in triggering spontaneous labor. If delivery is not induced, and pregnancies involving anencephalic fetuses are allowed to continue after the normal nine-month period,4 the health risks associated with late-term pregnancy, including possible liver or kidney failure, blood clots, and hemorrhaging, are exacerbated.5 And the emotional cost cannot be

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minimized—the severe psychological stress generated by knowingly carrying a nonviable fetus to term.

B. Britell's Abortion

Britell was approximately twenty weeks pregnant when...

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3 practice notes
  • Britell v. U.S., No. 03-1282.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • June 24, 2004
    ...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 Page 1373 Supreme Court precedent section 1093(a)'s funding ban is rationally relat......
  • Doe v. U.S., No. 03-1350.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • June 24, 2004
    ...will never attain consciousness. Based largely on a decision of a different district court in a similar case, Britell v. United States, 204 F.Supp.2d 182 (D.Mass.2002), rev'd, 372 F.3d 1370, No. 03-128, 2004 WL 1403559 (Fed.Cir. June 24, 2004), the court concluded that Doe had made a showin......
  • Britell v. U.S., No. 02-1944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 28, 2003
    ...of the case, urging readers who hunger for more exegetic detail to consult the lower court's opinions. See Britell v. United States, 204 F.Supp.2d 182 (D.Mass.2002) (Britell II); Britell v. United States, 150 F.Supp.2d 211 (D.Mass.2001) (Britell Early in the term of her pregnancy, plaintiff......
3 cases
  • Britell v. U.S., No. 03-1282.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • June 24, 2004
    ...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 Page 1373 Supreme Court precedent section 1093(a)'s funding ban is rationally relat......
  • Doe v. U.S., No. 03-1350.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • June 24, 2004
    ...will never attain consciousness. Based largely on a decision of a different district court in a similar case, Britell v. United States, 204 F.Supp.2d 182 (D.Mass.2002), rev'd, 372 F.3d 1370, No. 03-128, 2004 WL 1403559 (Fed.Cir. June 24, 2004), the court concluded that Doe had made a showin......
  • Britell v. U.S., No. 02-1944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 28, 2003
    ...of the case, urging readers who hunger for more exegetic detail to consult the lower court's opinions. See Britell v. United States, 204 F.Supp.2d 182 (D.Mass.2002) (Britell II); Britell v. United States, 150 F.Supp.2d 211 (D.Mass.2001) (Britell Early in the term of her pregnancy, plaintiff......

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