Britell v. U.S., CIV. 99-11253-NG.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation150 F.Supp.2d 211
Docket NumberNo. CIV. 99-11253-NG.,CIV. 99-11253-NG.
PartiesMaureen M. BRITELL, Plaintiff, v. UNITED STATES of America, Defendant.
Decision Date16 May 2001

John H. Henn, Foley, Hoag & Eliot, Boston, MA, for Maureen M. Britell, Andrew P. Britell, Plaintiffs.

Neil H. Koslowe, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for USA, Defendants.


GERTNER, District Judge.

In the first few weeks of 1994, Maureen M. Britell ("Britell") and her husband eagerly anticipated the birth of their second child. Then, to their horror, one of Britell's doctors discovered that the fetus was anencephalic: It had no forebrain or cranium and could not survive outside the womb. Britell's doctors advised abortion, and her parish priest agreed. She aborted the fetus in February of 1994.

Brittell sought coverage of the abortion from her husband's insurer, the Civilian Health and Medical Program of the Uniformed Services ("CHAMPUS" or "the Program"). CHAMPUS funds all medically necessary pregnancy services, but it only covers abortions in cases in which the life of the mother would be endangered if the fetus were carried to term. Indeed, the regulation governing CHAMPUS explicitly excludes coverage for abortions performed because of "fetal abnormalit[ies]," including anencephaly. 32 C.F.R. § 199.4(e)(2). CHAMPUS therefore denied Britell's request for coverage.

Britell then filed this action, claiming that the statute and implementing regulation governing CHAMPUS' coverage of abortions1 violate the Due Process Clause of the Fifth Amendment. Specifically, Britell argues that, as applied to an abortion of an anencephalic fetus, neither provision bears a rational relationship to any legitimate state interest.2

Both Britell and CHAMPUS now move for summary judgment of all claims.3 For the reasons discussed below, resolution of the summary judgment motions is deferred pending further briefing.4

A. Anencephaly

This controversy began on February 17, 1994,5 when Britell's physician, Dr. Russel Feingold ("Feingold"), discovered during a routine ultrasound that Britell's fetus suffered from anencephaly.

Anencephaly is a uniformly fatal neural tube defect in which the fetus develops without a forebrain or cranium.6 Most anencephalic fetuses die during pregnancy or birth. Thirty-two percent of anencephalic fetuses carried to term are born alive, but their prognosis is grim. With continuous life support and intensive neonatal care, some anencephalic infants survive up two months or longer. Without such care, however, fewer than two percent survive longer than seven days. Stubblefield Aff. at ¶¶ 8 — 14; Bennett Aff. at ¶¶ 8 — 16.

Additionally, 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). Further, if delivery is not induced, pregnancies involving anencephalic fetuses can continue long after the normal nine-month period,7 heightening the health risks associated with late-term pregnancy, including possible liver or kidney failure, blood clots, and hemorrhaging. Finally, knowingly carrying a non-viable fetus to term generates severe psychological stresses. Subblefield Aff. at ¶¶ 18 — 21, 23 — 24.

B. Britell's Abortion

Britell alleges that she was approximately twenty-weeks pregnant when Feingold determined her fetus was anencephalic.8 Until this diagnosis, Britell had believed the fetus was healthy. As a precaution, Feingold recommended that Britell obtain a more sophisticated ultrasound at New England Medical Center ("NEMC") in Boston, but the second ultrasound confirmed the dire diagnosis.

The Britells were devastated by the news that their baby would not survive. Britell reports suffering great emotional trauma whenever the fetus moved inside her.9 She was unable to sleep or to discuss her misfortune with friends. To cope with their loss, the Britells consulted grief counselors, doctors, family members, and their parish priest.

Ultimately, the Britells made the difficult decision to terminate the pregnancy. On February 18, 1994, barely a day after Feingold's initial diagnosis, the physicians at NEMC administered medication to induce labor. The fetus died during delivery, and the diagnosis of anencephaly was confirmed.

C. Britell's Interactions with CHAMPUS

At all times relevant to this action, Britell was insured through CHAMPUS, a program established "to provid[e] an improved and uniform program of medical and dental care for members ... of [the uniformed] services, and for their dependents."10 10 U.S.C. § 1071. CHAMPUS is funded through annual congressional appropriations to the Department of Defense ("DOD"). 32 C.F.R. § 199.1(e).

CHAMPUS funds all "medically necessary services and supplies associated with maternity care," 32 C.F.R. § 199.4(e)(16), but the Program is statutorily barred from using funds to "to perform abortions except where the life of the mother would be endangered if the fetus were carried to term." 10 U.S.C. § 1093(a). Further, regulations governing CHAMPUS specifically provide:

Covered abortion services are limited to medical services and supplies only. Physician certification is required attesting that the abortion was performed because the mother's life would be endangered if the fetus were carried to term. Abortions performed for suspected or confirmed fetal abnormality (e.g., anencephalic) ... 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) (emphasis added). As the plaintiff notes, however, the CHAMPUS regulations specifically exempt treatment for "spontaneous,11 missed12 or threatened13 abortion or termination of an ectopic (tubal) pregnancy" from the coverage restrictions. 32 C.F.R. § 199.2(b).

Following Britell's abortion, NEMC submitted a claim to CHAMPUS, but CHAMPUS refused to cover most of the associated costs.14 NEMC then filed suit against the Britells, seeking an award of almost $5,000.00. The Britells have since settled their suit with NEMC for $4,000.00. Britell brings this action to recover the costs she paid to NEMC.

A. Holding of Harris v. McRae

My consideration of Britell's claims must be informed by Harris v. McRae, 448 U.S 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), in which the Supreme Court upheld, on its face, a very similar abortion funding restriction, known as the Hyde Amendment.

The version of the Hyde Amendment considered in McRae proscribes the use of federal funds to reimburse the cost of abortions under the Medicaid program "except where the life of the mother would be endangered if the fetus were carried to term." Id. at 325 n. 27, 100 S.Ct. 2671; see also Pub.L. No. 94-439, § 209, 90 Stat. 1434.15 The McRae appellees challenged the Hyde Amendment on several constitutional grounds. Of most relevance here, they argued that the Hyde Amendment violates the equal protection component of the Fifth Amendment, because the Amendment provides reimbursement for "medically necessary services generally," but not for medically necessary abortions. McRae, 448 U.S. at 306, 100 S.Ct. 2671.

The McRae Court noted "that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution," the classification is presumptively valid unless it implicates a suspect class or "`rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective.'" Id. at 322, 100 S.Ct. 2671 (citing McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)). The Court therefore considered, in turn, whether the Amendment (1) impinges on a constitutionally protected substantive right, (2) implicates a suspect class, or (3) fails to advance a legitimate governmental objective.

With respect to constitutionally protected rights or liberties, the Court considered both rights protected by the Due Process Clause of the Fifth Amendment and those protected by the Establishment Clause of the First Amendment.16 Because the Hyde Amendment withholds funding for abortions rather than directly burdening a woman's right to choose, the Court found no substantive due process violation. Id. at 318 — 19, 100 S.Ct. 2671. Turning to the Establishment Clause, the Court simply noted dismissively that the Amendment "is as much a reflection of `traditionalist' values towards abortion, as it is an embodiment of the views of any particular religion," before concluding that there is no conflict with the First Amendment. Id. at 319 — 20, 100 S.Ct. 2671.

The Court next considered whether the Hyde Amendment is "predicated on a constitutionally suspect classification." Id. at 322, 100 S.Ct. 2671. Drawing on a case decided only three years earlier, Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), the McRae Court noted that although the Hyde Amendment solely impacts indigent women, "`financial need alone'" has never "`identifie[d] a suspect class for purposes of equal protection analysis.'" McRae, 448 U.S. at 323, 100 S.Ct. 2671 (citing Maher, 432 U.S. at 470 — 71, 97 S.Ct. 2376).

Thus, the only remaining question for the Court was whether the Hyde Amendment's distinction between medically necessary abortions and all other medically necessary procedures is "rationally related to a legitimate governmental objective" (the "rational-basis test" or "rational-basis scrutiny"). Id. at 324, 100 S.Ct. 2671. Here, too, the McRae Court found the appellees' arguments unpersuasive. The Court elaborated:

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3 cases
  • Britell v. U.S., 03-1282.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 24 Junio 2004 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 Britel......
  • Britell v. U.S., CIV.99-11253-NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 29 Mayo 2002
    ...litigation,9 culminating in joint motions for summary judgment.10 I resolved some of the issues raised by these motions in my opinion in Britell I. I summarize those findings A. An As-Applied Equal Protection Challenge May Be Brought in This Case In Britell I, I rejected CHAMPUS' argument t......
  • Britell v. U.S., 02-1944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 28 Enero 2003
    ...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 I). Early in the term of her pregnancy, plaintiff-appellee Maureen M. Britell, the wife of an Air National Guard officer......

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