JAG CENTRAL

The U.S. Court of Appeals for the Federal Circuit issued two opinions regarding the current ban on federal funding for abortions by military health care providers. In Britell v. U.S., No. 03-1282, the court upheld the constitutionality of the abortion funding ban. This was a really tough case because the Air National Guard family member was carrying a fetus with anencephaly, a neural tube defect in which gelatinous tissue grows in place of a brain, making it impossible for a fetus who happens to be carried to term to gain consciousness. The court held that the funding ban passed rational-basis review. In the other opinion, Doe v. U.S., No. 03-1350, the court punted jurisdiction over the exact same issue and fact pattern to the U.S. Court of Appeals for the Ninth Circuit. Given the court's previous rulings on similar issues in the abortion arena, this may be the beginning of a circuit split on the military abortion funding ban for fetuses with severe genetic defects. The Federal Circuit punted the case because it only has jurisdiction for appeals asking for money damages; while in Britell, the appellant was asking for money compensation for an abortion she already payed for, the appelant in Doe was asking for an injunctive court order to force TRICARE to pay the hospital, even though she had not already payed out of pocket.

Howard Bashman pointed me to the opinions and has a post on the decisions here.