SEATTLE — The 9th Circuit Court of Appeals ruled that the military can continue to ban the funding of abortions for its personnel and their families — except in cases where the life of the mother is threatened.

The case before the federal court, widely considered one of the most activist in the United States, concerned a 23-year-old woman — identified only as Jane Doe — who procured an abortion in 2002, after learning that her child suffered from anencephaly — a condition characterized by undersized or missing parts of the brain. Most sufferers are stillborn, and the rest usually die within days or weeks of birth.

In an opinion that expressed great sympathy for the mother, the three-judge panel of the appeals court overturned a lower court ruling that held that the Congressional ban on federal funding of abortions by Tricare — the military medical care system — was unconstitutional.

The Army Times reported that the plaintiff has not yet decided whether to appeal the finding.

“The 9th Circuit read a law and upheld its meaning,” said Richard Doerflinger, Deputy Director of the Secretariat for Pro-Life Activities at the U.S. Conference of Catholic Bishops in Washington, D.C.

“It would have been sad if they had tried to create a right to kill unborn terminally-ill children [as the lower court did],” he said.

Northwest Women's Law Center in Seattle represented Doe in the case. A request from comment went unanswered.

But her attorney — Lisa Stone — was quoted in the Army Times as saying that she saw no reason to protect the life of a terminally-ill, unborn child. Court documents indicated that Doe's doctors had also urged her to have an abortion.

“Here, there is no human life, there is no potential,” Stone said. “Therefore it's irrational to apply the statute.”

Stone characterized Doe as “somebody whose strong desire to be a parent [went] awry and [was] denied appropriate medical care.”

Mothers of anencephalic babies often resent that they are expected to abort. On the Internet, Anencephaly.net lists several memorial sites for these babies, and encourages mothers “to carry their babies to term with anencephaly or any fatal defect.”

The mother of Mary Elizabeth Karg writes, “I always knew that my baby needed me to protect her and to be her voice from the time that she was conceived. I am so very thankful that I was able to hold her and see her beautiful face.”

Faith Aminah Shabazz's mother says: “Faith was born in March of 2001, and lived until October, 2003. She brought joy into the lives of all those who knew her.”

Said another baby's mother: “As the malformation is usually detected during a pre-natal scan, parents are confronted with a choice between life and death — a choice often made with very little information of what is in store for them. It is with this in mind that I have made the choice to share the story of the brief, but wonderful life of our anencephalic daughter, Anouk. I hope that it will be of help to you and impart courage.”

One Exception

Doerflinger argued that such statements are not only morally repugnant, but fail to apply the law equally and are violations of the Fourteenth Amendment's guarantee of equal protection.

The Catechism of the Catholic Church, in No. 2274, makes clear that prenatal diagnoses should never be used to decide that an unborn child should die.

“Prenatal diagnosis is morally licit if it respects the life and integrity of the embryo and the human fetus, and is directed toward its safeguarding or healing as an individual. … It is gravely opposed to the moral law when this is done with the thought of possibly inducing an abortion, depending upon the results: A diagnosis must not be the equivalent of a death sentence.”

Michael Elliot, a spokesman for Tricare, said that government regulations prevented him from speaking about specific beneficiary issues, but provided the Register with the text of the military regulation concerning abortion — which specifically excludes coverage for cases of anencephaly — as was the case with Doe's child.

It reads: “The statue … prohibits payment for abortions with one single exception — where the life of the mother would be endangered if the fetus were carried to term. 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) 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.”

The court's decision means this statute will continue to be policy for the military.

Explaining that it was Congress, not the military, who set the policy, a Defense Department spokesman in Virginia — who spoke anonymously — noted that the military did not fund abortions for members of the armed forces and their families before the decision, and will continue that ban on funding.

Doerflinger said that he hoped that this decision marked a turning point for the 9th Circuit Court. He pointed out that in 1996, the 9th Circuit had struck down a law in the state of Washington that banned assisted suicide, ruling that “there was no rational basis for the law with regard to terminally ill patients.”

That ruling, Doerflinger explained, was reversed 9-0 by the Supreme Court.

“Perhaps,” he said, “the 9th Circuit has learned its lesson.”

Andrew Walther is based in Hamden, Connecticut.