Beyond caricature: The real lives at stake in the abortion debate

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By Nancy Gertner

The abortion debate too often seems abstract, both sides caricatured. Lost are the stories of real people facing horrific choices. Lost too are the consequences of the unrelenting attacks — the regulations limiting abortion even as Roe v. Wade stands.

Take the case of Maureen Britell. In January of 1994, Maureen and her husband, a captain in the Air National Guard, were happily anticipating the birth of their second child. A routine medical checkup revealed horrible news: The fetus was anencephalic — no forebrain or cranium. There was no chance of survival outside the womb, no capacity for consciousness. Nor was there any medical procedure that could correct it.

The Britells were devastated. They consulted grief counselors, psychiatrists, and their priest. The advice was the same: Terminate the pregnancy as soon as possible. They agreed. On Feb. 18, 1994, physicians at New England Medical Center administered medication to Maureen to induce labor. Maureen was in labor for 13 hours, in immense physical pain and emotionally distraught. The fetus died during delivery. The diagnosis of anencephaly was confirmed.

Maureen applied to her husband’s insurer, a government-run program, to reimburse her for the procedure’s $5,000 cost. The insurer refused because of federal regulations limiting funding of abortion. While the regulations enabled an insurer to fund medically necessary services in connection with pregnancy, one medically necessary service — abortion — was excluded. It was only covered when the life of the mother would be endangered; her mental or physical health didn’t matter. That meant if Maureen carried the pregnancy to term, and artificially induced birth, as was likely, the insurer would pay. But she would have to bear both the unimaginable emotional pain and the growing risks to her health as the pregnancy progressed. If she chose abortion, she would have to pay for the procedure, endure the excruciating pain of her loss, but at least she would avoid risks to her own health.

Maureen sued. Putting her heartbreaking Hobson’s choice in constitutional terms, the judge asked: Since the risks to the woman of an anencephalic pregnancy increase during the pregnancy, while the fetus’ chances of survival remain at zero, why was it rational for the state to encourage a pregnant woman to carry an anencephalic fetus to term?

Because there must be no exceptions, the government insisted. The law had to encourage women to avoid abortion at all cost. To find an anencephalic fetus’s short life as not worth protecting, the government said, is to start down a slippery slope not warranted by the constitutional standards.

The judge disagreed. She found that there was no rational interest in using funding to avoid abortion at all cost to the woman’s health. And as for the slippery slope, it didn’t slide very far. Anencephaly has been considered so incompatible with potential life that a physician may ethically withhold treatment at birth. The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, for example, found “[w]hen there is no therapy that can benefit an infant, as in anencephaly . . . a decision . . . not to try predictably futile endeavors is ethically and legally justifiable.”

The government appealed, but to the wrong court. By the time it realized its error, all deadlines had run. The appeals court — one that is known to be strict when an immigrant files an appeal late or a criminal defendant misses a deadline — took a different view here. This deadline could be excused, and the case transferred to the court that deals with monetary claims against the government. It was in the “interest of justice,” they found, because the district court’s decision “invalidates part of a major program administered by the Executive Branch of the federal government.”

Say what? “Invalidates part of a major program”? This $5,000 claim based on a rare fatal condition? And the “interest of justice?” That tilted to the government, not this bereft woman?

The Court of Claims reversed. When it comes to abortion, the law is strict no matter how cruel the outcome, not so much with other rules.

I was the district court judge.