More support for the troops

I hope Henry Hyde is pleased with himself. The government just won an order forcing a sailor’s wife to pay back to the government the cost of aborting her anacephalic fetus.

Update Welcome, readers! Note that this item is two years old. Note also that Congress could fix the problem. And hasn’t.

A story from Friday’s New York Times leaves me undecided: I can’t figure out whether to laugh, cry, or throw up.

A sailor’s wife was pregnant with an anencephalic child, whose probability of surviving or of ever being conscious was zero. She, reasonably, wanted an abortion.

But the Congress had decided &#8212 that no federal funds should be used to pay for abortions except where the life of the mother was at stake. As a result, Tricare (formerly CHAMPUS) the agency that covers military families, refused to pay the $3000 the abortion would cost.

The family sued, and a federal court ordered Tricare to pay, and the abortion went forward.

Then the Justice Department (with John Ashcroft as Attorney General) sued the family to recover the $3000, out of the sailor’s pay of less than $20,000 a year.

The Justice Department just won. A panel of the Ninth Circuit ruled that, under a 1980 Supreme Court precedent upholding the Hyde Amendment &#8212 parallel provision to the one in question, but applying to Medicaid recipients rather than to military families &#8212 the law was valid and the government didn’t have to pay for the abortion. Consequently, the family has to pay the money back.

It’s worth asking who is, and who is not, morally culpable for bringing about this disgusting result.

1. The gravest onus of responsibility lies, of course, the Republican majority in Congress, and the lunatic fringe of the anti-abortion movement to whose tune it dances. The statute clearly applies to just this situation: its framers desired that the woman in question go through all the pains of pregnancy and labor facing a two-thirds chance of stillbirth and the certainty that she would never see her baby smile.

As the court recited:

Anencephaly is a neural tube defect that occurs when the cephalic end of the neural tube fails to close. Closure usually completes between the third and fourth week of pregnancy. The tube’s failure to fully close results in a fetus that develops without a forebrain or a cerebellum.

Anencephaly is an ultimately and unequivocally fatal birth defect. Approximately one-third of anencephalic fetuses carried to term are born alive. Fewer than two percent that are born alive survive more than seven days. There is no cure for anencephaly and even extensive medical intervention and continuous life support will not prolong the life of an anencephalic infant more than two months.

No doubt Sen. Frist and Randall Terry will assure us that a being with no forebrain and no cerebellum is in fact aware, but anyone in minimal touch with reality knows otherwise. (And yes, that such beings come into existence is one of the stronger arguments against the existence of an all-powerful and loving deity.)

So the Congress, in its wisdom, decided that those who risk their lives to preserve ours should be treated like paupers when it comes to medical care, with their needs completely subordinated to the prejudices of the most unreasonable of those who call themselves “right-to-lifers.”

(I don’t say that everyone who wants to restrict access to abortion is unreasonable, but I can’t think of a reasonable basis for opposing an early and merciful end to this particular pregnancy. And in fact I very much doubt that more than a tiny proportion of “right-to-life” voters or leaders would want themselves or women they cared about to bring such a monster to term.)

If anyone says that the Congress did not intend this particular result, I say: Then let them change the law now. But of course no such change would have a snowball’s chance in Hell of making it to the floor of either House of Congress, or of receiving the President’s signature.

(That shouldn’t of course, stop pro-choice forces from offering a “Baby Roe” amendment to every relevant bill, explicitly permitting the use of federal funds to pay for abortions in the case of anacephaly and other inevitably fatal birth defects. No, that’s not the result the pro-choice forces want. But the fact that even such an inadequate liberalization of the law couldn’t pass — and that, for example, no Catholic could vote for it without incurring the censures of the Church — makes a powerful political point.)

2. The Pentagon bureaucrats who wrote the regulation implementing the law might reasonably be criticized for singling out anencephaly as a condition not to be covered, given the grim result. But the regulation clearly implements the underlying law, and that’s what regulation-writers are supposed to do.

3. The administrators at TRICARE carried out the law and the regulations. They had no authority to do otherwise. We don’t want individual officials deciding which laws to follow and which laws not to follow. They simply can’t be blamed.

4. The same is true of the Ninth Circuit, assuming only that the legal reasoning in the published opinion is sound, which to my inexpert eye it seems to be. They made it as clear as day how disgusted they were at having to carry out their duty &#8212 following the estimable precedent set by Justice Frankfurter in the flag-salute cases &#8212 but they didn’t shirk it.

5. The Justice Department can’t be faulted for fighting the original lawsuit. Again, that’s no more than its plain duty. DoJ doesn’t get to decide which of Congress’s enactments are just too awful to defend. Just as the administrators at Tricare couldn’t decide to spend the public money contrary to law, the lawyers in the Justice Department couldn’t decide not to defend Tricare’s refusal to do so.

6. I’m much less clear about pressing the appeal. The money had been spent, pursuant to court order. Even assuming, as seems to be the case, that the order was issued in error, was it really necessary to sue to get the money back? It seems to me that either DoD as the client or DoJ as the lawyer — or, of course, the President of the United States as the head of the Executive Branch that includes both of them — could reasonably have said “Enough is enough; we don’t accept this case as binding on our future actions, but we’re going to let it drop now” rather than trying to impoverish a military family that had already been put through an emotional wringer.

Footnote The distinction between the ethics of judging and the ethics of litigating in this case tracks the distinction I proposed in my discussion of then-Deputy-SG Roberts in intervening on behalf of Operation Rescue in the Bray case.)

Update To the generous readers who volunteered to contribute to a fund to pay the judgment: (1) Thanks! (2) It may not be necessary; it’s not yet clear that the government, having won the judgment, is actually coming after the money.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: