It's been a century since the first woman enlisted in a non-nursing role in the United States armed forces. 30 years later, a federal law made women a permanent part of the military. For over a decade now, all branches of the military but combat arms have been open to female officers.
Today, servicewomen see combat almost as their male counterparts and a greater proportion of women are commissioned officers. And many of these committed servicewomen start families while serving their country.
Shockingly, however, they lack basic protection against even the most egregious malpractice during pregnancy. This failure in our law and policy frustrates their meaningful ability to exercise their constitutional rights and denies them the resources necessary to care for children with disabilities.
An outdated Supreme Court doctrine and congressional loophole leave servicewomen unable to recover for the negligent prenatal care they receive in a military hospital. So however egregious the malpractice and grave the suffering it causes, our law offers no recourse for the wrong that is done to the woman's procreative interest and to her child's physical and mental wellbeing.
Take the recent case of Captain Heather Ortiz, an active-duty member of the U.S. Air Force, who was admitted to a military hospital to deliver her baby by C-section. In preparation for that surgery, hospital staff made a critical mistake by administering Captain Ortiz drugs that reduced her blood pressure to dangerously low levels. As a result, her baby girl, identified by her initials I.O., was deprived of oxygen in utero and born with severe brain damage. I.O. requires around-the-clock supervision and care and likely will for the rest of her life.
Yet Captain Ortiz and I.O. were recently denied redress by the Tenth Circuit Court of Appeals. That court wrote in Ortiz v. United States that "the facts here exemplify the overbreadth (and unfairness) of th[e] [Supreme Court] doctrine" that exempts the government from liability for injuries that are related to military service. But that "incident to service" exemption, the Court lamented, "is not ours to overrule."
It comes from a 1950 case, Feres v. United States, in which the Supreme Court held that the government pays no tort compensation for injuries that active servicemembers sustain due to negligence by others in the armed forces. The Court reasoned that a compensation program the Veterans Benefit Act established for injured and fallen soldiers works well enough and that tort claims shouldn't be permitted to stand between the army and its soldiers.
But the Veterans program has a glaring omission when it come to obstetric care. It offers nothing for Captain Ortiz because her injured civilian child is not a veteran. Had Heather Ortiz been the civilian wife of a serviceman, Feres immunity wouldn't apply and the government would have to cover the expenses of I.O.'s severe incapacitation Because Captain Ortiz is a servicewoman, however, she and I.O. must go uncompensated.
Back in 1950, when women comprised just a tiny fraction of active servicemembers, the Supreme Court could not foresee this blatant discrimination. But should Captain Ortiz appeal her case to that high court, as her lawyers apparently plan to, there can no longer be any excuse to deprive servicewomen and their newborns of the compensatory relief they desperately need and squarely deserve.
Consider the 2001 case of Yvonne Smith, an active-duty member of the Air Force who was negligently denied fetal tests at a military hospital, "prevent[ing] [her] from discovering that [her son] Elijah would be born with a severe birth defect, and thereby depriv[ing] her of the choice to terminate the pregnancy." In Smith v. Saraf, a federal district court in New Jersey concluded that Feres immunity precluded her claim because her injury "was incident to service."
Now Elijah was still allowed to sue because New Jersey is one of the four states that recognizes "wrongful life" as a child's independent injury. But the other forty six states forbid such suits, as the Texas Supreme Court explained in Nelson v. Krusen, so that courts won't have to determine "the relative benefits of an impaired life as opposed to no life at all." The result is that both a servicewoman and her child are deprived any legal redress.
If the Supreme Court declines an invitation to abolish Feres, there is still a way to fix this injustice. Congress should set up a fund to compensate children whose disabilities were caused by deficient medical care at military facilities. This fund would remedy discrimination among tort victims and provide dedicated servicewomen and their children the resources they need and deserve.
Dov Fox and Alex Stein are law professors at the University of San Diego School of Law and Benjamin N. Cardozo School of Law of Yeshiva University, respectively. They are co-authors of Dualism and Doctrine and Constitutional Retroactivity in Criminal Procedure.