Brown v. United States
462 F.3d 609 (6th Cir. 2005)
* The beginning of the end of a type
of systematic gender discrimination
of pregnant military personnel
*How real gender discrimination can
occur as an unintended
consequence of badly construed law
[redacted]
Sovereign Immunity
You cannot sue the king
(or the government)
Until: Plane crashes at full speed
into the tallest building in
Manhattan with many killed and
injured
September 11, 2001?
July 28, 1945
Plane was a US Military B-25
Bomber piloted by a Lt. Colonel
who, in thick fog, was told he
couldn’t land at LaGuardia
airport due to no visibility
He started an approach anyway
and crashed.
Federal Tort Claims Act (1946)
Waiver of Sovereign Immunity
Allows the government to be sued
for damages caused by the
negligence of U.S. government
employees
Supreme Court makes an Exception
No liability for injury or death of
service member that arises “incident
to service”
Feres Doctrine
Feres v. United States
340 U.S. 135 (1950)
“Incident to Service” means
anything that a military person does
that is even remotely related to their
involvement in the military.
Specifically, includes care at military
medical institutions.
Feres cites three rationales why
military personnel can’t sue the
government:
1. military relationship is distinctly
federal
2. no fault system of military
benefits
3. maintain military discipline
Supreme Court Expands Exception
No liability to third parties whose
injuries derive from injuries to
service members (1977)
Examples:
Cut off wrong leg of military
member- family cannot sue
Radiation induced birth defects
Exception Expanded Again:
Treatment accorded a military
mother is inherently inseparable
from the treatment of the fetus in
the mother’s body (1982)
Result: Children born of active duty
military mothers are barred by Feres
and have no recourse for negligent
prenatal care
BUT
Children born of active duty
military fathers (via civilian
mother) are NOT barred by Feres
and have full recourse for
negligent prenatal care
RESULT
Decades of Gender
discrimination as a result of an
unintended consequence of
badly construed law
In race to limit governmental
liability a system of gender
discrimination was set in place
Spina Bifida: a failure of the neural
tube to close during fetal
development- Neural Tube Defect
Most common severe birth defect
Approximately 70% of spina bifida
cases are avoided if mother takes
adequate folic acid during critical
time period
Argument: Treatment with folic acid
was for the health benefit of the
baby, not the mother
Child’s injuries are independent of
any injury to parent- No injury
whatsoever to mother
Mother not even a plaintiff
Holding: The FTCA does not
preclude recovery for negligent
prenatal injuries to the child of a
military service person that are
independent of any injury to the
child’s parent
Special Bonus: Because [Redacted]
involved preconceptional care, the
full gamut of pregnancy care from
before conception to delivery is now
subject to review by the courts
Case was remanded to the trial
court and tried to a judgment.
Plaintiffs prevailed.