Brown v. United States462 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 ImmunityYou 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 States340 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

federal2. no fault system of military

benefits3. 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

RESULTDecades of Gender

discrimination as a result of an unintended consequence of

badly construed lawIn 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 motherMother 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.