Doe v. Rumsfeld underlines the problematic nature of some aspects of current anti-abortion law as well as the limitations of the courts in dealing with the problem. The facts:
In July 2002, Jane Doe, the pregnant wife of a naval enlisted man stationed out of Everett, Washington, learned during a routine checkup with her obstetrician that her fetus was anencephalic. ...
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.
Following the initial diagnosis, Doe obtained a second opinion, which confirmed her obstetrician's assessment. Doe consulted with her doctor, medical staff, counselors, and her family. She and her husband then made the difficult decision to terminate her pregnancy.
The government paid for the abortion in midst of a challenge, but sued for compensation per a law against funding for abortions in such cases except when the life of the mother is at stake. A law that was expressly not covered in this specific situation per a federal regulation that interpreted it. The law was in place and upheld by the Supreme Court, to "protect potential life." The fetus here had more chance of dying in vitro than surviving, and if born would in alllikelihoodd die in under a week. The potentiality of such life, therefore, is rather questionable.
But, it is a fair reading of the statute, which expressly does not consider such extreme situations. The government only funds abortions for military wives when the woman's life is in danger, which is not at issue here. This is a major problem with such laws, deemed by some totally appropriate because of personal opposition to abortion. But, few are completely against abortion, and even a few exceptions amounts to thousands of pregnancies and parents affected. And, this is not even a pregnancy as a result of rape. No child is likely even to be born. The Supreme Court ignored such realities and upheld the law, even if a woman's health is significantly at stake. So, I take seriously this closing statement:
We depart from our analysis only to observe that while recognizing that the foregoing discussion may seem at times callous and unfeeling, we express our deepest sympathy for the families who must face this difficult ordeal. It is the nature of the legal analysis, the commands of stare decisis, and the deference we must afford congressional judgment that require the result we reach here today. We remain confident, however, that the law commands it.
Taken together, "the law" does not, but a lower court judge do not have as much discretion. It must follow the precedents before them, and along with the statute itself, this situation is not covered. Blame Congress and to some extent the Supreme Court, but not these three judges.*
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* They do have discretion when citing precedent that justifies their reasoning. I'm not sure if two of the cites used to underline their "de novo review" authority were particularly fitting given the situation: United States v. 2,164 Watches, More or Less Bearing a Registered Trademark of Guess?, Inc., Knievel v. ESPN. The first one is surely one of the more funny case titles I have seen lately.