A lawsuit that claimed the Army caused the death of a newborn by ordering his pregnant mother to do physical training against doctors’ instructions had been dismissed by a lower court and a federal appeals court upheld the dismissal, but voiced its displeasure with a long-existing doctrine.
Jonathan Ritchie had filed the wrongful death lawsuit that claimed his pregnant wife’s requests to not perform certain physical duties were ignored by commanding officers.
January Ritchie was more than 5 months pregnant when she went into premature labor in 2006. Her son died just 30 minutes after he was born.
AP reports that the 9th U.S. Circuit Court of Appeals said Thursday that it was “regretfully” issuing an opinion saying a lower court was right to dismiss the case. The ruling criticized what’s known as the Feres doctrine, which prevents civil action against the government for those injured during military service, and said it’s unfortunate the doctrine bars the lawsuit.
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“For the past 63 years, the Feres doctrine has been criticized by ‘countless courts and commentators’ across the jurisprudential spectrum,” stated the opinion authored by Judge Jacqueline H. Nguyen. “However, neither Congress nor the Supreme Court has seen fit to reverse course.”
Metnews.com reports that Judge Dorothy W. Nelson concurred in the opinion, but also wrote separately — in an opinion joined by Nguyen — to elaborate on the “questionable validity” of the doctrine.
The right a pregnant woman has to serve means little if her service requires she put her fetus’s health and well-being at risk. In refusing to recognize Ritchie’s tort claims, we are continuing the legal fiction that these alleged wrongs are part of the military’s discipline structure. To hold that these kinds of tortious acts against a pregnant servicewoman are per se judicially unreviewable because they are part of the military mission is to practice willful blindness at the expense of a woman’s livelihood and the life of her unborn child. I am resigned that the unfortunate cases applying the Feres doctrine dictate such an outcome, but I sincerely doubt that the conduct alleged here — orders contravening military regulations intended to protect pregnant servicewomen — warrant judicial deference of any kind.
Eric Seitz, a lawyer for the plaintiffs, said he was “encouraged with the tenor of the opinion” and would ask the Supreme Court to take up the case, according to a San Francisco Chronicle blog entry.