When the mother is a soldier: Column

The Supreme Court will soon consider whether to correct a serious example of gender discrimination in the military — a problem the court itself helped to create 65 years ago.

Air Force Capt. Heather Ortiz discovered the differential treatment after she went to a military hospital in Colorado in 2009, ready to give birth to her child. Just before delivery, a series of errors by hospital staff sharply dropped her blood pressure, depriving the fetus of oxygen for an extended period. Her newborn daughter suffered severe brain damage, and she needs round-the-clock care.

Ordinarily, federal law would allow a military family to sue for compensation for malpractice at a military hospital — with one big exception. Under Feres v. United States, a 1950 decision by the Supreme Court, military members themselves cannot sue the government for injuries they suffer on the job.

How does that precedent affect this tragic case? The U.S. government argued, and a federal appeals court agreed, that under the Feres doctrine, the Ortiz family’s lawsuit to recover damages for malpractice was out of bounds because the baby’s condition originated with injuries to her mother, an active duty member of the military.

This is where the gender discrimination plays a role: In this case or others, if the infant’s military parent had been the father rather than the mother, the lawsuit would have been allowed to proceed. That is because in such a case, the brain damage to the baby would not have resulted from injuries to a servicemember — for the obvious reason that men don’t give birth.

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“If this had happened to the child of an active duty military father, both parents and the child could have been compensated,” says Ortiz’s lawyer, Laurie Higginbotham, who has handled several birth-related injury lawsuits against the military. Along with Robert Peck of the Center for Constitutional Litigation, she brought Ortiz’s case to the Supreme Court in October.

This is not a case in which gender discrimination can be traced back to the Feres ruling or the justices who supported it. Though more than 200,000 women are now on active duty, at the time of the ruling in 1950, women in military service were scarce, and those who became pregnant could be automatically discharged. The Feres doctrine has been defended as a way to preserve morale by preventing lawsuits by soldiers against superiors for battlefield or training injuries.

But Ortiz’s child is not an active duty military member. She is someone who in other circumstances would likely be compensated, along with her parents, for her injuries. Her inability to do so is the direct result of the gender of her active duty parent.

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Justice Ruth Bader Ginsburg, when she was a pioneering advocate for women’s rights in the 1970s, often challenged laws or regulations like this one that treated men and women differently in the military and everyday life.

She won most of those cases, but once in a while discriminatory rules still surface. The Ortiz case poignantly highlights just such a regulation.

Tony Mauro is Supreme Court correspondent for The National Law Journal and the Supreme Court Brief. He is a member of the USA TODAY Board of Contributors.

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