Professor of Gender and War. University of Sydney

Women in the US Armed Forces who face Reproductive Malpractice have no legal recourse

SUMMARY: Dov Fox, Associate Professor of Law at the University of San Diego and Alex Stein, Law Professor from Benjamin N. Cardozo School of Law of Yeshiva University, write about the legal loophole that prevents military personnel suing military hospitals and staff for negligent prenatal care. This is a serious limitation for these female service-members ‘to exercise their reproductive rights.’ A recent case involved an active-duty Air Force service-member, Captain Heather Ortiz, who was admitted to a military hospital to deliver her baby (I.O.) by C-section. The hospital staff incorrectly administered drugs that reduced Ortiz’s blood pressure causing oxygen deprivation in utero and ultimately severe brain damage to the baby. The Court rejected the lawsuit but commented on the unfairness of the ‘Supreme Court Doctrine,’ which exempts the US government from liability for personal injuries related to military service, or in legal jargon, injuries ‘incident to service.’ The doctrine emerged in the 1950s case Feres v US, where the courts reasoned that the Veterans Benefit Act sufficiently governs compensation for personal injuries for service-members. However, this precedent does not give baby I.O. standing as she is a civilian child not a veteran. Even more strangely, had Heather Ortiz been a civilian wife to a service-member, this doctrine would not have applied. Even if the immunity stays in place, Fox and Stein suggest a congressional fund to compensate children whose disabilities are caused by negligence of military facilities.

SOURCE: Dov Fox and Alex Stein, July 2 2015, ‘Reproductive Malpractice and the U.S. Military,’ Huffington Post,

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