Brown v. United States
462 F.3d 609 (6 th 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 Immunity
You 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 States
340 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 federal
2. no fault system of military benefits
3. 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

RESULT
Decades of Gender discrimination as a result of an unintended consequence of badly construed law
In 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 mother
Mother 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.