California Lawyer


February 2014

"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. ... 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."

- Ninth U.S. Circuit Judge Dorothy W. Nelson (joined by Judge Jacqueline H. Hguyen) concurring in Ritchie v. United States, 733 F.3d 871 (9th Cir. 2013). The court upheld the Feres doctrine (Feres v. United States, 340 U.S. 135 (1950)), which gives the government immunity against tort claims arising from military service, even though it agreed that the plaintiff's wife's army superiors forced her to undertake activity that violated her doctors' orders and caused the premature delivery of their child, who died 30 minutes later.

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