HONOLULU — A federal appeals court “regretfully” upheld the dismissal of a lawsuit that claims the Army caused the death of a newborn by ordering his pregnant mother to do physical training against doctors’ instructions.
January Ritchie was about 5 1/2 months pregnant when she went into premature labor while stationed in Hawaii in 2006.
Her son Gregory died 30 minutes after birth. Her husband Jonathan Ritchie filed a wrongful death lawsuit, claiming commanding officers ignored his wife’s pleas not to perform physical duties such as picking up trash and battle-focused training.
The 9th U.S. Circuit Court of Appeals said Thursday 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.
“For the past 63 years, the Feres doctrine has been criticized by ‘countless courts and commentators’ across the jurisprudential spectrum,” states the opinion authored by Judge Jacqueline Nguyen. “However, neither Congress nor the Supreme Court has seen fit to reverse course.”
The doctrine is “archaic” and based in part on protecting the government from being sued over actions to win a war, said Greg Jacob, policy director for the New York-based Service Women’s Action Network, which is pushing for exemptions to the doctrine for crime victims. “What’s happened over the decades is that the federal courts system has interpreted ‘incident to service’ as whatever happens in uniform,” Jacob said Friday. “It’s an example of how misguided the military is with regard to their personnel policies and giving commanders ultimate authority like this.”
Jacob, a former Marine Corps infantry commander, said the Ritchie case shows a need to change the military’s “command-centric” system that allows commanders to override recommendations of lawyers and doctors regarding troops.
Judge Dorothy Nelson wrote a separate, concurring opinion to “highlight how this case reveals the questionable validity of the Feres doctrine,” which she suggests is unfair toward servicewomen.
“Efforts to exclude pregnant women from serving, and even to punish women for becoming pregnant, continue to this day,” she wrote. “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.”
The Ritchies now live in Tacoma with their three children. January Ritchie is in the Army Reserves, said the couple’s Honolulu attorney, Eric Seitz, who is planning to petition the Supreme Court.
“We were not expecting to win,” he said, but they’re encouraged by the strong language in the opinion.
Assistant U.S. Attorney Harry Yee in Honolulu, who represented the government, against the suit referred comment to his superior, who didn’t immediately respond Friday.