1. 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]

2. Sovereign Immunity You cannot sue the king (or the government)

3. Until: Plane crashes at full speed into the tallest building in Manhattan with many killed and injured September 11, 2001?

4. July 28, 1945

5. Plane was a US Military B-25 Bomber piloted by a Lt. Colonel who, in thick fog, was told he couldnt land at LaGuardia airport due to no visibility He started an approach anyway and crashed.

6. 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

7. 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)

8. 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.

9. Feres cites three rationales why military personnel cant sue the government: 1. military relationship is distinctly federal 2. no fault system of military benefits 3. maintain military discipline

10. 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

11. Exception Expanded Again: Treatment accorded a military mother is inherently inseparable from the treatment of the fetus in the mothers body (1982) Result: Children born of active duty military mothers are barred by Feres and have no recourse for negligent prenatal care

12. BUT Children born of active duty military fathers (via civilian mother) are NOT barred by Feres and have full recourse for negligent prenatal care

13. 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

14. 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

20. Argument: Treatment with folic acid was for the health benefit of the baby, not the mother Childs injuries are independent of any injury to parent- No injury whatsoever to mother Mother not even a plaintiff

21. 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 childs parent

22. 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

23. Case was remanded to the trial court and tried to a judgment. Plaintiffs prevailed.