Suit Over Soldier's Dead Baby Tossed, Reluctantly

     (CN) - The U.S. Army is not liable for the premature birth and subsequent death of a soldier's infant son, the 9th Circuit ruled Thursday.
     Jonathan Ritchie claimed in a wrongful death lawsuit that officers at Hawaii's Fort Shafter had forced his pregnant wife, active-duty servicewoman January Ritchie, to work and train for battle while pregnant in 2006, flouting a military doctor's orders.
     Ritchie claimed that officers ignored instructions in his wife's "pregancy profile," as well as her pleas for rest, and made her pick up trash and complete "battle-focused" training, even after she went to the hospital for an emergency cerclage operation and her condition became "high risk."
     Several weeks after the procedure, the Richies' son Gregory was born about 2 1/2 months premature. Gregory died 30 minutes later.
     U.S. District Judge J. Michael Seabright dismissed the wrongful death claims based on the Feres doctrine, which bars tort claims against the military by soldiers and is generally meant to prevent judicial second-guessing of military actions. The 9th Circuit "regretfully" affirmed on Thursday in a ruling that nonetheless questioned the fairness of the "much-maligned" precedent.
     "We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long," Judge Jacqueline Nguyen wrote for the three-judge appeals panel in Honolulu.
     Named for the 9th Circuit's 1950 ruling in Feres v. United States, the doctrine has over the years compelled the federal appeals court to deny claims related to several tragic injuries, according to the ruling. Among those cases is the family of a World War II soldier whose exposure to atomic radiation during the Manhattan Project allegedly caused his daughter's birth defects, the judges noted.
     Still, they saw no way around the doctrine in the present case without action by the U.S. Congress or Supreme Court.
     "If adjudication of a claim involving an Army trainee's exposure to radiation on a football field in Chicago would improperly require judicial examination of the Army's activity in relation to military personnel, a claim challenging military orders given to a servicewoman on active duty likewise cannot escape Feres," Nguyen wrote.
     The panel rejected Ritchie's attempt to get around the doctrine by claiming that the Army's alleged negligence injured not so much his wife but the "civilian fetus."
     "To hold that January was not injured at all, as Ritchie urges us to do, requires eschewing common sense and human experience," the panel found.
     Writing in a concurrence that Judge Nguyen joined, Judge D.W. Nelson called the Feres doctrine a "judicial fallacy which we have created and which I hope will be overturned one day soon."
     "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," Nelson wrote. "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. Where military conduct passes 'so far beyond the bounds of human decency,' I do not believe that it can be considered a part of the military mission."
     Ritchie's Honolulu-based attorney Eric Seitz was not immediately available for comment on Thursday.