Defendanb-Appellant United States (“the government”) appeals from the May 29, 2002 Order of the United States District Court for the District of Massachusetts granting summary judgment to Plaintiff-Appellee Maureen M. Britell (“Britell”) in this Little Tucker Act case seeking reimbursement for the cost of an abortion. The district court ruled that 10 U.S.C. § 1093(a) violated the Equal Protection Clause of the Fifth Amendment to the United States Constitution under a rational-basis review because its ban on funding abortions could not be justified on the basis of the state’s interest in “potential human life” because such an interest was not relevant as to anencephalic fetuses.
Britell v. United States,
BACKGROUND
In January 1994, Britell and her husband, a Captain in the Air National Guard, were expecting their second child. Id. at 183. A routine checkup about twenty weeks into her pregnancy revealed that Britell’s fetus suffered from a rare condition called anencephaly; 1 the diagnosis of anencephaly was confirmed by a second ultrasound. Id. at 186. Faced with this horrific diagnosis, and the certain death of the fetus or newborn, the Britells consulted their family, doctors', grief counselors, psychiatrists, and their parish priest, all of whom agreed that the Britells should abort the fetus. Id. On February 18, 1994, Bri-tell had an abortion at the New England Medical Center — after thirteen hours of physically and emotionally painful labor, the fetus died during delivery. Id. The diagnosis of anencephaly was confirmed. Id.
After the abortion, the New England Medical Center sought payment for its services from Britell’s insurer, the Civilian Health and Medical Program (“CHAM-PUS”).
Id.
In fulfilling its statutory mandate to “providfe] an improved and uniform program of medical and dental care for members ... of [the uniformed] services, and their dependents,” 10 U.S.C. § 1071 (2000), CHAMPUS funds all “medically necessary services and supplies associated with maternity care.” 32 C.F.R. § 199.4(e)(16)(i) (2003). In the present case, however, CHAMPUS denied the claim based on 10 U.S.C. § 1093(a) and corresponding regulations.
2
Britell II,
After the claim was denied by CHAM-PUS, the New England Medical Center sued Britell in state court and obtained $4,000 through a settlement.
Britell II,
Because the Supreme Court had previously held, in
Harris v. McRae,
After several rounds of briefing, the district court issued a May 16, 2001 Memorandum and Order addressing the parties’ arguments concerning as-applied equal protection challenges, and deferring the parties’ motions for summary judgment pending further briefing.
Britell v. United States,
After allowing the parties to present additional briefing on the question “[e]ven if the failure to fund abortion of an anence-phalic fetus was not rational — because it did not involve potential or éven conscious life — was it still possible to justify the policy on moral grounds,” the district court once again considered the parties’ motions for summary judgment.
Britell II,
The government filed a notice of appeal to the First Circuit.
Britell v. United States,
This opinion follows the court’s consideration of the parties’ briefing, oral argument heard on March 2, 2004, and the parties’ supplemental briefing on jurisdiction pursuant to the court’s order on March 2, 2004.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(2).
DISCUSSION
On appeal, the parties’ arguments are essentially identical to those made before the district court. The government argues that Britell does not have a valid as-applied challenge and that McRae thus controls. Further, to the extent Britell’s as-applied challenge is valid, the government argues that section 1093(a) is constitutional because the statute is rationally related to legitimate state interests, including the protection and promotion of potential human life. Britell, on the other hand, argues that the district court correctly held that her challenge is a valid as-applied challenge, and that as applied to her, section 1093(a) is unconstitutional because the distinction between medically necessary services and what she argues are medically necessary abortions in cases of anencephaly is not rationally related to any legitimate state interest.
Before addressing the parties’ arguments on the merits of Britell’s equal protection challenge, however, we reach the threshold issue of whether there has been an adequate waiver of sovereign immunity to allow Britell’s suit against the government to proceed to the merits.
I.
“Jurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver. The terms of consent to be sued may not be inferred, but must be ‘unequivocally expressed.’ ”
United States v. White Mountain Apache Tribe,
The parties argue that the CHAMPUS statute, chapter 55 of Title 10, is a money-mandating statute such that the Little Tucker Act, 28 U.S.C. § 1346(a), constitutes an adequate waiver of sovereign immunity for Britell’s claim to be adjudicated on the merits. 4 We disagree. The CHAMPUS statute itself is not money-mandating with regard to its beneficiaries; at best, the statute confers an entitlement to medical services and care.
Specifically, section 1079 reads:
To assure that medical care is available for dependents, as described in subpara-graphs (A), (D), and (I) of section 1072(2) of this title, of members of the uniformed services who are on active duty for a period of more than 30 days, the Secretary of Defense, after consulting with the other administering Secretaries, shall contract, under the authority of this section, for medical care for those persons tender such insurance, medical service, or health plans as he considers appropriate. The types of health care authorized under this section shall be the same as those provided under section 1076 of this title, except as follows:....
10 U.S.C. § 1079 (2000) (emphases added). Section 1076, in turn, provides that “[a] dependent described in paragraph (2) is entitled, upon request, to the medical and dental care prescribed by section 1077 of this title in facilities of the uniformed services, subject to the availability of space and facilities and the capabilities of the medical and dental staff.” Id. § 1076(a)(1) (emphases added). Under section 1078, the Secretary is authorized to impose a “minimal charge” for outpatient services provided under section 1076. Id. § 1078(b) (“As a restraint on excessive demands for medical and dental care under section 1076 of this title, uniform minimal charges may be imposed for outpatient care. Charges may not be more than such amounts, if any, as the Secretary of Defense may prescribe after consulting the other administering Secretaries, and after a finding that such charges are necessary.” (emphasis added)). Thus, medical services are typically provided at only a minimal charge to the dependent beneficiary, but no provision in the statute mandates, or even allows for, payment to beneficiaries as reimbursement for medical sendees received from private health care providers. Indeed, if anyone is entitled to payment *1378 under the statute, it is the health care provider seeking reimbursement from CHAMPUS. Under the statute, the Department of Defense “shall contract, under the authority of this section, for medical care for those persons under such insurance, medical service, or health plans as he considers appropriate.” Id. § 1079(a).
Because the CHAMPUS statute does not provide the requisite money-mandate, we turn to the CHAMPUS regulations for money-mandating language sufficient to bring Britell’s claim within the sovereign immunity waiver of the Little Tucker Act. The Department of Defense regulations, unlike the statute, include provisions mandating the payment of money directly to the beneficiaries as reimbursement for medical services received. Specifically, the regulations provide that, “[s]ubject to all applicable definitions, conditions, limitations, or exclusions specified in this part, the CHAMPUS Basic Program
will pay for
medically necessary services and supplies required in the diagnosis and treatment of illness or injury, including maternity care and well-baby care.” 32 C.F.R. § 199.4(a)(l)(i) (2003) (emphasis added). The regulations make clear that “CHAMPUS benefit
payments are made either directly to the beneficiary
or sponsor or to the provider, depending on the manner in which the CHAMPUS claim is submitted” and that “[w]hen the CHAMPUS beneficiary or sponsor signs and submits a specific claim form ... any CHAMPUS benefit payments due as a result of that specific claim submission will be made in the name of, and mailed to, the beneficiary . or sponsor.”
Id.
§ 199.7(h), (h)(1) (emphasis added). This and other courts have repeatedly held that this type of mandatory language, e.g., “will pay” or “shall pay,” creates the necessary “money-mandate” for Tucker Act purposes.
See, e.g., Agwiak v. United States,
To the extent there is a question of whether the Department of Defense regulations cited above can be money-mandating where both the statute and regulations specifically
disallow payment
for abortions except where the life of the mother is at risk, we find the parties’ citations to
Gentry v. United States,
If the [arguably unconstitutional provision] is not separable from the other *1379 language of the statute, this court has no jurisdiction to grant recovery to plaintiff, whether the [provision] is constitutional or not. If constitutional, the [provision] bars plaintiff from the entitled classes, and he can point to no law that authorizes a payment of money to him. If unconstitutional and not separable, the legislative scheme authorizing payment falls, and there is no other law providing for the disbursement of such benefits.
Id. at 347.
“The question of severability is answered by a practical inquiry into the legislature’s intent on the internal relation of the various statutory provisions. ‘ “Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” ’ ” Id. (citations omitted). Here, the condition for severability is clearly met. The CHAMPUS statute and regulations were enacted to “create and maintain high morale in the uniformed services by providing an improved and uniform program of medical and dental care for members and certain former members of those services, and for their dependents,” 10 U.S.C. § 1071, a purpose completely unrelated to the funding (or non-funding) of abortions. The severability of section 1093(a) is even more clear because it was added to the CHAMPUS statute after the remainder of the statute was passed. Where the arguably-unconstitutional provision is added to the remainder of the statute after the fact, it is unquestionably not “evident that the legislature would not have enacted those provisions [the remainder of the CHAMPUS statute] which are within its power, independently of that which is [allegedly] not [section 1093(a) ],” because the legislature did just that. Thus, in the present case, severability is clear.
In view of the above, we find that the CHAMPUS regulations are “reasonably amenable to the reading that it mandates a right to recovery in damages,” such that there has been an adequate waiver of sovereign immunity under the Little Tucker Act. 6 We thus proceed to the merits of Britell’s equal protection challenge.
II.
With regard to the merits of Britell’s appeal, the parties argue two core issues on appeal: (1) does the decision in McRae, upholding the facial validity of an abortion funding restriction identical to the one here, preclude Britell’s as-applied challenge; and (2) if McRae does not preclude Britell’s as-applied challenge, is the challenged statutory provision rationally related to a legitimate governmental interest? We address these issues in turn.
A.
As to the first issue — whether Britell has a valid as-applied challenge to section 1093(a) despite the ruling of McRae — we find that this court need not reach the issue because, even if Britell has a valid as-applied challenge, Britell’s equal protection challenge fails because section 1093(a) passes a rational basis review. According *1380 ly, we move directly to the second, outcome-determinative issue.
B.
“The guarantee of equal protection under the Fifth Amendment is not a source of substantive rights or liberties, but rather a right to be free from invidious discrimination in statutory classifications and other governmental activity. It is well settled that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution, the validity of classification must be sustained unless ‘the classification rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective.’ ”
McRae,
In
McRae,
the Supreme Court determined that the Hyde Amendment, restricting Medicaid funding to abortions where the life of the mother is at risk, “places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy,” and does not “impinge[ ] on the constitutional protected freedom of choice recognized in
Wade
” because every woman has the same range of choice in deciding whether to obtain an abortion.
Id.
at 315-16,
Accordingly, the remaining question is whether section 1093(a) is “rationally related to a legitimate governmental objective.”
Id.
at 324,
In McRae, the Supreme Court found a rational relationship between the Hyde Amendment and the state’s interest in protecting potential human life. The Supreme Court’s analysis of the rational relationship bears repeating:
The remaining question then is whether the Hyde Amendment is rationally related to a legitimate governmental objective. It is the Government’s position that the Hyde Amendment bears a rational relationship to its legitimate inter *1381 est in protecting the potential life of the fetus. We agree.
In Wade, the Court recognized that the State has an “important and legitimate interest in protecting the potentiality of human life.”410 U.S., at 162 ,93 S.Ct., at 731 . That interest was found to exist throughout a pregnancy, “grow[ing] in substantiality as the woman approaches term.” Id., at 162-163,93 S.Ct., at 731 . See also Beal v. Doe,432 U.S., at 445-446 ,97 S.Ct., at 2371 . Moreover, in Maher, the Court held that Connecticut’s decision to fund the costs associated with childbirth but not those associated with nontherapeutic abortions was a rational means of advancing the legitimate state interest in protecting potential life by encouraging childbirth.432 U.S., at 478-479 ,97 S.Ct., at 2385 . See also Poelker v. Doe,432 U.S. 519 , 520-521,97 S.Ct. 2391 , 2392,53 L.Ed.2d 528 .
It follows that the Hyde Amendment, by encouraging childbirth except in the most urgent circumstances, is rationally related to the legitimate governmental objective of protecting potential life. By subsidizing the medical expenses of indigent women who carry their pregnancies to term while not subsidizing the comparable expenses of women who undergo abortions (except those whose lives are threatened), Congress has established incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid. These incentives bear a direct relationship to the legitimate congressional interest in protecting potential life. Nor is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions. Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.
McRae,
Recognizing, as she must, the long line of precedent supporting the government’s
*1382
argument that the state has a legitimate governmental interest in protecting potential human life, Britell argues that there is no legitimate governmental interest in protecting an anencephalic fetus because the fetus will never gain consciousness. Accordingly, Britell seeks a reading of the statute to require an additional exception to the abortion-funding ban in cases of anencephaly.
Britell I,
It is here that we must disagree with both the district court and Britell. As an initial matter, it is worth noting that
Kar-lin
is neither binding upon this court nor factually analogous to the present case.
Karlin
involved a challenge to an informed consent law under an “undue burden” analysis. In a single footnote, the Seventh Circuit noted that the defendants did not contest that the informational requirements of the informed consent law (requiring that women seeking an abortion be informed of the father’s obligations concerning child assistance) would not apply in cases of lethal fetal anomalies, but nevertheless went on to reject such informational requirements on the ground that they did not further a legitimate state interest. The
Karlin
court explained that it viewed the term “lethal anomaly” to signal that “the child will die at birth,”
Karlin,
Supreme Court precedent makes clear that, from the very start of the pregnancy, there is a legitimate state interest in the potential human life.
Casey,
For us to hold, as Britell urges, that in some circumstances a birth defect or fetal abnormality is so severe as to remove the state’s interest in potential human life would require this court to engage in line-drawing of the most non-judicial and daunting nature. This we will not do. We agree with the government’s argument that the type of line-drawing urged by Britell can create a slippery slope. It is not the role of the courts to draw lines as to which fetal abnormalities or birth defects are so severe as to negate the state’s otherwise legitimate interest in the fetus’ potential life. The district court opined that there was no slippery slope with regard to anencephaly because “anencephaly is a very distinctive physical condition with not just life-threatening, but fundamentally
life-incompatible
consequences for the fetus.”
Britell II,
Without question, Congress could have drafted the abortion-funding ban of section 1093(a) differently, perhaps allowing exceptions in cases of severe birth defects or fetal abnormalities or even in cases where the health of the mother is at risk. Congress chose not to draw those lines, and we must respect that decision. Under rational basis review, “the constitutionality of state classifications ... cannot be determined on a person-by-person basis.”
Kimel v. Fla. Bd. of Regents,
CONCLUSION
Although this court, and surely all humankind, feels great sympathy for any parent faced with the truly horrifying diagnosis of anencephaly, we find that the law is clear: the state has a legitimate interest in potential human life from the outset of a woman’s pregnancy, regardless of a diagnosis of a severe birth defect or fetal abnormality. Because, by analogy to McRae, the language of section 1093(a) is rationally related to this legitimate state interest, section 1093(a), just as the Hyde Amendment to Medicaid, passes rational basis review. The language of the two bans on funding is virtually identical, and the differences, for constitutional rational basis review, between Medicaid and CHAMPUS are insignificant. Accordingly, the district court’s entry of judgment for Britell, must be
REVERSED.
COSTS
Each party shall bear its own costs.
Notes
. Anencephaly is a neural tube defect in which the fetus develops without forebrain, cerebellum, or cranium.
Britell II,
Anencephaly also poses health risks to the mother. Id. Towards the end of the pregnancy, women carrying anencephalic fetuses produce excessive amniotic fluid, increasing the risk of placental abruption (premature separation of the placenta from the uterine wall), which can, in turn, cause abnormally accelerated blood clotting and simultaneous uncontrolled bleeding (disseminated intravascular coagulopathy), placing the mother at grave risk. Id. Moreover, because anencephalic fetuses have abnormally small adrenal glands (which play a critical role in triggering labor), the mothers of anencephalic fetuses must often have delivery induced or face the many health risks associated with late-term pregnancy. Id.
Beyond these physical risks, the emotional toll of anencephaly is undeniable. These mothers are faced with the horrifying knowledge that the fetus they are carrying will die, never having achieved consciousness.
. Though CHAMPUS denied the majority of the New England Medical Center's claim, it did cover some of the costs associated with an emergency surgical procedure to remove the placenta that Britell underwent after delivery.
Britell II,
. A spontaneous abortion is commonly known as a miscarriage.
Britell I,
. Indeed, at least one Claims Court decision has held that the CHAMPUS statute is money-mandating.
See Ulmet v. United States,
. Footnote 42 in
Bowen v. Massachusetts,
. It is worth noting that neither party nor the district court nor the First Circuit questioned or even addressed the validity of Britell's claims under the Little Tucker Act. Now that this court has determined in the first instance that Britell's claims do indeed fall under the Little Tucker Act, this court's jurisdiction under 28 U.S.C. § 1295(a)(2) is clear.
. Nor need we address the government's argument that congressional funding determinations should be given even greater deference than non-funding determinations reviewed under a rational basis review.