National Organization for Women – NYC vs. VA and DoD

On Aug. 2, 2023, the National Organization for Women’s New York City Chapter (NOW-NYC) filed a federal lawsuit in the Southern District of New York challenging discriminatory eligibility policies of the Department of Defense (DOD) and the Department of Veterans Affairs (VA) for in vitro fertilization (IVF) and other fertility services. The clinic along with the Yale Law School Reproductive Rights at Justice Project are counsel for NOW-NYC.

On March 8, 2024, in response to the lawsuit, DOD released a new policy removing its marriage and gamete requirements, which categorically excluded same-sex couples and unmarried service members from qualifying for IVF coverage. On April 4, 2024, following DOD’s lead, VA released a similar updated policy for veterans. However, the Agencies are retaining their requirements that service members and veterans demonstrate a severe injury or illness (DOD) or service-connected disability (VA) impacting their fertility in order to qualify for coverage. This onerous “causation requirement” will continue to prohibit thousands of veterans and service members from accessing medically necessary care.

On Oct. 31, 2024, Judge Valerie Caproni granted the government’s motion to dismiss the challenge to the causation requirement, holding that the court did not have jurisdiction to hear the claims against VA because veterans could appeal to the U.S. Court of Appeals for Veterans Claims instead. Judge Caproni also dismissed the claims against DoD because she concluded the causation requirement was neither discriminatory nor irrational. As NOW-NYC considers its appeal options, Congress is in final negotiations over whether to expand IVF coverage for service members and veterans in the FY2025 National Defense Authorization Act.

The clinic along with the Yale Law School Reproductive Rights at Justice Project are counsel for NOW-NYC.