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. Following the dismissal, NOW-NYC advocated for the expansion of IVF coverage for service members in the FY2025 National Defense Authorization Act. The provisions that would have expanded IVF coverage did not make it into the final version of the legislation.
On Jan. 6, 2025, NOW-NYC appealed the case to the Second Circuit.
The clinic along with the Yale Law School Reproductive Rights at Justice Project are counsel for NOW-NYC.
Case Documents
Amicus Brief – American Society for Reproductive Medicine (April 11, 2025)
Amicus Brief — Legal Scholars (April 11, 2025)
Amicus Brief — National Military Family Association and Black Veterans Project (April 11, 2025)
Appellant’s Brief (April 4, 2025)
Order Granting Motion to Dismiss (Oct. 31, 2024)
Amended Complaint (Feb. 9, 2024)
Press and Media
“New Pentagon Policy Expands In Vitro Fertilization Options for Severely Ill or Injured Troops” Military.com, Mar. 12, 2024
“DOD, VA to allow IVF for unmarried people, same-sex couples and more” Military Times, Mar. 11, 2024
“VA, Defense Department end ban on IVF treatments for unmarried and same-sex couples” Stars and Stripes, Mar. 11, 2024
“VA to cover IVF for single veterans, same-sex couples after lawsuits” Washington Post, Mar. 11, 2024
“Pentagon to ease IVF access for service members, court document says” Stars and Stripes, Jan. 25, 2024
“Clinic Lawsuit Prompts Defense Department to Partially Reform Discriminatory IVF Policies” Press Release, Jan. 24, 2024
“Military to cover IVF for unmarried couples, single troops and more” Military Times, Jan. 24, 2024
“Military members in same-sex marriages set for better coverage of infertility treatments” Federal News Network, Jan. 24, 2024
“The VA and the Pentagon must end their anti-gay IVF regulations” Stars and Stripes, Nov. 14, 2023
“Lawsuits challenge ‘discriminatory’ Pentagon, VA fertility treatment policies” Stars and Stripes, Aug. 2, 2023
“Veteran Advocates Sue over 'Discriminatory' Fertility Treatment Policies at DoD, VA” Military.com, Aug. 2, 2023