Veterans urge Second Circuit to lower bar for IVF benefits

MANHATTAN (CN) — The Second Circuit seems to want to keep jurisdiction over a challenge to Department of Defense rules that critics say unfairly prevented certain service members from receiving in vitro fertilization benefits.

In 2023, the National Organization for Women-New York City accused the Department of Defense and Department of Veterans Affairs of discriminating against veterans seeking IVF treatments by requiring them to show their infertility was the direct result of their service.

According to the advocacy group, service members face higher rates of infertility than the general populace and often have difficulty pinning down the exact reason for their infertility, be it exposure to environmental hazards like burn pits or myriad other reasons.

In its amended complaint, NOW-NYC claims some veterans and service members were exposed to toxic chemicals or environmental hazards that damaged fertility, while others were sexually assaulted while in the service, hindering their fertility.

The group also says the government policy unfairly excluded from coverage service members who were single or unmarried, service members in same-sex relationships and those who used eggs or sperm from third parties, known as a gamete requirement.

The federal agencies amended their policies to remove the marriage and gamete requirements for IVF coverage but kept the coverage requirement that applicants prove a serious injury, disease or service-connected disability reduced their fertility.

In October 2024, a federal judge dismissed the case, stating NOW-NYC failed to demonstrate the agency intentionally discriminated against certain service members as the policy applies equally to men and women.

Following the ruling, NOW-NYC appealed to the Second Circuit, arguing many service members have unexplained or unidentifiable reasons for their infertility, while many others are infertile due to a “confluence of medical and psychological factors” that make it difficult to prove a single cause.

“Those who serve our country expose themselves to countless dangers,” the advocacy group stated in its brief to the Second Circuit. “When it comes to family building, however, the nation has broken its promise to those service members and veterans who cannot directly prove that military serviced compromised their fertility.”

During oral arguments on Thursday, Yale Law School students representing the advocacy group argued the Department of Defense violated the Administrative Procedure Act by failing to offer an adequate explanation for its policy decision, which was arbitrary and capricious.

“Typically, when this court reviews APA claims, there is a rulemaking with a wealth of different considerations the agency took into account,” Indu Pandey argued on behalf of NOW-NYC. “Here you’ll find no such record.”

Representing the agencies, Assistant U.S. Attorney Tomoko Onozawa countered the agency did not have the authority to cover IVF until 2008 since it was tasked with providing benefits only for medical care to prevent, treat or diagnose a condition.

The Department of Defense has “expressed the agency’s commitment to ensuring maximum, not universal, but maximum support for members who are seriously injured … in a way that made it impossible to procreate naturally,” Onozawa argued.

The panel of judges also weighed whether the claims should have been heard in the Federal Circuit as a challenge to individual benefits under the Veterans’ Judicial Review Act, rather than a facial constitutional challenge.

“Is there a facial constitutional challenge that could be made that would not have to be channeled through the administrative process?” asked Senior U.S. Circuit Judge Robert Sack, a Bill Clinton appointee.

Government attorneys argued the complaint should have been heard administratively or in the Federal Circuit, though NOW-NYC’s attorneys argued the case was properly before the appeals panel, which also included Chief U.S. Circuit Judge Debra Ann Livingston and U.S. Circuit Judge Raymond Lohier Jr., both Barack Obama appointees.

However, Sack seemed leery to give up judicial review of the claims. “We are talking about a decision that purports to strip us of judicial review,” he said. “We need to be very careful, and in fact the presumption is that we exercise review.”

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