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Veterans and active-duty service members experience infertility at a higher rate than the general population. Military service often exposes individuals to proven infertility risk factors—including toxic chemicals, post-traumatic stress disorder, and combat. With higher rates of infertility, veterans and service members often seek in-vitro fertilization (IVF) and other fertility services through the U.S. Departments of Veterans Affairs (VA) and Defense (DoD). Although VA and DoD provide IVF services, the extensive eligibility requirements often preclude veterans and service members from access.

In August 2023, the National Organization for Women’s New York City Chapter (NOW-NYC) filed suit in federal district court challenging VA and DoD’s restrictive eligibility requirements for IVF. At the time NOW-NYC initiated this suit, VA and DoD restricted IVF treatment to beneficiaries who: (1) were in a lawful marriage with a person of a different sex; (2) together with their spouse, could produce and carry a child who is biologically their own; and (3) had experienced a serious illness or injury while on active duty that caused their infertility. VA and DoD have since rescinded the first two requirements.

In January 2025, NOW-NYC appealed the district court’s decision granting the government’s motion to dismiss. The district court found that NOW-NYC’s Fifth Amendment and Affordable Care Act claims were barred by the Veterans Judicial Review Act—a federal statute that prohibits federal district courts from second-guessing VA’s individualized benefit determinations.

On behalf of a group of eminent legal scholars, the ÌÒ×ÓÊÓƵfiled an amicus brief arguing that the district court erred in precluding NOW-NYC’s claims. The brief argues that: (1) the presumption against jurisdiction-stripping favors district court review of NOW-NYC’s claims; and (2) accepting the government’s position would deprive veterans of a meaningful opportunity to enforce their rights.