Four New Jersey women in same-sex relationships have sued the commissioner of the New Jersey Department of Banking and Insurance, alleging that the state's rule for covering fertility treatments (the “infertility mandate”) discriminated against them because it mandated infertility coverage for infertile women in heterosexual relationships but not for infertile women in same-sex relationships.
The Case
Erin Krupa, Marianne Krupa, Sol Mejias, and Sarah Mills sued Richard J. Badolato, the commissioner of the New Jersey Department of Banking and Insurance, in a federal district court in New Jersey, alleging that they are female New Jersey residents in same-sex relationships who wish to conceive children but, because they suffer from infertility as determined by their doctors, have been unable to do so without access to infertility treatments such as, inter alia, intrauterine insemination and in vitro fertilization.
The plaintiffs pointed out in their complaint that New Jersey mandates that insurance plans operating in the state cover medically necessary expenses incurred in the diagnosis and treatment of infertility, but noted that this mandate defines infertility as an inability to conceive despite engaging in unprotected sexual intercourse with a male partner for either one or two years, depending on a woman's age.
The complaint cited a letter to the Krupas from their health insurance carrier, Horizon Blue Cross Blue Shield of New Jersey (“HBCBS”), denying coverage for infertility treatments that stated that:
[i]nfertility means the disease or condition that results in the abnormal function of the reproductive system such that: … [a] female under 35 years of age is unable to conceive after two years of unprotected sexual intercourse
and
[t]o be labeled as having infertility and being eligible for infertility treatments, HBCBS policy based on the New Jersey mandate requires that a patient age less than 35 years fail to conceive after two years of trying.
The plaintiffs asserted that, because they are women in same-sex relationships and do not engage in sexual intercourse with men, New Jersey law left them with no way to qualify as infertile for purposes of insurance coverage.
As a result, the plaintiffs asserted, because the cost of infertility care is “extremely burdensome to prohibitive” for the plaintiffs to pay for out-of-pocket and their insurance providers are only required to cover such treatment for heterosexual women, the plaintiffs had to “choose between starting a family and their financial security.”
Citing to the U.S. Supreme Court decision in Obergefell v. Hodges, 135 S. Ct. 2584, 2594 (2015), the plaintiffs argued that “the Constitution protects them against this draconian choice.”
They asserted the following causes of action:
- Discrimination on the Basis of Sex and Sexual Orientation in Violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (28 U.S.C. § 2201 and 42 U.S.C. § 1983); and
- Discrimination on the Basis of Sex and Sexual Orientation in Violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution (28 U.S.C. § 2201 and 42 U.S.C. § 1983).
The plaintiffs are asking that the court:
- Issue a declaratory judgment that the New Jersey infertility mandate discriminates based on sex and sexual orientation in violation of the Equal Protection Clause of the U.S. Constitution by mandating infertility coverage for infertile women in heterosexual relationships but not for infertile women in same-sex relationships;
- Issue a declaratory judgment that the New Jersey infertility mandate violates the Due Process Clause of the U.S. Constitution by denying to infertile women in same-sex relationships the same assistance in creating a family that is provided to infertile women in heterosexual relationships;
- Issue a preliminary and permanent injunction requiring the commissioner to expand the mandate to allow infertile women in same-sex relationships to qualify as infertile under the law and access insurance coverage for fertility treatments deemed medically necessary by their doctors;
- Award the plaintiffs compensatory damages, including damages for mental anguish and pain and suffering; and
- Award the plaintiffs reasonable attorneys' fees and costs.
The New Jersey Infertility Mandate
The New Jersey infertility mandate requires that any insurance policy that covers more than 50 people and provides pregnancy-related benefits must also cover the costs related to infertility diagnosis and fertility treatments, including IVF. It states:
For purposes of this section, “infertility” means the disease of condition that results in the abnormal function of the reproductive system such that a person is not able to: impregnate another person; conceive after two years of unprotected intercourse if the female partner is under 35 years of age, or one year of unprotected intercourse if the female partner is 35 years of age or older or one of the partners is considered medically sterile; or carry a pregnancy to life birth.
N.J. Stat. Ann. § 17B:27-46.1x(a).
The case is Krupa v. Badolato, No. __ (D.N.J. Aug 1. 2016). The plaintiffs' attorneys are John A. Beranbaum, Grace Cathryn Cretcher, and Bruce E. Menken, BERANBAUM MENKEN LLP.
FC&S Legal Comment
We will monitor this case and discuss developments as warranted.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].