Thursday, September 1, 2016
By Jeremiah Ho
A new lawsuit has been filed just within the last few weeks in federal district court in New Jersey by one unmarried and two married lesbian couples against the state’s insurance commissioner. Essentially the lawsuit is challenging the definition of the word “infertile” under the New Jersey’s insurance mandate for covering medical expenses associated with the treatment of infertility. The case, Krupa v. Badolato, is an interesting one as the plaintiffs, who wish to conceive but are biologically infertile, are claiming that the current definition of “infertility” excludes them from coverage under the insurance mandate because of the definition’s reliance on “unprotected sexual intercourse” in determining who could be infertile.
The plaintiffs claim that for qualifying as “infertile” for infertility treatment coverage the phrase “unprotected sexual intercourse” requires them to show that they had heterosexual intercourse for the requisite period but then failed to conceive. They assert that such showing is problematical because it requires them to prove a failure to conceive after having unprotected sexual activity with male partners, which, as lesbians in committed relationships, was an impossibility to them. As a result, each couple claims they were denied coverage for infertility treatments that ended up costing tens of thousands of out-of-pocket dollars.
But beyond the monetary harms asserted in this lawsuit, it is the dignitary spin on sexual orientation and reproductive rights that catches one’s attention. The plaintiffs here are suing under 14th Amendment equal protection and due process theories. First, the equal protection theory articulates that “because infertile women in same-sex relationships do not engage in sexual intercourse with men, they are left with no way to qualify as ‘infertile’ under the statute and its implementing regulations in order to trigger the mandate.” Therefore, they situate themselves as a class discriminated based on their sexual orientation.” The plaintiffs’ due process theory relies on a violation of their reproductive rights.
On either theory, the implications of furthering constitutional litigation over sexual orientation seem eminent. From reading the complaint, the plaintiffs are plainly seeking leverage on the equal protection claim from Obergefell v. Hodges, but bringing the issue of protections for sexual orientation further by claiming suspect or quasi-suspect classification. The case seems to raise questions about orientation that are ripe for a revisit after Obergefell. First, the sexual conduct of these lesbian couples—or their lack of a type of sexual conduct—in regards to showing heterosexual unprotected sex conjures that old distinction of conduct that was permissible and conduct both expressive of sexual identity and simultaneously punishable by the law (remember Bowers v. Hardwick or its reversal in Lawrence v. Texas?). Here, it seems possibly that the couples were punished for not having heterosexual sex in order to prove infertility. Additionally, as it appears in the complaint, it seems as though they were punished for wanting to exercise their abilities to treat their infertility in order to improve their chances for having children (remember Griswold, Casey, and Wade?). The connection from the plaintiffs’ scenarios and to burdens on reproductive rights could lead to an expansion of existing constitutional caselaw.
But also, the plaintiffs seem to want a declaratory relief directly over sexual orientation, which they are possibly couching as something beyond conduct—rather “a core, defining trait that is so fundamental to one’s identity that a person may not legitimately be required to abandon it (even if that were possible, which it is not) as a condition of equal treatment.” Other than immutability (as articulated above), the plaintiffs preliminary balance the other three Frontiero factors as well in favor of determining sexual orientation as a protectable trait under the Equal Protection Clause.
Already the case is garnering attention from news outlets. This will be a lawsuit to watch.