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Wednesday, October 18, 2017

Morrissey v. U.S. and the IRS's Hostility to Reproductive Choice

Paraphrasing the Eleventh Circuit in its September opinion in Morrissey v. U.S.: “This is a tax post. Fear not, keep reading.” The tendency of the opinion to make light of tax law aside (of course a tax case can be “interesting”), the case is an important one for reproductive rights. At issue was the deductibility of assisted reproductive technologies (ARTs) used by Joseph Morrissey that enabled him and his now-husband to become parents.

Section 213 of the Internal Revenue Code permits a deduction for certain medical expenses. To qualify as deductible, amounts paid for medical care must be “for the diagnosis, cure, mitigation, treatment, or prevention of disease” or “for the purpose of affecting any structure or function of the body.” Thus there are two ways a taxpayer may qualify for the medical expense deduction: paying for medical care (1) arising from a “disease” or (2) affecting a person’s bodily “structure or function.” Morrissey argued that the egg donation, in vitro fertilization, and surrogacy costs he paid qualified as medical care because they affected his “reproductive function.” Mr. Morrissey also argued that denial of the deduction was a violation of his equal protection rights. The court of appeals rejected both arguments, affirming the district court’s grant of summary judgment in favor of the IRS.

I’ll begin with what the court of appeals got right. First, the court did not read a “disease” requirement into the “structure or function” route to a medical expense deduction. Second, the court did not summarily reason that ARTs are unrelated to a “function of the body.” The court of appeals thus avoided two errors that plagued the earlier Magdalin v. Comm’r case (a Tax Court memorandum opinion summarily affirmed by the First Circuit, and which I’ve written about here).

Unfortunately, the court of appeals got just about everything else wrong. For one, the court took a stinting view of the definition of “function of the body.” It parsed dictionary definitions to conclude that Mr. Morrissey’s reproductive function was limited to the provision of sperm: “The male body’s necessary function within the reproductive process is simply stated: it must produce and provide healthy sperm . . . .”. Though the court recognized that “function” might not be limited to the provision of sperm, it concluded that the “limiting modifier” of §213(d)—that medical care must affect a structure or function “of the body”—required its narrower view.

            The court took a similarly narrow view of Mr. Morrissey’s fundamental right to reproduce. Morrissey argued that the denial of the deduction would infringe upon his fundamental right to reproduce under Skinner. The court of appeals dismissed that argument, concluding that no fundamental right was at stake. In the court’s view, there is no fundamental right to “to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate.” But, for Morrissey, exercising his fundamental right to reproduce meant seeking out a surrogate and some form of ART.

The Eleventh Circuit thus lent its imprimatur to the IRS’s ongoing resistance to recognizing the reproductive rights of same-sex parents and it did so robustly, providing a much thorough discussion of its reasoning than did the Tax Court in Magdalin.   I, along with others, have explored the IRS’s approach to §213 and ARTs in earlier work, but the landscape has changed since those earlier decisions (see that work here, here, here, here, and here).

With Windsor and Obergefell came a more robust recognition of the history of discrimination on the basis of sexuality and its import for the law. In the shadow of these cases, the Eleventh Circuit had the opportunity to interpret §213 more broadly to encompass greater reproductive choice and limit discriminatory implementation of §213.

Tax law is not only interesting, but it matters. The problem with the Eleventh Circuit’s opinion is not that it’s untenable but that it’s wrong. It’s wrong in that it provides significant precedent that reifies the heteronormativity and gender bias at the intersection of §213 and reproduction. In an article now in development, I will explore the impacts of Morrissey and possible solutions. In the immediate wake of the opinion however, I am left troubled by the missed opportunity to address the persistent biases of the Code that the Morrissey case represents.

Posted by Tessa Davis on October 18, 2017 at 06:38 PM | Permalink


If the statute says the expense is not deductible and every court agrees with the IRS, then the law is the problem, not the IRS. Petition Congress for change. People can still use assisted reproductive technology. They just can't get a tax deduction for it.

Posted by: Chris P. | Oct 31, 2017 10:23:10 PM


A medical procedure is not elective if it cures a person's depression. If a person gets "elective" cosmetic surgery, but then no longer has to go to the psychologist (and is no longer on the suicide-watch list), it was medically-necessary, even though it wouldn't necessarily have been before it was done (it might not have cured their depression, it just happened to do so).

So, for instance, an abortion might not be medically-necessary in the sense that the woman's life is in danger, but it might be, in the sense that if she gives birth, and has to quit up her job and go on welfare as a single-mom, she'll spiral into depression.

"Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care."
-Roe v. Wade

Posted by: Where is my mind? | Oct 20, 2017 12:48:08 PM

Tessa, this isn't my area and I may be totally wrong, but one thought is that whether the facts here fit the purpose of the policy may depend on the level of generality used to describe the purpose of the policy. If the purpose is broadly to help people with high expenses that relate to medical matters, it might fit; if the purpose is narrowly to help people with unexpected medical expenses forced upon them, it might not.

The tricky problem, I would think, is that there are lots of expenses that relate to medical payments that aren't the core case of a forced expense. For example, Bob might get plastic surgery to enhance his appearance because he thinks it will help him on the dating scene, and he may have those expenses that he wants to deduct. Alice might decide to pay for all or part of Bob's surgery because she feels sorry for Bob and therefore have expenses that she wants to deduct, etc. I can imagine arguments for or against the law giving deductions for those expenses, and I realize that there is room for debate on whether any particular expenses are forced versus merely elective. I just thought I would flag the wiggle room in the the level of generality assigned to the purpose of the provision. But as I said, this isn't my area, so just ignore me if this isn't helpful.

Posted by: Orin Kerr | Oct 20, 2017 12:09:40 PM

I do think the constitutional claim was given short shrift, but on the statute he looks awfully right to me.

Posted by: Asher Steinberg | Oct 19, 2017 7:45:54 PM

"no one would allow someone to deduct the cost of a Catholic wedding from their taxes"

I'm still not a big fan of these commentary as "name" labels, but this does address a key point of the opinion. On the face of it, Prof. Kerr's analysis appears accurate, but it's not a matter of rights not bringing payment of expenses as such. It's what the statute allows.

As a matter of policy, a case can be made that this sort of tax deduction should include this. As to the wedding example, I can see a tax deduction set up that does that if phrased in a general way. It would be for all weddings. Then, it would be how broad the deduction should apply.

Posted by: Joe | Oct 19, 2017 11:09:00 AM

Orin, thanks again for your engagement with the post. It appears your response may have gotten cut off and the end. In response to what I can see, yes, Mr. Morrissey did not make an argument under the first prong. However, some, including myself, have argued in favor of recognition of a concept of "functional infertility" under the historically broadly interpreted first prong.

As to the history of the provision, you are right that it is meant to assist individuals who have extraordinary medical expenses. Further, the scope of what qualifies as medical care has been pretty broadly interpreted. With that frame in mind, I believe the best interpretation of function herein is the broader one. I do, however, agree that your read (and that of the court) is a tenable one.

Posted by: Tessa Davis | Oct 19, 2017 7:55:54 AM

Brad, thank you for your comment. It is convention in the industry to refer to the process as egg donation. There are some excellent critiques of that convention, however. In the tax world, Professor Bridget Crawford raises the point in her work on surrogacy.

Posted by: Tessa | Oct 19, 2017 7:45:34 AM

Rights do not include the right to deduct the expenses of the right from one's taxes.

For instance, no one would allow someone to deduct the cost of a gun and ammunition from one's taxes just because a person otherwise would be unable to afford that gun--even if one lived in a high-crime city where having a gun was the difference between being robbed and not being robbed.

Or to use the more obvious and relevant example, no one would allow someone to deduct the cost of a Catholic wedding from their taxes.

Posted by: Heller was a gay rights decision | Oct 19, 2017 4:08:13 AM

It's a minor point, but why do you refer to it as an egg donation (and to the woman as an egg doner) when they were apparently sold?

Posted by: Brad | Oct 18, 2017 10:21:41 PM

Thanks for providing this interesting case and commentary.

I think the portion of the opinion regarding the fundamental right to reproduce was gratutious, including the suggestion that some fundamental right to IVF in particular in this case for same sex couples would mean the state has little ability to regulate.

The right to choose whether or not to have a child, including an abortion, has been deemed a protected liberty. This still allows the state to regulate. The state in fact regulates child-rearing, marriage and so forth in various respects. And, the open-ended statement it is not a fundamental right opens a can of worms that to me is not necessary to decide the case.

Posted by: Joe | Oct 18, 2017 10:15:29 PM

Thanks, Tessa, that's helpful. I'm not at all an expert in this -- I first read about this issue when I read the Morrissey case, so this is all pretty new to me -- but just as as a matter of text, the court's interpretation strikes me as right in the legal sense. I gather there is agreement that this isn't "for the diagnosis, cure, mitigation, treatment, or prevention of disease,” as there is no suggestion anyone has a disease. And it doesn't seem to be an expense “for the purpose of affecting any structure or function of the body" as it's not actually about his body. Maybe that's a bad result as a matter of policy, but it seems correct to me as a matter of law given the current text. You mention the purpose of the provision, although I confess I'm not entirely sure what that purpose is; is it sort of a social policy to help people who are stuck with high medical expenses?

More broadly,

Posted by: Orin Kerr | Oct 18, 2017 9:19:51 PM

Orin, thank you for your response. I certainly believe the decision is wrong in a normative sense (for the reasons I set out in brief above and similar to those in the article I cite above). The legal question is admittedly harder to address. I believe both the narrower construction advanced by the IRS and accepted by the court as well as the broader construction I advocate are supported by the text of the statute. However, I believe the broader construction of the statute is the best reading in light of the purpose of the medical care deduction.

Posted by: Tessa Davis | Oct 18, 2017 8:31:26 PM

Tessa, thanks for the post. When you say the decision is wrong, do you mean wrong in the sense of legally incorrect (not the best reading of the code and precedents for a lower court judge) or wrong in the broader normative sense (not a just or moral result)? Or both?

Posted by: Orin Kerr | Oct 18, 2017 7:03:24 PM

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