TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, October 31, 2017

Davis: Morrissey And The IRS's Hostility To Reproductive Choice

Following up on my previous posts:

Tessa Davis (South Carolina), Morrissey v. U.S. and the IRS's Hostility to Reproductive Choice:

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. ...

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 herehereherehere, 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.

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The IRS isn't hostile to reproductive choice if the statute says an expense is not deductible and every court that has decided the issue sides with the IRS. It just means that's that law. Get Congress to change it, not the court system or IRS.

Posted by: Chris P. | Oct 31, 2017 7:20:20 PM

Agreed. The issue is the law itself. Your example is just one of many. Take a little old, senile lady who fails to file a return. The SOL closes and she never gets her refund. The Supreme Court gets it right by saying the lady (Brockamp) isn’t entitled to her refund. Congress doesn’t like that result, so now we have Section 6511(h). That’s how all of this works.

Posted by: Chris K. | Nov 1, 2017 7:59:39 PM