States Sue EEOC Over Pregnant Workers Fairness Act Rule's Abortion Provisions

Seventeen state attorney generals have sued the U.S. Equal Employment Opportunity Commission (EEOC), challenging the Pregnant Workers Fairness Act (PWFA) rule’s provisions on abortion. The rule included abortion as a pregnancy-related condition that must be reasonably accommodated. We’ve gathered articles on the news from SHRM Online and other outlets.

Litigated Provisions

The rule said that the PWFA covers “having or choosing not to have an abortion” as medical conditions related to pregnancy or childbirth, though this protection didn’t appear explicitly in the statute’s text. The states’ complaint cited the compliance costs to state governments and infringement on states’ sovereignty, as many of the plaintiffs have laws that have “prohibited or limited abortion with rare exceptions.”

The text of the final rule said the effects of accommodations for abortion will be limited, likely to leave from work.

(Bloomberg)

States Bringing the Lawsuit

The states suing are Arkansas, Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia. The complaint said the PWFA’s “pro-family aim garnered support from a spectrum of civic organizations,” including pro-life groups.

(Lawsuit’s complaint)

Comments from the Public

During the notice-and-comment period of the rule before it was released in mid-April, the question of including abortion in the act’s definition of “pregnancy, childbirth, or related medical conditions” resulted in a flurry of comments to the EEOC. About 54,000 of the comments urged the commission to exclude abortion and about 40,000 comments asked for the EEOC to include it.

The agency said in the rule that the PWFA cannot be used to require a job-based health plan to pay for any procedure, including an abortion, noting that the PWFA is a workplace anti-discrimination law.

(CNN)

Lawmakers’ Support and Opposition

When released, the guidance received support and opposition from various government leaders. Reps. Diana DeGette, D-Colo., and Barbara Lee, D-Calif., who serve as co-chairs for the Congressional Pro-Choice Caucus, applauded the EEOC for including abortion accommodations in its final rule.

“The Equal Employment Opportunity Commission was right to include abortion explicitly in its final regulation as they move to implement critical protections for pregnant workers,” they said in a statement. “And the Pro-Choice Caucus is proud to fight alongside the EEOC and the entire Biden administration to protect the rights and safety of every abortion patient.”

However, Sen. Bill Cassidy, R-La., who criticized the Biden administration for its inclusion of abortion politics in the proposed regulation, condemned the final regulations. He argued that such a change should come from new laws passed by Congress rather than through agencies’ rulemaking.

In a post on his website, Cassidy said the law “defies common sense, and Congress’ intent, that EEOC continues to inject abortion into a law specifically aimed at promoting healthy childbirth,” while adding that “the decision to disregard the legislative process to promote a political agenda is shocking and illegal.”

(SHRM Online)

PWFA Ruled Not Enforceable in Texas

A federal district court in Texas has ruled that Congress violated the Constitution when it passed the PWFA. Congress lacked the required quorum, the court determined, holding that the EEOC is barred from enforcing the law against the state of Texas. 

(SHRM Online)