In response to the final rule that the U.S. Equal Employment Opportunity Commission (EEOC) issued implementing the Pregnant Workers Fairness Act (PWFA), seventeen state attorneys general have filed suit to challenge the rule's abortion provisions. These states include Arkansas, Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.
Although the PWFA, which is an anti-discrimination law geared toward protecting pregnant women in the workplace, does not explicitly mention abortion, the EEOC included a provision in the rule that addresses abortion. More specifically, the rule states that PWFA covers "having or choosing not to have an abortion" as medical conditions related to pregnancy or childbirth. The rule also notes that any accommodation an employer might have to make for an employee who has chosen to have an abortion would be minimal, such as taking leave from work to undergo or recover from an abortion. However, the EEOC also noted in the rule that the PWFA cannot and does not require an employer-based health plan to pay for any medical procedure, including an abortion.
The complaining states claim that this provision will add compliance costs for state governments and interfere with state sovereignty, as many of those states have passed laws that prohibit or severely limit abortion. During the notice and comment period, about 54,000 of the comments urged the EEOC to exclude abortion, whereas about 40,000 included a plea for the EEOC to include it in the rule.
Legislators from opposing parties predictably spoke in favor of and against the rule. The co-chairs of the Congressional Pro-Choice Caucus publicly supported the EEOC for including the provision concerning abortion. In contrast, some Republicans criticized the Biden administration for promoting a political agenda via agency rulemaking rather than legislation.
Meanwhile, a Texas federal district court ruled that the EEOC prohibits enforcing the PWFA against public employers. The judge found that Congress violated the U.S. Constitution when it passed the PWFA because it lacked the quorum necessary to pass legislation. However, the ruling does not apply to private employers in Texas or public employers outside Texas. It also does not affect employees' rights and protections under other local, state, and federal laws.
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