Opposing Rulings Leave Workplace Protections for Elective Abortions in Legal Limbo

Federal judges in Arkansas and Louisiana have issued conflicting rulings mere days apart over the Equal Employment Opportunity Commission’s (EEOC) authority to enforce certain provisions of the Pregnant Workers Fairness Act (PWFA), setting up a contentious legal battle over workplace accommodations for employees undergoing “purely elective abortions.” 

On June 17, U.S. District Court Judge David Joseph in Louisiana granted a preliminary injunction in lawsuits brought by the attorneys general of Louisiana and Mississippi and the U.S. Conference of Catholic Bishops, Catholic University, and two Catholic dioceses. The consolidated lawsuits challenge the EEOC’s April 2024 regulations, which assert that elective abortions are among the pregnancy-related conditions covered by the PWFA. 

Just days before, U.S. District Court Judge D.P. Marshall Jr. in Arkansas dismissed a similar lawsuit filed by 17 states, led by the attorneys general of Arkansas and Tennessee.

In his ruling, Judge Marshall concluded that the states lacked standing to bring the lawsuit and could not show a likelihood of irreparable harm. “This case presents a narrow disagreement over a few words, a disagreement that seems unlikely to flower into few, if any, real-world disputes,” Judge Marshall wrote. “The States’ fear of overreach by one branch of the federal government cannot be cured with overreach by another.”

In Louisiana, Judge Joseph saw it differently.  After rejecting the challenge to the plaintiffs standing to file suit, he concluded that the EEOC exceeded its authority in mandating that employees who undergo purely elective abortion procedures are protected by the PWFA.

“Not only is the EEOC unable to point to any language in the PWFA empowering it to mandate the accommodation of elective abortions, but there can be little doubt in today’s political environment that any version of the PWFA that included an abortion accommodation requirement would have failed to pass Congress,” Judge Joseph stated.

Judge Joseph’s injunction order enjoins the EEOC from “initiating any investigation into claims that a covered employer has failed to accommodate an elective abortion that is not necessary to treat a medical condition related to pregnancy” or “issuing any Notice of Right to Sue with respect to the same” against the Catholic plaintiffs and employers in Louisiana and Mississippi. 

Passed with bipartisan support in December 2022, the PWFA requires employers to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions unless it would cause undue hardship. The EEOC’s inclusion of abortion in the definition of pregnancy-related conditions has been a point of contention, with critics arguing it oversteps the agency’s authority.

These legal battles are set against the backdrop of the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and held that the authority to regulate abortion was the purview of the individual states.

The Dobbs decision featured prominently in Judge Joseph’s ruling.  “At its core, this is a textbook case of a federal administrative agency exceeding its statutory authority in a way that both usurps the role of Congress and violates authority vested in the states under the principles of federalism,” Judge Joseph wrote. “With Dobbs and all of its implications fresh in the minds of lawmakers, it is not credible that Congress clearly intended that the PWFA include an abortion accommodation mandate.”

While the litigation continues, apart from employees undergoing “an elective abortion that is not necessary to treat a medical condition related to pregnancy,” employers within Louisiana and Mississippi’s jurisdictional boundaries must comply with the PWFA and its regulations in their entirety.  For employers in other states, the PWFA remains fully enforceable without limitation.

Please contact Stephanie Poucher or any member of Phelps’ Labor and Employment team with questions or for compliance advice and guidance.