Meanwhile, another court has blocked “elective abortion” accommodations under the PWFA regulations


On Friday, a federal judge in Arkansas dismissed a lawsuit that 17 states had filed challenging aspects of the U.S. Equal Employment Opportunity Commission’s final rule to implement the Pregnant Workers Fairness Act (PWFA)  — specifically the part that deals with “elective abortions.”

Yesterday, another federal judge in Louisiana enjoined the EEOC from requiring employers in Louisiana and Mississippi to accommodate elective abortions, i.e., an abortion prompted exclusively by the woman’s choice, where no physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions exists.

The Louisiana court concluded that the EEOC had exceeded its statutory authority to implement the PWFA and, in doing so, unlawfully expropriated Congress’s authority and encroached upon the sovereignty of the States.

So why the different outcome?

First, the court determined that the States did have standing to sue, mainly for two reasons. First, the court concluded that “Louisiana and Mississippi – as employers and without the shield of Eleventh Amendment sovereign immunity – are directly regulated by the PWFA and the Final Rule. Therefore, if implemented in excess of Congressional authorization, the Final Rule will ’cause[] [the States] injury, and … a judgment preventing … the action will redress it.'”

Second, the states submitted sworn declarations evidencing the costs of compliance with the Final Rule.

But it’s one thing to have standing and another to demonstrate a likelihood of success on the merits, a prerequisite to obtaining an injunction. The court considered it “straightforward” that the EEOC has exceeded its authority to regulate accommodations for elective abortions:

“Abortion” is a term that is readily understood by everyone. If Congress had intended to mandate that employers accommodate elective abortions under the PWFA, it would have spoken clearly when enacting the statute, particularly given the enormous social, religious, and political importance of the abortion issue in our nation at this time (and, indeed, over the past 50 years)…[A]ny version of the PWFA that included an abortion accommodation requirement would have failed to pass Congress.

Axiomatically, Congress did not grant the EEOC the authority to require employers to provide workplace accommodation for the elective abortions of employees. Further, requiring the States to make such accommodations for thousands of female employees “would cause irreparable harm in the form of compliance costs, infringement of state sovereignty, and compelled speech.” Similarly, allowing the abortion accommodation mandate to take effect outweighs any harm to the EEOC if the mandate is enjoined.

The net net is that the EEOC cannot investigate/enforce any alleged failure to accommodate an elective abortion in Louisiana or Mississippi. However, employers in those states can accommodate elective abortions if they so choose.

As for the rest of you, the entire Final Rule takes effect today.

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