Americans United for Life submitted a formal comment to the Equal Employment Opportunity Commission (EEOC) last week in support of the agency’s goals to combat and prevent employment discrimination against pregnant workers under the Pregnant Workers Fairness Act (PWFA), but with the recommendation that the EEOC update its PWFA rule and guidance by removing the unlawful abortion-accommodation mandate.

The Biden Administration Devised an Abortion-Accommodation Mandate

Congress passed the PWFA to provide reasonable workplace accommodations for pregnancy and childbirth. The Act had broad bipartisan support, even from pro-life Members of Congress. Yet under the Biden Administration, the EEOC contrived protections for abortion within the final rule.‍‍

A federal district court in Louisiana v. EEOC held that the abortion-accommodation mandate exceeded the EEOC’s authority, describing that “Congress was well aware of the implications of Dobbs when it passed the PWFA, and had it wanted to include an abortion-accommodation provision in the PWFA, it surely would have done so.”‍ The court thus vacated the abortion-accommodation mandate and remanded the final rule for further agency action.

The EEOC has not yet revised the PWFA final rule to remove the abortion-accommodation mandate. Rulemaking changes would provide clarity of rights and obligations under the PWFA regulations, as well as rescind the unlawful abortion-accommodation mandate.

The Abortion-Accommodation Mandate Contravenes the Statute’s Plain Language

The abortion-accommodation mandate erroneously protects abortion as a “related medical condition.” However, abortion is an intervention, not a medical condition. Pregnancy is the woman’s medical condition.‍‍ A condition is distinguishable from an intervention. An intervention is “the act or fact or a means of interfering with the outcome or course esp. of a condition or process (as to prevent harm or improve functioning).”‍‍ Abortion involves “the use of any drug, device, surgery, or any procedure or intervention with the purpose of ensuring the death of the living human being in utero before, during, or in the process of separating the mother and her embryo or fetus.”‍ Thus, an abortion acts as an intervention to end the medical condition (i.e., pregnancy). Accordingly, the abortion-accommodation mandate contradicts the plain language of “related medical condition” by including abortion, an intervention intended to end the life of the unborn child.

The Abortion-Accommodation Mandate Violates the Major Questions Doctrine

Abortion is a contentious issue of national sociopolitical significance.‍‍ Under the major questions doctrine, there is “reason to hesitate before concluding that Congress meant to confer [broad] authority” upon an administrative agency to impose widespread policies relating to issues of great “economic and political significance.‍”‍ The PWFA final rule seeks to institute a national abortion policy by protecting abortion under the guise of “related medical conditions” even though the PWFA does not mention abortion. Since the abortion issue has returned to the democratic process following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization,‍ Congress holds the federal power to legislate on the abortion issue. The EEOC must show that Congress has delegated that legislative authority to the agency, but it cannot. Accordingly, the abortion-accommodation mandate violates the major questions doctrine by contriving protections for abortion without the requisite authority from Congress to do so.

AUL supports the agency’s goals to combat and prevent employment discrimination against pregnant workers under the PWFA but asks that the EEOC update the PWFA final rule and guidance by removing its devised protections for abortion. 

To read AUL’s full comment, click here. 

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