An 11th-Hour Ruling Limits the Abortion Provisions of a New Law Protecting Pregnant Workers

A day before the final rules for a brand-new civil rights law protecting pregnant workers took effect, Louisiana federal Judge David C. Joseph issued a decision eliminating a key provision of the law for anyone living in Mississippi and Louisiana. In recently released final regulations for the new Pregnant Workers Fairness Act, the Equal Employment Opportunity Commission spelled out all the conditions for which employers have to offer employees accommodations, including pregnancy and abortion care, unless they can prove an undue hardship. Ruling on Monday in two consolidated cases, The State of Louisiana et al. v. Equal Employment Opportunity Commission and United States Conference of Catholic Bishops et al. v. Equal Employment Opportunity Commission, Judge Joseph blocked protections for abortion care for all people living in Mississippi and Louisiana, as well as any employees of the US Conference of Catholic Bishops and Catholic University of America. In those two states alone, 1.74 million women of reproductive age are now no longer due job-protected unpaid time off to get abortions or recover from their procedures, nor any other work-related changes they might need.

The Department of Justice, which is representing the EEOC in the case, can choose to appeal the ruling and seek a stay while it does. The EEOC referred a request for comment to the DOJ, and the DOJ did not immediately respond.

The decision will likely have enormous ramifications for the health and finances of pregnant workers in those states who need those protections. Just one example of the gravity of the situation is Mylissa Farmer, whose story was described in an amicus brief filed in the case by the American Civil Liberties Union, National Women’s Law Center, and 18 other organizations. Farmer lives in Missouri, a state with an abortion ban like those in Mississippi and Louisiana (but that isn’t affected by Monday’s ruling), where she worked in sales. Her water broke just before she was 18 weeks pregnant. Told by doctors that continuing her pregnancy would risk serious health consequences, including possible death, but that the state’s abortion ban meant she couldn’t receive care in state, she was forced to travel out of state. She first was turned away at a hospital in Kansas, and then, in active labor, she drove to Illinois, where she was able to get an abortion four days after her water broke. During that time, her employer “repeatedly pressured her to work,” according to the brief, and she was disciplined “on multiple occasions” for her absences related to the ordeal.

Since states have been allowed to ban abortion in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, out-of-state travel for abortion care has more than doubled and travel times have quadrupled, from about a half hour to almost two hours. Going these distances can take “a full work day or more,” pointed out Gillian Thomas, senior staff attorney at the ACLU’S Women’s Rights Project, and that’s if the state doesn’t mandate a waiting period for abortion care. Taking away job protections for such an absence exposes workers “to potential job loss or a penalty of some sort,” she said. “If you tell people they’re going to be fired if they take the time off for the care they need, they’re not going to take time off for the care they need or they’ll delay the care they need.” That can mean pushing an abortion later into pregnancy, which typically comes with higher costs and can risk more health complications.

The women’s and workers’ rights groups argued in their amicus brief that being able to take leave without risking their jobs allows many workers to access abortions. Dr. Erin King, an abortion provider in Illinois, told of a patient who worked in a warehouse who needed an abortion after her fetus was diagnosed with a rare fatal condition. Although King advised her to take a week off, she felt she had to go back to work the next day because she’d already taken so much time off for related doctor’s appointments. Another patient from Alabama had to postpone her abortion for weeks because she couldn’t get time off from work, pushing it into the second trimester and forcing her to get a procedural abortion instead of the medication abortion she had wanted.

The two consolidated cases brought against the EEOC’s regulations argued that “elective abortions” should not be covered by the PWFA because such an abortion is “a procedure, not a condition.” They argued that the EEOC’s final rule, which makes it clear that the PWFA covers needs related to getting an abortion, is “completely untethered from the statutory text” and runs afoul of the right states have to ban abortion.

But the EEOC’s final rules, the groups argued in their amicus brief, “simply codify the longstanding interpretation” of pregnancy and related conditions as including abortion. Drawing a line between an elective abortion and all others, meanwhile, “is just not reflective of the law,” Thomas said, and medically speaking, it is also “not realistic.”

“Plucking abortion out of the range of reproductive healthcare people need is a radical position that is at odds with decades of interpretation of what ‘pregnancy, childbirth, and related medical conditions’ means,” Thomas said. The decision will “create tons of confusion.”

In their own amicus brief in a now-dismissed case about the PWFA brought by 17 attorneys general, the Small Business Majority, Main Street Alliance, and American Sustainable Business Council argued that omitting abortion from the PWFA “will confuse employers and employees on the scope of the PWFA,” because their small-business members have long understood that they can’t discriminate against employees who have abortions under the Pregnancy Discrimination Act of 1978. “It makes little sense that an employer could deny an employee time off to have an abortion or recover from an abortion but could not terminate the same employee for receiving that care,” they wrote. Interpreting the two laws in different ways, they argued, “risks confusing employers on the contours of their obligations and needlessly exposes them to liability.”

The ruling “leaves employers in an odd position,” Thomas said. It prevents the EEOC from processing any complaints it receives from people in Mississippi and Louisiana, but that’s the first step before they can sue on their own—they have to wait for the EEOC process to play out and for the agency to decide whether to file its own suit or, instead, to issue a letter letting someone sue on their own. Now that first step just won’t happen, leaving employees unclear about whether and when they can bring their own cases and employers unsure about whether they’re liable.

Then there’s the way this lawsuit came about. The plaintiffs haven’t yet demonstrated that they’ve been harmed, and the PWFA and its regulations are still in early stages; the EEOC hasn’t yet taken any actions against employers. That calls into question whether the states and employers who brought the cases have standing to sue in the first place given that no concrete harm has befallen them. The situation is “so ill-suited to preliminary relief because nothing has happened yet,” Thomas argued. She also asserted that the judge “went far beyond what he needed to do,” deciding not to narrowly shield Mississippi and Louisiana as employers but any person living in both states. That “is just totally unwarranted and really dangerous,” she said.

“The people who are going to be denied accommodations are invisible in this ruling,” she said. “It’s an ends-motivated ruling.”

The decision comes after a different federal judge in Arkansas last week dismissed a lawsuit from 17 Republican attorneys general that had sought similar outcomes based on the abortion-related provisions of the EEOC’s final rules, saying they lacked standing to invalidate them. “At bottom, the states haven’t made a compelling case for issuing a nationwide injunction of the entire EEOC regulation,” Judge D.P. Marshall Jr. said, according to Law360. “This case presents a narrow disagreement over a few words, a disagreement that seems unlikely to flower into few, if any, real-world disputes, especially given the undisputed reach of the new Act and the unchallenged portions of the implementing regulation.”

A narrower case was decided in February, in which a federal district court judge in Texas ruled that Congress violated the Constitution by allowing members to vote by proxy when it passed the PWFA and has barred it from being applied to employees of the state of Texas.

Monday’s ruling could have gone much further, as the plaintiffs in the case had originally argued that the court should pause all of the final regulations the EEOC recently issued and block the EEOC from enforcing it. While the PWFA has been in effect since June 2023, Congress directed the EEOC to develop final regulations, and the regulations it issued include definitions that aren’t in the law itself, explains how the law will be interpreted, and offers illustrations to clarify how it should operate. Before the regulations officially took effect on Tuesday, employers had shown “confusion and ignorance” about the PWFA, according to the 20 groups’ amicus brief, and workers “have reported a wide range of employer refusals and failures to comply with the new law, resulting in adverse health consequences and workplace repercussions, including job loss.” In June, nonprofit legal organization A Better Balance filed two complaints with the EEOC alleging that a Chick-fil-A franchise and Amtrak both ran afoul of the PWFA when they gave their employees absence penalties for missing work to see doctors for their pregnancies.

“We are relieved that the remainder of the regulations will go into effect both in these challenge states and around the country,” Thomas said. Accommodations for abortion care will also be in effect everywhere outside of Mississippi, Louisiana, and the named employers in the lawsuit. But that brings little comfort to the millions of women in these two states who now face discipline or even termination if they require any accommodations when they get abortions.