A lawsuit filed by 17 states challenging federal rules entitling workers to time off and other accommodations for abortions may proceed, a federal appeals court ruled.
The Eighth Circuit Court's decision on Thursday reverses Eastern District of Arkansas U.S. District Judge D.P. Marshall, Jr.'s dismissal of the case in June after he found that the states lacked standing to sue. Eighth Circuit Chief Judge Steven M. Colloton, who was appointed by former President George W. Bush in 2003, wrote in Thursday's opinion that the states do have standing since they are subject to the federal rules.
Led by Republican state attorneys general in Tennessee and Arkansas, the 17 states sued the Equal Employment Opportunity Commission in April challenging its rules on how to implement the Pregnant Workers Fairness Act, a 2022 bipartisan law requiring employers to make "reasonable accommodations" for pregnant or postpartum employees.
In addition to more routine pregnancy workplace accommodations like time off for prenatal appointments, more bathroom breaks, or permission to carry snacks, the rules say that workers can ask for time off to obtain an abortion and recover from the procedure.
“The Biden-era EEOC’s attempt to turn a good law into an ideological weapon to force broad elective abortion accommodations is illegal," Tennessee Attorney General Jonathan Skrmetti said in an emailed statement. “The EEOC’s unlawful regulations undermine the constitutional authority of the people’s elected representatives and we are vindicated by the Court’s decision to let our suit proceed.”
The lawsuit — joined by state attorneys in Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia — is one of several legal challenges to the Pregnant Workers Fairness Act rules. One case in Texas seeks to overturn the law in its entirety.
The Eighth Circuit Court's decision to revive the case comes after a 2022 U.S. Supreme Court ruling opened the door to state abortion bans, and as bills to track and charge women who get abortions with murder have gotten attention in Missouri, North Dakota and Oklahoma state legislatures this month.
The EEOC, which enforces U.S. anti-discrimination laws, during former President Joe Biden's administration published regulations that provide guidance for employers and workers on how to implement the Pregnant Workers Fairness Act. In them, the agency said that workers can ask for time off to obtain an abortion and recover from the procedure, along with pregnancy-related medical conditions like miscarriage, stillbirth and lactation. Citing numerous court rulings, the EEOC in its regulations said it was conforming to decades of legal precedent establishing that pregnancy-related discrimination laws include abortion.
But many Republican lawmakers, including Louisiana Sen. Bill Cassidy, who co-sponsored the bill, were furious when the EEOC stated that the law covered abortions. Both Republican EEOC commissioners voted against the rules at the time.
A spokesperson for the EEOC said the agency will "refrain from discussing litigation" but referred The Associated Press to Acting Chair Andrea Lucas' position on the Commission's PWFA regulations, which she voted against.
“I support elements of the final rule. However, I am unable to approve it because it purports to broaden the scope of the statute in ways that, in my view, cannot reasonably be reconciled with the text,” she wrote in a statement at the time explaining her decision to vote against the rules.
The EEOC has undergone significant change since President Donald Trump took office last month. After naming Lucas, a Republican, as acting chair, Trump fired two Democratic commissioners of the five-member bipartisan EEOC before their terms expired in an unprecedented move. Had the commissioners been allowed to carry out their terms, the EEOC would have had a Democratic majority well into Trump's term. The administration also dismissed Karla Gilbride as the EEOC's general counsel, replacing her with Andrew Rogers as acting counsel.
Without a quorum, the EEOC cannot rescind its own rules, although Lucas in the statement said she intends for the EEOC to reconsider portions of the rules she believes are unsupported by law once a quorum is re-established.
The Department of Justice represents the EEOC in court, and under Trump, it remains to be seen whether it will continue to fight the states' lawsuit.
Inimai Chettiar, president of advocacy group A Better Balance, which spearheaded a decade-long campaign for the Pregnant Workers Fairness Act and filed an amicus brief in support of the EEOC alongside National Women’s Law Center, American Civil Liberties Union, and several more organizations, on Thursday called the Eighth Circuit Court's decision “an attack on reproductive choice."
“Workers in need of an abortion should not be discriminated against or forced off the job because of a need for vital health care," she said.
With Lucas' stated intention to alter the PWFA rules, the existing lawsuits against them, the EEOC firings and the DOJ changing hands under the new presidential administration, “things are moving pretty fast and we’re very concerned about what’s going to happen to the PWFA regulations specifically that cover abortion,” Chettiar said. She emphasized that for the vast majority of Americans, the Pregnant Workers Fairness Act is still the law of the land, and the EEOC's regulations remain in effect.
“This law is still on the books, the regulation is still on the books. Women still have access to all of these accommodations and they can call our free legal helpline if they need more clarification,” she said.
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The Associated Press' women in the workforce and state government coverage receives financial support from Pivotal Ventures. AP is solely responsible for all content. Find AP's standards for working with philanthropies, a list of supporters and funded coverage areas at AP.org.
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