This week, attorneys general from 17 Republican-led states sued the Equal Employment Opportunity Commission over something they say is an "abortion accommodation mandate."
Here are four things to know about the latest battle in the war over abortion between Republican-led states and the Biden administration.
1. The law in question is about protections for pregnant workers.
First, a little background: In 2015, a survey found that nearly 1 in 4 women went back to work just two weeks after giving birth.
It took about ten years for a bill protecting pregnant workers to get through Congress, and in 2022, not long after Roe v. Wade was overturned, the Pregnant Workers Fairness Act passed with bipartisan support. The law requires employers with at least 15 employees to accommodate workers who are pregnant with things like extra bathroom breaks, time off for prenatal appointments, a chair for sitting during a shift. It also says employers have to accommodate workers after they give birth.
Even though lawmakers from both parties think pregnancy protections are a good thing, abortion politics have overshadowed the news of those new rights. It all comes down to one line in the law and the word "abortion" in the regulation.
The law says employers should make "reasonable accommodations" for pregnant workers during and after "pregnancy, childbirth and related medical conditions." The new rule EEOC put out to implement the law includes abortion in a lengthy list of "related medical conditions," along with everything from ectopic pregnancy to anxiety to varicose veins.
2. Abortion entered the chat and about 100,000 people chimed in on the regulations.
Political and religious groups that oppose abortion rights took notice of the inclusion of "abortion" in the list of related medical conditions, as did the lead Republican co-sponsor of the law, Sen. Bill Cassidy of Louisiana. Some 54,000 people commented on the proposed rule objecting to the inclusion of abortion, according to the EEOC's analysis in the final rule, while 40,000 people commented in support of abortion's inclusion. (The agency noted that most of these were nearly identical "form comments" driven by advocacy groups).
In the end, "abortion" remained on the list. In its analysis, the agency explained that abortion's inclusion is consistent with longstanding interpretation of civil rights laws and courts' rulings. In the final rule, the EEOC says the law "does not require any employee to have – or not to have – an abortion, does not require taxpayers to pay for any abortions, and does not compel health care providers to provide any abortions." The rule also notes that unpaid time off for appointments is the most likely accommodation that would be sought by workers having abortions.
3. The lawsuit + the politics of the lawsuit
Within days of the rule being published in the Federal Register, a coalition of 17 Republican-led states filed suit. "The implications of mandating abortion accommodations are immense: covered employers would be required to support and devote resources, including by providing extra leave time, to assist employees' decision to terminate fetal life," the lawsuit reads.
The lawsuit was filed on Thursday in federal court in Eastern Arkansas. The plaintiffs ask the court to put a hold on the effective date of the final rule pending judicial review, and to temporarily block the enforcement of – and ultimately vacate – the rule's "abortion-accommodation mandate."
Arkansas and Tennessee are the two states leading the lawsuit. In a statement, Arkansas Attorney General Tim Griffin said: "This is yet another attempt by the Biden administration to force through administrative fiat what it cannot get passed through Congress."
Griffin said the rule is a "radical interpretation" of the new pregnancy protection law that would leave employers subject to federal lawsuits if they don't give employees time off for abortions, even if abortions are illegal in those states. "The PWFA was meant to protect pregnancies, not end them," he said.
Women's advocates see the politics of the lawsuit as well. "It's no coincidence that this organized, partisan effort is occurring in states that have some of the highest maternal mortality rates in the country," Jocelyn Frye of the National Partnership for Women & Families wrote in a statement. "Any attempt to dismantle these protections will have serious consequences for women's health, working families, and the ability for women to thrive in the workplace."
Greer Donley is a law professor at the University of Pittsburgh who submitted a comment on the proposed regulation defending the inclusion of abortion. She points out that this is the latest in a string of legal challenges from anti-abortion groups fighting the Biden administration's efforts to protect abortion using federal agencies.
"You can really see this in a suite of [abortion] lawsuits – including the two that were heard in the Supreme Court this term, one involving the FDA's regulation of mifepristone and one involving the Biden administration's interpretation of EMTALA," she observes, and guesses a legal challenge will also come in response to the newly announced privacy protections for patients who've had abortions. "You have a Supreme Court that is overwhelmingly anti-abortion and overwhelmingly anti-administrative state – those two things in tandem are not a good thing for the Biden administration."
4. In the meantime, pregnant workers have new rights.
At the moment, until a judge says otherwise, the new protections for pregnant workers are already in effect. The EEOC has a guide for pregnant workers about their new rightsunder the law and how to file charges against their employers. It's also holding trainings for human resource professionals on how to comply with the law.
Complaints have already started to roll in. In a statement to NPR, EEOC spokesperson Victor Chen wrote that in the first three months that the law was in effect, the agency received nearly 200 charges alleging a violation of the Pregnant Workers Fairness Act, which works out to nearly two a day.
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