Quick Hits

• The U.S. District Court for the Western District of Louisiana issued a preliminary injunction blocking enforcement of the EEOC’s final rule interpreting the PWFA to require abortion-related accommodations.
• The preliminary injunction applies to employers in Louisiana and Mississippi and to the four Catholic organizations that challenged the EEOC’s final rule.
• The ruling comes after a federal court in Arkansas rejected a similar preliminary injunction bid in a challenge lodged by seventeen other states, finding the states lacked standing and had not shown a likelihood of irreparable harm from the EEOC’s final rule.
• The Eighth Circuit Court of Appeals denied a request by the states in the Arkansas case for an administrative stay and injunction pending appeal and set arguments for September 2024.

U.S. District Judge David C. Joseph for the Western District of Louisiana found that the EEOC exceeded its authority in its final rule that interpreted the PWFA to include abortion as one of the circumstances or conditions related to “pregnancy, childbirth, or related medical conditions” for which employers must provide reasonable accommodations.

The preliminary injunction comes in consolidated litigation filed in May 2024 challenging the EEOC final rule. One case was filed in Louisiana by the states of Louisiana and Mississippi, and a second, by a group of four Catholic organizations led by the United States Conference of Catholic Bishops.

Both Louisiana and Mississippi passed abortion bans following the 2022 ruling from the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organization, in which the Court overturned Roe v. Wade and held that the Constitution does not provide a right to abortion.

“At its core, this is a textbook case of a federal administrative agency exceeding its statutory authority in a way that both usurps the role of Congress and violates authority vested in the states under the principles of federalism,” Judge Joseph stated in the Louisiana court ruling.

Specifically, the court issued a preliminary injunction delaying the effective date of the final rule’s “accommodation for the elective abortions of employees that are not necessary to treat a medical condition related to pregnancy.” According to the order, the injunction applies to covered employers that have their “primary duty station” in Louisiana and Mississippi, and to the plaintiff Catholic organizations. The court was clear, however, that the preliminary injunction does not apply to “terminations of pregnancy or abortions stemming from the underlying treatment of a medical condition related to pregnancy.”

The preliminary injunction in the Louisiana case comes after U.S. District Judge D. P. Marshall Jr. in the Eastern District of Arkansas denied a request for a preliminary injunction in a separate lawsuit brought by a coalition of seventeen other states. The court in that case dismissed the states’ suit, finding they lacked standing and had not shown a likelihood of irreparable harm from the EEOC’s final rule. The contrary rulings create uncertainty around the EEOC’s final rule and whether the PWFA applies to employees’ decisions regarding abortions.

The states in that case asked the U.S. Court of Appeals for the Eighth Circuit for an administrative stay and injunction pending appeal, but the appellate court denied the request and set oral arguments in the case for September 2024.

EEOC Final Rule on the PWFA

The PWFA, enacted in December 2022, requires employers to provide reasonable accommodations to employees for “known limitations related to pregnancy, childbirth, or related medical conditions.” In April 2024, the EEOC issued a final rule interpreting the PWFA, which was adopted in a 3-2 Commission vote, that included “abortion” in a nonexhaustive list of examples of potential “related medical conditions” covered by the PWFA. In the rule, the EEOC further explained that “[t]here are some medical conditions where the relation to pregnancy will be readily apparent,” including “having or choosing not to have an abortion.”

The inclusion of the abortion accommodation in the agency’s proposed rule garnered more than 94,000 comments, with approximately 54,000 advocating against its inclusion and 40,000 advocating for its inclusion. The EEOC included it in the final rule and defended its interpretation of the PWFA as being “consistent” with the EEOC’s and the courts’ “longstanding interpretation” of Title VII of the Civil Rights Act of 1964. The EEOC explained that the PWFA, as an antidiscrimination law, does not require taxpayers or employers to pay for employees to have abortions or require employee health plans to pay for travel expenses for employees to do so.

Major Questions

The Louisiana district court found that the EEOC lacked “clear congressional authorization” to “impose an abortion accommodation mandate on public and private employers,” applying the so-called major questions doctrine. The EEOC argued that the PWFA includes abortion because the law expanded Title VII, which has protected employees’ decisions around abortions since 1978. But the Louisiana district court noted that the EEOC’s interpretation is based on its pre-Dobbs guidance and lower court cases in which employers were barred under Title VII from taking adverse action against employees who “contemplated having, or chose to have, an abortion.”

The court pointed out that the “PWFA makes no reference to abortion” and found that there is no way “that Congress could reasonably be understood to have granted the EEOC the authority to interpret the scope of the PWFA in a way that imposes a nationwide mandate on both public and private employers—irrespective of applicable abortion-related state laws enacted in the wake of Dobbs—to provide workplace accommodation for the elective abortions of employees.”

On the other hand, the Arkansas district court decision sided with the EEOC, noting that its stated interpretation “is consistent with its almost five-decades-long interpretation of related medical conditions” in Title VII as amended by the Pregnancy Discrimination Act. Referencing Chevron deference, the court stated that courts should defer to the EEOC’s expertise given the ambiguity of the PWFA on the issue. (On June 28, 2024, the Supreme Court of the United States overturned Chevron deference.)

In further divergence from the Louisiana court, the Arkansas court stated that “fact-intensive disputes” over whether the PWFA requires an accommodation for certain situations “are best settled on a case-by-case basis, through the administrative process and litigation if need be, not in a pre-enforcement challenge to the EEOC’s regulation.”

Overall, the Arkansas court found that “the States [had not] made a compelling case for issuing a nationwide injunction of the entire EEOC regulation” because the “case present[ed] a narrow disagreement over a few words … that seems unlikely to flower into few, if any, real-world disputes.”

Next Steps

The Louisiana and Arkansas rulings reached different conclusions and raise an issue that is likely to be decided by the federal appellate courts and possibly the Supreme Court, especially given the contentious nature of the abortion issue. For now, the Louisiana injunction does not completely stop the final rule from taking effect, and covered employers falling outside the injunction’s application will be required to provide reasonable accommodations, such as unpaid leave, to employees who choose to have abortions. The ruling, however, will delay the effectiveness of the abortion accommodation for employees in Louisiana and Mississippi and of the plaintiff Catholic organizations and lead to uncertainty around whether the abortion accommodation will ultimately stand.