Arkansas, Tennessee file suit over federal pregnant-worker protections rule

The attorneys general of Arkansas and Tennessee filed a federal lawsuit Thursday seeking to halt enforcement of a new federal rule that requires employers to accommodate pregnant workers who want or need an abortion.

The rule, finalized last week by the Equal Employment Opportunity Commission, extends the 2022 Pregnant Workers Fairness Act’s definition of workplace accommodation to include abortion. 

The law took effect in June 2023, and requires employers to accommodate “known limitations” connected with “pregnancy, childbirth, or related medical conditions.” But proposed rules that included abortion in the law’s definition of “related medical conditions” generated significant opposition.

In the lawsuit filed Thursday, Arkansas’ Tim Griffin and Tennessee’s Jonathan Skrmetti argue that the final rule violates the U.S. Constitution’s First and 14th Amendments, the separation of powers in Article II and individual states’ sovereign immunity. Griffin and Skrmetti were joined in the lawsuit by 15 other attorneys general.

The suit asks the U.S. District Court for the Eastern District of Arkansas to declare that the EEOC exceeded its authority in including abortion in the final rule and to declare the rule arbitrary and capricious as well as unlawful and invalid under the Constitution and federal administrative law.

 The attorneys general seek a preliminary injunction to stop enforcement of the rule; it’s set to take effect in June. They also ask that the rule be permanently enjoined.

The complaint notes that the PWFA helped fill a gap in employment law by making sure employers provided workplace accommodations to protect pregnant workers and their “unborn children.”

“A diverse coalition of lawmakers, business groups, and nonprofit organizations supported that pro-family aim and secured the law’s bipartisan support and passage,” the lawsuit says. 

“Yet in a new rule, a bare 3-2 majority of unelected commissioners at the Equal Employment Opportunity Commission (EEOC) seeks to hijack these new protections for pregnancies by requiring employers to accommodate workers’ abortions — something Congress did not authorize.”

The lawsuit alleges the EEOC ignored the clear meaning of the text of the PWFA and of the intent of its supporters, who noted that the law would include “commonsense accommodations — ‘like extra restroom breaks or the ability to work while seated’  — to ensure a healthy pregnancy and a healthy baby.”

The rule means employers must accommodate pregnant workers’ abortions, whether or not medically necessary. Such accommodations could include abortion-related leave, “even for elective abortions made illegal by state law,” the lawsuit says.

“An elective abortion is neither a known limitation nor a medical condition, but a voluntary, time-limited procedure intended to terminate a pregnancy,” the suit says.

The complaint notes that the proposed rule encountered “substantial opposition” and quotes some at length but that EEOC proceeded anyway.

The attorneys general allege their states will suffer irreparable harm if the rule is enforced because they would incur significant costs from lost productivity, shift covering and additional leave days as well as compliance costs.

Forcing states with abortion bans to facilitate the procedure also would irreparably harm those states’ right to regulate abortion, the petition states.

The EEOC rule violates the First Amendment protections of speech and religion, the attorneys general argue, by forcing employers and employees to engage in speech and conduct that might violate their deeply held religious beliefs.

In a press release announcing the filing of the lawsuit, Griffin said the EEOC rule “is yet another attempt by the Biden administration to force through administrative fiat what it cannot get passed through Congress.

“Under this radical interpretation of the PWFA, business owners will face federal lawsuits if they don’t accommodate employees’ abortions, even if those abortions are illegal under state law. The PWFA was meant to protect pregnancies, not end them.”

The states joining Arkansas and Tennessee in the lawsuit are Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.