A Louisiana federal judge’s decision to vacate parts of EEOC pregnancy accommodation rules illustrates a narrowed view of agencies’ abilities to regulate on abortion after the US Supreme Court ended the constitutional right to access it. Judge David C. Joseph of the US District Court for the Western District of Louisiana found the Equal Employment Opportunity Commission lacked authority to include abortion since it was not explicitly in the Pregnant Workers Fairness Act passed by Congress. Joseph, a Trump appointee, said having an abortion is not a “related medical condition” tied to pregnancy under the PWFA.
The ruling is part of a shift emerging as the US Supreme Court whittles away agencies’ rulemaking power and the wide-ranging consequences of its 2022 Dobbs v. Jackson Women’s Health Organization simultaneously play out. “This is emblematic of the new world after Roe v. Wade has been overturned,” said University of Pennsylvania Law professor Cary Coglianese. Joseph granted summary judgment to the states of Louisiana and Mississippi along with religious groups including the US Conference of Catholic Bishops in their consolidated case brought under the Administrative Procedure Act.
The EEOC argued its rules can cover abortion even without explicit mention in the PWFA as 1978 amendments to Title VII of the 1964 Civil Rights Act to ban pregnancy bias included then-Constitutional protections for workers who have abortions. Joseph didn’t dispute the way Title VII was modified, but said he “cannot simply ignore the fact that the PWFA was enacted just six months after the Supreme Court decided Dobbs.” “Congress was well aware of the implications of Dobbs when it passed the PWFA, and had it wanted to include an abortion accommodation provision in the PWFA, it surely would have done so,” he wrote. Post Dobbs Although Dobbs predated final passage of the PWFA in the Senate, the House passed its own version of the bill well before the ruling.
“I think reopening the text to negotiations after Dobbs politically would have been a whole different conversation,” said Deborah Widiss, a professor at Indiana University’s Maurer School of Law. Beyond analysis of Dobbs, it is “perfectly reasonable” to think that abortion is a related medical condition to pregnancy, which is what the EEOC said in issuing the rules, she added. The EEOC approved the PWFA rules in a party-line vote, with Republican Andrea Lucas opposing them as overstepping the statute.
As acting EEOC chair under Trump, Lucas signaled she will hold a vote to modify the rules. Former Democratic EEOC Commissioner Jocelyn Samuels, who voted for the final 2024 PWFA rules, said Dobbs doesn’t play into the analysis of what Congress intended on the “very separate question” of an employer’s accommodation obligations. “Dobbs is irrelevant to the question of whether the PWFA covers abortion and the need for abortion as a ‘related medical condition’ because for no other pregnancy related condition does a woman have to prove that she is constitutionally entitled to seek care for that condition,” Samuels said.
Julie Marie Blake, senior counsel for the Alliance Defending Freedom, which has long opposed the PWFA rules, said Joseph’s decision is “a step in the right direction to support women with the real care that they deserve.” “The EEOC mandate threatens to prevent employers from fully and unconditionally supporting pregnant women and new life. Let’s be crystal clear: the Pregnant Workers Fairness Act was enacted to support pregnant women, not to promote abortion,” Blake said. None of the PWFA lawsuits filed thus far by the EEOC against companies dealt with abortion-related workplace accommodations.
The agency’s former top lawyer said 11 months into the rules’ implementation she wasn’t aware of any charges filed by workers under the PWFA related to abortion care. Major Questions Doctrine Joseph also found that the EEOC’s rule implicates the major questions doctrine, which bars agencies from regulating on issues with “vast economic and political significance” without a clear congressional directive. The “political, social, and religious significance of the abortion issue in this country” means the EEOC “must point to ‘clear congressional authorization’ for the power it claims,” Joseph wrote.
The emergence of the doctrine was articulated most clearly by the Supreme Court in 2022 in West Virginia v. EPA, which struck down the Obama-era Clean Power Plan. It found limiting carbon emissions is a goal so expansive that Congress’s direction is needed for rulemaking. Under the doctrine, a court must first establish that an action constitutes a major question, but that step is “so malleable courts can reach whatever outcome they want to,” said University of California, Davis Law Professor Aaron Tang.
The PWFA rules didn’t appear to meet the criteria for the doctrine, as they have a political but not economic impact, and regulate on a new statute rather than changing long-held interpretations of an older one, he said. “But that’s one of the critiques of the major questions doctrine, that the lower court judges could say anything they want is a major question,” he said. Other recent Supreme Court rulings like Loper Bright Enterprises v. Raimondo also focused on congressional intent in rulemaking.
Litigation post-Dobbs has begun citing abortion as a major question, asking courts to clarify that agency rules easing access should be made only at Congress’s direction. Texas and two anti-abortion doctors’ groups noted the doctrine in a challenge to a Biden-era US Department of Health and Human Services guidance document’s provision green lighting abortion care in certain circumstances under the Emergency Medical Treatment and Labor Act. The US Court of Appeals for the Fifth Circuit later blocked enforcement of the guidance, though its decision did not cite the doctrine.
“One thing is clear: if Congress ever should want to provide in a statute for some federal protection for abortion rights in any capacity, even as now in employment accommodations, it must do so in a very clear manner,” Coglianese said. The cases are Louisiana v. EEOC, W.D. La., 2:24-cv-00629 and US Conference of Catholic Bishops v. EEOC, W.D.
La., 2:24-cv-00691.
