Reproductive Rights Face Headwinds As EEOC, DOJ Change Tack

Brand new protections for workers accessing reproductive health care are under threat. The Pregnant Workers Fairness Act requires most employers to provide reasonable accommodations for employees’ “pregnancy, childbirth, or related medical conditions,” such as time off work to attend medical appointments.

The Equal Employment Opportunity Commission has clarified in a formal rule that this covers accommodations for abortion, contraception, and fertility treatments. Removing the PWFA rule’s inclusion of abortion would jeopardize workers’ access and right to reproductive care.

While the EEOC’s interpretation is consistent with the agency’s 45-year understanding of the same phrase in Title VII of the Civil Rights Act, Republican state attorneys general across the country were quick to challenge it. Several Catholic organizations followed, contesting the rule’s inclusion of abortion, contraception, and fertility treatments such as IVF, sterilization, and surrogacy.

These lawsuits have met with considerable success. Federal judges have temporarily blocked the EEOC from enforcing the PWFA rule’s abortion provision against employers in Mississippi and Louisiana, and against several Catholic organizations across the country. A federal court initially dismissed the lawsuit brought by seventeen states, but the US Court of Appeals for the Eighth Circuit reversed that decision last month, permitting the suit to move forward.

Additionally, new Trump-appointed leadership of the EEOC and the Department of Justice have signaled they’re no longer interested in mounting a robust defense of the PWFA rule.

EEOC acting chair, Andrea Lucas, has pledged to reorient the agency’s priorities toward promoting an anti-transgender, binary view of gender and rooting out diversity, equity, and inclusion, and has made clear she isn’t interested in defending the PWFA rule’s inclusion of abortion. She voted against the passage of the rule and has stated publicly that she intends to “reconsider” parts of the rule she disagrees with.

The DOJ asked multiple federal courts in February to pause these lawsuits to give Lucas time to rescind challenged portions of the rule. While Lucas can’t revoke or amend the rule unilaterally, if and when Trump appoints a third EEOC commissioner, the agency will likely move forward—quickly—to vote on whether to amend the rule.

Rolling back the PWFA rule’s inclusion of abortion will harm not just workers seeking abortion care, but those seeking all kinds of reproductive health care, including miscarriage care. Dilation and curettage is a common clinical abortion procedure. It’s also a common treatment after miscarriage; roughly half of individuals who miscarry need a D&C to avoid infection, bleeding, and other complications.

If workers have a right to take time off for a D&C in some cases and not others, how are employers going to distinguish which are for an abortion versus a miscarriage? What if carrying a pregnancy to term would threaten an individual’s health or life? Would an abortion in that circumstance qualify for protection under a revised PWFA rule? The states challenging the rule argue that the law should protect only those abortions that are medically necessary and not those that are “elective,” but how will employers tell the difference? Is this the kind of sensitive and private medical information we want employers to be able to demand from their employees?

Removing the PWFA rule’s inclusion of abortion would be harmful in and of itself, but Lucas has signaled her intent for a much broader repeal. She has expressed disapproval of the rule’s coverage of conditions beyond abortion, including fertility treatment, menstruation, and menopause. She is therefore likely to spearhead a much more far-reaching effort to limit the law’s scope, jeopardizing not just workers’ access to abortion and miscarriage care, but also to fertility care such as IVF, surrogacy, and sterilization, as well as protections for workers seeking accommodations related to menstruation and menopause.

Curtailing federal protections for reproductive health-care access would further erode the already depleted landscape of reproductive rights in the US since the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health.

It would also fly in the face of Congress’s intent in passing the PWFA—to grant workers who experience pregnancy, childbirth, and related conditions greater access to care without risking their jobs.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Madeleine Gyory is associate director and acting assistant professor of lawyering at New York University School of Law.

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