Employers must provide “pregnant persons” with accommodations to procure and recover from abortions under the Pregnant Workers Fairness Act (PWFA), a memo from the National Women’s Law Center (NWLC) recently declared.
President Joe Biden signed H.R. 1065, the PWFA, in December 2022. National abortion organizations such as NARAL Pro-Choice America and Planned Parenthood advocated for the bill, as well as the United States Conference of Catholic Bishops.
Prior to the bill’s passage, CatholicVote warned that PWFA could be used to force employers to pay for abortion-related expenses.
“I’m surprised some pro-life groups just didn’t seem to realize how this bill is going to impact their own operations,” said CatholicVote Director of Government Affairs Tom McClusky this week. “Under the bill, as the NWLC is now clearly stating, pro-life organizations can be sued if they don’t provide their employees special leave to get abortions.”
The NWLC, founded in 1972, is a legal advocacy group fighting for “gender justice – in the courts, in public policy, and in our society.” The website notes “for 50 years, NWLC and our supporters have been on the leading edge of every major legal and policy victory for women,” including the fight against Hobby Lobby in 2014.
The memo encourages women to “brainstorm what kinds of accommodations you might ask for,” including abortion recovery time off, under the new legislation. It also states that “an employer might be required to modify an employee’s schedule to allow time to attend a doctor’s appointment related to pregnancy or childbirth — for example, to address post-partum depression or to have an abortion.”
‘Limited’ Religious Exceptions
The memo addresses employees of religious institutions, stating that such employers “may be able to deny you an accommodation — but only in limited circumstances.” It encourages employees who feel they were unjustly denied accommodation to seek legal advice.
NWLC has advocated aggressively against religious protection laws in the past. In 2017, NWLC Senior Counsel and Georgetown Law Associate Professor Janel George presented a webinar titled “Religious Exemptions Law: The Harm They Pose to Patients.”
NWLC also protested vigorously against the 2017 “Conscience Protection Act,” arguing the bill “ignores and exacerbates the discrimination that is actually occurring against health care professionals who want to provide care to patients seeking abortion.”
No Religious Protections
NWLC is correct to characterize exemptions as “limited.” While pro-life defenders of the Pregnant Workers Fairness Act argued that the 1993 Religious Freedom Restoration Act (RFRA) protects religious organizations from legal challenges, both pro-life and pro-abortion legal experts agree that this is not the case.
Under RFRA, the federal government is allowed to disregard religious protections if it has “a compelling governmental interest” in doing so. The RFRA would not protect Catholic or secular pro-life organizations from charges brought by abortion-minded women under the PWFA.
According to J. Matthew Sharp, senior counsel at Alliance Defending Freedom, the courts rule “in favor of the federal government and against those attempting to be free of substantial burden on their religion in over 80 percent of RFRA cases.” In “reproductive health” cases brought under the guise of the PWFA, religious organizations would be naive to expect any different outcome.
Several Republican members of Congress, including Rep. Virginia Foxx, R-NC, also sounded the alarm, stating:
If an employee working for a religious organization requests time off to have an abortion procedure, H.R. 1065 could require the organization to comply with this request as a reasonable accommodation of known limitations related to pregnancy, childbirth, or related medical conditions.
PWFA itself offers no specific examples of what would qualify as “related medical conditions” or work situations. It delegates that responsibility to the Equal Employment Opportunity Commission (EEOC), an administrative body responsible for enforcing federal anti-discrimination laws in the workplace.
The EEOC does not typically act in a way that aligns with pro-life or Catholic views. In general, the EEOC has interpreted “pregnancy-related” discrimination issues to include protecting workers’ “right” to abortion.
‘Open Season’
The NWLC memo is a strong indicator that pro-abortion activists see the PWFA as a vehicle for forcing employers to participate in abortion-related accommodations and also for bringing legal action against Catholic and pro-life institutions.
Catholic leaders and their allies should advocate just as aggressively now for Congress to adopt an amendment such as the one proposed by Sen. Mike Lee, R-UT, ahead of the 2022 so-called Respect for Marriage Act.
“As the PWFA stands now,” noted McClusky, “it invites organizations like the NWLC to open season on pro-life Americans.”
Read more >> Do Better: Red Flags Raised by the Pregnant Workers Fairness Act
