The Equal Employment Opportunity Commission (EEOC) this week issued a regulation establishing a national mandate on employers to accommodate workers’ abortions under the Pregnant Workers Fairness Act (PWFA).
The alarming rule is now open for a 60-day period during which citizens can comment with their objections. In particular, the EOCC is seeking comments on whether or not to provide more specific “religious organization provisions” in its rules. CatholicVote is calling on citizens to submit comments via an easy-to-use portal, including by indicating that yes, they do want more religious provisions.
President Joe Biden signed the PWFA in December 2022 to the applause of national abortion organizations such as NARAL Pro-Choice America and Planned Parenthood, as well as pro-life groups like the United States Conference of Catholic Bishops (USCCB). The original act required employers to reasonably accommodate a worker’s pregnancy, childbirth, and “related medical conditions,” but left the interpretation of those terms to the Biden administration’s EEOC, the federal agency responsible for regulating workplace discrimination laws.
The Quiet Part Out Loud
In response to the concerns of several pro-life senators that the EOCC could use the PWFA to force employers to facilitate abortions, Senator Bob Casey, D-PA, stated emphatically on the Senate floor on December 8, 2022:
Under the Pregnant Workers Fairness Act … the EEOC could not — could not — issue any regulation that requires abortion leave, nor does the act permit the EEOC to require employers to provide abortion leave in violation of state law.
On Friday, however, the EOCC did exactly that.
The regulation, published August 11, specifies “related medical conditions” as
… current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.
The rule also notes that “nothing in the PWFA requires or forbids an employer to pay for health insurance benefits for an abortion,” but insists that employers must nevertheless provide “reasonable accommodations” for “pregnancy-related medical conditions.”
“That could include everything from paid leave for abortions to in vitro appointments, both of which violate our Catholic faith,” noted CatholicVote Director of Government Affairs Tom McClusky.
And the regulation is notably weak on conscience protections.
On page 107, the EOCC cites section 702(a) of the Civil Rights Act, stating that the PWFA’s abortion provisions will not apply to religious employers “with respect to the employment of individuals of a particular religion.”
In other words, a Catholic employer will not have to accommodate the abortions or in-vitro fertilization (IVF) procedures of its Catholic workers, but it says nothing about the non-Catholic employees of that same company.
CatholicVote President Brian Burch called the provision not only an “attack” on Catholic Americans, but also “divisive.”
“Once again the Democrats have found a new way to further divide America,” he said. “Under these regulations, Protestants will be dissuaded from hiring Catholics, Catholics from hiring Muslims, Muslims from hiring Jews, etc.”
Analysts at both CatholicVote and the Heritage Foundation warned early on that the inclusion of that vague “related medical conditions” phrase meant the legislation would be used to force employers to accommodate abortion. The EOCC has a demonstrated history of interpreting such phrases as including procedures to which religious Americans object, including abortion, sterilization, and IVF.
Furthermore, critics noted that without robust conscience protections, the PWFA would open faithful Americans to years of court battles to fend off attacks on their religious freedom.
“During debate, some senators, including Utah Republican Mike Lee, offered a religious freedom amendment to the bill as a solution to this problem,” McClusky said. “In response, the supporters of the bill shot down those efforts, fully knowing the results that would occur.”
Going forward, said CatholicVote President Brian Burch, pro-life allies need to be much more cautious about endorsing bills like the PWFA.
“We need to take seriously the absolute hostility of this administration,” Burch said:
We can’t continue to play Pollyanna here: the Biden administration, Planned Parenthood, and NARAL are our absolute enemy on this issue, and some of our pro-life allies just weren’t willing to push for robust conscience protections or more specific language in the bill.
We need our allies to take this seriously: the Biden administration is not interested in finding common ground. The EOCC regulations prove that they will use your support as a pretext to forward their abortion agenda.
During debates leading up to the passage of the bill, proponents argued that conscience protections or specific language about religious exemptions were unnecessary because the 1993 Religious Freedom Restoration Act (RFRA) already would cover religious employers.
But as CatholicVote noted in November 2022:
The RFRA would not protect Catholic organizations, or secular pro-life organizations, from charges brought by abortion-minded women under the Pregnant Workers Fairness Act. Under RFRA, the federal government is allowed to disregard religious protections if it has “a compelling governmental interest” at stake.
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 Pregnant Workers Protection Act, religious organizations would be naive to expect any different outcome.
The EOCC certainly did not alleviate these concerns with its new regulation.
In the preamble to the proposed rule, the EOCC states that while it will “carefully consider assertions of a defense under the Religious Freedom Restoration Act (RFRA) on a case-by-case basis,” most courts who have considered the issue “have held that a RFRA defense does not apply in suits involving only private parties.”
In footnote 2 of the regulation, the EOCC makes a point of citing religious leaders whom CatholicVote warned not to support PWFA. “[Everyone] from the ACLU to the United States Conference of Catholic Bishops” supported the PWFA and pushed for its passage, the footnote states.
Now the bill’s initial supporters are scrambling to protest the EOCC’s new regulations. Lead Republican co-sponsor Senator Bill Cassidy, R-LA, issued a statement claiming that “the Biden administration has gone rogue. These regulations completely disregard legislative intent and attempt to rewrite the law by regulation.”
Following the EEOC’s publication of the regulations, Bishop Michael F. Burbidge of Arlington, chairman of the USCCB’s Committee on Pro-Life Activities, accused the agency of “distorting” the PWFA:
We [the USCCB] supported the bipartisan Pregnant Workers Fairness Act because it enhanced the protection of pregnant mothers and their preborn children, which is something that we have encouraged Congress to prioritize… It is a total distortion to use this law as a means for advancing abortion, and the complete opposite of needed assistance for pregnant mothers.
“We are hopeful that the EEOC will be forced to abandon its untenable position when public comments submitted on this regulation demonstrate that its interpretation would be struck down in court,” Bishop Burbidge concluded. He was elected to the committee after the USCCB’s initial support of the PWFA.
Some groups have already questioned the legality of the EOCC’s proposed regulation.
“The administration’s unlawful proposal violates state laws protecting the unborn and employers’ pro-life and religious beliefs,” said Alliance Defending Freedom Senior Counsel Julie Marie Blake in a statement. “The administration doesn’t have the legal authority to smuggle an abortion mandate into a transformational pro-life, pro-woman law.”
CatholicVote is urging all Americans to take advantage of the 60-day public comment period, after which the EOCC will either adopt or revise the rules.