Abortion fight threatens to spoil bipartisan pregnant worker protections

Republicans and social conservatives are fuming over the inclusion of abortion language in proposed rules to protect pregnant workers, threatening to mar a law that passed with bipartisan support.

The rule put forward Monday by the Equal Employment Opportunity Commission includes abortion among the potential medical conditions for which employers may have to make workplace accommodations, such as rest breaks.

Sen. Bill Cassidy (R-La.), the top Senate HELP Committee Republican, on Tuesday accused the EEOC of "going rogue" and exceeding its authority under the Pregnant Workers Fairness Act, which passed late last year as part of the omnibus spending dealand took effect earlier this summer.

"These regulations completely disregard legislative intent and attempt to rewrite the law by regulation,” Cassidy, who helped lead the fight for the legislation with Sen. Bob Casey (D-Pa.), said in a statement. “The decision to disregard the legislative process to inject a political abortion agenda is illegal and deeply concerning.”

The law expands rights for pregnant workers by requiring employers to provide “reasonable accommodations,” such as additional rest breaks or modified job duties, in addition to existing non-discrimination protections.

The legislation applied to pregnancy, childbirth and “related medical conditions.” The EEOC’s proposal used an expansive definition for that term that includes birth control, menstruation, lactation, fertility treatments, miscarriage — and “having or choosing not to have an abortion.”

In a lengthy footnote, the agency cites a number of federal cases that it says support its broad interpretation, including several relating to abortion.

Shortly after the proposal’s release, the Alliance Defending Freedom, a conservative Christian legal organization, accused the EEOC of “hijacking” the law with its inclusion of abortion.

“Congress sought to help pregnant workers, not force employers to facilitate abortions,” ADF senior counsel Julie Marie Blake said in a statement. “The administration doesn’t have the legal authority to smuggle an abortion mandate into a transformational pro-life, pro-woman law.”

The EEOC attempted to head off concerns that it is placing a mandate on employers by stating in its proposal that nothing in the law “requires or forbids an employer to pay for health insurance benefits for an abortion.”

Chair Charlotte Burrows said the regulations will promote “the economic security and health of pregnant and postpartum workers” by allowing them to continue working.

The regulations still need to be voted on and finalized by the EEOC following a public comment period, and the dustup over its proposed abortion language portends a heated lobbying battle to come.

Last year, while supporters were racing to shore up Republican support, Casey — who considers himself a “pro-life Democrat” though in recent years has moved closer to his party on abortion rights — overtly stated that abortion rules were outside the scope of the legislation.

“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,” Casey said during the Senate floor debate.

Casey’s office did not immediately return requests to comment Tuesday.

The EEOC’s two Democratic commissioners and one of its Republican appointees voted to advance the regulations, while GOP Commissioner Keith Sonderling abstained. The Senate in mid-July confirmed the Biden-nominated Kalpana Kotagal to fill the fifth seat on the commission, though she has yet to officially join the EEOC.

The recent regulatory movement particularly stands out as the lack of a true Democratic majority on the commission has stymied much of Burrows’ agenda in the two-and-a-half years since Biden elevated her to chair.