With the constant political and legal battles surrounding the issue of abortion, it sometimes seems like people lose sight of the fact that an abortion is a medical procedure. Like any medical procedure, there can be complications, side effects, and recommended steps for recovery.

Common side effects associated with either surgical or medical abortions include severe cramping, bleeding, nausea, diarrhea, dizziness, and fatigue. Doctors routinely advise patients to rest for at least a day and avoid strenuous activities for a few days after an abortion. Though more serious complications from abortion are very rare, they can necessitate another visit to a doctor or even a brief hospitalization.

New rules promulgated by the Equal Employment Opportunity Commission (EEOC) would require employers to accommodate workers suffering from those side effects, but these rules are being challenged in a new lawsuit filed by a coalition of seventeen states, most of which have either banned or severely restricted abortions.

EEOC Guidance Specifies Worker Protections

The new rules, proposed over a year ago, arise from the 2022 Pregnant Workers Fairness Act (PWFA). The law requires employers to accommodate or give time off to workers with limitations related to pregnancy, childbirth, or related medical conditions.

Some of the possible accommodations include restrictions on heavy lifting, flexibility in work schedules, additional bathroom breaks, or allowing some time off of work. The PWFA does not specifically mention abortion, but the rules announced by the EEOC included guidance for accommodating workers who have abortions, which drew the ire of anti-abortion groups and politicians. The Commission answered criticism with a concise explanation:

“First, the PWFA is a workplace anti-discrimination law. It does not regulate the provision of abortion services or affect whether and under what circumstances an abortion should be permitted. The PWFA does not require any employee to have—or not to have—an abortion, does not require taxpayers to pay for any abortions, and does not compel health care providers to provide any abortions. The PWFA also cannot be used to require an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment, including an abortion.The PWFA does not require reasonable accommodations that would cause an employer to pay any travel-related expenses for an employee to obtain an abortion.Given these limitations, the type of accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery.”

Regardless, the states’ lawsuit was filed almost immediately after the rule was announced.

States Oppose Workplace Protections

The seventeen states that sued essentially argue that allowing a worker to have a day off or another accommodation after an abortion would equate to state support of abortion, which is forbidden by various state laws and constitutions. Emphatically, the complaint insists that medical care surrounding an abortion is not “related to pregnancy” despite the fact that only pregnant people have abortions.

In effect, these states are arguing against federal precedent to argue that it should be legal to discriminate against workers who have abortions, even legal ones. Consider that if two workers for the same employer became pregnant around the same time, each would be entitled to workplace accommodations related to pregnancy, such as modified duty, extra bathroom breaks, or time off for medical appointments. In this hypothetical scenario, suppose each pregnant worker experienced complications in the pregnancy, with one naturally miscarrying and the other electing to voluntarily terminate the pregnancy. The view of these states is that workplace accommodations should only apply to worker who miscarried, and the worker who had an abortion should be forced back to work without time off, light duty, or any other accommodations. Multiple federal appeals courts have ruled that employers cannot discriminate against workers for having abortions without running afoul of Title VII of the Civil Rights Act.

Even though nearly every state that brought suit allows abortions in certain circumstances, their opposition to the EEOC does not seem to consider that possibility. The suing states left no room in their position for a requirement to accommodate legal abortions. Instead, they claim that giving a worker a chair to sit in or some time off after an abortion would create the irreparable harms of “lost productivity, shift covering” and “human resources costs” associated with informing workers of their rights.

Legal Challenges to the EEOC and PWFA

The novel twist of the lawsuit is a constitutional challenge to the EEOC itself. The suing states claim that because the five commissioners, who are appointed by the President, cannot be easily removed from their posts during their five-year terms, the Commission violates Article II of the U.S. Constitution. This design was intended to insulate the EEOC from political shifts, and currently, the commissioners can only be removed “for cause,” such as wrongdoing or malfeasance. It appears that the suing states would prefer that any President be able to replace any commissioners that do not politically align with the current ruling party. A similar challenge against the structure of the Consumer Financial Protection Bureau was recently rejected by the Supreme Court.

Texas, with its anti-abortion government, did not join the suit against the EEOC. Instead, Texas blocked the implementation of the PWFA entirely with a 2023 lawsuit. A federal judge agreed with Texas that the act was unconstitutional because it was passed in the House of Representatives using a COVID-era voting procedure that allowed members to vote by proxy without being physically present, thus violating the Quorum Clause. Texas won a permanent injunction protecting it from enforcement of the PWFA. The state does not have to provide accommodations to any pregnant workers, regardless of whether they have abortions.

A 2015 Supreme Court decision does require employers to grant reasonable accommodations to pregnant workers if the employer provides comparable accommodations to similarly situated workers. However, the expanded protection of the PWFA, which specifically granted pregnant women the right to accommodations regardless of other similarly situated employees, does not apply in Texas.

Post-Roe Era Promises More Abortion-Related Litigation

For nearly fifty years, the right to seek an abortion was constitutionally protected across the U.S. by the landmark Supreme Court decision in Roe v. Wade. In the summer of 2022, the Court overruled Roe in Dobbs v. Jackson Women’s Health Organization, leaving the issue open to state regulation. Since then, many state legislatures have been busy passing laws that either restrict or protect abortion access, depending on each state government’s political leanings.

Simultaneously, federal and state courts have seen a deluge of new litigation, like the new suit against the EEOC, that seek to constrain abortion or challenge the limitations imposed by new bans. The Department of Justice filed to appeal the Texas ruling, and as these legal wrangles reach the appellate courts, the issue of abortion seems likely to keep returning to the nation’s highest court. Already, SCOTUS has heard oral arguments in two key abortion cases this term, leaving legal observers and activists anxiously awaiting decisions in those matters.

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