Dive Brief:

• A federal judge dismissed with prejudice an attempt by several state attorneys general to block the U.S. Equal Employment Opportunity Commission’s pregnancy accommodation rule implementing the Pregnant Workers Fairness Act, holding that the plaintiffs lack standing.
• In Tennessee v. EEOC, Judge D.P. Marshall Jr. noted Friday that the plaintiffs challenged only the rule’s inclusion of elective abortion as an example of “related medical conditions'' for which employers must provide reasonable accommodations under the act. The judge found, however, that the states did not show how EEOC’s rule was likely to cause any alleged sovereign or economic harm.
• Because the plaintiffs could not demonstrate imminent harm, they lack standing, and the court therefore lacks subject matter jurisdiction, Marshall wrote. He denied the 17 states’ motion for preliminary injunction of the rule as moot.

Dive Insight:

Even prior to the rule’s April publication, its inclusion of abortion underneath the category of medical conditions related to pregnancy or childbirth proved to be controversial not only among employers but also within the EEOC itself. 

Commissioner Andrea Lucas, one of two Republican commissioners on the five-member EEOC, wrote in a LinkedIn post at the time that she voted against approving the rule in part because of the majority’s interpretation of related medical conditions. Sen. Bill Cassidy, R-La., a co-sponsor of the PWFA, also objected to EEOC’s inclusion of abortion.

In his decision, Marshall said that an injunction would not settle the question of whether the PWFA requires state employers to accommodate elective abortions that are otherwise illegal under state law. “The relief requested from this Court will not prevent an aggrieved employee from filing such a charge, or trying to file one, or eventually asking a court that question,” he wrote.

The states alleged the costs required to accommodate employees who have elective abortions constituted economic harm, but Marshall held that these costs “are neither concrete nor particularized.”

Separate claims that the states would face sovereign harm because the rule would infringe upon enforcement of state laws regulating abortion also failed, Marshall said, because the laws only regulate abortion providers, whereas EEOC’s rule does not. Claims that the rule would infringe on the states’ ability to restrict publicly funded abortions also failed because the rule does not require employers to pay travel-related expenses to obtain an abortion.

“It's unclear if or how any State funds will be used to finance or facilitate elective abortions that are illegal under State law,” Marshall said. “But if it is possible, the States haven't shown it is likely.”

The court’s decision comes after estimates that more than 171,000 patients traveled out-of-state to obtain an abortion in 2023, according to an Axios report citing data from the Guttmacher Institute, a research and policy nongovernmental organization. One day prior to Marshall’s ruling, a U.S. Supreme Court decision upheld the Food and Drug Administration’s approval of mifepristone, a prescription medication the agency has approved to terminate pregnancy.