NEW YORK – Proposed regulations from the Biden administration to implement a piece of legislation designed to enhance workplace protections for pregnant women has drawn the ire of the U.S. bishops, as they charge the regulations could contain language to advance abortion.
Passed by the Senate late last year and by the House in 2021, the bipartisan “Pregnant Workers Fairness Act” requires employers to provide accommodations to qualified workers for pregnancy, childbirth, or related medical conditions. Examples of accommodations include: Receiving closer parking, flexible hours, additional break time and excusals from strenuous activities.
As passed, the Pregnant Workers Fairness Act doesn’t include anything related to abortion. However, on Aug. 7, the Equal Employment Opportunity Commission (EEOC) released proposed regulations for implementing the legislation that adds abortion as a reasonable accommodation.
“We 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,” Bishop Michael Burbidge of Arlington said in an Aug. 8 statement.
“The Act is pro-worker, pro-family, and pro-life,” added Burbidge, who is chair of the U.S. Bishops Conference Committee on Pro-Life Activities. “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.”
As for how abortion was added, the procedure is incorporated as part of the definition of a “related medical condition” which must be covered by employers. In essence, the EEOC didn’t change the basic requirements of the legislation, but rather expanded the measures it entails.
The core of the legislation states that it “requires a covered entity to provide reasonable accommodation for a known limitation of a qualified employee or applicant related to pregnancy, childbirth, or related medical conditions…”
In the regulations, abortion is included as a “related medical condition.” Specifically, the EEOC proposal states: “‘Related medical conditions’ are medical conditions which relate to, are affected by, or arise out of pregnancy or childbirth, as applied to the specific employee or applicant in question, including, but not limited to, termination of pregnancy, including via miscarriage, stillbirth, or abortion; infertility; fertility treatment …”
In a statement to Crux, a spokesperson for the EEOC defended the language, highlighting that the agency has “consistently interpreted the term ‘pregnancy, childbirth, or related medical conditions’ in Title VII to include the decision to have or not to have an abortion.”
The reference was to Title VII of the 1964 Civil Rights Act, which, among other things, makes it illegal for an employer to discriminate on the basis of sex. That provision has been interpreted to include pregnancy, childbirth, and related conditions, sexual orientation, and gender identity.
The EEOC spokesperson said the new legislation doesn’t require an employer-sponsored health plan to cover any particular item, procedure, or treatment, including abortion, and the worker doesn’t have to claim abortion as a reasonable accommodation, either.
The proposed regulations will be posted by the Federal Register today, and will be open to public comment for a period of sixty days. The EEOC spokesperson said they “encourage the public to provide meaningful feedback about how the proposal would impact workplaces and ways to assist employers and workers in understanding the law.”
Burbidge argued that adding the abortion accommodations goes against the purpose of the legislation.
“The [EEOC’s] proposed interpretation of the Pregnant Workers Fairness Act to include accommodations for obtaining an abortion is wrong and contrary to the text, legislative history, and purpose of the Act, which is to help make it possible for working mothers to remain gainfully employed, if desired, while protecting their health and that of their preborn children,” Burbidge said.
“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,” he added.
The legislation’s sponsor, Senator Robert Casey, a Pennsylvania Democrat, declined a Crux request for comment, as did the White House.
Senator Bill Casidy, a Louisiana Republican and lead Republican sponsor of the bill, said in an Aug. 8 statement that the “Biden administration has gone rogue” with the proposal, adding that the regulations “completely disregard legislative intent and attempt to rewrite the law by regulation.”
“The Biden administration has to enforce the law as passed by Congress, not how they wish it was passed,” Cassidy said. “The Pregnant Workers Fairness Act is aimed at assisting pregnant mothers who remain in the workforce by choice or necessity as they bring their child to term and recover after childbirth. The decision to disregard the legislative process to inject a political abortion agenda is illegal and deeply concerning.”
Follow John Lavenburg on Twitter: @johnlavenburg
