Red States Say EEOC’s Pregnancy Rule Unreasonable Absent Chevron

A coalition of 17 Republican attorneys general told a federal appeals court that the US Supreme Court’s recent decision overturning the Chevron doctrine should revive their challenge to the EEOC’s pregnancy regulation covering workplace accommodations for abortions.

The high court’s decision in Loper Bright Enterprises v. Raimondo bolsters the argument that the US Equal Employment Opportunity Commission overstepped its authority by interpreting the Pregnant Workers Fairness Act as including an abortion accommodation mandate, Tennessee Attorney General Jonathan Skrmetti told the US Court of Appeals for the Eighth Circuit July 19.

Skrmetti, along with Arkansas Attorney General Tim Griffin, are seeking to vacate a ruling from Judge D. P. Marshall Jr. of the US District Court for the Eastern District of Arkansas denying their request to block the rule while litigation over its legality was pending.

The judge dismissed the lawsuit for lack of standing and also upheld the EEOC’s interpretation of the PWFA under Chevron v. Natural Resources Defense Council, which required judges to defer to agency interpretations of ambiguous laws.

The AGs urged the Eight Circuit to vacate this holding in light of Loper Bright, which instead requires courts to use their own judgment when determining whether an agency appropriately interpreted a law.

The commission wrongly included abortion as a pregnancy-related medical condition for which employers may have to provide reasonable lodgings, they maintained in their opening brief. Abortion is a “procedure,” not a “condition,” and isn’t mentioned explicitly in the PWFA’s text, the brief said.

“Even if the PWFA were ambiguous, the rule’s constitutional defects would counsel against EEOC’s interpretation of the PWFA,” the filing said. “Yet the district court overlooked these constitutional problems. That includes the states’ argument that applying an abortion-accommodation mandate” would exceed the federal government’s power, it said.

Irreparable Harm

Although Marshall had tossed the case on standing grounds, he ruled the attorneys general could refile their complaint.

But the AGs asked the Eight Circuit to reverse the judge’s “erroneous standing analysis in analyzing irreparable harm.” The EEOC’s abortion accommodation mandate imposes burdensome compliance costs and infringes their state governments’ sovereignty, they argued.

The states did show a sufficient likelihood of irreparable harm for Marshall to grant a preliminary injunction, the filing said.

The mandate puts the plaintiffs “in a catch-22 between violating the new abortion-accommodation mandate or violating state law and policies reflecting legitimate protections for fetal life and the states’ prerogative as employers,” it said. “The states’ unrecoverable compliance costs compound these sovereign injuries, which the district court dismissed largely by repeating its incorrect standing analysis.”

An EEOC spokesperson didn’t immediately reply to a request for comment.

The case is State of Tennessee v. EEOC, 8th Cir., No. 24-02249, brief filed 7/19/24.