By Robert G. Marshall
After first endorsing and supporting the Pregnant Workers Fairness Act (PWFA), America’s Catholic Bishops are now opposing the Biden Administration’s Equal Employment Opportunity Commission (EEOC) pro-abortion regulations as published on April 14, 2024. But these immoral regulations are a direct consequence of the PWFA. They were completely foreseeable, and the bishops ignored many pro-life warnings against supporting the Act. Consequently, under the authority of the PWFA, the EEOC regulations will now affect all employers in the United States with 15 or more employees.
While the Catholic bishops along with some other sources have claimed since the Fall of 2023 that the Biden Administration hijacked the prolife purpose of the PWFA, the public record shows that the Catholic Bishops worked closely with and followed the lead of Democrat Congressional Members to produce the final wording of the PWFA signed by the President. The public record is equally clear that the Catholic bishops and their staff ignored warnings from Republican Members of Congress and prolife groups regarding the pro-abortion consequences of the PWFA. In fact, the Bishops opposed corrective amendment language to the PWFA proposed by Republicans and supported by prolife and religious groups to expressly exclude PWFA-covered businesses from having to provide abortion and other morally problematic “services” to pregnant women.
This analysis describes the legislative steps leading to this awkward situation which now requires all business men and women across America, as well as religious schools and universities, to pay for and provide abortion and other morally problematic services (such as in vitro pregnancies), or to divert operating funds to pay for lawyers to challenge this law.
Again, the PWFA requires U.S. employers of 15 or more persons to “provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity” (Federal Register, Vol. 88, No. 154, August 11, 2023 / Proposed Rules, p. 54714). The ostensible purpose of the PWFA was, for example, to require a covered business to exempt a pregnant woman or a women with a risk of blood clots from heavy lifting. It could also require that a woman be allowed to use a stool when serving as a cashier, or be allowed extra restroom breaks, and to provide similar accommodations that would allow women to keep their jobs while pregnant.
But the Act does much more than that. The implementation of the PWFA requires businesses to facilitate abortion, in vitro pregnancies and other actions at odds with both Divine Revelation and the natural law. The problematic language used by the EEOC is the phrase, ‘‘pregnancy, childbirth, or related medical conditions,’’ which is also in the underlying law.
Bishops ignore Congressional Republican warnings
That abortion was a part of the PWFA should not have been a surprise to the Catholic bishops. In 2020, an earlier version of the Pregnant Workers Fairness Act, H.R. 2694, led Republicans in the House of Representatives to issue this warning:
Neither H.R. 2694 as introduced nor the Scott ANS [Amendment in the Nature of a Substitute] incorporate the CRA religious-organization protection or any provision protecting religious organizations. During negotiations over H.R. 2694, Committee Republicans requested inclusion of such a provision, but it was not included in the Scott ANS. As Ranking Member Virginia Foxx (R–NC) stated during the Committee markup, without such a provision H.R. 2694 could force a religious organization to make employment decisions in violation of the organization’s faith. [House Education and Labor Committee, 9/8/2020, Rept. 116–494 2d Session, House of Representatives, Part 1, HR 2694, page 57]
Also, the main coordinating group behind the eventual 2022 Congressional passage of the PWFA has been “A Better Balance” which collaborated with national and local lobbies to secure introduction of versions of the PWFA into Congress in 2012 and later. From the first the goal was anti-life (see Winning the Pregnant Workers Fairness Act). Their efforts were supported by mostly politically liberal organizations. Among the pro-PWFA groups cited by A Better Balance were at least 55 organizations supporting or performing abortions, including America’s largest abortion provider, Planned Parenthood Federation of America, the American Civil Liberties Union, NARAL Pro Choice America, National Organization for Women chapters, pro legal abortion medical groups, and homosexual activist associations (see footnote for list).1
For the 2021 PWFA (HR 1065), very obvious abortion performing and supporting organizations were listed in the House Education Labor Committee Report including America’s largest abortionist group, Planned Parenthood Federation of America, along with National Organization for Women, Feminist Majority Foundation, NARAL PRO Choice America, Ohio Religious Coalition for Reproductive Choice and more. This should have at least raised questions among Catholic Bishops regarding the political payback expected by persons/groups who rationalize or perform prebirth child homicides (abortions) for all nine months of pregnancy.
Evidentially, it didn’t.
Religious freedom protections
When the House PWFA bill (HR 1065) was being marked up in Committee, ranking Member Virginia Foxx (R-NC) reminded her colleagues and those interested in her 2020 warning that: “Without the religious-organization protection, H.R. 1065 could force a religious organization to make employment decisions in violation of the organization’s faith.…” (House Report, Pregnant Workers Fairness Act, H.R. 1065, REPT. 117–27, 1st Session, House of Representatives, Part 1, p. 60, 5/4/2021). Committee Democrats disingenuously claimed that religious groups were already protected by the Religious Freedom Restoration Act of 1993, so that adding the religious liberty provision of the Civil Rights Act (CRA) to the PWFA was unnecessary. But the Minority Report disagreed:
Under the CRA, the federal government and the courts cannot interfere with these decisions if the organization is a religious organization and its employment decisions are based on the organization’s religion. RFRA…merely provides a defense to governmental action and creates a balancing test to determine whether the government may impose a burden on the exercise of religion. Under RFRA, the federal government may substantially burden the exercise of religion if it demonstrates the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.
…Mr. J. Matthew Sharp, Senior Counsel with the Alliance Defending Freedom, noted in his testimony at a hearing on RFRA before the Committee on Education and Labor on June 25, 2019, that courts rule in favor of the federal government and against those attempting to be free of a substantial burden on their religion in over 80 percent of RFRA cases.
To ensure religious organizations are not forced to violate their faith in complying with H.R. 1065, the bill should include the CRA’s provision limiting the application of the Act with respect to the religiously based employment decisions of religious organizations. [House Report, Pregnant Workers Fairness Act, H.R. 1065, REPT. 117–27, 1st Session, House of Representatives, Part 1, p. 61, 5/4/2021]
Republicans proposed one amendment to the House PWFA during the 2021 Committee markup, offered by Rep. Russ Fulcher (R–ID). The Minority Report states:
Although H.R. 1065 is not the bill Committee Republicans would write given a blank slate, the improvements included provide sufficient clarity to pregnant workers and employers regarding their rights and responsibilities, with the exception of the omission relating to religious organizations. All Democrats present voted against the amendment.…
…[T]he omission of a protection for religious organizations, which is a longstanding part of the CRA…must be addressed so religious organizations are not faced with a conflict between their faith and the requirements of federal law. Committee Republicans stand ready to continue working with Committee Democrats to find a bipartisan agreement on this outstanding issue. [House Report, Pregnant Workers Fairness Act, H.R. 1065, Rept.. 117–27, 1st Session, House of Representatives, Part 1, p. 62, 5/4/2021]
Rep. Fulcher’s religious liberty amendment lost 20 Yeas (Republican) to 27 Nays (Democrat). The House version of the PWFA (H.R. 1065) later passed the House on May 14, 2021 by a vote of 315 Yeas to 101 Nays. 216 Democrats voted Yea, 99 Republicans voted Yea and 101 Republicans voted Nay (Roll Call 143). The House PWFA (H.R. 1065) was sent to the Senate.
Politico magazine explained that the large House vote in favor of the PWFA (H.R. 1065) resulted from support by “groups as diverse as the U.S. Chamber of Commerce, the ACLU and the U.S. Conference of Catholic Bishops: “Those endorsements helped it pass the House by a wide margin in May 2021.” Indeed, on August 9, 2021, Catholic Bishops Naumann, Coakley and Konderla wrote to House and Senate members on behalf of three USCCB committees stating that, “we write in support of the Pregnant Workers Fairness Act, S.1486, which will make the workplace a safer environment for nursing mothers, pregnant women, and their unborn children.”
Cautions from conservatives as Senate PWFA vote nears
Significantly, the bishops’ endorsement letter for the Senate version of the PWFA, S. 1486, does not indicate that their support for S. 1486 was conditioned on the protections of religious liberties, such that covered employers would not have to pay for abortion, in vitro pregnancy, sterilization, artificial birth control or other morally problematic practices. This omission by the Catholic bishops was a serious loss of any bargaining position on the final outcome of the PWFA legislation.
In fact, with the PWFA under imminent consideration by the Senate, reputable conservative prolife groups raised concerns before final (12/22/2022) passage of the PWFA, all of which were ignored by the Catholic Bishops. For example, National Review wrote (12/9/2022):
It is almost certain that “related medical conditions” will be interpreted to include abortion, requiring all employers, even pro-life or religious organizations, to provide abortion accommodations. [Under PWFA]…employers are prohibited from coercing, intimidating, threatening, or interfering with “any individual in the exercise or enjoyment of” any right secured under the PWFA, which would include any abortion-related accommodations. This broad language could…require promotion of abortion in the workplace and chill pro-life and religious organizations, exposing employers in violation of the PWFA to potential EEOC investigations, expensive lawsuits, and civil penalties.
The Family Research Council raised worries (12/8/2022) over the “pregnancy, childbirth, or related medical conditions” language in the House PWFA, H.R. 1065:
The PWFA also advances a malicious pro-abortion agenda that would force employers to make accommodations surrounding abortions in the same way as they would for a woman giving birth.… The bill would fly in the face of conscience rights and religious liberty by giving employees a method of circumventing federal protections for the conscience rights of employers.
Catholic Vote (11/11/2022) commented on the pending PWFA that:
Pro-life Catholics and their allies should advocate vigorously now for Congress to add clear language that excludes abortions and offers robust conscience-rights protections. Otherwise, the support that PWFA offers for pregnant women could sentence Catholic and other religious organizations to years of litigation.…
The bill…deliberately fails to incorporate Civil Rights Act (CRA) religious-organization protections. …[I]t includes no provisions for religious organizations. …[I]n the current legal system and culture at large “pregnancy, childbirth, or related medical conditions” includes both contraception and abortion.
PWFA stalls in the Senate
Fortunately, both the House and Senate PWFA bills were stalled in the Senate. Again, Politico reported: “[T]he top Republican on the House Education and Labor Committee, Virginia Foxx (N.C.)…said she still, ‘cannot support a bill that fails to protect religious organizations from being forced to make employment decisions that conflict with their faith’….”
Another Republican, Senator Rand Paul (KY), pointed to the PWFA’s lack of religious exemptions. A Paul staff aide, indicated that Sen. Paul believed, “The bill could force religious employers to provide accommodations that arise from an abortion, which could violate the free exercise of their religious beliefs” (Politico). In addition, legal abortion supporter, Democrat Senator Bob Casey (PA), chief sponsor of the PWFA bill (S. 1486), was quoted during Senate floor debate (12/8/2022) on his attempt to secure unanimous consent of S. 1486:
Everyone from the ACLU to the U.S. Conference of Catholic Bishops, to the U.S. Chamber of Commerce supports this legislation. These organizations didn’t merely endorse the bill after reviewing it; they were actively involved in shaping the legislative text and finding agreement on the text that we are attempting to vote on, and they remain supportive today.
Pro-abortion Democrat Senator Patty Murray (D-WA), as chair of the Senate Labor Committee issued a press release (12/8/2022) complaining that the PWFA bill was being blocked by Senator Tillis. She gave plausible reasons for her complaints, but not the real reason which was Sen. Tillis’ opposition to prebirth child homicide, i.e., abortion. Indeed, Senator Tillis (R-NC) objected to consideration (12/8/2022), noting that the Senate PWFA:
…in its current form…would give Federal bureaucrats at the EEOC authority to mandate that employers nationwide provide accommodations such as leave to obtain abortions on demand under the guise of a pregnancy-related condition. Worse still, the legislation would subject pro-life organizations, including churches and religious organizations, to potentially crippling lawsuits if they refuse to facilitate abortions in direct violation of their religious beliefs and their moral convictions. Unlike Title VII and the Americans with Disabilities Act, this legislation contains no exemptions for religious organizations. [Senator Tillis, Congressional Record, 12/8/2022, page S 7049. ]
Senator Bill Cassidy (R-LA), chief co-patron on the Senate PWFA, immediately responded, disagreeing with Sen Tillis:
Mr. CASSIDY: …I reject the characterization that this would do anything to promote abortion. …I will quote the U.S. Conference of Catholic Bishops. Last night (12/7/2022-ed) they said—and this is the Catholic bishops: “We believe that [this] version of the bill, read in light of existing liberty protections, helps advance the [U.S. Conference of Catholic Bishops’] goal of ensuring that no woman ever feels forced to choose between her future and the life of her child while protecting the conscience rights and religious freedoms of employers….”
Is it possible that this law would permit someone to impose their will upon a pastor, upon a church, upon a synagogue, if they have religious exemptions? The answer is, absolutely no. [Senator Cassidy, Congressional Record, 12/8/2022 page S 7050 ]
Senator Casey (D-PA) agreed, saying:
I want to say for the record…that under the act, under the Pregnant Workers Fairness Act, the Equal Opportunity Employment Commission, 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 abortions in violation of State law. [Senator Casey, Congressional Record, 12/8/2022 page S 7050]
However, on December 22, 2022, Senator Casey’s PWFA (S. 1486) was being offered as a six-page amendment to a massive 1,653 page spending bill. Senator James Lankford (R-OK), supported by Senator Steve Daines (R-MT), offered an amendment to expressly address the concerns of some religious organizations to protect business persons from participating in abortion or other morally problematic concerns. Sen. Lankford did not indicate on the Senate floor if the Catholic bishops were among the religious groups expressing such concerns and therefore supported the amendment. Senators Lankford and Daines proposed to change the language in the Casey bill to read: “This division shall not be construed to require a religious entity described in Section 702(a) of the Civil Rights Act of 1964 to make an accommodation that would violate the entity’s religion.” This, he continued:
is very straightforward. It deals only with religious entities. It reinforces the Civil Rights Act.…There are some faith-based groups saying: We are uncomfortable with this. It is very narrowly tailored in the way it is written. I, frankly, would accept this as a voice vote, as well.… [Senator Lankford, Congressional Record, S 10069-10070 December 22, 2022]
Senator Cassidy (R-LA), chief co-patron of the Casey PWFA and also a physician, spoke in opposition to the Lankford amendment, citing a very unusual and unconvincing reason:
I am told by attorneys that adding language to the bill actually, paradoxically, increases the ability of a liberal court to reinterpret previous jurisprudence. I don’t strongly oppose this, but because of the attorneys telling me that it would increase the likelihood of changing previous jurisprudence, which clearly is in favor of these religious employers having abilities that we all want them to have, I will oppose. [Senator Cassidy, Congressional Record, S. 10070 December 22, 2022]
In other words, Senator Cassidy, per advice of counsel, is saying that when a majority of Members of Congress forbid involvement with abortion, federal Judges will, by that very fact, command involvement with abortion! (This defies logic: The Senator should seek new legal counsel.)
The Senate vote on the Lankford-Daines conscience protection amendment was 44 Yeas to 53 Nays, 3 Not Voting with very few exceptions on a straight party vote. Senators Casey and Cassity both voted “No” to the Langford-Daines Amendment. The A Better Balance organization, leading the PWFA effort, objected to the attempt to exclude abortion coverage, referring to Senators Lankford and Daines’ prolife efforts as a “poison pill”, arguing that they
continued their mission to block the bill, offering unacceptable poison pill language…. [But] thanks to the tireless and shrewd work of our lead sponsors, and after working in coalition with our partners, as well as many reproductive rights experts and scholars…ultimately the Senate voted down…hostile amendments and passed Senator Casey’s and Cassidy’s version of the bill. Our Senate champions, Senators Cassidy and Casey, proved heroic in their unwavering commitment to get the PWFA passed….
The Senate version of the PWFA would eventually pass the Senate on December 22 as a six-page amendment to a 1,653 page bill with none of the civil liberties protections noted above included. It passed the House shortly thereafter, and President Biden signed it in late December, 2022.
Equal Employment Opportunity Commission regulations
As required by the PWFA the Equal Employment Opportunity Commission issued regulations on August 8, 2023 which, as predicted by conservative critics of the PWFA, included abortion and other fake “reproductive” practices:
To assist workers and covered entities, the proposed regulation includes a non-exhaustive list…. These include conditions that Federal courts and the EEOC have already concluded are part of the definition under Title VII as well as other conditions that are based on the expertise of medical professionals. The list in the proposed regulation for the definition of ‘‘pregnancy, childbirth, or related medical conditions’’ includes current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.
Senator Cassidy stated of the EEOC proposed regulations:
The Biden administration has gone rogue. These 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….
The USCCB also took issue with the EEOC’s proposed PWFA regulations in their comments to the President’s Office of Management and Budget:
The U.S. Conference of Catholic Bishops (USCCB) supported the Pregnant Workers Fairness Act (PWFA) and was heavily involved in negotiations and advocacy leading up to its passage…so we are well positioned to speak on what it does and does not mean…. “Reasonable accommodation for pregnancy, childbirth, and related medical conditions” does not include any abortion-related benefit. The text and legislative history of PWFA clearly foreclose an interpretation that it covers accommodations for abortion.…
However, while the Catholic bishops are well positioned to speak regarding their own motives and beliefs, by their policy actions and inactions during passage of the PWFA they worked against their own stated goals, as demonstrated by the eventual result. Indeed, the bishops should have known what was likely to happen, and it is worth noting that the claim by Senator Cassidy and the USCCB that the legislative history of the PWFA was violated by the EEOC is not supported as measured against the definitive legal treatise, Reading Law: The Interpretation of Legal Texts, authored by the late Supreme Court Associate Justice Anton Scalia and Bryan Garner (cf. Justice Anton Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, 2012, published by Thompson-West, St. Paul Minnesota, hereafter cited as RLILT).
A proper reading of legislative history
Therefore it may well be worth considering the proper understanding of legal interpretation here, by examining the PWFA abortion controversy in light of the methods of constitutional interpretation explained by Justice Scalia and Bryan Garner, particularly the false notion that committee reports and floor speeches are worthwhile aids in statutory construction.
Reliance on so-called legislative history to discern the meaning of a statute is a recent legal practice. Scalia and Garner note that a “nation of laws” requires “(1) giving effect to the text that lawmakers have adopted and that the people are entitled to rely on, and (2) giving no effect to lawmakers’ unenacted desires” (RLILT, p. 29). They also point to Congressman Robert Harper, who in 1796, cited the “universal practice of Courts of Law, who, when called on to explain acts of Legislatures, never resorted to debates which preceded it—to the opinions of members about its signification—but inspected the act itself, and decided by its own evidence” (RLILT, 370).
Scalia and Garner cite the following legal authorities regarding the appropriateness of using actual legal text, rather than speeches or other non-textual documents to understand the meaning of the law under consideration (RLILT, 370-375):
- Alexander Hamilton (1791): “[W]hat ever may have been the intention of the framers of the constitution, or of a law, that intention is to be sought for in the instrument itself.”
- Chief Justice John Marshall (1819) “The words of an instrument, unless there be some sinister design that shuns the light, will always represent the intention of those who frame it.”
- James Madison (1821): “As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.” Note that Madison’s Notes of the Philadelphia Constitution Convention are considered the most authoritative record of the U.S. Constitution.
- Associate Justice Joseph Story (1843): “What passes in [C]ongress upon the discussion of a bill can hardly become a matter of strict judicial inquiry…it could scarcely be affirmed, that the opinion of a few members, expressed either way are to be considered as the judgement of the whole house or even of a majority…little reliance can or ought to be place[d] upon such sources of interpretation of a statute….”
- Associate Justice Oliver Wendell Holmes (1920): “We do not inquire what the legislature meant; we ask only what the statute means.”
Their main point is that if the actual words of a statute do not support what you want or do not want you have no case for asserting any “legislative intent” other than that which may be derived from the lexical meaning or customary usage of words in the law. In fact, Sen. Casey, referenced above, emphasized that the Catholic bishops “didn’t merely endorse the bill after reviewing it; they were actively involved in shaping the legislative text and finding agreement on the text that we are attempting to vote on, and they remain supportive today.” Yet they claim Biden has hijacked the PWFA law.
Moreover, the public record of the Catholic bishops is void of any support for amending any version of the PWFA to prevent EEOC’s accommodation of abortion and similar morally problematic policies. Nor are the Catholic bishops identified in the Congressional Record, House or Senate Committee documents or explanations, or in any of their own public documents as supporting the Langford amendment which was proposed to the Casey version of the PWFA and which would have addressed the abortion controversy and other probable EEOC objectionable requirements or other similar efforts.
The major problem with the Catholic bishops blaming Biden for allegedly misapplying what the Catholic bishops claim is the pro-life legislative intent of the PWFA is that there is no language in the specific version of the law they supported, worked on, endorsed and brokered (Sen. Casey) which prevents the EEOC from requiring abortion coverage and other morally problematic practices which they should have known were intensely sought.
Catholic Bishops rely on Democrat Senator Casey
The USCCB wrote to the Office of Management and Budget, citing Senator Bob Casey’s floor statement and noting that:
“Under the Pregnant Workers Fairness Act, the Equal Opportunity Employment Commission…could not…issue any regulation that requires abortion leave, nor does the act permit the EEOC to require employers to provide abortions in violation of state law.” This statement was…described as the intent of Congress by Sen. Daines…. No Senator objected to that characterization. [USCCB, Response to Office of Management and Budget, EO 12866 Meeting on the Proposed “Pregnant Workers Fairness Act Regulations,” RIN 3046-AB30 July 14, 2023]
But the Catholic bishops are here relying on a floor statement that Senator Casey has not publicly defended, and not the actual language in the enacted law. Despite Senator Casey’s floor statement that the EEOC had no authority to include abortion in regulations as a required accommodation of the PWFA, Senator Casey’s office issued no press release criticizing, denouncing, rejecting or disputing the 8/8/2023 EEOC regulations which included requirements for abortion “accommodations.”
Moreover, Senator Casey only says the EEOC could not “require employers to provide abortions in violation of state law.” State prolife laws do not stop the Biden Administration, because, “agencies under the Biden administration have attempted to preempt state pro-life laws with various federal laws and agency rules. For example, the VA issued an interim final rule on abortion benefits, claiming that it was permitted to perform abortions in pro-life states in violation of state law.”
Bishops say PWFA abortion accommodation is a strained claim
The Catholic bishops told the OMB—using words that sound in part like a Democrat Party press release with descriptions like, “we worked hard to support passage of this historic, bipartisan legislation”—that:
Some advocacy groups are now making the strained claim that PWFA requires accommodations for abortion.… But PWFA does not have the goal of expanding access to abortion, and the EEOC should not reinterpret it as if it did. Reasonable accommodation for pregnancy, childbirth, and related medical conditions does not include any abortion-related benefit. The text and legislative history of PWFA clearly foreclose an interpretation that it covers accommodations for abortion. PWFA does not require the provision of any benefit for purposes of facilitating an abortion (e.g., leave).
The notion that it is some kind of strained claim that abortion is somehow linked to the phrase, “pregnancy, childbirth, or related medical conditions” is beyond ludicrous. Since at least 1978, when Congress added the phrase, “pregnancy, childbirth, or related medical conditions” to the Title VII of Civil Rights Act of 1964, pro-abortion federal agencies have applied these words to include abortion as one of its definitional components unless otherwise excluded by Congress in the text of a statute.
Moreover, the USCC lawyers were (speaking kindly) unaware of this. The 1978 law, S. 995, was introduced in 1977 by Senator Harrison Williams (NJ-D) to amend Title VII of the 1964 Civil Rights Act to prohibit sex discrimination on the basis of pregnancy. Consider its explicit exclusion of most situations relating to abortion:
The terms ‘because of sex’…or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work…. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion….
A legislative practice of some 45 years standing, in which when abortion is not intended to be included it must be specifically excluded, cannot accurately be described by anyone, including the Catholic bishops or their attorneys, as a “strained claim.”
Further, the EEOC cited six specific instances (federal court cases, EEOC ruling, a House of Representatives Report)2 of how the terms “pregnancy, childbirth, or related medical conditions” are used as reasons for including abortion and other morally problematic practices in their initial suggested list of covered practices requiring accommodation under the PWFA definition or usage of the terms, “pregnancy, childbirth or related medical condition.” That all federal courts did not apply this reading does not negate those federal courts that did include abortion. Were the Catholic Bishops or their attorneys unaware of these facts as well as the 1978 law? Experience strongly suggests that those who are serious about preventing federal support for abortion should put specific words in statutes to ensure such prevention, and not just “hope” a divided federal judiciary will do it for them.
Bishops say “Major Questions” judicial doctrine bans EEOC abortion coverage
The Catholic bishops state: “The Supreme Court has recently struck down…agency actions under the major questions doctrine…that holds that a federal agency may not exercise powers of vast economic and political significance unless Congress has clearly assigned the agency with the authority to do so.” The language of the passed PWFA, to borrow the bishops own words, states that, “a federal agency may not exercise powers of vast economic and political significance unless Congress has clearly assigned the agency with the authority to do so.” But the Casey-passed, bishop-endorsed PWFA did precisely what the Bishop’s lawyers deny:
Sec. 105…EEOC RULEMAKING…the Commission shall issue regulations…. Such regulations shall provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.
Recall that both the chief Democrat sponsor, Sen. Casey, and the Republican sponsor praised the Catholic bishops for their deep involvement throughout the entire process and continuous support of the final version of the PWFA which became law. Moreover, for reason that elude me, the Catholic bishops quote the 100% pro-abortion Democrat Senator Patty Murray (WA) to support their claim that the PWFA has nothing to do with authorizing abortion:
When the Senate HELP Committee reported the PWFA out of committee by a vote of 19-2, Senator Patty Murray stated, “Too many pregnant workers still face pregnancy discrimination and are denied basic accommodations—like being able to sit or hold a water bottle—to ensure they can stay healthy and keep working to support themselves and their families. No one should be forced to decide between a healthy pregnancy and staying on the job—so we must pass the Pregnant Workers Fairness Act without delay.” These comments clearly do not contemplate an intent to cover abortion.
To the contrary, what is clear is that Murray’s comments do not portend anything regarding abortion, pro or con.
Conclusion
The USCCB also stated that, “During Congress’s deliberations over PWFA, some pro-life advocates, in an abundance of caution, had expressed concern that the EEOC might construe it that way.” Indeed, the Bishops’ critics were correct about the practical consequences of not providing some language to at least preempt abortion coverage, and the Catholic bishops were clearly mistaken. Why didn’t the Catholic bishops, their policy advisors or attorneys use “an abundance of caution” to support or suggest appropriate amendments to protect Catholic businessmen and Catholic institutions from the EEOC’s reproductive dragnet? Is that Biden’s fault?
When I was in Catholic elementary school, the nuns recommended that if we ever had a doubt about a course of action, we should consider what a particular saint would do in a similar circumstance. For political complexities I always think of St. Thomas More, who served as King Henry VIII’s Lord Chancellor (attorney). Frankly, I cannot imagine St. Thomas saying “let’s just trust the Democrats and Joe Biden to not support abortion as qualifying for employer ‘accommodation’ benefits under the PWFA”—at least not after seeing them in action.
Furthermore, abortion is not the EEOC’s only violation of Natural Law or Christian sexual ethics in their proposed PWFA regulations. They also include surrogate pregnancies for same-sex couples as well as heterosexual individuals, and sterilization. But the bishops do not voice any objections to these other EEOC supposed “reproductive” requirements.
And why would the Catholic bishops cite pro-abortion Sen. Murray to make their “no abortion intended” case? That is like citing Communist dictator Joseph Stalin as a defender of private property rights. The Seattle Times describes Sen. Patty Murray as follows:
Washington’s senior U.S. senator, for decades a leading voice on abortion rights in Congress…. Murray, a five-term Democrat…has pushed unsuccessfully this year for a vote on the Women’s Health Protection Act, which would codify the right to abortion nationwide.
The American bishops involved in monitoring these developments and lobbying for moral outcomes ignored warnings from responsible pro-life watchdog groups as well as members of Congress regarding the need to amend the PWFA to expressly exclude abortion and other immoral polices from the application of the PWFA. The bishops had ample warning from responsible sources and plenty of opportunities to prevent Biden from using the PWFA to push his lethal abortion policies and other immoral “solutions”—but they exercised none of them.
1 A Beter Balance, Winning The Pregnant Workers Fairness Act—A Better Balance. List of organizations:
Faith in Public Life
Center for Reproductive Rights
Catholics for Choice
National Center for Lesbian Rights
National Center for Transgender Equality
Planned Parenthood Federation of America
Virginia Organizing
National Latina Institute for Reproductive Health
National LGBTQ Task Force Action Fund
National Organization for Women
Association of Reproductive Health Professionals (ARHP)
Association of Women’s Health
Obstetric and Neonatal Nurses
DC Abortion Fund
American Civil Liberties Union
National Institute for Reproductive Health
National Latina Institute for Reproductive Health
National LGBTQ Task Force Action Fund
National Organization for Women
Bay County NOW
Central Phoenix/Inez Casiano Chapter
Chicago National Organization for Women
Florida National Organization for Women
Fort Myers/Naples National Organization for Women
Hollywood NOW
Illinois National Organization for Women
Louisiana NOW
Maryland National Organization for Women
Massachusetts National
Organization for Women
PA NOW
Minnesota NOW
National Organization for Women of New Jersey
NOW Philadelphia Chapter
N-Ta-Nee
NOW (Centre County) PBC Chapter of NOW
Pennsylvania National
Organization for Women
Santa Fe NOW
South Hills NOW
Virginia NOW
Washington State National Organization for Women
Young Feminists and Allies
National Organization for Women’s (NOW) Inaugural Virtual Chapter
Planned Parenthood of Western New York
Sexuality Information and Education Council of the U.S. (SIECUS)
March of Dimes
In Our Own Voice: National Black Women’s Reproductive Justice Agenda
Physicians for Reproductive Health
NARAL Pro-Choice America
Feminist Majority Foundation
American Academy of Pediatrics
2 Cited examples:
- Ducharme v. Crescent City De´ ja` Vu, L.L.C., 406 F. Supp. 3d 548, 556 (E.D. La. 2019) (finding that ‘‘abortion is encompassed within the statutory text prohibiting adverse employment actions ‘because of or on the basis of pregnancy, childbirth, or related medical conditions’ ’’);
- H.R. Rep. No. 95–1786, at 4 (1978), as reprinted in 95th Cong., 2d Sess. 4, 1978 U.S.C.C.A.N. 4749, 4766 (‘‘Because the bill applies to all situations in which women are ‘affected by pregnancy, childbirth, and related medical conditions,’ its basic language covers decisions by women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.’’);
- EEOC, Commission Decision on Coverage of Contraception (2000), https://www.eeoc.gov/
- Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (holding that the PDA prohibits an employer from discriminating against a female employee because she has exercised her right to have an abortion);
- Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir. 1996) (finding the termination of a pregnant employee because she contemplated having an abortion violated the PDA);
- Ducharme v. Crescent City De´ ja` Vu, L.L.C., 406 F. Supp. 3d 548, 556 (E.D. La. 2019) (finding that ‘‘abortion is encompassed within the statutory text prohibiting adverse employment actions ‘because of or on the basis of pregnancy, childbirth, or related medical conditions’’’).
This article has been reprinted with permission and can be found at catholicculture.org/commentary/american-bishops-shout-fire-after-helping-to-set-blaze.
