President Joe Biden‘s Equal Employment Opportunity Commission is proposing a new rule that indulges three of its most ignoble habits in a single move.
The rule would not merely allow but promote abortion, it would violate the religious liberty of employers, and it would make a mockery of congressional intent and of a law’s plain meaning.
The rule pertains to the Pregnant Workers Fairness Act, which passed with overwhelming bipartisan support in 2022 as part of a government funding bill. The law requires most employers to “make reasonable accommodations” for workers for “pregnancy, childbirth, or related medical conditions.” When the legislation was a stand-alone bill, it was co-sponsored by Reps. Don Bacon (R-NE), Tom Cole (R-OK), Michael McCaul (R-TX), and Sen. Bill Cassidy (R-LA), all of whom have perfect ratings from the National Right-to-Life Committee and zero or near-zero ratings from pro-abortion activists.
The bill passed a Senate committee 19-2 and half of all House Republicans supported it without any suggestion that it would lead to expanded abortion mandates. It was seen as a way to promote healthy childbirth, not to curtail it.
The EEOC wants to turn the law upside down. Its proposed rule would require businesses with 15 workers or more to provide leave to staff getting abortions, and it could punish business owners who express pro-life views. This is abominable. As Rep. Virginia Foxx (R-NC) said, “Abortion is not a medical condition related to pregnancy — it is the opposite.” Rather than being a “medical condition,” abortion is a voluntary action to end the condition of pregnancy.
That’s why dedicated pro-life members of Congress voted for the bill: It was pro-pregnancy, not pro-abortion. It put no roadblocks in the way of women having abortions, but it was not intended to force businesses to support them.
The Alliance Defending Freedom notes an additional First Amendment concern: “The rule’s inclusion of abortion threatens to chill the free speech of employers expressing pro-life messages, such as messages … encouraging adoption over abortion.” Under the EEOC proposal, employees probably could claim the owners created a hostile environment by urging them to choose life over abortion, or even merely by publicly supporting pro-life laws unrelated to any particular worker.
The rule would “force religious employers to go to court to assert any religious liberty protections,” while it would expressly support limits on business owners’ use of the Religious Freedom Restoration Act when defending faith-based rights. The ADF argues that “the rule could make pro-life and religious organizations keep on staff employees who unapologetically have abortions, even if their behavior violates the organizations’ pro-life or religious beliefs and even if a primary reason the organization exists is to protect life.”
The practical effect of the rule would be at once pernicious and ludicrous: The National Right to Life Committee would be required to provide leave for women to get abortions.
These are just the biggest, among many, concerns about the proposed rule.
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It is one thing to believe abortions should be legal in all circumstances. The Biden administration long ago went beyond that, trying not just to allow it, but to force everyone else to fund it. This rule is far worse even than that and would do significant damage to bipartisan efforts to help pregnant women.
If Republicans cannot trust that their efforts to support mothers will not be turned into the promotion of abortion, future family-friendly legislation will die from a lack of bipartisan goodwill. The EEOC should jettison abortion-related parts of the rule. If it won’t, federal courts should negate them.
