An Arkansas judge put a stop to a court challenge over workplace abortion accommodations on Friday. U.S. District Judge D. Price Marshall Jr. said plaintiffs in a lawsuit over new protections for employees seeking abortions did not have standing, meaning they did not establish that the protections for workers would actually cause them harm.
In 2022, The Pregnant Workers Fairness Act was passed with bipartisan support in Congress. The law required employers to accommodate pregnancy and childbirth-related medical conditions. On April 19, the Equal Employment Opportunity Commission expanded the law to include accommodations that come from seeking an abortion. They passed the rule change by a vote of 3-2. The new rules will go into effect on Tuesday.
In April, Arkansas Attorney General Tim Griffin announced his plan to bring a lawsuit against the law's expansion.
“The PWFA was meant to protect pregnancies, not end them,” he said. “Under this radical interpretation of the PWFA, business owners will face federal lawsuits if they don’t accommodate employees’ abortions, even if those abortions are illegal under state law.”
Griffin was joined by 17 other state attorneys general in bringing the suit. They argued in court documents the rule changes violate existing law, and inflict irreparable harm on them as employers. They say the law's expansion effectively coerces “states to help accommodate abortion procedures they have made illegal and that end unborn lives.”
Marshall was not persuaded by this argument. He pointed to the term “pregnancy-related medical conditions” in PWFA, saying it's broad enough to be interpreted as including abortions.
The suit also included testimony from several human resources employees across the country. Workers from Tennessee, South Dakota, Oklahoma, Indiana, West Virginia, Alabama and Idaho gave very similar testimony, saying they as employers could hypothetically be harmed by having an employee seek an abortion.
One of these employees was Deborah Parsons, Assistant Human Resources Director for the Office of the Arkansas Attorney General.
“The Office of the Attorney General currently has 162 employees, 88 of whom are female,” she said. “At any given time, the Office has female employees who are pregnant.
“If Arkansas were required to begin offering accommodations for such abortions, it would impose significant costs on the Office.”
Parsons did not provide any concrete examples, and presented a hypothetical scenario similar to one presented by other HR professionals in the lawsuit. In the scenario, an employee asking for time off for an abortion could lose the state money from a loss of productivity, increasing the cost if the state needed to hire interim employees.
In Marshall's ruling, he walked through this hypothetical, which he called a “many stepped series of events.” He said the PWFA only allows an employee to use unpaid leave, and that the hypothetical scenario in the suit doesn't reflect how abortions usually happen.
Marshall said if someone asks for unpaid leave for a Friday drive across state lines for an abortion, returning to work Monday, then “the employer is none the wiser.”
Another argument the suit made is that the law's expansion would prevent employers from talking coworkers out of an abortion.
The judge said this isn't an example of harm legitimate for the lawsuit. Marshall also said it “seems particularly unlikely” that an employee would say "I need time off to get an illegal abortion.” He also said employers typically can't ask their employees for specifics when they ask off for a medical reason.
He also disagreed with the lawsuit arguing there was financial harm to employers of people seeking abortions. He said there was no evidence that an employee seeking an abortion would take on “sunk costs” and that any lost money would be untraceable. He said obtaining an abortion while living in a state where it’s illegal “creates some limitations on the employee's ability to do her job.”
In the hearing, Marshall asked for plaintiffs to explain how much money would be lost from an employee getting an abortion. The state said:
“It could be a few dollars in this case, but we don't know."
The judge called this response speculative.
In a statement, Attorney General Tim Griffin said: "I’m disappointed in the court’s ruling, am considering all legal options, and remain confident we will ultimately be successful.”
Note: the article was edited to add the quote from the Attorney General.
