Appeals court revives lawsuit against Biden-era abortion accommodations

(CN) — In a relatively brief order Thursday, the Eighth Circuit Court of Appeals said conservative states have standing to sue the Equal Employment Opportunity Commission over a Biden administration rule that allowed elective abortions to be covered under the Pregnant Workers Fairness Act.

The order reverses a lower court finding that the states failed to cite specific injuries and hadn’t made a compelling case for enjoining the regulation nationwide. On Thursday, Chief U.S Circuit Judge Steven Colloton wrote the states are indeed the object of the EEOC’s regulatory action, as they are employers covered under the act and rule.

“Because the states are the object of an agency action, they are injured by the imposition of new regulatory obligations,” Colloton wrote. “The injury is caused by the agency’s action, and a judicial decision setting aside the action would remedy the injury. The imposition of a regulatory burden itself causes injury.”

The Pregnant Workers Fairness Act was passed with bipartisan support in 2021 and provides certain accommodations for workers who are pregnant, have recently given birth, or have “related medical conditions.” The EEOC later passed an administrative rule amending the act to provide for certain elective abortion procedures under “related medical conditions.”

The plaintiffs are led by the state of Tennessee and include 16 other conservative states. The states challenged the rule under the Administrative Procedures Act, claiming it had been adopted without due process.

In June 2024, U.S. District Judge D.P. Marshall Jr. of the Eastern District of Arkansas — a Barack Obama appointee — dismissed the complaint, finding the plaintiffs’ injuries were speculative.

During oral arguments in September 2024, the EEOC represented that the states had no standing because no federal worker had yet sought a related accommodation under the act, but Colloton wrote the states were injured simply by having to train staff on their rights and obligations under the rule.

“As a practical matter, the rule requires immediate action by the states to conform to the rule, and this action produces an injury in fact,” he wrote. “The states in this case are the direct objects of the EEOC’s rule, and the rule injures the states by requiring them to act contrary to their established policies.”

Colloton, a George W. Bush appointee, concluded by remanding the case for further proceedings but was clear the appellate court expresses “no view on the merits of the claims.”

The appeal was also heard by U.S. Circuit Court Judges James B. Loken and Jonathan A. Kobes, appointees of George H.W. Bush and Donald Trump, respectively. There was no dissent.

In a written statement Thursday, Tennessee Attorney General Jonathan Skrmetti called the appeal a victory, claiming “the Biden-era EEOC tried to rewrite the bipartisan Pregnant Workers Fairness Act into an aggressive abortion mandate.”

Follow @gabetynes