Conservative states ask Eighth Circuit to restore challenge to state employee abortion accommodations

(CN) — The Eighth Circuit Court of Appeals Tuesday heard oral arguments in a hotly contested reproductive rights case that pits 17 conservative states against the Equal Employment Opportunity Commission.

Led by Tennessee, the states argue in an April 2024 complaint that unelected commissioners of the EEOC had no authority to implement a new rule under the bipartisan Pregnant Workers Fairness Act of 2022 to accommodate elective abortions sought by state employees.

In June, U.S. District Court Judge D. Price Marshall dismissed the states’ action for a lack standing and denied their motion for preliminary injunction for failure to cite specific injury. The Barack Obama appointee acknowledged “good arguments exist on both sides” of the question, but said the states hadn’t made a compelling case for enjoining the regulation nationwide.

On Tuesday, Tennessee solicitor general Whitney Hermandorfer told a three-judge panel if the order were upheld, it would upend decades of precedent under the Administrative Procedures Act allowing states to challenge policy before it is enforced by the federal government.

“The route to reversal is quite straightforward,” Hermandorfer said. “When an agency adopts a binding rule in a way that regulates parties in a way that this rule does, parties have standing to challenge that rule.”

Pre-enforcement challenges are the “absolute norm” in Administrative Procedures Act cases, she argued, and the states were injured because they’re being forced to update procedural literature and retrain employees on the law.

“The policies we have to amend and training we’re having to undergo to update our practices to reflect on a new federal law, that binds us,” she said. “For the federal government to tell this court that the abortion accommodation requirement is so important that it must take immediate effect, but yet so meaningless that no party can challenge it, is so contradictory and the exact argument that a number of other cases have rejected.”

Hermandorfer said Congress passed the Pregnant Workers Fairness Act to accommodate pregnancy and childbirth, not abortions. The law was later amended by the EEOC.

Representing the EEOC, attorney Urja Mittal countered that abortions were included under the act’s protections for “related medical conditions” and said the rule has no explicit requirement for states to update literature or retrain employees.

“They have an obligation to follow the law,” she said, adding that the plaintiffs premised their objections on “speculative predictions about the risk of enforcement.”

Under questioning from the panel, Mittal acknowledged that the states may have established standing if they had challenged the entire statute, rather than the portion accommodating abortions — but “they have not brought that larger challenge.”

“The hypothetical costs of complying with the statute do not establish the plaintiffs’ standing to challenge one aspect of the regulation,” she argued.

One solution, the judges indicated, would be to remand the case and allow the states to file an amended complaint.

Mittal also countered Hermandorfer’s claims about precedent, suggesting the case was not comparable to other cases where the courts have ruled in favor of states against the federal government’s regulatory measures.

“The difference here is there is no immediate change,” she said. “For purposes of injury, there’s no change in behavior that’s warranted because of a conflicting state law.”

On rebuttal, Hermandorfer emphasized the immediate effect the rule has on state policy.

“Here, the government adopted the requirement for the purpose of allowing employees to make accommodations, and this notion that compliance is just going to materialize out of thin air, and that states aren’t going to change any policies until we’re asked to make an accommodation defies the fundamental presumption that parties follow the law,” she concluded.

“Frankly, it is unfair to the states to tell it it has a new federal obligation yet say, ‘well, the final rule might be pointless and might never apply.’ The government’s argument has been rejected before and in this case, we ask this court to reject it again.”

Presiding over the arguments were Chief U.S. Circuit Court Judge Steven M. Colloton, President George W. Bush appointee, along with U.S. Circuit Court Judges James B. Loken and Jonathan A. Kobes, appointees of Presidents George H.W. Bush and Donald Trump, respectively.

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