Tennessee, State of v. Equal Employment Opportunity Commission

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

DELTA DIVISION

STATES OF TENNESSEE, ARKANSAS,

ALABAMA, FLORIDA, GEORGIA, IDAHO,

INDIANA, IOWA, KANSAS, MISSOURI,

NEBRASKA, NORTH DAKOTA, OKLAHOMA,

SOUTH CAROLINA, SOUTH DAKOTA,

UTAH, and WEST VIRGINIA PLAINTIFFS

No. 2:24-cv-84-DPM

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION DEFENDANT

MEMORANDUM OPINION AND ORDER

The Congress passed the Pregnant Workers Fairness Act in 2022

to require many employers to do more to accommodate pregnant

employees. The Act was of a piece with Title VII, and drew on that

statute’s enforcement structure as well as the Americans with

Disabilities Act’s provisions about reasonable accommodations,

communication between employers and employees, and minimization

of any resulting burden on employers. Congress had taken a step in

this direction more than forty years before in the Pregnancy

Discrimination Act. That statute overturned General Electric Co. v.

Gilbert, 429 U.S. 125 (1976), and amended Title VII, making plain that

our law would not tolerate workplace discrimination related to

pregnancy. In the Pregnant Workers Fairness Act, with broad and

bipartisan majorities in the House of Representatives and the Senate,

Congress took another step. Just as pregnancy-related discrimination

was prohibited, reasonable pregnancy-related accommodations were

required, and no pregnancy-related retaliation would be tolerated.

The new Act is codified in Title 42, alongside Title VII. It defines

some terms, drawing on the other workplace-related statutes.

The keystone term is “known limitations.”

[T]he term “known limitation” means physical or mental

condition related to, affected by, or arising out of pregnancy,

childbirth, or related medical conditions that the employee

or employee’s representative has communicated to the

employer whether or not such condition meets the definition

of disability specified in section 3 of the Americans with

Disabilities Act of 1990 (42 U.S.C. § 12102)[.]

42 US.C. § 2000ge(4). An important embedded term is “related

medical conditions,” which Congress left undefined. As □□

enforcement and remedies, and as relevant to the State employers who

filed this case, Congress incorporated the applicable provisions of Title

VII covering a government, governmental agency, or political

subdivision. 42 U.S.C. §§ 2000gg-2(a) & 2000e-5(f). As authorized by

Section 5 of the Fourteenth Amendment, Congress also abrogated the

several States’ Eleventh Amendment immunity against suit for

job-related actions covered by the Act. 42 U.S.C. § 2000g¢g-4. Last,

Congress delegated implementation authority to the Equal

Employment Opportunity Commission. The general mandate was to

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issue regulations “to carry out” the Act. In particular, Congress

required the EEOC to “provide examples of reasonable

accommodations addressing known limitations related to pregnancy,

childbirth, or related medical conditions.” 42 U.S.C. § 2000g¢-3(a).

Though it missed its one-year deadline by a few months, in April

2024 the Commission adopted its Final Rule and interpretive guidance.

29 C.F.R. § 1636 & app. A. The regulation itself is brief as these things

go; it covers less than seven pages in the Federal Register.

The interpretive guidance, which includes more than 50 examples,

runs more than 130 pages. The final rule and interpretive guidance go

into effect on 18 June 2024.

Less than a week after the EEOC issued the regulation, Tennessee

and sixteen other States filed this case. The States challenged the

aspects of the regulation dealing with abortion. The regulation

included abortion in a non-exhaustive list of “examples of conditions

that are, or may be, ‘related medical conditions” for the purposes of

the Act. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg.

29,096, at 29,183 (19 April 2024). The States also sought, by way of a

preliminary injunction or a § 705 stay under the Administrative

Procedures Act, to stop the whole regulation from taking effect.

The parties have briefed the motion. With all parties’ agreement,

Ba.

the Court allowed amicus briefs... They’re helpful and appreciated.

The Court also held a half-day oral argument, which focused the issues.

The States confirmed that they make no challenge to the Pregnant

Workers Fairness Act itself. Several of them have similar protective

statutes. E.g., TENN. CODE ANN. § 50-10-103(b)(1) & ARK. CODE ANN.

§ 16-123-102(1). Nor do the States challenge most of the new regulation

implementing the federal Act. They recognize almost all of EEOC’s

final rule as salutary. The States quarrel, instead, with how the rule

addresses accommodations connected with some abortions—some,

not all.

1 Doc. 43-1 (Small Business Majority, Main Street Alliance, and the

American Sustainable Business Council); Doc. 49-1 (States of Arizona,

California, Colorado, Connecticut, Delaware, Hawai'i, Illinois, Maine,

Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey,

New Mexico, New York, North Carolina, Oregon, Pennsylvania,

Rhode Island, Vermont, Washington, Wisconsin, and the District of

Columbia); Doc. 51-1 (American Civil Liberties Union; American Civil

Liberties Union of Arkansas; National Women’s Law Center; A Better

Balance; Actors’ Equity Association; American Federation of Labor

and Congress of Industrial Organizations; American Federation of

State, County and Municipal Employees, AFL-CIO; American

Federation of Teachers; American Postal Workers Union, AFL-CIO;

Center for WorkLife Law; Communications Workers of America;

Legal Aid at Work; NCLEJ; National Education Association; National

Employment Law Project; National Nurses United; National

Partnership for Women & Families; One Fair Wage; Public Counsel;

Service Employees International Union; and United Food and

Commercial Workers International Union).

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The States acknowledge that some pregnant women will need,

and be entitled to, workplace accommodations in connection with an

abortion. Doc. 62 at 23-25. In the Act’s words, the employee will have

some “physical or mental condition” connected to pregnancy that

prompts an abortion. Perhaps a worker is diabetic; her diabetes is

“affected by” her pregnancy; and abortion is used to treat her.

Reasonable accommodation, the States agree, would follow. Perhaps a

worker's pregnancy is troubled — it could be ectopic (in a fallopian tube,

rather than in the uterus), or there could be a miscarriage. Or perhaps

an employee had an abortion without seeking any workplace

accommodation to do so; and cramping or bleeding resulted.

Again, there’s no dispute that a State employer would owe some

job-related adjustments. In situations like these, the States agree that a

State employer must make reasonable accommodations as required by

the Act and the EEOC’s implementing regulation.

The States challenge only how the regulation addresses what the

States call elective abortion; that is, an abortion prompted exclusively

by the woman’s choice, where no “physical or mental condition related

to, affected by, or arising out of pregnancy, childbirth, or related

medical conditions . . .” exists, but where getting the abortion creates

some limitations on the employee’s ability to do her job. In the plaintiff

States, these elective abortions, and almost all abortions, are illegal.

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The States contend that the EEOC’s rulemaking to cover this

situation breaks faith with Congress’s words in the Act, rests on flawed

reasoning, offends the U.S. Constitution in various ways, and in

substance violates the Administrative Procedures Act. The States also

point to their strong anti-abortion public policies, present in some of

their Constitutions and many statutes. E.g., ALA. CONST. art. I, § 36.06;

ARK. CONST. amend. LXVIII, § 2; IDAHO CODE ANN. § 18-622;

UTAH CODE ANN. § 76-7-301.1(3). This combination of difficulties, the

States continue, justifies a stay under the APA, a nationwide

preliminary injunction, or both while this case is being adjudicated on

the merits in coming months. The States seek this extraordinary relief

based on their challenge to one potential application of one part of the

final rule’s comprehensive regulatory architecture for implementing

the Pregnant Workers Fairness Act’s accommodation and

anti-retaliation mandates.

The EEOC defends its work on the merits, arguing that no

preliminary relief is justified. First, though, the Commission challenges

the States’ standing to bring the case. The Commission says this Court

lacks subject matter jurisdiction because the States’ asserted injuries are

speculative and, in any event, neither traceable to the regulation nor

redressable by the stay/injunction sought. The States, of course,

disagree on all these points.

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%

The States must show three things to satisfy Article III’s standing

requirements: injury in fact, causation, and redressability. School of the

Ozarks, Inc. v. Biden, 41 F.4th 992, 997 (8th Cir. 2022). An injury must be

“concrete, particularized, and actual or imminent[.]” Monsanto Co. v.

Geertson Seed Farms, 561 U.S. 139, 149 (2010). At this stage of the case,

the Court assesses standing based on the States’ factual allegations.

School of the Ozarks, 41 F.4th at 997.

They press dual theories of injury—sovereign harms and

economic harms. The sovereign harms, the States say, are twofold:

the rule will abridge their ability to regulate abortions and their

interests in maintaining a pro-life message in dealing with state

employees. The economic harms are the rule-related compliance costs

the States say they will incur in response to potential enforcement.

These costs would be unrecoverable because the Commission, as an

arm of the United States, enjoys sovereign immunity. The States don’t

claim any actual harm yet, only that they face imminent injury. For the

following reasons, the States haven’t shown that the Commission’s rule

is likely to cause their alleged harms. FDA v. Alliance for Hippocratic

Medicine, No. 23-235, slip op. at 9-10 (U.S. 13 June 2024).

The sovereign harms are not imminent because there is no

credible threat of enforcement. School of the Ozarks, 41 F.4th at 1000.

The States concede that they must accommodate conditions for which

abortion may be the indicated treatment. See the examples mentioned

before. They don’t fear enforcement on that front. Rather, they seek

relief from future actions requiring them to accommodate abortions in

the absence of any underlying mental or physical condition. On the

merits, the States raise arguable points about the fit between the Act

and part of the final rule. But for standing purposes, imminent

enforcement action is too speculative.

Consider the hypothetical offered by the Commission.

e A pregnant state employee with no qualifying condition

decides to have an abortion that is illegal under state law;

e The employee will need an accommodation because of

the abortion;

e Noexisting leave or other benefits will be available to the

employee;

e The employee will seek an accommodation, explaining

that she wants to get an abortion that is illegal under her

State law;

e The State employer will deny any accommodation;

e The employee will file a charge with the EEOC;

e The EEOC will reject the State employer's defenses, find

that reasonable cause exists, fail to secure a conciliation

agreement, and refer the charge to the Department of

Justice;

e And the Department—after independent review —will

decide to bring an enforcement action against the State

employer or issue the employee a right-to-sue letter.

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Doc. 34 at 25. This many-step series of events is certainly possible, but

it is not “certainly impending.” Clapper v. Amnesty International USA,

568 U.S. 398, 416 (2013); see also School of the Ozarks, 41 F.4th at 1000.

The fourth step—an employee who says, “I need time off to get an

illegal abortion” —seems particularly unlikely. Under the new rule, the

employee does not have to provide her employer details about her

medical care, though an employer can require some supporting

documentation in certain instances. 89 Fed. Reg. at 29,184 & 29,186.

Even assuming an injury in fact, though, the States’

sovereign-injury theory still fails for lack of causation and

redressability. These standing requirements are “often flip sides of the

same coin.” Alliance for Hippocratic Medicine, slip op. at 8 (quotations

omitted). The requested relief — enjoining the EEOC from enforcing the

rule or staying the rule under § 705—will not eliminate the threat of

enforcement under the statute.

Unlike in situations involving private employers, the EEOC

cannot bring enforcement actions against state employers. 42 U.S.C. §§

2000g¢-2(a)(1) & 2000e-5(f)(1). Like Title VII, the Pregnant Workers

Fairness Act first requires a state employee to exhaust her claim by

filing a charge with the EEOC. 42 U.S.C. § 2000e-5(b), (e)(1). The EEOC

must investigate and decide a threshold question: Is there reasonable

cause to believe that the charge is true? If not, it must dismiss the

charge and issue the employee a right-to-sue letter. If there is, the

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EEOC must try to secure a conciliation agreement between the

employer and employee through informal means. If an agreement isn’t

reached within thirty days after a charge is filed, the EEOC “shall take

no further action and shall refer the case to” the Department of Justice.

§ 2000e-5(f)(1). From there, the Department has two choices: bring its

own action, or notify the employee of her right to sue. In any event,

whether the EEOC dismisses the charge or refers it to the Department,

any enforcement action against the States will always result from “the

independent action of some third party not before the court” —the

employee or the Department of Justice. Digital Recognition Network, Inc.

v. Hutchinson, 803 F.3d 952, 957 (8th Cir. 2015) (quotations omitted).

These independent third parties don’t preclude standing, but their

presence center stage makes it “substantially more difficult to

establish.” California v. Texas, 593 U.S. 659, 675 (2021).

The unchallenged Pregnant Workers Fairness Act—not the final

rule—is what requires State employers to accommodate “known

limitations related to the pregnancy, childbirth, or related medical

conditions of a qualified employee... ..” 42 U.S.C. § 2000g¢-1.

The Commission’s regulation only includes “abortion” in a list of

“examples of conditions that are, or may be, ‘related medical

conditions[.]’” 89 Fed. Reg. at 29,183 (emphasis added). “The

Commission emphasizes that the list of “pregnancy, childbirth or

related medical conditions’ . . . is non-exhaustive[.]” 89 Fed. Reg.

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at 29,192. Pausing all or part of the regulation or its enforcement will

not eliminate the deeper question: Does the Act itself require State

employers to accommodate elective abortions that are illegal under

State law? The relief requested from this Court will not prevent an

agerieved employee from filing such a charge, or trying to file one, or

eventually asking a court that question. Compare School of the Ozarks,

41 F 4th at 1001.

The States lean hard on a Sixth Circuit case indicating that, if the

desired relief would lessen their injury, complete relief is unnecessary

to satisfy the redressability criterion. Lavin v. Husted, 689 F.3d 543,

546 (6th Cir. 2012) (“meaningful” relief); see also Sanchez v. R.G.L.,

761 F.3d 495, 506 (5th Cir. 2014) (relief that “could potentially lessen”

the injury). But the binding precedent from the Eighth Circuit does not

adopt this standard. The States “must show that the requested relief

would eliminate the alleged threat of imminent enforcement .. ..”

School of the Ozarks, 41 F.4th at 1001. And “it must be the effect of the

court’s judgment on the defendant that redresses the plaintiff's injury,

whether directly or indirectly.” Digital Recognition Network, 803 F.3d at

958 (emphasis original). The only defendant in this case is the EEOC.

The States’ requested relief therefore does not eliminate the

hypothetical enforcement actions that they allege are imminent.

Haaland v. Brackeen, 599 U.S. 255, 293 (2023).

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The redressability requirement “is not met when a plaintiff seeks

relief against a defendant with no power to enforce the challenged

statute.” Digital Recognition Network, 803 F.3d at 958. Well, the States

fairly respond, the EEOC is involved in enforcing the Act and

regulation in a preliminary way. And enjoining the Commission from

accepting or referring any charge based on an elective abortion illegal

under state law would at least make it harder for a complaining

employee to seek relief. She couldn’t exhaust her administrative

remedies, a prerequisite to suit. Fort Bend County v. Davis,

139 S. Ct. 1843, 1846 (2019).

But Title VII's charge-filing requirement, which the new Act

incorporates, is a non-jurisdictional (though mandatory) claim-

processing rule. Fort Bend County, 139 S. Ct. at 1850-51. It can be

forfeited. Ibid. And compliance with the filing period “is subject to

waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982). The Supreme Court has reserved decision

on whether mandatory claim-processing rules may be subject to other

equitable exceptions. Fort Bend County, 139 S. Ct. at 1849 n.5.

A Court order enjoining the administrative process for claims

about elective abortion would be strong medicine supporting equitable

relief from Title VII’s non-jurisdictional exhaustion requirement based

on unavailability or futility. The animating premise of the exhaustion

requirement in this statute, and the many benefits of the administrative

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process this requirement secures, is that the agency’s door was, at some

point, actually open to the claimant. The States would be hard put to

insist that a claimant must exhaust a process they had eliminated by

injunction. How this interesting issue might be resolved, though, is not

the dispositive point. The relief the States request would probably gum

up the works, and perhaps reduce the number of these potential claims,

but it would not eliminate a pregnant employee’s right under the Act

to seek relief in a court against a State employer for denying an

accommodation for time off to get an elective abortion. And interim

relief from this Court would not prevent suit in these circumstances by

the Department of Justice to enforce the Act. Either way, the States’

alleged sovereign injuries would not be redressed.

That leaves the alleged economic harms. The States don’t claim

any sunk costs. They only say that their compliance costs are imminent.

E.g., Doc. 1 at 34; Doc. 62 at 14. This economic-harm theory fails for

two reasons.

First, the challenged costs — those resulting only from rule-related

compliance activities associated with illegal, elective abortions —are

neither concrete nor particularized. A concrete injury is one that is

“real and not abstract.” Alliance for Hippocratic Medicine, slip op. at 8.

A particularized injury “must affect the plaintiff in a personal

and individual way and not be a generalized grievance.” I[bid.

(quotations omitted).

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The Commission estimates that public employers like the States

will incur a one-time administrative cost of $76.03 for implementing the

entire new regulation. 89 Fed. Reg. at 29,175-77. The States say this

number is too low, though they offer no contrary proof. Their fallback

point is that EEOC’s estimate shows that their rule-related compliance

costs will be something more than zero. Doc. 47 at 9. That’s reasonable

as it relates to the rule as a whole. “[A] loss of even a small amount of

money is ordinarily an injury.” Czyzewski v. Jevic Holding Corp.,

580 U.S. 451, 464 (2017) (quotations omitted). The States, however,

challenge only a sliver of the whole. Many abortion-related

accommodations, they acknowledge, will be covered. Doc. 62 at 23-25.

And they haven’t, for example, offered particulars about how the

challenged slice imposes additional compliance costs beyond those

required by the unchallenged parts of the regulation, or even the Act

itself. California, 593 U.S. at 677-80. The States’ affidavits speak in

general—and mostly identical—terms. Doc. 17-1 to 17-8 & Doc. 47-1.

The Court asked for details at the hearing. The States responded: “T[I]t

could be a few dollars in this case, but we don’t know.” Doc. 62 at 14.

That's speculative.

Second, even assuming some concrete and _particularized

compliance costs related to illegal, elective abortions, these costs are not

fairly traceable to any threat of enforcement. That is, the States cannot

transform their sovereign-harm theory into an economic-harm theory

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by incurring costs for the former. They “cannot manufacture standing

merely by inflicting harm on themselves based on their fears of

hypothetical future harm that is not certainly impending.” Clapper,

568 U.S. at 416; see also Alliance for Hippocratic Medicine, slip op. at 22.

A final point on standing bears mention. The States argue that a

“regulated party that is the object of an agency action always has

standing to challenge” that action. Doc. 62 at 12. This is an

overstatement. When a party is the object of agency action, “there is

ordinarily little question that the action . . . has caused him injury, and

that a judgment preventing . . . the action will redress it.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561-62 (1992) (emphasis added).

This ‘object of the action’ theory of standing is the norm; but it is nota

hardline rule. California, 593 U.S. at 671; School of the Ozarks,

41 F.Ath at 999. Applying this theory is particularly appropriate when

a party presses a procedural challenge, which could result in a do-over

of some part of the administrative process. Iowa League of Cities v.

E.P.A., 711 F.3d 844, 871 (8th Cir. 2013). The States press no procedural

challenge here. More importantly, they haven't established Article III's

“irreducible constitutional minimum” —injury in fact, causation, and

redressability. Lujan, 504 U.S. at 560.

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%

If the Court has erred on standing, and subject matter jurisdiction

exists, then it must address the request for extraordinary interim relief:

Are the States entitled to a § 705 stay, or a nationwide preliminary

injunction, while the case proceeds to a final judgment? Each is a

different tool for maintaining the status quo. The legal standard for

measuring whether to grant either form of interim relief is essentially

the same. State of Ohio ex rel. Celebrezze v. Nuclear Regulatory Commission,

812 F.2d 288, 290 (6th Cir. 1987).

The States must establish four things: (1) a likelihood of success

on the merits; (2) a likelihood that they will suffer irreparable harm in

the absence of preliminary relief; (3) the balance of equities tips in

their favor; and (4) an injunction is in the public interest.

Morehouse Enterprises, LLC v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 78 F.4th 1011, 1016 (8th Cir. 2023) (quotations omitted).

The States must shoulder this burden “because a preliminary injunction

is an extraordinary remedy never awarded as of right.” Ibid.

(quotations omitted).

Irreparable harm can be a threshold issue. Morehouse, 78 F.4th

at 1016-17; see also Labrador v. Poe, 144 S. Ct. 921, 929 (2024)

(Kavanaugh, J., concurring). It is here. The States “must show that

irreparable injury is likely in the absence of an injunction, not merely a

possibility of irreparable harm before a decision on the merits can be

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rendered.” Tumey v. Mycroft AI, Inc., 27 F.Ath 657, 665 (8th Cir. 2022)

(emphasis original and quotations omitted); see also Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). The States again

press two kinds of irreparable harms— sovereign harms (their ability to

regulate abortions and their interests in maintaining a pro-life message

to employees) and economic harms (compliance costs). Doc. 1 at 34-35.

Neither presents “a clear and present need for equitable relief.”

Morehouse, 78 F.4th at 1017.

The States have a sovereign interest in their “power to create and

enforce a legal code, both civil and criminal[.]” Alfred L. Snapp & Son,

Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982). A state suffers

irreparable harm when it is barred from enforcing its duly enacted

laws. Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, CJ.,

in chambers); Organization for Black Struggle v. Ashcroft, 978 F.3d 603,

609 (8th Cir. 2020). The States claim that the final rule “fundamentally

infringes on [their] sovereignty by hampering their duly enacted laws

regulating abortion.” Doc. 18 at 42. The Court disagrees. As the

Commission notes, the States’ abortion-related laws fall into three

buckets— substantive abortion laws, restrictions on publicly funded

abortions, and public policy declarations. Doc. 62 at 61-63.

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The substantive abortion laws cited by the States only regulate

abortion providers.2 But the final rule doesn’t regulate abortion

providers. “[T]he PWFA is a workplace anti-discrimination law.

It does not regulate the provision of abortion services or affect whether

and under what circumstances an abortion should be permitted.”

89 Fed. Reg. at 29,104. There is no present or potential conflict between

the States’ abortion restrictions and the EEOC’s rule. The States,

therefore, haven’t shown a likelihood of irreparable harm here. See, e.g.,

Tennessee v. United States Department of Health & Human Services,

No. 3:23-cv-384, 2024 WL 1053247, at *19 (E.D. Tenn. 11 March 2024).

Some States also allege that the final rule infringes on their ability

to restrict publicly funded abortions.? But, again, the States’ laws do

2 TENN. CODE ANN. § 39-15-213(b); ARK. CODE ANN. §8§ 5-61-303, 304,

403 & 404; ALA. CODE §§ 26-23H-4(b) & 23H-6(a); FLA. STAT. § 390.0111;

GA. CODE ANN. §§ 16-12-140 & 141; IDAHO CODE § 18-8702; IND. CODE

§ 16-34-2-1(a); IOWA CODE §§ 146A, 146B, 146D & 146E; Mo. REV. STAT.

§ 188.017; NEB. REV. STAT. § 71-6915; N.D. CENT. CODE § 12.1-19.1-02;

OKLA. STAT. tit. 21, § 861; S.C. CODE ANN. §§ 44-41-630(B), 640, 650

& 660; S.D. CODIFIED LAWS § 22-17-5.1; UTAH CODE ANN. § 76-7a-201;

W. VA. CODE § 16-2R-3.

3 ARK. CONST. amend. LXVIII, § 1; TENN. CODE ANN. § 9-4-5116; ALA.

CODE § 26-23C-2(a)(7); FLA. STAT. § 286.31(2); IDAHO CODE § 18-8705;

IND. CODE § 16-34-1-2; KAN. STAT. ANN. § 65-6733(a); Mo. REV. STAT.

§§ 188.205, .210 & .215; N.D. CENT. CODE § 14-02.3-01(3); S.C. CODE

ANN. § 44-41-90(A); UTAH CODE ANN. § 76-7-331(2). Florida law,

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not conflict with the final rule. “Nothing in the PWFA requires an

employer to pay for an abortion or provide health care benefits for

abortion in violation of State law.” 89 Fed. Reg. at 29,109. Nor does it

“require reasonable accommodations that would cause an employer to

pay any travel-related expenses for an employee to obtain an abortion.”

89 Fed. Reg. at 29,104. And, to the extent time off may be a reasonable

accommodation, unpaid leave is all that’s required. Ibid. It’s unclear if

or how any State funds will be used to finance or facilitate elective

abortions that are illegal under State law. But if it is possible, the States

haven't shown it is likely.

Last, some States have also codified pro-life policy declarations.*

Some, like Arkansas, have done so by constitutional amendment:

“The policy of Arkansas is to protect the life of every unborn child from

conception until birth, to the extent permitted by the Federal

Constitution.” ARK. CONST. amend. LXVIII, § 2; see also ALA. CONST.

art. I, § 36.06(a) & (b). Others, like Indiana, have done so by statute:

“Childbirth is preferred, encouraged, and supported over abortion.”

IND. CODE § 16-34-1-1. The States may, of course, enact separate

however, contains a likely applicable exception for expenditures

required by federal law. FLA. STAT. § 286.31(2)(a).

4 ALA. CONST. art. I, § 36.06(a) & (b); ARK. CONST. amend. LXVIII, § 2;

TENN. CODE ANN. § 39-15-214; IND. CODE § 16-34-1-1; N.D. CENT. CODE

§ 14-02.3-01(1); UTAH CODE ANN. § 76-7-301.1(1) & (2).

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legislation to carry out these policies, and some have. But these

non-binding policy declarations are not themselves enforceable.

They don’t, for example, regulate any behavior or provide for the

administration of any state programs. E.g., Virginia ex rel. Cuccinelli v.

Sebelius, 656 F.3d 253, 269-70 (4th Cir. 2011); see also Texas v. United

States, 809 F.3d 134, 153 (5th Cir. 2015). The States, therefore, have not

shown a likelihood of irreparable harm to their “power to create and

enforce a legal code....” Snapp, 458 U.S. at 601.

What about the economic harms? The States only need to prove

a likelihood of irreparable harm, not a certainty. Morehouse, 78 F.Ath

at 1018. There’s no doubt that the “threat of unrecoverable economic

loss” amounts to irreparable harm. Jlowa Utilities Board v. F.C.C.,

109 F.3d 418, 426 (8th Cir. 1996). But, for the reasons already discussed,

the States haven’t identified how the narrow compliance costs at issue

here are actual and not theoretical. Morehouse, 78 F.4th at 1018.

They haven't tried to “quantify, or clearly explain, their generally

alleged compliance costs.” Ibid. It would be inequitable to grant them

the extraordinary relief they seek on this record.

The States failure to show a likelihood of irreparable harm is

enough for the Court to deny the motion for a preliminary injunction.

Sessler v. City of Davenport, 990 F.3d 1150, 1156 (8th Cir. 2021).

Some words, though, are appropriate on the likelihood of success on

the merits. The general rule, at least for now, is that “when Congress

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authorizes an agency to issue regulations interpreting a statute that the

agency enforces, we defer to the agency’s interpretation of an

ambiguous statute so long as the interpretation is reasonable.”

Union Pacific Railroad Company v. United States, 865 F.3d 1045, 1048

(8th Cir. 2017). That legal rule may change soon. Relentless, Inc. v.

Department of Commerce, 144 S. Ct. 325 (2023) (granting certiorari);

Loper Bright Enterprises v. Raimondo, 143 S. Ct. 2429 (2023) (same).

But this Court's job is to apply the law as it is today, not as it may be

tomorrow. Hohn v. United States, 524 U.S. 236, 252-53 (1998).

Under the familiar Chevron framework, this Court “must first

determine whether the statute is ambiguous[.]” Union Pacific Railroad

Company, 865 F.3d at 1048. If it isn’t, the Court must “apply the statute

as written; if it is ambiguous, [the Court] must decide whether the

agency’s interpretation is reasonable.” Ibid. No, say the States.

They argue that the major questions doctrine applies, so the EEOC

“must point to clear congressional authorization for the power it

claims.” West Virginia v. Environmental Protection Agency, 597 U.S. 697,

723 (2022).

The States focus on the political significance of the ongoing

state-by-state debate over abortion. It is, no doubt, a “profoundly

difficult and contentious issue[.|” Dobbs v. Jackson Women’s Health

Organization, 597 U.S. 215, 337 (2022) (Kavanaugh, J., concurring). But

the Supreme Court has not said that something is a “major question”

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simply because it involves a particularly controversial topic. Rather,

the major questions doctrine applies in “extraordinary cases . . . in

which the history and the breadth of the authority that the agency has

asserted, and the economic and political significance of that assertion,

provide a reason to hesitate before concluding that Congress meant to

confer such authority.” West Virginia, 597 U.S. at 721.

The Supreme Court has identified the signs of one of these

extraordinary cases.

e Has the EEOC “claim[ed] to discover in a long-extant

statute an unheralded power representing a

transformative expansion in its regulatory authority”?

West Virginia, 597 U.S. at 724; see also Biden v. Nebraska,

143 S. Ct. 2355, 2383 (2023) (Barrett, J., concurring).

No. The Pregnant Workers Fairness Act is newly minted. And the

EEOC’s interpretation of the Act is consistent with its almost

five-decades-long interpretation of the phrase “related medical

conditions” in the Pregnancy Discrimination Act. 29 C.F.R. § 1604

& app.

e Did the EEOC locate this “newfound power in the vague

language of an ancillary provision of the Act, one that

was designed to function as a gap filler and had rarely

been used in the preceding decades”? West Virginia,

597 U.S. at 724.

No. The coverage section is the new Act's foundation.

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e Did the EEOC’s assertion of authority from the statute

allow “it to adopt a regulatory program that Congress

had conspicuously and repeatedly declined to enact

itself”? Ibid.

Not as far as the Court can tell. The States offer no such legislative

history about the Pregnant Workers Fairness Act.

e Did the EEOC claim “the power to resolve a matter of

ereat political significance, or end an earnest and

profound debate across the country”? West Virginia,

597 U.S. at 743 (Gorsuch, J., concurring).

No. The final rule does not affect each States’ regulation of abortion

within their boundaries. It addresses workplace accommodations.

e Is the EEOC seeking “to regulate a significant portion of

the American economy or require billions of dollars in

spending by private persons or entities”? West Virginia,

597 U.S. at 743 (Gorsuch, J., concurring).

No. The Act and rule reflect women’s important role in the American

economy. The challenged part of the regulation is a corner of that big

room.

e Is the EEOC seeking “to intrude into an area that is the

particular domain of state law”? Ibid.

No. Congress has been regulating the workplace for decades.

States have, too. States do not have a monopoly on regulating

workplace accommodations or abortion. “The Constitution is neutral

and leaves the issue for the people and their elected representatives to

93.

resolve through the democratic process in the States or Congress — like

the numerous other difficult questions of American social and

economic policy that the Constitution does not address.”

Dobbs, 597 U.S. at 338 (2022) (Kavanaugh, J., concurring); see also United

States v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996) (Richard S. Arnold, J.).

Some tension does not equal intrusion.

e Is the EEOC asserting a newfound authority to regulate

in an area despite its own “longstanding disavowal of

authority to regulate it”? Nebraska, 143 S. Ct. at 2382

(Barrett, J., concurring).

No. EEOC has been regulating the workplace for almost sixty years.

e Is the EEOC making “broad invocations of power” based

on a “relatively narrow statute[] that purport[s] to

delegate that power”? Ibid.

No. The regulation tracks the statute.

e Is the EEOC regulating outside its wheelhouse, such

“that a reasonable speaker would not understand

Congress to confer an unusual form of authority without

saying more”? Nebraska, 143 S. Ct. at 2382-83 (Barrett, J.,

concurring).

No. The workplace is EEOC’s wheelhouse.

Beyond the intense controversy surrounding abortion, there are

no signs that this is a major questions case. Chevron’s general rule

applies.

_~24-

Is the Pregnant Workers Fairness Act unambiguous and, if not, is

the EEOC’s interpretation reasonable? The States focus on the word

condition. They argue that abortion is a procedure, not a condition, and

therefore the EEOC over-reached by including abortion in its list of

“examples of conditions that are, or may be, ‘related medical

conditions.” 89 Fed. Reg. at 29,183. And the States argue that

abortion □ standing alone—cannot be a “known limitation” related to,

affected by, or arising out of pregnancy because it is not a “physical or

mental condition.” 42 U.S.C. § 2000g¢(4). The EEOC, for its part,

acknowledges that abortion itself isn’t a physical or mental condition.

Doc. 62 at 50. It focuses instead on conditions that could precede an

abortion, like cramping, or follow an abortion, like pain and fatigue.

The States concede that an employee has a right to a reasonable

accommodation for those conditions, including in circumstances

involving abortion. Doc. 62 at 24-25. The EEOC also argues that

unavailability from work to travel to and obtain an abortion is itself a

physical condition arising from or affected by pregnancy. The States

disagree.

A preliminary point before turning to the deep issue. There is a

real disagreement here, but not as much as the politically charged

filings suggest. The States concede that under the Act, which they are

not challenging, a qualified employee who has any “physical or mental

condition related to, affected by, or arising out of pregnancy” is entitled

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reasonable accommodations, even if treatment of the condition will

result in an abortion, or if the condition was the result of an abortion.

That would seem to apply to most, if not all, cases. What pregnancy

doesn’t have accompanying physical or mental conditions? To be sure,

disputes almost certainly will arise over what type of reasonable

accommodations are due to an employee experiencing typical physical

conditions related to, affected by, or arising out of her pregnancy.

But those fact-intensive disputes are best settled on a case-by-case basis,

through the administrative process and litigation if need be, not in a

pre-enforcement challenge to the EEOC’s regulation.

On the deep issue, this Court’s tentative conclusion is that the

States have the better argument on the text. Abortion doesn’t fit into

the ordinary meaning of condition. See Doc. 1 at 205-06 (listing

definitions). And yet two Courts of Appeals and a district court have

held that abortion is a “related medical condition” for the purposes of

Title VI. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir.

2008); Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1214 (6th Cir. 1996);

Ducharme v. Crescent City Deja Vu, L.L.C., 406 F. Supp. 3d 548, 556

(E.D. La. 2019). This precedent stands with the EEOC’s interpretation

and against this Court's initial reading. That disagreement is a good

indication that the same phrase in the Pregnant Workers Fairness Act

is “susceptible to more than one reasonable interpretation,” and

therefore ambiguous. Owner-Operator Independent Drivers Association,

~26-

Inc. v. Supervalu, Inc., 651 F.3d 857, 862 (8th Cir. 2011). And ambiguity,

of course, entitles the Commission’s interpretation to some deference.

Reading the statute in context, which this Court must do,

Southwest Airlines Co. v. Saxon, 596 U.S. 450, 455 (2022), adds cloudiness

rather than clarity. Consider, for example, a qualified and completely

healthy employee who asks to leave work to attend a routine pre-natal

appointment. There’s no real dispute that she would be entitled to a

reasonable accommodation. The House Report cites this situation as an

example of an accommodation that would be available under the Act.

H.R. REP. No. 117-27(1), at 29 (2021). So does the EEOC’s regulation.

89 Fed. Reg. at 29,203 (Example No. 35). For purposes of the statute,

little seems to distinguish this employee’s circumstances from an

employee who asks for time off to get an abortion. Neither are

experiencing any “physical or mental conditions” other than being

pregnant. It wouldn’t make any sense to consider the employee

seeking routine pre-natal care as having a known limitation, while the

employee seeking an abortion as not having one. But that is precisely

how the States argue the Act should be read.

One more example. Consider the Tennessee employee who says

she needs Friday off for a pregnancy-related doctor’s appointment.

The Act and regulation do not require the employee to provide specifics

about the appointment. Instead, employers are limited in what kind of

information and documentation they can ask from the employee.

-27-

The request for unpaid leave is approved, and the employee travels to

Illinois, where she has a legal abortion. She returns to her job on

Monday. The employer is none the wiser. And the employee has

complied with Tennessee’s law. This scenario strikes the Court as far

more likely than a state employee asking for time off for a procedure

she knows is illegal in her home state.

Because the States lack standing and haven’t shown a likelihood

of irreparable harm, the Court need not decide whether they have

shown a likelihood of success on the merits. Good arguments exist on

both sides of that question. The Court also need not balance the equities

at this point. At bottom, the States haven’t made a compelling case for

issuing a nationwide injunction of the entire EEOC regulation. This case

presents a narrow disagreement over a few words, a disagreement that

seems unlikely to flower into few, if any, real-world disputes, especially

given the undisputed reach of the new Act and the unchallenged

portions of the implementing regulation. The States’ fear of overreach

by one branch of the federal government cannot be cured with

overreach by another. Alliance for Hippocratic Medicine, slip op. at 7.

&

Because the States lack standing, this Court lacks subject-matter

jurisdiction. The States’ motion for a preliminary injunction, Doc. 17, is

denied as moot. The complaint will be dismissed without prejudice.

58.

So Ordered.

Mena

D.P. Marshall Jr.

United States District Judge

1¢ frunte Ao2rY

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