State of Louisiana v. Equal Employment Opportunity Commission

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

THE STATE OF LOUISIANA, CIVIL DOCKET NO. 2:24-cv-00629

ET AL

VERSUS JUDGE DAVID C. JOSEPH

EQUAL EMPLOYMENT MAGISTRATE JUDGE THOMAS P.

OPPORTUNITY COMMISSION LEBLANC

******************************************************************************

UNITED STATES CONFERENCE OF CIVIL DOCKET NO. 2:24-cv-00691

CATHOLIC BISHOPS, ET AL

VERSUS JUDGE DAVID C. JOSEPH

EQUAL EMPLOYMENT MAGISTRATE JUDGE THOMAS P.

OPPORTUNITY COMMISSION, LEBLANC

ET AL

MEMORANDUM ORDER

Before the Court are two consolidated MOTIONS FOR PRELIMINARY INJUNCTION

filed by, respectively: (i) the States of Louisiana and Mississippi in the matter entitled

State of Louisiana, et al v. EEOC, 2:24-cv-00629-DCJ-TPL (the “States lawsuit”) [Doc.

17]; and (ii) four entities affiliated with the Roman Catholic church1 in USCCB v.

EEOC, et al, 2:24-cv-00691-DCJ-TPL (the “Bishops lawsuit”) [Doc. 11] (collectively,

the “Motions”). In both Motions, Plaintiffs ask this Court to preliminary enjoin

1 The Plaintiff entities in the Bishops lawsuit are the United States Conference of

Catholic Bishops (“USCCB”), Society of the Roman Catholic Church of the Diocese of Lake

Charles (“Diocese of Lake Charles”), Society of the Roman Catholic Church of the Diocese of

Lafayette (“Diocese of Lafayette”), and Catholic University of America (“Catholic University”)

(collectively, the “Bishops Plaintiffs”). The defendants in the Bishops lawsuit are EEOC and

Charlotte Burrows, Chair of the EEOC, sued in her official capacity only.

Defendants from enforcing an Equal Employment Opportunity Commission

(“EEOC”) Final Rule that implements and interprets the Pregnant Workers Fairness

Act (“PWFA” or “Act”), 42 U.S.C. § 2000gg, et seq., and Title VII, 42 U.S.C. § 2000e,

et seq., to the extent that it requires employers to accommodate the purely elective

abortions of employees. All Plaintiffs also ask this Court to postpone pending judicial

review the effective date of the portion of the Final Rule mandating that covered

employers provide workplace accommodation for purely elective abortions. 5 U.S.C. §

705

After careful consideration of the arguments of the parties, the record before

the Court, and the governing law, the Court finds that the EEOC has exceeded its

statutory authority to implement the PWFA and, in doing so, both unlawfully

expropriated the authority of Congress and encroached upon the sovereignty of the

States Plaintiffs. Plaintiffs’ Motions are therefore GRANTED IN PART, and the

Court issues a preliminary injunction against the EEOC as set forth below.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In December 2022, Congress passed, and President Biden signed, the PWFA

as part of the year-end consolidated appropriations package. See Consolidated

Appropriations Act, 2023, div. II, Pub. L. 117-328 (2022), 136 Stat. at 6084; 42 U.S.C.

§§ 2000gg – 2000gg-6. Aimed at addressing gaps in existing legislation regarding

protections for pregnant workers, the PWFA adopts an accommodation regime

similar to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., for

pregnant workers and adopts the powers, remedies, and procedures of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-4 et seq., as enforcement measures.

Principally, the PWFA requires employers to “make reasonable

accommodations to the known limitations related to the pregnancy, childbirth, or

related medical conditions of a qualified employee, unless such covered entity can

demonstrate that the accommodation would impose an undue hardship on the

operation of the business of such covered entity.” 42 U.S.C. § 2000gg-1(1). The PWFA

defines “known limitation” as a “physical or mental condition related to, affected by,

or arising out of pregnancy, childbirth, or related medical conditions.” Id. § 2000gg(4).

In effect, the PWFA prohibits employers from denying employment

opportunities due to a covered employee’s need for a reasonable accommodation or

retaliating against an employee for requesting or using a reasonable accommodation.

42 U.S.C. §§ 2000gg-1(3), (5). Nor can an employer “require a qualified employee to

take leave, whether paid or unpaid, if another reasonable accommodation can be

provided to the known limitation.” 42 U.S.C. § 2000gg-1(4). The PWFA adopts the

ADA’s definitions for “reasonable accommodation” and “undue hardship,” as well as

the ADA’s “interactive process” for determining a proper accommodation. 42 U.S.C.

§ 2000gg(7). It also specifically provides that employers cannot “require a qualified

employee ... to accept an accommodation other than any reasonable accommodation

arrived at through the interactive process.” 42 U.S.C. § 2000gg-1(2). The PWFA’s

requirements apply to any private employer with 15 or more employees and

government employers, including the States of Louisiana and Mississippi (“covered

entities”). 42 U.S.C. § 2000gg. Pursuant to Section 5 of the Fourteenth Amendment,

the PWFA also specifically waives the Eleventh Amendment immunity of state

employers for covered employment-related actions. 42 U.S.C. § 2000gg-4.

As part of the Act, Congress tasked the EEOC with issuing regulations to carry

out the PWFA and directed that such regulations “shall provide examples of

reasonable accommodations addressing known limitations related to pregnancy,

childbirth, or related medical conditions.” 42 U.S.C. § 2000gg-3. On August 11, 2023,

the EEOC proposed a rule that would require covered employers – including States

– to accommodate, among other things, elective abortions. 88 Fed. Reg. 54,714 (Aug.

11, 2023) (Proposed Rule). Specifically, the EEOC stated in the proposed rule that

“having ... an abortion” constitutes an “example[] of pregnancy, childbirth, or related

medical condition[]” and that employers are therefore required to provide employees

with reasonable accommodations for abortions under the PWFA (the “abortion

accommodation mandate”). Id. On April 19, 2024, the EEOC issued the final

regulation implementing the PWFA. Implementation of the Pregnant Workers

Fairness Act, 89 Fed. Reg. 29,096 (Apr. 19, 2024) (hereafter, “Final Rule”). Despite

widespread opposition,2 the Final Rule included the abortion accommodation

mandate.

On May 13, 2024, the States Plaintiffs filed the instant lawsuit against the

EEOC, asserting that the abortion accommodation mandate of the Final Rule violates

the Administrative Procedure Act (“APA”) and the Constitution. [Doc. 1, ¶ 82]. In

their Motion for Preliminary Injunction, filed on June 3, 2024 [Doc. 17], the States

Plaintiffs challenge the Final Rule with respect to any duty “to accommodate purely

2 Specifically, more than 54,000 individuals and organizations submitted comments

opposing the Proposed Rule’s abortion accommodation mandate, including Plaintiffs

Louisiana, Mississippi, USCCB, and Catholic University.

elective abortions,3 including those that would be prohibited by [that] State’s law” in

light of state legislation that restricts and limits abortion following the Supreme

Court’s decision in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 142 S. Ct.

2228, 213 L.Ed.2d 545 (2022).4 EEOC responded on June 9, 2024. [Doc. 21].5

3 The States Plaintiffs define “purely elective abortions” as “medically unnecessary

abortions in violation of Louisiana and Mississippi law.” [Doc. 17-1, p. 15].

4 EEOC filed a Motion to Transfer [Doc. 5] in the States case, seeking to transfer the

matter to the United States District Court for the District of Columbia on grounds venue is

not proper in this district. The Court denied the Motion and stated its reasons on the record

at the June 5, 2024, hearing. [Doc. 28].

5 Louisiana prohibits all abortions except those that are determined to be medically

necessary to prevent the death or substantial risk of death of the mother. See La. R.S. §

40:1061, La. R.S. § 14:87.7, and La. R.S. § 14:87.8.1. The Louisiana Legislature has expressly

set forth the State’s policy with respect to abortion:

§ 1061.1. Legislative intent; construction of abortion provisions law

regulating abortion:

A. (1) It is the intention of the Legislature of Louisiana to regulate, prohibit,

or restrict abortion to the fullest extent permitted by the decisions of the

Supreme Court of the United States. The legislature does solemnly declare,

find, and reaffirm the longstanding public policy of this state that every unborn

child is a human being from the moment of conception and is, therefore, a legal

person for purposes under the laws of this state and Constitution of Louisiana.

(2) The legislature further finds and declares that the longstanding policy of

this state to protect the right to life of every unborn child from conception by

prohibiting abortion is impermissible only because of the decisions of the

Supreme Court of the United States and that, therefore, if those decisions of

the Supreme Court of the United States are ever reversed or modified or the

United States Constitution is amended to allow protection of the unborn then

the public policy of this state to prohibit abortions shall be enforced.

La. R.S. § 40:1061.1.

Mississippi prohibits all abortions except those that are “necessary for the

preservation of the mother’s life or “where the pregnancy was caused by rape.” See Miss.

Code Ann. § 41-41-45; Miss. Code Ann. § 97-3-3.

On May 22, 2024, the Bishops Plaintiffs filed their Complaint [Doc. 1], along

with a Motion for Preliminary Injunction.6 [Doc. 11]. In their Motion, the Bishops

Plaintiffs allege that the Final Rule requires them to knowingly accommodate

employees when they obtain abortions, even where such accommodations are

contrary to their sincerely held religious beliefs; prohibits the Bishops Plaintiffs from

taking adverse actions against employees or faculty that advocate for abortion

accommodation, even where such actions are required by the Bishops’ beliefs; and

requires the Bishops Plaintiffs to change their religious speech and messaging

concerning abortion in ways that support abortion. EEOC responded to the Motion

on June 5, 2024. [Doc. 29]. Reply briefs to both Motions were filed on June 11, 2024

[Doc. 32, 24-cv-00629]; [Doc. 40, 24-cv-00691].

The Court conducted a hearing on June 5, 2024, to address a limited

consolidation pursuant to FRCP 42(a)(2) of the States and Bishops cases for purposes

of hearing and adjudicating the preliminary injunction Motions. With no objection

from any party, the cases were consolidated for purposes of the two Rule 65 Motions

and, thereafter, jointly conducting pretrial discovery and motions practice. [Doc. 18,

24-cv-00629]; [Doc. 28, 24-cv-00691]. Oral argument on the preliminary injunction

Motions was conducted on June 12, 2024, [Doc. 33, 24-cv-00629]; [Doc. 41, 24-cv-

00691], followed by the filing of the parties’ supplemental, post-hearing memoranda.

6 The Bishops lawsuit was originally assigned to Judge James D. Cain, Jr. in the Lake

Charles Division. Given the related nature of the States and Bishops cases, the Bishops case

was transferred to this Court on May 24, 2024. [Doc. 15].

[Docs. 45, 46, 24-cv-00629]; [Docs. 51, 52, 24-cv-00691]. All briefing and argument on

the issues having now been completed, the Motions are ripe for review.

LAW AND ANALYSIS

I. Article III Standing

Standing is “built on a single basic idea – the idea of the separation of power.”

Food & Drug Administration, et al. v. Alliance for Hippocratic Medicine, et al., --- S.

Ct. ---, 2024 WL 2964140, at *5 (June 13, 2024). “Article III requires a plaintiff to

show that she has suffered an injury in fact that is fairly traceable to the defendant’s

allegedly unlawful conduct and likely to be redressed by the requested relief.”

Haaland v. Brackeen, 599 U.S. 255, 291-92, 143 S. Ct. 1609, 216 L.Ed.2d 254 (2023);

Braidwood Mgmt., Inc. v. Equal Emp. Opportunity Comm’n, 70 F.4th 914, 924 (5th

Cir. 2023); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119

L.Ed.2d 351 (1992). A plaintiff can demonstrate a cognizable injury in a pre-

enforcement challenge only if it establishes that: (1) it has “an intention to engage in

a course of conduct arguably affected with a constitutional interest, but proscribed by

a statute,” and (2) “there exists a credible threat of prosecution thereunder.”

Braidwood, 70 F.4th at 925, citing Susan B. Anthony List v. Driehaus, 573 U.S. 149,

159, 134 S. Ct. 2334, 189 L.Ed.2d 246 (2014). The two key questions in most standing

disputes are injury-in-fact and causation. FDA, 2024 WL 2964140, at *1. The party

or parties invoking the Court’s jurisdiction bear the burden of satisfying the Article

III requirement by demonstrating that they have standing to adjudicate their claims

in federal court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

Finally, “[t]he manner and degree of evidence” required is “less” in the earlier stages

of litigation; the Plaintiffs need “only” be “likely” to ultimately show “each element of

standing.” Speech First v. Fenves, 979 F.3d 319, 329-30 (5th Cir. 2020).

A. The States Plaintiffs

EEOC argues that the States Plaintiffs lack standing on grounds their alleged

injuries are speculative; any compliance costs are unproven; the Final Rule does not

interfere with the enforcement of any State laws; and the States Plaintiffs have not

demonstrated any speech injury. Louisiana and Mississippi argue they will suffer

imminent injury-in-fact should the abortion accommodation mandate of the Final

Rule take effect, because of increased regulatory burdens, increased compliance costs

under penalty of enforcement actions, and damage to their sovereignty and free

speech rights.

“If, in a suit challenging the legality of government action, the plaintiff is

himself an object of the action, there is ordinarily little question that the action or

inaction has caused him injury, and that a judgment preventing or requiring the

action will redress it.” Texas v. EEOC, 933 F.3d 433, 446 (5th Cir. 2019). See also

Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 266 (5th Cir. 2015)

(under the “ordinary rule,” a party that is the “object[ ] of the [r]egulation[] may

challenge it.”). Here, Louisiana and Mississippi – as employers and without the

shield of Eleventh Amendment sovereign immunity – are directly regulated by the

PWFA and the Final Rule. Therefore, if implemented in excess of Congressional

authorization, the Final Rule will “cause[] [the States] injury, and … a judgment

preventing ... the action will redress it.” Lujan, 504 U.S. at 561–62; EEOC, 933 F.3d

at 449.

Moreover, while EEOC argues the costs identified by the States Plaintiffs are

“unproven,” the Final Rule itself notes such costs arise independently from any

accommodation expenses. 89 Fed. Reg. 29,177 (“Administrative costs, which include

rule familiarization, posting new EEO posters, and updating EEO policies and

handbooks, represent additional, one-time direct costs to covered entities.”). The

States Plaintiffs proffer declarations evidencing that changing State policies alone

will cost the States, at minimum, an estimated $500 and 120 employee hours in

training costs, legal expenses, administrative costs, and productivity losses.7 For

Article III standing purposes, such compliance costs are classic “pocketbook injury”

redressable through a pre-enforcement APA rule challenge. Collins v. Yellen, 141 S.

Ct. 1761, 1779 (2021). Thus, aside from any employee or DOJ enforcement lawsuits

under the PWFA, the States demonstrate that the unrecoverable costs of “[m]oving

into compliance” with the abortion accommodation mandate of the Final Rule are

cognizable and alone sufficient to constitute an injury-in-fact. Wages & White Lion

Investments, LLC v. United States Food and Drug Administration, 16 F.4th 1130,

1142 (5th Cir. 2021) (holding that regulatory compliance costs are unrecoverable and

therefore amount to irreparable harm “because federal agencies generally enjoy

sovereign immunity for any monetary damages”); R.J. Reynolds Vapor Co. v. Food &

Drug Admin., 65 F.4th 182, 194 (5th Cir. 2023) (finding that the plaintiff’s financial

7 See Declaration of Sandra Schober, Deputy Undersecretary of the Administrative

Services Division at the Louisiana Department of Justice, Office of the Attorney General,

[Doc. 17-2, ¶¶ 15–18]; Declaration of Kelly Hardwick, State Personnel Director for the State

of Mississippi and Executive Director of the Mississippi State Personnel Board, [Doc. 17-3,

¶¶ 10–12].

harm was irreparable in an APA challenge where “[t]here [was] no suggestion ... that

[the plaintiff] could overcome the FDA’s sovereign immunity to recover costs”);

Restaurant Law Center v. United States Department of Labor, 66 F.4th 593, 597 (5th

Cir. 2023) (A general rule of thumb is that the “nonrecoverable costs of complying

with a putatively invalid regulation typically constitute irreparable harm.”).

While the States argue that compliance harms alone are sufficient to establish

standing, more fundamental is the States’ concern that the EEOC’s implementation

of the Final Rule to include an abortion accommodation mandate: (i) was not

authorized by Congress in the PWFA; (ii) exceeds the rule-making power of the

executive branch; and (iii) interferes with the States’ ability to enforce their laws and

implement the chosen public policies of their citizens. Generally, states have an

interest in “the exercise of sovereign power over individuals and entities within the

relevant jurisdiction – this involves the power to create and enforce a legal code, both

civil and criminal.” Texas v. Miguel Cardona, et al., 2024 WL 2947022, at *11 (N.D.

Tex. 6/11/24) (O’Connor, J.), citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel.,

Barez, 458 U.S. 592, 601 (1982). “Pursuant to that interest, states may have standing

based on: (1) federal assertions of authority to regulate matters they believe they

control, (2) federal preemption of state law, and (3) federal interference with the

enforcement of state law.” Cardona, 2024 WL 2947022, at *11, citing Texas v. United

States (DAPA), 809 F.3d 134, 171 (5th Cir. 2015). Each of these federal “intrusions

are analogous to pressure to change state law.” Cardona, 2024 WL 2947022, at *11,

citing DAPA, 809 F.3d at 153. See also Texas v. Equal Employment Opportunity

Commission, 933 F.3d 433, 446-47 (5th Cir. 2019) (being pressured to change state

law constitutes an injury because states have a sovereign interest in the power to

create and enforce a legal code). More specifically, “[b]ecause a state alone has the

right to create and enforce its legal code, only the state has the kind of direct stake

necessary to satisfy standing in defending the standards embodied in that code.”

Cardona, 2024 WL 2947022, at *11, citing Texas v. Becerra, 623 F. Supp. 3d 696, 714

(N.D. Tex. 2022) (Hendrix, J.).

Here, the people of both Mississippi and Louisiana, through the democratic

process, have unambiguously expressed their opposition to purely elective abortions

by passing laws prohibiting the same. Louisiana law specifically requires the state

to “protect the right to life of every unborn child from conception by prohibiting

abortion.” La. R.S. § 40:1061. Mississippi’s laws prohibit all abortions except those

that are “necessary for the preservation of the mother’s life” or “where the pregnancy

was caused by rape.” See Miss. Code Ann. § 41-41-45; Miss. Code Ann. § 97-3-3. And

the Supreme Court has confirmed that the states are free to regulate abortion in

accordance with the democratic process. Dobbs, 597 U.S. at 292.

The States Plaintiffs now posit that an administrative agency of the executive

branch of the federal government, without Congressional authorization, has exceeded

its authority through the rule-making process in a way that subverts the will of the

citizens of Louisiana and Mississippi. Therefore, in addition to the increased

regulatory burden that “typically satisfies the injury in fact requirement,” Contender

Farms, 779 F.3d at 266, the States Plaintiffs contend, in essence, that the EEOC’s

abortion accommodation mandate undermines their sovereignty and the democratic

process within those states. Because the principles of federalism afford the states a

sovereign interest in creating and enforcing their own laws and public policy, the

States Plaintiffs clearly have Article III standing to challenge the Final Rule.

Considering that the States Plaintiffs have demonstrated harm in the form of

regulatory burden, increased costs to implement the abortion accommodation

mandate, and damage to their sovereignty, the Court finds that the States Plaintiffs

have standing to challenge the Final Rule’s abortion accommodation mandate.

B. The Bishops Plaintiffs

Chiefly, the Bishops Plaintiffs argue that under the abortion accommodation

mandate of the Final Rule, they must knowingly violate their sincerely held beliefs

regarding what they term the “moral evil” of “direct” abortion or risk liability and

face years-long expensive and entangling litigation by both the EEOC and private

parties. The Bishops Plaintiffs allege immediate harm in that they must take steps

to begin complying with the Final Rule – including changing their employment

policies and practices, and training employees regarding the new policies and

practices – to avoid noncompliance by the Final Rule’s effective date, which could

subject them to open-ended liability, investigations, and litigation by applicants,

employees, former employees, and the EEOC. [Doc. 1, ¶ 127].

To support their claim of imminent harm, the Bishops Plaintiffs proffer several

declarations8 that demonstrate the profound convictions of their members and

8 See also Declaration of J. Steven Brown, Professor of Mechanical Engineering, Senior

Vice Provost for Academic Administration, and Dean of Graduate Studies at Catholic

University of America [Doc. 11-3]; Declaration of Maureen K. Fontenot, Chancellor/Director

of Human Resources for the Society of the Roman Catholic Church of the Diocese of Lafayette

[Doc. 11-4]; Declaration of Father Ronald Kunkel, Executive Director of USCCB’s Secretariat

employers on the subject of abortion. Take, for instance, the Declaration of Father

Joseph Caraway, Chancellor of The Society of the Roman Catholic Church of the

Diocese of Lake Charles, who attests that the mission of the Diocese of Lake Charles

includes “expressing and carrying out the Church’s beliefs in the sanctity and dignity

of human life.” [Doc. 11-2, ¶¶ 2-6]. Father Caraway declares that the Diocese has

adopted the Ethical and Religious Directives for Catholic Health Care Services,

DOLC Polices and Guidelines at 103, Diocese of Lake Charles (Aug. 2023), which

recognize that “[t]he Church’s commitment to human dignity inspires an abiding

concern for the sanctity of human life from its very beginning,” and direct that

“[a]bortion (that is, the directly intended termination of pregnancy before viability or

the directly intended destruction of a viable fetus) is never permitted[.]” Id. at ¶ 6.

Father Caraway explains:

9. The Diocese does not and will not provide any workplace

accommodation for an employee to obtain a direct abortion. Obtaining

a direct abortion is grounds for adverse employment action, up to and

including termination.

10. The Diocese will take appropriate adverse employment action

against any employee who encourages another person to obtain a direct

abortion or to request an accommodation for a direct abortion.

11. The Diocese does not and will not permit its employees to advocate

in favor of abortion or abortion accommodations in the workplace or

outside of it.

12. The Diocese will take appropriate adverse employment action

against any applicant, employee, or former employee whose speech,

advocacy, or conduct undermines Catholic teachings about direct

abortion or to the Diocese’s policies with respect to abortion.

of Doctrine and Canonical Affairs [Doc. 11-5]; and Declaration of Theresa Ridderhoff,

Associate General Secretary in the Office of the General Secretariat of USCCB [Doc. 11-6].

13. I am aware that the EEOC has issued a final rule implementing the

Pregnant Workers Fairness Act. See Implementation of the Pregnant

Workers Fairness Act, 89 Fed. Reg. 29096 (Apr. 19, 2024). This rule does

not adequately exempt religious employers like the Diocese. I regard

EEOC’s rule as threatening the Diocese with penalties, lawsuits,

investigations, and other burdens unless the Diocese alters its

employment policies and practices regarding abortion that are described

above.

Id. at ¶¶ 9-13.

EEOC argues the Bishops Plaintiffs lack standing on grounds that any

enforcement threat from EEOC is highly speculative and unlikely given that the

Bishops Plaintiffs identify no employee who has sought an accommodation or leave

for an abortion or who has filed an EEOC charge for the denial of such request, nor

have they identified any EEOC enforcement actions brought against any employer in

such a circumstance. Thus, EEOC argues the Bishops Plaintiffs have presented

nothing more than an abstract, unripe claim, for which there is no hardship in

declining review in this Court, given their ability to raise all of the same arguments

as defenses in the event an employee ever files an EEOC charge.

The Fifth Circuit rejected the same argument by the EEOC in Braidwood. The

Braidwood plaintiffs sought a declaratory judgment that EEOC’s guidance

interpreting statutory prohibitions on sex discrimination to include sexual

orientation and gender identity violated the First Amendment and the Religious

Freedom Restoration Act (“RFRA”). 70 F.4th at 919-21. Although it was undisputed

that the plaintiffs’ employment policies facially violated the EEOC’s policies, the

policies had not been enforced against any individual employee. Id. at 921. As it does

here, EEOC catalogued a laundry list of hypothetical scenarios necessary for the

plaintiffs to adequately allege injury, arguing that, until an employment action

culminated in an actual charge filed with the EEOC and EEOC decided to pursue

that charge, the plaintiffs could not establish standing. Id. at 926. Discrediting

EEOC’s argument, the Fifth Circuit explained:

Plaintiffs’ credible-threat analysis is quite simple. First, they admit

they are breaking EEOC guidance, which the EEOC does not seriously

contest. They posit statutory and constitutional issues with the laws

under which they are at risk of being prosecuted: Those issues, they

allege, are already forcing plaintiffs to choose either to restrict their

religious practices or to risk potential penalties. And the EEOC’s

actions in Harris, which the EEOC won under a less violative set of

facts, indicate that plaintiffs, too, have a legitimate fear of prosecution,

chilling their rights. “The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L.Ed.2d 547 (1976)

(plurality opinion). Finally, the EEOC refuses to declare affirmatively

that it will not enforce Title VII against the plaintiffs’ policies on

homosexual and transgender behavior.

Id. at 926–27. See also Franciscan All. v. Becerra, 47 F.4th 368, 377 (5th Cir. 2022)

(where plaintiff refused to offer gender-reassignment surgeries or abortions in

violation of an HHS regulation enacted pursuant to the Patient Protection and

Affordable Care Act, and HHS steadfastly refused to promise that it would not enforce

the Rule, court held plaintiff had standing to challenge the rule, noting “the loss of

freedoms guaranteed by the First Amendment … and RFRA … constitute per se

irreparable harm.”), citing Opulent Life Church v. City of Holly Springs., 697 F.3d

279, 294 (5th Cir. 2012).

Here, too, the Bishops Plaintiffs posit that their deeply held religious beliefs

will not permit them to comply with the abortion accommodation mandate; they raise

statutory and constitutional issues with the mandate under which they are at risk of

being prosecuted; they cite EEOC’s arguments in this case that RFRA exceptions

must be handled on a case-by-case basis; and they argue a legitimate fear of

prosecution in light of EEOC’s demonstrated violations of Catholic University’s

religious exemptions in EEOC v. Catholic Univ., 83 F.3d 455, 466 (D.C. Cir. 1996).

And they cite the specific finding by the Braidwood court, rejecting the EEOC’s

argument that plaintiffs should be required to raise any RFRA or constitutional claim

as a defense, finding that the potential harms were obvious and redressable by

judicial relief. Id. at 929–30.

Similarly, forcing the Bishops Plaintiffs to address their religious exceptions

on a case-by-case basis – which, as a practical matter, would require them to wait

until an EEOC investigation has opened and then retain attorneys to investigate the

claim and assert individual defenses against the EEOC – presents, at a minimum, a

substantial likelihood of added regulatory burden and compliance costs. Braidwood

made it clear that forcing religious employers to “choose between two untenable

alternatives: either (1) violate Title VII and obey their convictions, or (2) obey Title

VII and violate their convictions,” constitutes injury. Id. at 937. Considering the

foregoing, the Court finds that the Bishops Plaintiffs have standing to challenge the

abortion accommodation mandate of the Final Rule.

II. Motion for Preliminary Injunction

To obtain a preliminary injunction, a movant must establish: (i) a substantial

likelihood of success on the merits; (ii) a substantial threat of irreparable injury if the

injunction is not issued; (iii) that the threatened injury if the injunction is denied

outweighs any harm that will result if the injunction is granted; and (iv) that the

grant of an injunction will not disserve the public interest. Byrum v. Landreth, 566

F.3d 442, 445 (5th Cir. 2009) (citation omitted). “The first two factors of the

traditional standard are the most critical. And [t]here is authority that likelihood of

success on the merits … is the most important of the preliminary injunction factors.”

Career Colleges & Sch. Of Texas v. United States Dep’t of Educ., 98 F.4th 220, 233

(5th Cir. 2024) (internal quotation marks and quoted sources omitted). It is well-

established that the decision regarding whether to grant preliminary injunctive relief

is committed to the district court’s sound discretion. Miss. Power & Light Co. v.

United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir. 1985).

Under the APA, courts may “hold unlawful and set aside agency action” that

is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law;” “contrary to constitutional right, power, privilege, or immunity;” or “in excess of

statutory jurisdiction, authority, or limitations.” 5 U.S.C. §§ 704, 706(2); Texas v.

EEOC, 933 F.3d 433, 447 (5th Cir. 2019).9 Here, the EEOC “must point to explicit

Congressional authority justifying [its] decisions.” Clean Water Action v. EPA, 936

F.3d 308, 313 n.10 (5th Cir. 2019). In an APA challenge, “the core inquiry” is

“whether the proposed agency rule is a lawful extension of the statute under which

the agency purports to act.” VanDerStok v. Garland, 86 F.4th 179, 188 (5th Cir.

9 “[A]n agency literally has no power to act ... unless and until Congress confers power

upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S. Ct. 1890, 90 L.Ed.2d 369

(1986). See also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S. Ct. 468, 102

L.Ed.2d 493 (1988) (“It is axiomatic that an administrative agency’s power to promulgate

legislative regulations is limited to the authority delegated by Congress.”); Clean Water

Action v. U.S. Env’t Prot. Agency, 936 F.3d 308, 313 n.10 (5th Cir. 2019) (“To be sure, agencies,

as mere creatures of statute, must point to explicit Congressional authority justifying their

decisions.”).

2023). The answer lies in statutory interpretation. Id. Only where the statutory text

shows that EEOC has “clear congressional authorization” to enact a regulation can

such a regulation withstand judicial scrutiny. West Virginia v. Env’t Prot. Agency,

597 U.S. 697, 724, 142 S. Ct. 2587, 2614 (2022) (“EPA”), quoting Util. Air Regul. Grp.

v. E.P.A., 573 U.S. 302, 324, 134 S. Ct. 2427, 189 L.Ed.2d 372 (2014).

A. Substantial Likelihood of Success on the Merits

1. The States Plaintiffs

a. Statutory Authority

The Court’s inquiry starts with the fact that the text of the PWFA makes no

reference to abortion; it does not contain the word “abortion” even once. However,

EEOC argues that because Title VII protects employees who choose to have (or not to

have) an abortion – and because Congress enacted the PWFA with identical language

as Title VII for the express purpose of expanding Title VII’s protections – the PWFA

must also be understood to protect employees who choose to have (or not to have) an

abortion.10 But EEOC rests its argument entirely on its own enforcement guidelines

on pregnancy discrimination and two pre-Dobbs lower court decisions wherein

10 Specifically, EEOC points to Congress’s amendment of Title VII in 1978, which

clarifies that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited

to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]” 42

U.S.C. § 2000e(k). In that same subsection, Congress provided that “[t]his subsection shall

not require an employer to pay for health insurance benefits for abortion, except where the

life of the mother would be endangered if the fetus were carried to term, or except where

medical complications have arisen from an abortion.” Id. EEOC argues that the latter

sentence confirms that abortion is included within the preceding statutory phrase

“pregnancy, childbirth, or related medical conditions” in Title VII, and that because the same

phrasing is used in the PWFA, Congress clearly intended for the PWFA to include

accommodation for abortion.

employers were barred from taking adverse actions against employees because the

employees “contemplated having, or chose to have, an abortion” under Title VII,

contending that these two cases comprise “settled” law on the issue.11 89 Fed. Reg.

29,110, 29,152 n.296.

The Court is not persuaded by EEOC’s textual interpretation of the abortion

accommodation mandate for several reasons. First, “[h]ornbook canons of statutory

construction require that every word in a statute be interpreted to have meaning, and

Congress’s use and withholding of terms within a statute is taken to be intentional.”

U.S. Chamber of Commerce. v. U.S. Dep’t of Labor, 885 F.3d 360, 381 (5th Cir. 2018).

Thus, we must begin with the presumption that Congress’s decision not to include

any reference to abortion in the PWFA was intentional. Indeed, while the PWFA

explicitly cross-references provisions of Title VII throughout, the PWFA does not

incorporate Title VII’s amended pregnancy provision. 42 U.S.C. § 2000e(k). And

although Congress directed that certain terms incorporated in PWFA from the ADA

“shall be construed as such terms are construed” thereunder, 42 U.S.C. § 2000gg(7),

no provision of the PWFA requires incorporation of the “pregnancy, childbirth, or

related medical conditions” language of 42 U.S.C. § 2000e(k).

11 See Enforcement Guidance on Pregnancy Discrimination, at (I)(A)(4)(c) & n.58;

https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-

related-issues (providing that the term “pregnancy, childbirth, or related medical conditions”

includes current pregnancy, past pregnancy, potential or intended pregnancy, and related

medical conditions); Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3rd Cir. 2008)

(holding that Title VII, as amended by the PDA, prohibits an employer from discriminating

against a female employee because she has exercised her right to have an abortion); Turic v.

Holland Hospitality, Inc., 85 F.3d 1211, 1214 (6th Cir. 1996) (finding the termination of a

pregnant employee because she contemplated having an abortion violated the PDA).

The parties argue extensively in their briefing about whether an abortion is a

“condition” or a “procedure.” As a matter of basic statutory interpretation using

plain-meaning analysis, the Plaintiffs clearly have the stronger position. The

decision to obtain a purely elective abortion is not undertaken to treat a “medical

condition” related to pregnancy or childbirth. It is thus better described as a medical

“procedure,” as Plaintiffs suggest. And the EEOC’s arguments to the contrary

amount to little more than semantic gymnastics.

This notwithstanding, the Court sees this issue as even more straightforward.

“Abortion” is a term that is readily understood by everyone. If Congress had intended

to mandate that employers accommodate elective abortions under the PWFA, it

would have spoken clearly when enacting the statute, particularly given the

enormous social, religious, and political importance of the abortion issue in our nation

at this time (and, indeed, over the past 50 years). The Court is therefore not

persuaded, on the record before it, that Congress could reasonably be understood to

have granted the EEOC the authority to interpret the scope of the PWFA in a way

that imposes a nationwide mandate on both public and private employers –

irrespective of applicable abortion-related state laws enacted in the wake of Dobbs –

to provide workplace accommodation for the elective abortions of employees.

In this sense, EEOC’s use of its regulatory power to insert the issue of abortion

into a law designed to ensure healthy pregnancies for America’s working mothers

squarely implicates the “major questions doctrine” as enunciated by the Supreme

Court. EPA, 597 U.S. at 724. The major questions doctrine applies when an “agenc[y]

assert[s] highly consequential power beyond what Congress could reasonably be

understood to have granted.” Id., quoting Utility Air Regulatory Group v. EPA, 573

U.S. 302, 324, 134 S. Ct. 2427, 189 L.Ed.2d 372 (2014) (internal quotation marks

omitted). Under this commonsense principle, courts should “expect Congress to speak

clearly if it wishes to assign to an agency decisions of vast economic and political

significance.” EPA, 597 U.S. at 729 (“We also find it ‘highly unlikely that Congress

would leave’ to ‘agency discretion’ the decision of how much coal-based generation

there should be over the coming decades.”); See also Food & Drug Admin. v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 123, 120 S. Ct. 1291, 1296, 146 L.Ed.2d

121 (2000) (“It is highly unlikely that Congress would leave the determination as to

whether the sale of tobacco products would be regulated, or even banned, to the FDA’s

discretion in so cryptic a fashion.”).

EEOC contends that the major questions doctrine has no relevance in this case,

arguing the abortion accommodation mandate presents an “ordinary question of

statutory interpretation,” and imposes “general workplace protections for workers

who choose to, and choose not to, have an abortion.” [Doc. 29, p. 26, 24-cv-00691].

EEOC goes on to assert that the agency “was not exercising its own discretion” in

deciding what conditions are covered or the scope of any religious exceptions but

rather was enforcing “policy decisions” made by “Congress itself.” Id. The Court finds

these arguments disingenuous. Since the Supreme Court decision of Roe v. Wade in

1973, abortion has been one of the most important social, religious, and political

issues of our time and is a major issue in every federal election. See Dobbs, 597 U.S.

at 223 (“Abortion presents a profound moral issue on which Americans hold sharply

conflicting views.”); Dobbs, 597 U.S. at 337 (“Abortion is a profoundly difficult and

contentious issue because it presents an irreconcilable conflict between the interests

of a pregnant woman who seeks an abortion and the interests in protecting fetal life.

The interests on both sides of the abortion issue are extraordinarily weighty.”)

(Kavanaugh, J, concurring). See also Planned Parenthood of Se. Pennsylvania v.

Casey, 505 U.S. 833, 850, 112 S. Ct. 2791, 2806, 120 L.Ed.2d 674 (1992) (“Men and

women of good conscience can disagree, and we suppose some always shall disagree,

about the profound moral and spiritual implications of terminating a pregnancy, even

in its earliest stage.”), overruled by Dobbs, 597 U.S. at 302. Indeed, a 2023 Gallup

poll reported that a record high 28% of registered voters say they will only vote for

candidates for major offices who share their position on abortion.12 Accordingly,

EEOC must point to “clear congressional authorization” to extend the PWFA to

impose an abortion accommodation mandate on public and private employers. Utility

Air, 573 U.S. at 324. Not only is the EEOC unable to point to any language in the

PWFA empowering it to mandate the accommodation of elective abortions, but there

can be little doubt in today’s political environment that any version of the PWFA that

included an abortion accommodation requirement would have failed to pass

Congress. The Court therefore finds that the EEOC’s arguments fail at this stage of

the proceeding.

Second, EEOC’s “smattering of lower court opinions” addressing abortion in

the context of Title VII hardly qualifies as a judicial consensus “so broad and

unquestioned that we must presume Congress knew of and endorsed it.” BP p.l.c. v.

12 https://news.gallup.com/poll/507527/abortion-remains-potent-issue-pro-choice-

voters.aspx.

Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1541 (2021), citing Jama v.

Immigr. & Customs Enf’t, 543 U.S. 335, 350-52, 125 S. Ct. 694, 704, 160 L.Ed.2d 708

(2005) (a “supposed judicial consensus” that “boils down to the decisions of two Courts

of Appeals” is not sufficiently “broad and unquestioned” to support congressional

ratification).

However, one judicial opinion this Court can presume Congress was aware of

when it passed the PWFA was the Dobbs decision. Title VII was amended in 1978 to

include anti-discrimination protection for pregnancy, childbirth, and related

conditions. The EEOC’s implementing regulations incorporated the constitutional

protection of abortion established in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35

L.Ed.2d 147 (1973). But the PWFA was enacted in December 2022, six months after

the Supreme Court decided Dobbs, which removed abortion as a constitutional

concern and expressly returned the issue to the States. With Dobbs and all of its

implications fresh in the minds of lawmakers, it is not credible that Congress clearly

intended that the PWFA include an abortion accommodation mandate.

And if there were any remaining doubt, the legislative history unambiguously

confirms that Congress specifically did not intend for the PWFA to require employers

to accommodate abortion. Indeed, lawmakers from both sides of the aisle expressly

stated that the PWFA does not address abortion. The Democratic sponsor of the

PWFA, Senator Bob Casey, emphasized in response to concerns that abortion might

be at issue: “I want to say for the record … that under the [PWFA], the [EEOC] could

not – could not – issue any regulation that requires abortion leave, nor does the act

permit the EEOC to require employers to provide abortions in violation of State law.”

168 Cong. Rec. S7050 (daily ed. Dec. 8, 2022). Republican Senator Steve Daines

similarly noted that “Senator Casey’s statement reflects the intent of Congress in

advancing the [PWFA] today. This legislation should not be misconstrued by the

EEOC or Federal courts to impose abortion-related mandates on employers, or

otherwise to promote abortions, contrary to the intent of Congress.” 168 Cong. Rec.

S10081 (daily ed. Dec. 22, 2022). And Republican Senator Bill Cassidy, also a sponsor

of the PWFA, likewise “reject[ed] the characterization that [the PWFA] would do

anything to promote abortion.” 168 Cong. Rec. S7050 (daily ed. Dec. 8, 2022).

Additionally, after concerns were raised about the PWFA’s initial failure to include a

religious exemption, Senator Cassidy confirmed on the Senate floor that the PWFA

“allows employers to make employment decisions based on firmly held religious

beliefs.” 168 Cong. Rec. S7050 (daily ed. Dec. 8, 2022).

At its core, this is a textbook case of a federal administrative agency exceeding

its statutory authority in a way that both usurps the role of Congress and violates

authority vested in the states under the principles of federalism. Considering the

foregoing, this Court finds a likelihood of success of the merits that EEOC’s textual

interpretation of the PWFA to include an abortion accommodation mandate exceeds

that agency’s Congressional authorization.

b. State Sovereignty and Free Speech

As discussed above, because the abortion accommodation mandate forces the

States Plaintiffs to provide (and fund) accommodations for elective abortions that

directly conflict with the States’ own laws and policies, the abortion accommodation

mandate “is destructive of state sovereignty.” Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528, 554 (1985). The people of Louisiana and Mississippi, through

their elected representatives, have chosen to enact legislation and promote public

policy that is antithetical to the directives of the abortion accommodation mandate.

The States Plaintiffs therefore adequately demonstrate that they are likely to succeed

on their claims that the abortion accommodation mandate violates the principles of

federalism and encroaches on state sovereignty.

Finally, although the First Amendment does not confer rights on States, the

“Supreme Court has made clear that the government (state and otherwise) has a

‘right’ to speak on its own behalf.” Missouri v. Biden, 83 F.4th 350, 372 (5th Cir.),

cert. granted sub nom. Murthy v. Missouri, 144 S. Ct. 7, 217 L.Ed.2d 178 (2023),

citing Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229, 120 S. Ct.

1346, 146 L.Ed.2d 193 (2000). The abortion accommodation mandate unquestionably

impedes on the authority of Louisiana and Mississippi to control their own messaging

with respect to the issue of abortion within their borders.

For the foregoing reasons, the Court concludes that the States Plaintiffs satisfy

their burden of showing that they are likely to succeed on the merits of their claims

that the abortion accommodation mandate of the Final Rule is arbitrary and

capricious and exceeds the EEOC’s statutory authority.13

13 The Court’s findings with respect to the textual analysis of the abortion

accommodation mandate are equally applicable to the Bishops Plaintiffs, who make the same

argument.

2. The Bishops Plaintiffs

a. Free Speech and Religious Exceptions

The Bishops Plaintiffs start with the premise that their religious teachings do

not allow their employees to speak or act in ways that conflict with fundamental

Roman Catholic beliefs. In this manner, the Bishops Plaintiffs contend that the

abortion accommodation mandate prohibits them from taking adverse employment

actions against employees or faculty that advocate for abortion; requires the Bishops

Plaintiffs to change their religious speech in ways that supports elective abortion;

and requires them to knowingly accommodate employees when they obtain elective

abortions. The Bishops Plaintiffs also argue that EEOC unlawfully narrowed the

religious exemptions found in the PWFA and Title VII. EEOC responds that the

Bishops Plaintiffs have submitted no evidence demonstrating that these alleged

injuries will occur imminently, or that the EEOC would proceed with an enforcement

action against them. EEOC also argues that the Bishops Plaintiffs have a host of

available defenses – including the Religious Freedom Restoration Act (“RFRA”), 42

U.S.C. § 2000bb, et seq., and the ministerial exception – that can be urged if and when

a charge is filed against them. Thus, EEOC contends that the Bishops Plaintiffs

cannot establish that the Final Rule’s interpretation of religious exceptions injures

them, or that the Final Rule fails to offer sufficient protection for the conduct that

violates the Final Rule. The Court disagrees.

The text of the PWFA directly incorporates Title VII’s religious exemption and

makes the entire PWFA “subject to” the exemption. 42 U.S.C. § 2000gg-5(b).14 Title

VII states: “This subchapter shall not apply to … a religious corporation, association,

educational institution, or society with respect to the employment of individuals of a

particular religion.” 42 U.S.C. § 2000e-1(a). The Bishops Plaintiffs argue that Title

VII thus exempts religious entities from the requirements of the entire “subchapter”

– e.g., all of Title VII, not merely one category of claims – protecting religious

employers from any Title VII claim if an employer made an employment decision

based on an individual’s particular religious belief, observance, or practice. See, e.g.,

EEOC v. Mississippi Coll., 626 F.2d 477, 485-86 (5th Cir. 1980) (barring a sex-

discrimination investigation under Title VII where a religious employer “applied its

policy of preferring Baptists over non-Baptists.”); Curay-Cramer v. Ursuline

Academy, 450 F.3d 130, 132 (3d Cir. 2006) (religious exemption bars sex-

discrimination claim); Bear Creek, 571 F. Supp. 3d at 591 (“The plain text of [the

religious] exemption” bars sex-discrimination claims “when [a religious employer]

refuses to employ an individual … based on religious observance, practice, or belief).

But the Final Rule takes a narrower view of Section 107(b), as follows:

Under the Commission’s interpretation of section 107(b), the PWFA does

not fully exempt qualifying religious organizations from making

14 The religious exception of the PWFA is contained in Section 107(b) and provides as

follows:

(b) Rule of construction

This chapter is subject to the applicability to religious employment set forth in

section 2000e-1(a) of this title.

42 U.S.C.A. § 2000gg-5(b).

reasonable accommodations. This is analogous to section 702(a), which

likewise does not operate as a total exemption from Title VII’s

requirements.

Under section 702(a), for example, qualifying religious organizations are

exempt from Title VII’s prohibition against discrimination on the basis

of religion, but, as U.S. courts of appeals have recognized, qualifying

religious organizations are still subject to the law’s prohibitions against

discrimination on the basis of race, color, sex, and national origin, and

they may not engage in related retaliation. If a qualifying religious

organization asserts as a defense to a claim under the PWFA that it took

the challenged action on the basis of religion and that section 107(b)

should apply, the merits of any such asserted defense will therefore be

determined on a case-by-case basis consistent with the facts presented

and applicable law.

Final Rule, 29096-01, 29146-29147 (internal citation omitted). Thus, EEOC contends

that the PWFA exemption protects religious entities from claims of religious

discrimination only. 89 Fed. Reg. at 29,146.

Clearly, EEOC failed to include a broad religious exception in the Final Rule,

and, as the Bishops Plaintiffs argue, EEOC’s interpretation of the PWFA religious

exception – inasmuch as it mirrors the religious exception in Title VII, an anti-

discrimination statute – does not square with the PWFA. Where, as here, the Bishops

Plaintiffs’ arguments and declarations supporting their Motion portend protracted

investigations and litigation concerning the applicability of religious exceptions,

thereby forcing the Bishops Plaintiffs to address their religious exceptions on a case-

by-case basis, they have shown, at a minimum, an injurious regulatory burden.

Under these circumstances, and because (as discussed supra) the EEOC has clearly

exceeded its authority in including the abortion accommodation mandate in the Final

Rule, the Court concludes the Bishops Plaintiffs have demonstrated a substantial

likelihood of success on their claims of statutory and constitutional overreach by an

administrative agency.

B. Substantial Threat of Irreparable Injury

“Although imminence is concededly a somewhat elastic concept, it cannot be

stretched beyond its purpose, which is to ensure that the alleged injury is not too

speculative for Article III purposes – that the injury is certainly impending.” Lujan,

504 U.S. at 565, n.2 (internal quotation marks omitted). Accordingly, “threatened

injury must be certainly impending to constitute injury in fact,” and “[a]llegations of

possible future injury” are not sufficient. Clapper, 568 U.S. at 1147. See also

Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 109 L.Ed.2d 135 (1990).

Both the States and Bishops Plaintiffs argue that, for the same reasons they

have standing to sue, they face a substantial threat of irreparable injury if an

injunction against the abortion accommodation mandate of the Final Rule is not

issued. The States Plaintiffs point to the thousands of female state employees for

which the Final Rule would potentially require the States to make workplace

accommodations for elective abortions – accommodations that are not currently

provided.15 The States Plaintiffs argue that the abortion accommodation for purely

elective abortions would thus cause irreparable harm to the States in the form of

compliance costs, infringement of state sovereignty, and compelled speech. The

Bishops Plaintiffs contend the same with respect to compliance costs, religious

infringement, and compelled speech. See, infra, pp. 12-13.

15 See Schober Declaration at ¶ 14 [Doc. 17-2, ¶ 14]; Hardwick Declaration at ¶ 9 [Doc.

17-3, ¶ 9].

For the same reasons this Court finds that the States and Bishops Plaintiffs

have standing to challenge the abortion accommodation mandate, it finds that the

States will suffer specific and irreparable injuries if the abortion accommodation

mandate is not enjoined. And the June 18, 2024, effective date of the Final Rule

means that such potential injuries are immediate.

C. Balance of Equities and Public Interest

The parties present important competing interests and equities. The PWFA,

as enacted by Congress, “eliminate[s] discrimination and promote[s] women’s health

and economic security,” H.R. Rep. No. 117-27, at 1, objectives that were bi-partisan

and broadly supported by Congress. EEOC argues that an injunction would interfere

with Congress’s judgment about how best to achieve those objectives. But considering

the findings made herein – that EOOC has likely exceeded its statutory authority in

including an abortion accommodation mandate in the Final Rule – and considering

the abortion-related laws and policies promulgated and effected by duly elected

representatives of the people of the States Plaintiffs, as well as the deeply held

religious beliefs of the Bishops Plaintiffs, the Court finds that the harm to the States

Plaintiffs and Bishops Plaintiffs of allowing the abortion accommodation mandate to

take effect outweighs any harm to the EEOC if the mandate is enjoined. And, of

course, the Court’s decision in this matter in no way limits, impedes, or otherwise

affects those covered employers who choose to implement employment policies or

practices to provide leave or other workplace accommodation for the elective

abortions of employees. The balance of equities and public interest weigh in favor of

the Plaintiffs.

CONCLUSION

Considering the foregoing,

IT IS HEREBY ORDERED that the MOTION FOR PRELIMINARY INJUNCTION

[Doc. 17], filed by the States of Louisiana and Mississippi, and the MOTION FOR

PRELIMINARY INJUNCTION [Doc. 11] filed by the United States Conference of Catholic

Bishops, Society of the Roman Catholic Church of the Diocese of Lake Charles,

Society of the Roman Catholic Church of the Diocese of Lafayette, and Catholic

University of America are GRANTED IN PART.

IT IS FURTHER ORDERED that this preliminary injunction postpones the

effective date of the Final Rule’s requirement that covered entities provide

accommodation for the elective abortions of employees that are not necessary to treat

a medical condition related to pregnancy.16 The scope of the injunction shall apply

to:

1) The States of Louisiana and Mississippi and any agency thereof;

2) Any covered entity under the Final Rule with respect to all employees

whose primary duty station is located in Louisiana or Mississippi; and

3) The Bishops Plaintiffs.

The postponement shall remain in effect until final judgment is entered in the

consolidated cases, respectively.

16 To avoid any uncertainty, terminations of pregnancy or abortions stemming from the

underlying treatment of a medical condition related to pregnancy are not affected by this

preliminary injunction. Such procedures are clearly “related to, affected by, or arising out of

pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000gg(4). Covered

employers are therefore required to provide accommodation to the extent set forth in the

PWFA.

IT IS FURTHER ORDERED that the EEOC is preliminarily enjoined with

respect to the above-listed parties from: (i) initiating any investigation into claims

that a covered employer has failed to accommodate an elective abortion that is not

necessary to treat a medical condition related to pregnancy; and (ii) issuing any

Notice of Right to Sue with respect to the same.

THUS, DONE AND SIGNED in Chambers on this 17“ day of June 2024.

Chad C foots

DAVID C. JOSEPH

UNITED STATES DISTRICT JUDGE

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