Eighth Circuit Rules States May Challenge PWFA’s Inclusion of Abortion as a ‘Related Medical Condition’

Quick Hits

• The  U.S. Equal Employment Opportunity Commission (EEOC) published a final rule for implementing the PWFA , which took effect on June 18, 2024. Several legal challenges to the rule’s inclusion of abortion as a “related medical condition” have been filed.
• The Eighth Circuit recently revived a case that seventeen states brought to challenge provisions in the PWFA regarding accommodations for employees seeking an abortion after the district court found the states lacked standing.
• The case will proceed at the district court level.
• Changes in federal policy under the new presidential administration may impact the trajectory of the case.

On February 20, 2025, the U.S. Court of Appeals for the Eighth Circuit ruled that seventeen states—Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia—had standing to challenge parts of the PWFA related to reasonable accommodations for employees seeking an abortion.

The PWFA requires employers to provide reasonable accommodations for employees with pregnancy-related health conditions, which include miscarriage, stillbirth, and abortion under the final rule. In the lawsuit, the states argued that the EEOC exceeded its authority in how it defined “pregnancy-related health definitions.” The states claimed the PWFA regulations would hinder their ability to regulate abortions and their interests in maintaining a pro-life message in dealing with state employees. The states also argued the PWFA regulations would subject them to economic harm because of compliance costs.

On June 14, 2024, the U.S. District Court for the Eastern District of Arkansas denied the states’ request for a preliminary injunction. It ruled that the states lacked standing because they did not show a likelihood of irreparable harm from the PWFA regulations. The risk of enforcement is speculative because “unlike in situations involving private employers, the EEOC cannot bring enforcement actions against state employers,” the district court stated.

The Eighth Circuit disagreed and found the states are employers under the PWFA and the final rule. They would be required to provide accommodations, change employment practices and policies, and refrain from messaging that would be arguably prohibited under the rule. The court went on to find that the imposition of a regulatory burden action alone causes injury. Therefore, the states had standing.

Next Steps

This case was remanded to the U.S. District Court for the Eastern District of Arkansas. President Donald Trump recently removed two commissioners from the EEOC, and the agency has signaled a change in enforcement policies, and plans to do so when the Commission has a quorum. The agency could issue new regulations for the PWFA or change how it is approaching this case.

In the meantime, private and public employers may wish to review their policies and practices around reasonable accommodations for pregnancy-related conditions, so they continue to adhere to state and federal laws.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Leaves of Absence and State Developments blogs as new information becomes available.

Christine Bestor Townsend is a shareholder in Ogletree Deakins’ Milwaukee and Chicago offices.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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