In an effort to implement the Pregnant Workers Fairness Act (PWFA)—which prohibits discrimination on the basis of an employee’s ‘‘pregnancy, childbirth, or related medical conditions”—the Equal Employment Opportunity Commission (EEOC) has proposed a rule to include abortion within the scope of related medical conditions. Now, extremists are arguing, with no legal or historical basis, that the EEOC doing so would violate the “major questions doctrine”—a doctrine that is being used by far-right interests to seemingly reject any government action with which they disagree.

Extremists and special interests are wrong.

Constitutional and administrative law scholars submitted their comment letter to the EEOC to set the record straight and explain why the EEOC’s effort does not violate the “major questions doctrine.” Democracy Forward assisted the scholars in preparing their comment as part of our commitment to advancing a democracy that protects people from discrimination and rejects baseless and harmful application of legal doctrines.

As the scholars note in their comment, the “major questions doctrine” is only meant to apply to a very limited category of extraordinary cases under very specific criteria, and the EEOC’s rule meets none of those criteria. 

The EEOC’s interpretation of the PWFA—that abortion is “related” to pregnancy and childbirth—is not remotely unheralded, transformative, or unprecedented. To the contrary, in the PWFA, Congress repeated language the EEOC has already interpreted to include abortion in a parallel law, the Pregnancy Discrimination Act (PDA). All this proposed rule does is align the EEOC’s definition of ‘‘pregnancy, childbirth, or related medical conditions” under the PWFA with the longstanding definition of that term under the PDA.

The administrative and constitutional law experts who submitted the comment are:

  • Kate A. Shaw, Professor of Law, Benjamin N. Cardozo School of Law
  • Greer Donley, Associate Dean for Research and Faculty Development, University of Pittsburgh School of Law 
  • Melissa E. Murray, Frederick I. and Grace Stokes Professor of Law, New York University School of Law
  • David S. Cohen, Professor of Law, Drexel University Thomas R. Kline School of Law 
  • Leah Litman, Professor of Law, University of Michigan Law School
  • Rachel Rebouché, Dean & James E. Beasley Professor of Law, Temple University Beasley School of Law