Amicus Brief: U.S. Conference of Catholic Bishops v. EEOC

In 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA). While the act doesn't take a position in debates over abortion, the EEOC later issued a rule that requires employers to accommodate workers’ abortions. Some religious groups, including a group of Catholic bishops, brought administrative law claims seeking to invalidate the rule as exceeding the agency’s authority, both by including the abortion accommodation requirements and by reading the PWFA’s religious exemption too narrowly. The district court issued a ruling and a partial final judgment that stated that employers (including religious employers) must accommodate many abortions.

Now at the Fifth Circuit, the Manhattan Institute has filed a brief in support of the groups challenging the rule. While this case might be seemingly about abortion, it is actually about the powers of Congress and the agencies that administer statutes. Over the past decade or so, the Major Quesitons Doctrine has become an important doctrine for restoring constitutional governance. It basically says that if an agency does something major and it isn't clear that Congress authorized it, then courts should stop the agency action. Generally, this doctrine has been used for financially costly rules, such as the Clean Power Plan rule. But there is no reason the doctrine should be limited to only economically significant "major questions."

We argue PWFA does not say anything about mandating abortion accommodations, particularly for religious employers like the U.S. Conference of Catholic Bishops. That is certainly a major question that Congress did not mean for the EEOC to decide without explicit authorization. The PWFA does not give that authority, and in fact the bill’s sponsors disclaimed that authority. If Congress intended to violate people’s religious rights, it’s reasonable to expect that it would have clearly said so. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Josh Blackman is an adjunct fellow at the Manhattan Institute and a professor at the South Texas College of Law Houston.