A Texas lawsuit challenging the Pregnant Workers Fairness Act is not just an attack on pregnant workers—it’s a direct threat to Congress’ constitutional authority and the democratic process.
This essay is a part of our latest installment of Women & Democracy all about the Pregnant Workers Fairness Act (PWFA)—a groundbreaking civil rights law ensuring pregnant and postpartum workers have the right to reasonable workplace accommodations. Bipartisan, pro-family and boldly feminist, the PWFA is both a lesson in democracy and a battleground for its defense against antidemocratic attacks. The multimedia project, “The Pregnant Workers Fairness Act Is Essential to Democracy,” was produced in partnership with A Better Balance and explores the decade-long fight for the law’s passage, its impact—particularly on women in low-wage jobs and women of color—and the legal and organizing strategies shaping its future.
The Pregnant Workers Fairness Act (PWFA) is a landmark federal law that helps ensure pregnant workers get the support they need to stay healthy. It requires employers to provide pregnant workers “reasonable accommodations,” such as being allowed to sit on a stool, carry a water bottle, or avoid heavy lifting. As U.S. Sen. Bill Cassidy put it, PWFA is “pro-family, pro-mother, pro-baby, pro-employer and pro-economy.”
The PWFA enjoyed broad bipartisan support, easily passed the House, and was favorably reported out of committee in the Senate. In December 2022, as the outgoing Congress scrambled to finish its work, the PWFA was combined with other pending legislation as part of a larger bill, known as “omnibus legislation.” This is a common practice. This larger bill, which also authorized $1.7 trillion in government funding, passed both houses and was signed by former President Joe Biden.
It did not take long, however, for attacks to ensue. The state of Texas, represented by Texas Attorney General Ken Paxton, filed a lawsuit challenging the validity of PWFA because the House of Representatives had allowed members to vote for the omnibus bill by proxy. Notably, Texas had no qualms about accepting federal funding that was approved in the omnibus bill, also with the use of proxy votes.
And this is the same Texas administration that has passed some of the most draconian restrictions on abortion in the country—which they have defended by saying the state is committed to “protecting” the unborn. So it’s odd, to say the least, that Texas felt compelled to attack a law designed to support healthy pregnancies.
But those points aside, the lawsuit is an audacious affront to Congress. Under the U.S. Constitution, each house of Congress has the authority to “determine the Rules of its Proceedings.” During the COVID pandemic, the House of Representatives passed a rule establishing a proxy voting process and providing that members who voted by proxy would be counted for purposes of establishing a quorum. Relying on this rule, more than 200 House members, both Democrats and Republicans, voted by proxy on the omnibus bill. A federal trial judge in Texas, however, held that PWFA was unconstitutional because he believed only “in person” votes could count for determining a quorum. The case is now pending before the federal appeals court for the 5th Circuit.
The case implicates fundamental questions regarding the separation of powers, the Constitutional framework designed to protect the independence of each branch of government. I worked with a group of other law professors and legal historians on an amicus, or “friend of the court,” brief that explains the history of the constitutional provisions that are relevant to the case.
In structuring the Constitution’s rules regarding quorums, the framers sought to ensure broad participation in their new democracy. They thus required that each House of Congress must have a “Majority” to “do Business.” This was a purposeful repudiation of the anti-democratic rules that then existed in the English House of Commons, which allowed just a handful of legislators—45 out of 600—to set policy. In a separate clause, the framers specified members could “compel Attendance of absent members.” This was intended to guard against the opposite risk, that a minority of members could obstruct the majority’s ability to enact legislation by simply walking out.
Courts have consistently held that so long as Congress complies with these basic requirements, it has significant flexibility to develop additional guidelines regarding how it determines whether a quorum exists. Several congressional leaders submitted amicus briefs in the case to emphasize the importance of protecting this process. As they explained, Congress has routinely adjusted its practices, from authorizing voice voting and unanimous consent procedures to putting special rules in place during the Civil War and a prior yellow fever outbreak.
If the courts were to impose a strict “in person” requirement, the legitimacy of numerous other laws passed under such procedures could be called into question. A brief submitted by former Republican Senate Majority Leader Mitch McConnell is particularly compelling on this point. He explains that he himself was opposed to proxy voting and thought it was unnecessary, even during COVID—but that neither he, nor the judiciary, has the authority to “second guess” the House’s decision to the contrary.
The House’s proxy rule, like the quorum clause itself, was intended to enhance participation. And indeed, virtually every member of the House of Representatives, 431 out of 435, voted on the omnibus bill that included PWFA. The 5th Circuit needs to reverse the lower court decision in the case. It’s essential for the health of pregnant workers in Texas—and the health of our constitutional democracy.
