A legal battle in Texas threatens to dismantle the Pregnant Workers Fairness Act—putting the rights of pregnant and postpartum workers, and the integrity of congressional lawmaking, on the line.
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.
For landmark civil rights laws like the Pregnant Workers Fairness Act (PWFA), the fight does not stop when a bill is signed into law. From the outset, the PWFA was targeted by lawsuits seeking to invalidate its protections. As civil rights litigators, we work to ensure these attacks are defeated, and that workers can access the promise of the PWFA.
In February 2024, a federal judge in Texas erased the rights of thousands of Texas state employees, blocking them from pursuing claims under the PWFA. The ruling, which came only eight months after Texas workers, and all workers had finally won long-awaited rights under the PWFA, devastated workers and their allies. It also threatened the democratic values that our organizations work to defend.
The case began when the state of Texas sought to avoid its obligations under the PWFA by bringing suit in federal court, alleging that the PWFA was enacted in violation of the constitution’s Quorum Clause because it passed the House of Representatives in reliance on proxy votes cast by House members under Covid-era rules. Ultimately, a federal judge agreed with the state of Texas and issued an order stopping Texas state employees from accessing their PWFA rights.
The 5th Circuit is now considering this case, and if the Texas judge’s decision is upheld, the consequences could be devastating for pregnant and postpartum workers nationwide. So our organizations, A Better Balance and Democracy Forward, are fighting to avoid this outcome by making the case to the 5th Circuit that the PWFA should remain intact.
This past summer, we authored amicus briefs supporting the federal government’s appeal of the Texas judge’s decision. A Better Balance partnered with maternal and child health advocates March of Dimes to show how the PWFA is an essential protection for pregnant workers and their families. Through the stories of workers like Erica Hayes, a warehouse employee who lost her pregnancy after hours of heavy lifting, we illustrated how devastating consequences can follow the denial of even modest accommodations. We used data gathered by the March of Dimes to demonstrate the clear connection between hazardous workplace conditions and severe impacts on maternal and fetal health, ranging from pre-term birth to postpartum depression. We also detailed the broad, bipartisan support the PWFA received in Congress from maternal and infant health organizations, the business community and faith groups.
Meanwhile Democracy Forward submitted an amicus brief focusing on the national security implications of this case on behalf of high-ranking current and former national security officials, including former Secretaries of Homeland Security Michael Chertoff and Tom Ridge, former Secretaries of Defense Willliam Cohen and Chuck Hagel, former CIA and NSA head General Michael Hayden, and former chairman of the Joint Chiefs of Staff Admiral Michael Mullen. These seasoned experts spoke from personal knowledge to warn of the myriad national security threats our country faces, and the need for Congress to act swiftly in times of national emergency, explaining why “[i]t is imperative that Congress be free to act when faced with a national security crisis, regardless of whether its Members are able to physically convene in a single location.” The brief also pointed out that the Rulemaking Clause of the Constitution gives Congress the power to determine its own procedural rules, providing necessary flexibility in times of national emergency such as the COVID-19 pandemic.
Our voices were joined by a broad and varied group of stakeholders—ranking members of the House of Representatives, then-Senate Minority Leader Mitch McConnell, the Iraq and Afghanistan Veterans of America, a group of legal historians and legislative scholars, and Texas employment attorneys and advocates–all of whom filed amicus briefs underlining this case’s implications for our democratic values and constitutional rights. Some of their briefs spoke to the critical need for the PWFA, or to the importance of other legislation enacted as part of the Consolidated Appropriations Act. Others explained that the Constitution provides Congress with the power to set its own rules, including the rules authorizing the means by which members vote, and provided historical examples illustrating Congress’s proper exercise of this authority.
Many of the amicus briefs spoke to the potentially dire implications for the functioning of our government if the district court’s decision stands. Invalidating the Congressional vote that enacted the PWFA would not only threaten the rights of millions of pregnant and postpartum workers across the United States. It could also strip critical rights and benefits from veterans and other groups. And, more fundamentally, it represents an improper intrusion by the courts into Congress’s ability to set its own rules of procedure.
The 5th Circuit heard oral arguments in the appeal at the end of February. Regardless of the outcome, we will continue to fight in the courts to hold governments to account and to defend the rights of pregnant and postpartum workers, wherever that fight takes us next.
