Judge lets over 8,000 Catholic employers deny worker protections for abortion and fertility care

[September 25, 2024]  By JACK DURA and STEVE KARNOWSKI

BISMARCK, N.D. (AP) — A federal judge is allowing more than 8,000 Catholic employers nationwide to reject government regulations that protect workers seeking abortions and fertility care.

In a sharply worded order, U.S. District Judge Daniel Traynor, of Bismarck, North Dakota, granted a preliminary injunction Monday, ruling that the Catholic Benefits Association and the Diocese of Bismarck were likely to succeed in proving that a final rule adopted by the Equal Employment Opportunity Commission in April violated their freedom of religion. The regulations are meant to enforce the federal Pregnant Workers Fairness Act.

The judge also barred the EEOC from forcing the diocese and association to comply with harassment regulations meant to safeguard workers, writing "in a manner that would require them to speak or communicate in favor of abortion, fertility treatments, or gender transition when such is contrary to the Catholic faith.” The ruling targeted transgender employees who would be restricted from expressing parts of their gender identities.

“It is a precarious time for people of religious faith in America. It has been described as a post-Christian age,” Traynor wrote. “One indication of this dire assessment may be the repeated illegal and unconstitutional administrative actions against one of the founding principles of our country, the free exercise of religion.”

The Pregnant Workers Fairness Act passed with widespread bipartisan support in December 2022. It was widely considered a victory for women who are low-wage workers and have routinely been denied accommodations for everything from time off for medical appointments to the ability to sit or stand on the job. But controversy ensued when the EEOC adopted an expansive view of conditions related to pregnancy and childbirth that required accommodations, including for abortion, fertility treatment and birth control. While the rule includes an exemption for religious employers, it says determinations must be made on a case-by-case basis.

But the judge, who was appointed in 2020 by former President Donald Trump, said the rule “forces members to choose between expressing sincerely held beliefs and compliance," and would cause “irreparable” harm.

Martin Nussbaum, lead attorney for the association, on Tuesday called the judge's ruling a win that “respects the religious conscience of sincere Catholic employers.”

The Department of Justice declined to comment.

Attorneys for the federal government had argued against an injunction, saying the plaintiffs’ case was “highly speculative” because they hadn’t identified any enforcement actions or employees who had sought accommodations that were denied. They also said the plaintiffs lacked legal standing to challenge the regulations, and can't show they will likely succeed in the lawsuit. The judge rejected those arguments, saying “It should not take a legal challenge for the Agency to stop violating the Constitutional rights of Americans.”

In vitro fertilization became a major political flashpoint earlier this year, when the Alabama Supreme Court issued an opinion in a wrongful death case equating frozen embryos with children. Major IVF providers paused operations in the state until the Republican-controlled state government adopted a law offering some legal protections.

The William L. Guy Federal Building is seen in Bismarck, N.D., April 2, 2024. (AP Photo/Jack Dura, File)

Last month, Trump said that if he wins a second term, he would make IVF treatment free, but did not detail how he would fund his plan or precisely how it would work. This month, Republicans blocked legislation to establish a nationwide right to IVF, fueling criticism from Democratic presidential nominee Vice President Kamala Harris.

“This particular case is part of this much broader attack on women’s rights and reproductive freedom,” said Inimai Chettiar, president of legal advocacy group A Better Balance, which spearheaded a decades-long campaign for the Pregnant Workers Fairness Act. Neither the act nor the EEOC regulations require employers to pay for either abortions or IVF — just to allow workers to take time off for them, she said. “It’s not creating this onerous requirement on them.”

The Diocese of Bismarck and the Catholic Benefits Association filed the lawsuit in July. The association, which provides health and other benefits via Catholic employers, counts 85 dioceses and archdioceses among its members, which total over 1,380 employers plus 7,100 parishes nationwide, according to the complaint. Those members also include religious orders, schools, charities, colleges and hospitals, along with Catholic-owned businesses. The association says it covers 162,000 employees enrolled in member health plans.

Traynor has strong affiliations with Catholic and conservative groups. He was a board member of the North Dakota Catholic Conference, which represents the state’s Catholic bishops, according to a Senate Judiciary Committee judicial nominee questionnaire. He also listed his membership in two conservative law groups, the Federalist Society for Law and Public Policy Studies and the St. Thomas More Society of North Dakota. In March, he blocked the government from enforcing key federal laws and related regulations to require a Christian employers' organization to provide insurance coverage for gender-transition surgeries, counseling and other care.

Monday's decision followed a ruling in July by a federal judge in Louisiana, who granted a preliminary injunction in two similar lawsuits brought by the Louisiana and Mississippi attorneys general, and the U.S. Conference of Catholic Bishops, Catholic University and two dioceses. The cases differ because the North Dakota lawsuit also explicitly challenged protections for fertility treatments, not just abortion, said Leila Abolfazli, director of national abortion strategy for the National Women’s Law Center.

In practice, Abolfazli said, if a worker is denied time off for fertility care, “that could be the difference between becoming pregnant or not.” While the ruling only applies to the Catholic groups, she explained that it’s one of several lawsuits that threaten to “bit by bit undermine the law overall.”

Sharita Gruberg, vice president for economic justice at the National Partnership for Women and Families, said she's worried about a “broader chilling effect” from this ruling and other decisions that could inhibit pregnant workers from feeling empowered to exercise their rights under the act.

“Religion is not a license to discriminate,” said Gillian Thomas, senior staff attorney for the ACLU Women’s Rights Project. She said the ruling “marks a dangerous new low in the weaponization of religion against civil rights."

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