Slate: “On its surface, the state of Texas’ lawsuit challenging the Pregnant Workers Fairness Act might seem like a run-of-the-mill attack on reproductive rights. But the forthcoming ruling in Texas v. McHenry, a case that’s about to be heard by the 5th U.S. Circuit Court of Appeals, could end up unleashing a whole other set of unintended consequences, the possibility of which has alarmed everyone from constitutional scholars to national security experts to Sen. Mitch McConnell.
The Pregnant Workers Fairness Act created an affirmative right to reasonable workplace accommodations for pregnant workers, postpartum workers, and workers with pregnancy-related conditions. It passed through Congress two years ago through an omnibus spending package, the 2023 Consolidated Appropriations Act, with support from both parties—representing a major civil rights victory for millions of women and their families, the first of its kind in decades….
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On its surface, the state of Texas’ lawsuit challenging the Pregnant Workers Fairness Act might seem like a run-of-the-mill attack on reproductive rights. But the forthcoming ruling in Texas v. McHenry, a case that’s about to be heard by the 5th U.S. Circuit Court of Appeals, could end up unleashing a whole other set of unintended consequences, the possibility of which has alarmed everyone from constitutional scholars to national security experts to Sen. Mitch McConnell.
The Pregnant Workers Fairness Act created an affirmative right to reasonable workplace accommodations for pregnant workers, postpartum workers, and workers with pregnancy-related conditions. It passed through Congress two years ago through an omnibus spending package, the 2023 Consolidated Appropriations Act, with support from both parties—representing a major civil rights victory for millions of women and their families, the first of its kind in decades.
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The law is a boon for maternal health, women’s labor-force participation, and the fight against poverty. Without the PWFA, gaps in the law meant that pregnant workers—especially Black and brown laborers in low-wage, physically demanding professions like retail, service, and warehouse work—were being systematically forced out of their jobs after they requested basic accommodations to protect the health of their pregnancy. The kinds of accommodations the PWFA provides can range from a stool to sit on, breaks to drink water, a change in schedule, or time off to attend a prenatal appointment or recover from childbirth—modifications that are often easily provided at little cost to business but that make a world of difference for families’ ability to survive and thrive, as A Better Balance and March of Dimes explained in an amicus brief submitted to the court.
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In February 2024, U.S. District Judge James Hendrix held that the PWFA had been enacted unconstitutionally, blocking its enforcement for Texas state government employees. The act is the only provision of the omnibus package that the court struck down. (A claim related to immigration was tossed because Texas lacked standing.) But the reasoning behind the court’s ultimate decision had nothing to do with the PWFA itself.
In an astonishing jump in legal logic that left constitutional scholars aghast, the district court held that the PWFA had been enacted unconstitutionally because Congress had allowed members to use proxy voting to establish a quorum, violating the U.S. Constitution’s quorum clause. (During the COVID-19 pandemic, the House of Representatives allowed members to vote by proxy, exercising its constitutional right to establish procedural rules that govern the chamber.) With this quorum, Congress had passed the $1.7 trillion spending package, of which the PWFA was one tiny part.
If the 5th Circuit holds that Congress’ use of proxy voting to establish a quorum when it passed the PWFA was unconstitutional, then its decision would not just be a devastating blow for women’s health and economic security. It could also spiral into a host of legal consequences that are almost comically sweeping in nature. As a result, a wide array of voices, many of whom have little direct stake in the rights of pregnant workers, have swooped in to urge the court not to do this.”