An Attack on Pregnant Workers at the 5th Circuit Could Unleash Chaos Across the Country
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.
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.
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.
For starters, if the 5th Circuit affirms the district court’s decision, it would potentially mean that the rest of the 2023 Consolidated Appropriations Act is unlawful, imperiling every other provision of the massive package. That includes new laws providing educational assistance, protections against debt collection, and suicide prevention resources for veterans. The Iraq and Afghanistan Veterans of America submitted an amicus brief to the court, pleading: “Allowing the district court’s ruling to stand would imperil veterans’ legislation and risk unnecessary challenges to settled programs, benefits, and funding upon which millions of this nation’s veterans rely.”
Not only would an affirmative ruling undermine the entire spending package, but it would necessitate the conclusion that Congress lacks the authority to set its own rules about procedure. Four Democratic ranking members of the House of Representatives argued in an amicus brief that the court cannot intrude on Congress’ authority to set its own rules, that to do so would interfere with its ability to pass legislation, disenfranchising millions of constituents. Senate Minority Leader Mitch McConnell agreed in a brief of his own, noting that although he personally objects to the use of proxy voting, “the core question in this case is whether the courts can review the internal affairs of Congress, when such affairs are textually committed to each house by the Constitution. They cannot.”
If the court determines that Congress cannot set its own procedures around voting, then it will jeopardize our elected leaders’ ability to act swiftly in moments of crisis. A coalition of past national security officials—including former Secretary of Homeland Security Tom Ridge, as well as former CIA and National Security Agency head Gen. Michael Hayden—submitted an amicus brief explaining why Congress must be free to act when faced with a national emergency, regardless of whether its members are able to physically convene in a single location.
To be clear, the use of proxy voting to establish a quorum is constitutional. Legal scholars and constitutional law experts have gathered decades of overwhelming historical evidence for the court, explaining that the use of proxy voting by Congress to establish a quorum is clearly permissible under the quorum clause, which has only one rule: Each house of Congress must have “a Majority … to do Business.” As they explained in their brief, the Framers of the Constitution “did not debate the merits of proxy as opposed to in-person voting and did not prescribe any particular method for ascertaining the presence of a majority.” That’s by design, to allow Congress to adjust its procedural rules as circumstances shift.
Obviously, the Texas court went out on one very large and shaky legal limb in order to justify its ruling. It’s safe to say that this case isn’t about just interfering with the minutiae of congressional voting procedure. It is also about attacking women’s ability to stay healthy and free to grow, plan, and support their families without discrimination. It is about allowing employers to skirt even the most basic obligation to meet their employees’ human needs. It is about, once again, relegating pregnant people to second-class citizens in the eyes of the law. It’s about undermining basic democratic principles in order to advance a dangerous political agenda.
All other stakes aside, the loss of the Pregnant Workers Fairness Act would be a devastating outcome—one that the higher courts would need to be willing to defy existing constitutional scholarship and legal precedent to embrace. So how far will this latest attack on women’s ability to control their reproductive lives go? The 5th Circuit can either overturn the district court’s ruling and keep the PWFA intact or unleash a legal Pandora’s box in order to needlessly deprive pregnant workers of their rights. The right decision should be clear.