Federal Judge Says Employers Can Deny IVF Accommodations and It’s a ‘Precarious Time for People of Faith’

In April, the Equal Employment Opportunity Commission (EEOC) issued final rules for how the Pregnant Workers Fairness Act (PWFA), passed in 2022, will be enforced. Among those rules, which primarily require that pregnant workers be allowed basic accommodations without retaliation, are requirements that employers with more than 15 employees provide unpaid time off for out-of-state abortion travel, or similar accommodations for workers seeking or undergoing fertility treatments.

On Monday, a federal judge issued a preliminary injunction, determining that the Catholic Benefits Association and the Diocese of Bismarck are likely to succeed in their lawsuit challenging PWFA for violating their religious freedom. This ruling will allow more than 8,000 Catholic employers across the country to discriminate against workers for seeking abortions and fertility care like IVF, at a time when access to both health services face rising threats. For example, employers will be able to deny someone time off for undergoing IVF.

Ironically enough, U.S. District Judge Daniel Traynor of Bismarck, North Dakota, wrote in his opinion, “It is a precarious time for people of religious faith in America. It has been described as a post-Christian age.” Traynor, who was appointed by former President Donald Trump in 2020, continued, “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.” And here’s one small, little detail: The Associated Press reports that Traynor formerly served as a board member of the North Dakota Catholic Conference, the organization that represents the state’s Catholic bishops.

In July, a federal judge in Louisiana granted an injunction in similar lawsuits brought by the Louisiana and Mississippi attorneys general. These suits specifically challenged PWFA’s language about time off for abortion. Senate Republicans similarly challenged PWFA in 2022 by lying that it would pay for employees’ abortions (if only!). Meanwhile, the Catholic Benefits Association and the Diocese of Bismarck’s suit, first filed in July, chillingly challenges PWFA’s protections for fertility treatments, too.

Leila Abolfazli, director of national abortion strategy for the National Women’s Law Center, told AP that the impacts this ruling could carry for workers who may be trying to build their families through IVF: When workers are denied time off for fertility care, “that could be the difference between becoming pregnant or not.”

The ruling comes as top anti-abortion groups have been training their sights on IVF, too, thanks to fetal personhood. IVF involves the routine destruction of unused, frozen embryos, which anti-abortion leaders and a concerning amount of Republican officials understand as children. In Alabama, the state Supreme Court ruled that these embryos are “extrauterine children” whose destruction qualifies for wrongful death lawsuits, temporarily shuttering IVF services in the state until lawmakers passed emergency protections for IVF. Even then, top anti-abortion groups including Live Action, Susan B. Anthony Pro-Life America, and March for Life wrote a letter to Alabama’s Republican governor, Kay Ivey, begging her not to sign the bill because IVF “will ultimately harm these families and jeopardize the lives of precious children,” referring to embryos. The letter says “IVF is not a morally neutral issue.”

Now, thousands of employers across the country who feel the same way can deny employees time off for IVF-related appointments.

Per AP, the Catholic Benefits Association provides health and other benefits to 85 dioceses and archdioceses, as well as 7,100 parishes that include schools, charities, colleges, hospitals, and Catholic-owned businesses. The association counts as many as 162,000 employees enrolled in its health plans.

Gillian Thomas, senior staff attorney for the ACLU Women’s Rights Project, said in a statement that Traynor’s ruling “marks a dangerous new low in the weaponization of religion against civil rights.”