The antiabortion movement is grappling with an internal divide about whether women should be punished for abortion, as a growing number of state legislatures consider personhood bills authorizing the punishment of abortion seekers. But an ongoing struggle to deny accommodations for pregnant workers shows the two sides in this civil war might not be so far apart. Both groups seem to agree employers should be allowed to penalize workers who get abortions.
Well before the Supreme Court reversed Roe v. Wade, the nation’s most powerful antiabortion groups denounced the idea of punishing women for abortion. When then-candidate Donald Trump said in 2016 that women deserved “some form of punishment” for abortion, leading antiabortion activists lambasted him. Movement leaders stressed that prosecutors had rarely targeted women in the years before Roe and pledged that nothing would change when abortion was once again a crime. The bans implemented after the Dobbs ruling, such as the trigger laws that went into effect immediately after Roe’s demise, often contained exemptions for pregnant patients.
Larger antiabortion groups understood, of course, that punishing abortion seekers was bad politics.
But in recent years, the most powerful antiabortion groups have faced a challenge from a new group of self-proclaimed abolitionists, many of them with roots in Southern evangelical churches. The abolitionists agree that a fetus is a person whose rights begin at fertilization, and that the only principled way to enforce those rights is to punish those who harmed the fetus. Why, the abolitionists ask, is it acceptable to exempt women from criminal abortion laws when statutes punished women for any other homicide?
Larger antiabortion groups understood, of course, that punishing abortion seekers was bad politics. Some members of the bigger groups opposed punishing women as a matter of principle. And they had long argued that women were the “second victims” of abortion, manipulated by a profit-driven industry to make decisions they would regret.
But apparently, when working women have abortions, the calculus changes. Ongoing lawsuits by multiple conservative-run states show that both factions seem to favor allowing employers to penalize women who take time off to seek an abortion or deal with related medical complications.
The dispute turns on the interpretation of the Pregnant Worker Fairness Act, a law passed in 2022 with bipartisan support to deal with rampant discrimination against pregnant workers. Previous laws had prohibited employers from singling out pregnant employees for especially despicable treatment, but hadn’t actually obligated employers to accommodate pregnancy-related complications. The Pregnant Workers Fairness Act sought to change that.
Last year, the Equal Employment Opportunity Commission issued a rule concluding that the Pregnant Workers Fairness Act also required employers to accommodate abortion-related leaves. But red states had no intention of handing over their right to discipline workers who needed accommodation related to abortion.
Disciplining or dismissing workers who take time off for abortion seems to be precisely the kind of punitive step that red states have sworn off.
In one lawsuit, Louisiana and Mississippi convinced a district court to block enforcement of the rule. Seventeen conservative states also filed suit in Arkansas, arguing that the EEOC rule would do them real harm by undermining their symbolic opposition to abortion, limiting their ability to criminalize abortion, and costing them money when state employees had abortion-related complications.
An Arkansas district court judge refused the states’ request to block the Biden rule while the litigation continues, finding that the states didn’t have standing. This week, the 8th Circuit Court of Appeals reversed. While the district court reasoned that the conservative states could only speculate about future injuries, the 8th Circuit held that that speculation was enough: The states would have compliance costs as employers if their workers asked for abortion-related leaves and let them pursue their case. Now, the suit will go forward, as abortion opponents wait on President Donald Trump to fill empty seats on the EEOC (Trump took the unprecedented step of firing two of the three Democratic commissioners, a move that may be challenged in court). The fight over the scope of the Pregnant Workers Fairness Act will matter for those who terminate their pregnancies, or those whose miscarriages or stillbirths are mistaken for abortion. But the fight over pregnancy accommodations also complicates the story abortion opponents tell about punishing women. In theory, if women are victims, conservative states focus on protecting them from unscrupulous health-care providers — or others that they believe “aid or abet” women. Disciplining or dismissing workers who take time off for abortion — or abortion complications — seems to be precisely the kind of punitive step that red states have sworn off. These lawmakers purport to protect women from the adverse consequences of abortion, but if an employee actually experiences complications, the state is fiercely defending the right not to accommodate her, or even to discipline or terminate her. One way or another, it seems inevitable that employers will regain the power to fire workers who take time off to have an abortion, or who experience complications after terminating a pregnancy. The Trump EEOC will almost certainly roll back the Biden rule, if states like Texas don’t manage to convince a court to invalidate the EEOC rule first. Either way, the message is clear: Texas may not want to put women in prison for having abortions, but firing them could be another thing entirely.
Mary Ziegler is a law professor at the University of California, Davis, School of Law and the author of "Roe: The History of a National Obsession." 
