Bill Cassidy’s Abortion Leave Mandate: A Republican ‘Failure Theater’ Display

Last week, the Biden administration released a series of new rules that, among other things, will require employers to provide leave (albeit unpaid) for workers who want to obtain abortions. Pro-life businesses who object to this new mandate have Sen. Bill Cassidy, R-La., to thank.

As these pages first noted back in September, Cassidy, who sponsored the underlying legislation that led to the new mandate, left open an abortion loophole big enough for Biden administration regulators to drive a Mack truck through. And the Biden administration proceeded to do just that.

None of this should come as a surprise to Cassidy, who received warnings in late 2022 from pro-life groups that his legislation would create an abortion leave mandate. But as I reported last fall, Cassidy was so desperate to enact the legislation — to appease the left, naturally — that he gave the pro-abortion movement the opening it desired.

Cassidy’s office continues to deflect blame elsewhere, claiming the Biden administration exceeded its legislative authority. Which raises a simple question — “Why didn’t you make clear in the bill that this legislation didn’t apply to abortions?” — that should prompt Cassidy to look in the mirror.

Pregnant Workers Legislation

The regulations implement the Pregnant Workers Fairness Act, included as part of a (swampy) omnibus spending bill at the end of 2022. Specifically, the controversy surrounds whether the statutory definition of “pregnancy, childbirth, or related medical conditions” includes abortion; the Biden administration (naturally) concluded it did.

The Equal Employment Opportunity Commission, which released the regulation in question, noted that the Pregnancy Discrimination Act, which passed in 1978, also included the phrase “pregnancy, childbirth, or related medical conditions.” In the four-plus decades since, the EEOC has interpreted that phrase to include abortion.

As the commission noted in last week’s rule, “by including the same key phrase in the [Pregnant Workers Fairness Act] and not articulating a different meaning than in the [Pregnancy Discrimination Act], Congress is presumed to know and intend that the same definition will be applied.” To put it more bluntly, the EEOC is saying that while politicians like Cassidy may be dumb, they shouldn’t be surprised to use the same language as in 1978 and get the same regulatory result.

Cassidy’s (Feeble) Excuses

Cassidy’s office has claimed that a floor statement he gave during debate on the legislation in 2022, along with a separate statement by Sen. Bob Casey, D-Penn., shows the sponsors’ intent that abortion should not be considered a “related medical condition” to pregnancy. But the EEOC regulation notes that other lawmakers gave the exact opposite interpretation — that the bill would allow for workers to take unpaid leave for appointments related to abortion.

The regulation notes that “the Commission must rely on the plain text of the statute. Given the meaning of the words that Congress chose to use … and the Commission’s and courts’ long history of interpreting those identical words to include abortion, the Commission will interpret those words the same way.” If Bill Cassidy has anyone he wants to blame for the EEOC’s action, he should start with himself.

Cassidy’s office complained about my September story, but his own actions belie his rhetoric. To wit, prior versions of the Pregnant Workers Fairness Act did not include language stating that employers need not pay for abortion procedures themselves. Cassidy, to his credit, included language in the version of the Pregnant Workers Fairness Act that got signed into law explicitly exempting businesses from a requirement to pay for abortions.

But if Cassidy could ask for and receive explicit pro-life language in the bill addressing a concern that employers not be required to pay for abortion, why didn’t he demand similarly explicit language in the bill to prevent a mandate for (unpaid) abortion leave?

Rationalizing Failure

As my sources last fall indicated, Cassidy didn’t insist on language fixing the abortion leave mandate because he was desperate for a deal. The sad thing was, Democrats on the other side of the aisle were even more desperate.

Among the questions I posed to Cassidy’s office last fall was why he insisted on including the measure in the omnibus spending bill that passed during the 2022 lame-duck session of Congress:

Why didn’t Sen. Cassidy wait 10 more days, until the pro-life majority in the House gave Republicans more leverage to insist on explicit pro-life protections, to put forward the PWFA? Was there any particular need to offer the amendment last December, other than that Planned Parenthood and the bill’s supporters were demanding it pass before the end of the Congress?

With the Pregnant Workers Fairness Act, there was no particular reason why the legislation needed to pass in December 2022 rather than January 2023. The federal government wouldn’t have shut down, nor any plague or pestilence descend upon the land, if these particular provisions took a few more weeks, or even a few more months, to come onto the statute books.

But Sen. Patty Murray, D-Wash., and congressional Democrats desperately wanted to pass the legislation in the 2022 lame-duck session. They knew that the incoming, Republican-led House of Representatives would be more skeptical of new mandates on employers and more insistent on protecting the pro-life cause from new abortion-related mandates. So Cassidy had the stronger leverage to demand that the legislation pass with full pro-life protections, or not at all.

Instead, Cassidy caved, putting the desire of Planned Parenthood and related groups to pass the legislation over his alleged “100% pro-life” record. And his office continues to try to shift blame to the Biden administration and others for acting in ways that Cassidy’s office was told would happen. It’s the exact type of “failure theater” — spineless lawmakers trying to rationalize their own failure with weasel words and feeble excuses — that makes the public loathe Washington.