It's a ruling that has not received a great deal of pop media attention, but which could have seismic effects for businesses. In a ruling that could be appealed to the Supreme Court, and, a federal judge on June 17 issued a preliminary injunction against a Biden administration rule forcing employers to provide “reasonable accommodations” for employees to obtain abortions – even in states where most abortions have been banned.
Michael Tennant reports for The New American:
“’This is a textbook case of a federal administrative agency exceeding its statutory authority in a way that both usurps the role of Congress and violates authority vested in the states under the principles of federalism,’ declared U.S. District Judge David Joseph of the Western District of Louisiana.”
But, Judge Joseph offers mixed insights there, and his words require intellectual, constitutional, and moral analysis.
Working backwards on his statement, Joseph is correct to note that the federal government is usurping state authority, but he could note that the Constitution explicitly prohibits states, themselves, from violating the fulfillment of private contracts, so if a state were to impose political mandates on what existing businesses and their employees already have agreed will be “benefits” such as “paid time away,” then such impositions would breach the Contract Clause in Article One, Section Ten of the US Constitution.
Beyond that, one would have to check each state’s constitution to see if states claim any power to issue such mandates on NEW businesses that don’t already have agreements with employees (which also includes a wide array of edicts, such as minimum wage mandates). And, still deeper, one can acknowledge the reality that, even IF state constitutions allowed such impositions on private contracts, such invasions represent aggression by third parties who have nothing to do with these private business contracts.
And the first portion of Judge Joseph’s injunction also deserves scrutiny, because, as we have seen with decisions such as the recent Supreme Court ruling on the Trump-imposed “Bump Stock” ban, Joseph correctly notes that such Executive Branch impositions are not backed by legislation, but he incorrectly implies that IF the Congress were to have included abortion in its 2022 expansion of the Americans with Disabilities Act, somehow, that would have made the patently unconstitutional mandate perfectly fine.
Tennant offers more of this background information:
“In 2022, Congress passed and President Joe Biden signed the Pregnant Workers Fairness Act (PWFA). That law expanded the equally unconstitutional Americans with Disabilities Act’s definition of ‘disability’ to include ‘known limitations related to pregnancy, childbirth, or related medical conditions.’ Employers were thus required to provide ‘reasonable accommodations’ for such a ‘disability.’”
And, as Shakespeare might have said, “There’s the rub.”
The problem Judge Joseph has with this federal mandate -- this edict that businesses give women paid time off in order to have abortions, even in states that have banned most abortions -- centers on the Biden Administration’s unilateral expansion of that 2022 previous expansion of… the ADA.
So, evidently, both the 2022 expansion committed by Congress and the 1990 George H.W. Bush era compulsion called the “Americans with Disabilities Act” are, to Judge Joseph, utterly constitutional and compatible with fundamental human ethics.
Joseph Biden, and most members of the legislative branch, don’t seem to care about the warning James Madison gave us regarding Congress misreading the Interstate Commerce Clause to claim power over any form of business going over state borders. They don’t seem to care about the oaths they took to their Constitution. The matter at hand merely is one of parsing, of arguing over the semantics and minutiae of which kinds of offensive mandates the political marauders can impose.
Which is kind of like a trio of mobsters arguing over which fists they can use to hit you.
These tax-paid players are arguing over whether an abortion is “medical care” for a pregnancy. And, though it is easy to see that such “medical care” to end a pregnancy is not “care”, some might argue that emergency abortion could, in a very rare instance, save a mother’s life.
None of that is relevant however, when it comes to the deeper already established problem of the government imposing itself on private businesses contracts.
Writes Tennant:
“The Equal Employment Opportunity Commission (EEOC), tasked with implementing the PWFA, decided that ‘having or choosing not to have an abortion’ was one of the medical conditions related to pregnancy that employers would have to accommodate. The agency further declared that there were no religious exemptions to its rule and that it would consider any requests for exemptions under the Religious Freedom Restoration Act or any claims that its rule conflicted with state law ‘on a case-by-case basis.’
Last month, Louisiana and Mississippi filed a federal lawsuit against the EEOC, arguing that, as Joseph put it, ‘an administrative agency of the executive branch of the federal government, without Congressional authorization, has exceeded its authority through the rule-making process in a way that subverts the will of the citizens of Louisiana and Mississippi,’ who, through the democratic process, have banned abortion in their states in the wake of Dobbs v. Jackson Women’s Health Organization (2022). In so doing, the EEOC has, at the very least, forced state governments to make accommodations for employees to do something those same governments may well have forbidden.”
Tennant also observes that in May, the U.S. Conference of Catholic Bishops (USCCB) and other Catholic organizations also sued the EEOC, because they should not be forced to give paid leave to employees who take time off to get abortions.
And Tennant reports that Judge Joseph was very clear about this 2022 expansion of the ADA, this new statute called the Pregnant Workers Fairness Act (PWFA):
“The PWFA, contrary to the EEOC’s claims, incorporates the religious exemptions found in Title VII of the Civil Rights Act of 1964, Joseph found. Moreover, ‘the legislative history unambiguously confirms that Congress specifically did not intend for the PWFA to require employers to accommodate abortion. Indeed, lawmakers from both sides of the aisle expressly stated that the PWFA does not address abortion.’ (Emphasis in original.) PWFA sponsor Senator Bob Casey (D-Pa.), for example, said unequivocally that ‘under the [PWFA], the [EEOC] could not — could not — issue any regulation that requires abortion leave, nor does the act permit the EEOC to require employers to provide abortions in violation of state law.’”
This information is valuable for context and to give Americans an idea of what the current Supreme Court “Dobbs” ruling, what the PWFA, and what the extant “Americans with Disabilities” mandates already assume, but it does nothing to get to the root of the matter, which is the Americans with Disabilities Act of 1990, and its predecessors, the Public Accommodations portion of the 1964 Civil Rights Act, and the 1946 Supreme Court decision in “Marsh v. Alabama.”
The ADA hinges on the assumption in the 1964 act that a privately owned place of business is a “public” place when it admits people from “the public” to enter. But that conflates the meaning of public and private. Public is that which is supported through taxation and opens a location to everyone who pays taxes, because they have a justified claim over how it is run.
Private property is owned by individuals who do not force others to pay, they risk their own capital, and, supposedly, governments were formed to protect that property, not invade and control it.
And the ’64 twist, itself, stems from the 1946 SCOTUS decision in the case of “Marsh v. Alabama,” in which a leftist court majority claimed that a private boat-building company that had its own campus for employees and visitors somehow abdicated its claim on private property. When a woman walked onto the campus to hand out fliers for her religion, they asked the police to remove her for trespass. But, after the confrontation, she brought the company, called the Gulf Shipbuilding Corporation, all the way to the Supreme Court, and the majority claimed to tell the private company that, magically, its campus was “public” and a “town square.”
That is not for government to decide. That is private property, and it is not supposed to be open to fatuous politicians and judges imposing their preferences.
And this is what has inspired all of this federal jerry-rigging, from 1964, to 1990, to 2022, to Judge Joseph’s decision.
And this injunction will remain in effect until a final ruling on the case itself, and it offers us the chance to engage in scholarship, to understand the forces behind it all.
Without engaging in such research and absorption, one cannot spread the truth and protect freedom, as cases such as this inevitably move toward the Supreme Court.
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