Unborn Who? Pregnancy Discrimination at COVID Vaccine Sites Signals How Expanded Conscience Rights Prioritize Control, Not Life

Instances of discrimination shaming at vaccination sites provide a glimpse into a future where reproductive autonomy is curtailed by anti-scientific laws, personal religious beliefs and internet propaganda.

Army Spc. Angel Laureano holds a vial of the COVID-19 vaccine at Walter Reed National Military Medical Center in Bethesda, Md., on Dec. 14, 2020. (DoD / Lisa Ferdinando)

The pharmacist pulled me aside. He gestured toward my belly. “Are you sure about this?” I was in my third trimester and had finally decided to be vaccinated against COVID-19—a decision that could only be called torturous back in January 2021, when pregnant women were newly eligible for the vaccine but had not been included in any of the vaccine studies.

Was I sure? For weeks, I’d obsessively researched. My doctors confirmed that the vaccine appeared to be safe, and it appeared to be the best way to protect myself, my children and my unborn baby. When you’re pregnant, everyone has an opinion—this was my third pregnancy, and it was far from the first time I’d justified a decision to a stranger. But now, here I was, very unsure, and very exposed in the crowded waiting room. I considered leaving.

But after months of worry and fear, I took a deep breath, told the pharmacist that I had my doctor’s approval, and was eminently relieved when the pharmacist then apologized, explaining that I was the first pregnant woman he’d vaccinated.

It’s been 15 months. I went on to have my baby and was relieved to know that he and I were protected. But over the course of the following months, many pregnant and breastfeeding individuals were not so lucky. Women throughout the country reported showing up to their vaccine appointments only to be subjected to off-cuff, discriminatory treatment by professionals providing the vaccine—even as evidence mounted that the COVID-19 vaccine was safe and recommended for pregnant women, and while COVID-19 was proving particularly dangerous in pregnancy, increasing the rate of severe complications including stillbirth.

Some providers singled pregnant women out, requiring doctor’s notes; others refused to vaccinate them altogether. While some women were able to be vaccinated elsewhere, some were effectively prevented from obtaining the vaccine while pregnant. Even many states continued to exclude pregnancy from the list of high-risk medical conditions that created vaccine eligibility.

Some providers singled pregnant women out, requiring doctor’s notes; others refused to vaccinate them altogether.

Ostensibly, these barriers were erected in order to protect against some unknown future risk. As a civil rights attorney, I know firsthand that sexism is often shrouded in the language of protection. From the classroom to the workplace and everywhere in between, my clients have been told that they cannot play that sport, do that job, use that bathroom, feed that baby—all in the name of protecting someone, including the discrimination victim herself.

In 2019, a sweeping regulation promulgated by the Trump administration would have allowed healthcare providers to refuse medical treatment based on their religious or moral beliefs. Multiple federal courts vacated this rule, preventing it from taking effect; however, efforts to push “conscience clauses” that would give medical providers a wide latitude to deny healthcare are underway in multiple U.S. states. Just this month, the American Civil Liberties Union and Equitas Health filed suit against the state of Ohio, opposing a new law that allows medical professionals to refuse to provide care if such treatment would violate their “moral, ethical or religious beliefs or principles.”

Protesters in Orlando, Fla., on May 14, 2022. (Maureen Johanson / Twitter)

These instances of discrimination shaming at vaccination sites provide a glimpse into a future in which reproductive autonomy is curtailed by anti-scientific laws, personal religious beliefs and internet propaganda, and they illuminate the tensions between individual religious rights and patient health, safety and autonomy.

As the Supreme Court prepares to eradicate the right to abortion and chip away at substantive due process rights more broadly, we cannot ignore the parallel—and equally dangerous—efforts to expand religious freedoms for employers, healthcare providers and average citizens. Providers’ willingness to endanger women and their pregnancies based on anti-scientific beliefs illustrates how easily partisan trends—for instance, the unpopularity of the COVID-19 vaccine—can dominate and warp religious and moral beliefs, and masquerade as religious or moral in nature. As individual rights to deny medical care on religious or moral grounds expand, no one is safe from discrimination in medical care—not even the “unborn.”

As a civil rights attorney, I know firsthand that sexism is often shrouded in the language of protection.

As organized efforts to protect individual religious rights gain steam, conscience clauses could be used to deny lifesaving healthcare with the thinnest justifications. While conscience clauses have historically been linked to abortion services, the widened scope of conscience clauses would easily hinder the ability to access basic healthcare services—think: refusals to prescribe or fill prescriptions for birth control, or refusals to accept LGBTQ individuals or unmarried sexually active women as patients.

As vaccine denials would indicate, prioritizing individual religious rights over patient health and autonomy is not about the integrity of life or protecting the “unborn”—the same pharmacist might refuse to provide birth control in one instance, and subsequently lethally harm a resultant pregnancy by declining to vaccinate a pregnant patient against a deadly virus.

Refusing to vaccinate a pregnant woman is dangerous—and for now, such discrimination remains illegal. In 2016, Section 1557 of the Affordable Care Act became the first federal law to prohibit gender-based discrimination, which includes discrimination based on pregnancy. The law applies to all healthcare entities that receive federal funds and could be used to combat discrimination against pregnant women, LGBTQ patients, victims of sexual harassment and assault, and others who are treated differently due to their sex or gender.

Individuals who face discrimination have multiple avenues for redress—though these have been underutilized since the passage of the law in 2016 and were curtailed by the Supreme Court just last month when it ruled that plaintiffs bringing certain civil rights claims are not entitled to emotional distress damages. Despite attempts to pare down Section 1557, individuals can defend their rights under this law by filing an administrative complaint with the U.S. Department of Health and Human Services or by pursuing a claim in federal court.

Self-advocacy in the face of medical discrimination may seem trivial or futile in the moment—particularly given the feelings of shock, shame and humiliation that such treatment can engender. However, we should all understand our right to be free from gender-based discrimination in medical settings.

Professionals who work with pregnant and breastfeeding women should ensure that they are informed about these rights and that they have the tools to deal with potential obstructions to their care, which will increase accountability, prevent discrimination, and promote the health, safety and medical autonomy of all pregnant and breastfeeding individuals.

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

Up next:


Caitlin McCartney is a civil rights attorney working to combat gender-based discrimination and violence in schools, workplaces and public accommodations. McCartney has advocated for victims of discrimination and violence in a variety of settings, including private practice, nonprofit organizations such as the Gender Equality Law Center and Legal Momentum, and New York State Office of the Attorney General. McCartney is currently spending time at home with her three children.