Journal of Health Politics, Policy and Law
Birth Choices, the Law, and Medicine:
Balancing Individual Freedoms
and Protection of the Public's Health
Chris Hafner-Eatonand Laurie K. Pearce
Oregon State University
Abstract To many Americans, the idea of home birth, the use of a "direct-entry
midwife." or both seem archaic. Although much of the professional medical community disapproves of either, state laws regarding birth choices vary dramatically and
are not necessarily based on empirical findings of childbirth outcomes. Public health
practitioners, policymaken, and consumers view childbirth from the perspectives of
safety, cost, freedom of choice, quality of the care experience, and legality, yet the
professional, policy, and lay literatures have not offered an unemotional. balanced presentation of evidence. Reviewing the full spectrum of literature from the United States
and abroad, we present a Constitutional medical-legal analysis of whether home birth
with direct-entry midwives is in fact a safe alternative to physician-attended hospital
births, and whether there is a legal basis for allowing alternative health policy choices
in such an important yet personal family matter as childbirth. The literature shows
that low- to moderate-risk home births attended by direct-entry midwives are at least
as safe as hospital births attended by either physicians or midwives. The policy ramifications include important changes in state regulation of medical and alternative health
personnel, the allowance of the home as a medically acceptable and legal birth setting, and reimbursement of this lower-cost option through private and public health
insurers.
Although home delivery by non-nurse midwives occurs frequently in
other western nations reporting lower infant and perinatal mortality rates
than the United States, this practice is viewed as archaic by many Americans. According to World Health Organization officials, "Every single
country in the European Region with perinatal and infant mortality rates
lower than the United States uses midwives as the principal and only
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birth attendant for at least 70 percent of all births, i.e., there is no physician in the room” (WHO 1985; Gaskin 1994). Yet a small percentage,
but increasing total number of parents, in the United States are choosing to have their babies at home, attended by nonphysician caregivers
(Kitzinger 1991:8; National Center for Health Statistics 1993; Declercq
1993; Gilgoff 1989; Institute of Medicine and National Council 1982).
This increase is in reaction to many factors. One frequently cited reason
that has paralleled this is the increase in obstetrical attempts to manage
or augment childbirth in a “medicalized manner” (Odent 1992:45-48;
Davis-Floyd 1992;Kitzinger 1991:8; Durand 1992). In a recent pilot study
of childbirth choices, 20 percent of mothers delivering in the hospital setting reported that they would have preferred a nonhospital delivery, but
no medical back-up was readily available (Hafner-Eaton 1994). Although
more parents desire home births now than just a few decades ago (DeVries 1985), many legal and social sanctions work against this approach
to childbirth and against the practice of prenatal care and birth assisting
by nonmedically trained birth practitioners. Are these legal prohibitions
or limitations rationally justified by medical outcomes or do they limit
patient choice and alternative provider practice and protect one particular
profession?
Clearly there is a need to strike a delicate balance between the legal
and medical responsibilities of protecting the public’s health and the individual’s right to privacy and choice. Two closely related legal questions
arise from the current crisis in choice in childbirth setting, process, and
attendants: Should non-nurse midwives (that is, lay or direct-entry midwives) who attend home births be legally recognized and validated as
legitimate birth attendants? and Do parents have a constitutional right to
choose the site, process, and attendant for the birth of their baby outside
the realm of hospitals and biomedically trained and licensed personnel? In
a legal context, both issues challenge the states’ powers to protect the public’s health, safety, and welfare (and even moral codes) that are interpreted
to apply to the compelling interests the states might have in protecting the
lives of women and the “potential” lives that they carry in pregnancy and
childbirth. In addition, parents exercising their choice may be at risk for
prosecution for child abuse, whereas those attending or assisting may be
subject to legal sanction and public persecution.
Before exploring the legal contexts of childbirth “rights,” however, we
must examine the interactions between traditional birth attendants and
obstetricians in a historical context and compare the different approaches
to childbirth in each paradigm. These relationships, and the overall au-
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Hafner-Eatonand Pearce
Birth Choices 815
thoritative challenge to the medical community, have been described previously at great length (Starr 1982; Brown 1979; Mitford 1992; Brackbill
et al. 1984; Davis-Floyd 1992; Arney 1982). We focus on the legal issues
surrounding home birth, including equal protections and due process
under the Fourteenth Amendment and the derived right to privacy.
A HistoricalPerspective on Approaches
to Childbirth
“Lay midwife,” or as many prefer to be called, “direct-entry or professional midwife,” designates “someone who practices in a home setting and who has been trained in a variety of ways often not linked to
formal programs in educational institutions but including substantial clinical training and apprenticeships” (Butter and Kay 1988: 1161). Midwives
have traditionally cared for pregnant women and attended births in many
cultures (McIntosh 1989:479; Jordan 1980; Ashford 1990). Today 75 percent of births in European countries are attended principally by midwives
(most of whom are non-nurse professional midwives) (Alan Guttmacher
Institute 1993). All of these nations have lower infant mortality rates than
does the United States. Professional midwives in these nations are trained
in careful risk assessment to screen and refer high-risk obstetrical cases
when necessary.
In the United States, midwives were the primary “baby catchers” until
the early twentieth century. Only with the rapid progression of the industrialized, capitalist society and transformation of allopathic medicine in
this nation did obstetricians, to a large degree, supplant midwives as the
primary birth attendants (McIntosh 1989:483-7; Starr 1982). Yet maternal and infant mortality rates did not decrease in accordance with this replacement trend. In fact the introduction of hospital-based and physicianattended births was associated with a dramatic increase in the rates of
puerperal fever and maternal death (Tew 1990:31-33; Abraham Van der
Mark 1993; Hiddinga 1993:60), until the strict introduction of antiseptic
methods in the late nineteenth century.
Beginning in the 17OOs, male physicians were replacing female midwives, who then had little formalized organization or training (McIntosh
1989:487; Reilley 1986:1119). With technological advances in the eighteenth and nineteenth centuries, the profession of medicine grew to require its own schools, many of which forbid the entry of women (Starr
1982; Reilley 1986: 1119). Affluent pregnant women shifted their loyalties in the late nineteenth century, at the peak of the Victorian era, to the
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increasingly authoritative obstetricians, who presented their regulated,
controlled version of birth as safer and less painful than midwifery and
home birth (Reilley 1986:1120; Rothman 1982). Arney commented on
this period: “Perhaps the greatest coup of scientific medicine . . . was its
finding a solution to a problem it had created: the epidemics of puerperal
fever” (1982:43). As the twentieth century progressed, physicians accrued increased “social” and “cultural authority” in addition to medical
authority (Stan 1982: 13). This combination, accentuated by technological advances, has made obstetricians more distant from their patients and
ensured that the process of birth itself is interpreted as inherently dangerous, requiring medical monitoring and intervention. Birth and approaches
to birth, both conventional (hospital) and alternative (home birth and midwifery), are now interpreted within the framework of what obstetricians
consider “safe” for the fetus, for the parturient woman, and in a liability
sense, for themselves.
Paradigmatically midwives and obstetricians have opposite perceptions
of where and how births should occur and of who should attend them. The
difference between the biomedical and midwifery models of childbirth are
exemplified in the legal disputes concerning licensure of non-nurselnonphysician midwives and the constitutionality of a parental right to choose
birth environments. In the Dutch model described in Successful Home
Birth and Midwifery, Abraham-Van der Mark (1993) labels the directentry midwife the “guardian of normal birth” and reaffirms the mother
as the active, rather than passive, participant in both home and hospital births. The midwives’ parturition paradigm views birth as a normal
biological function requiring support, and very occasionally intervention,
whereas some believe that the physicians’ paradigm views pregnancy and
birth as a pathologic process requiring a specialized, technological cure
(Hueston and Rudy 1993;Tew 1990).In Safer Childbirth? Tew eloquently
outlines the revolution in maternity care from the earliest female birth attendants through the technological explosion of both physical and statistical instruments used by predominately male physicians and professionals;
simultaneously she maintains a careful watch on their effects on maternal and perinatal death. Although Tew is careful to strike an objective
informational balance throughout her text, she ultimately draws a strong
conclusion based on factual evidence:
When the history is told, it becomes very clear that at no time in the past
or present and in no country have medical interventions made childbirth
safer for most mothers and babies. No evidence can be found to support
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Birth Choices 817
theories that, in general, applying the methods of physical science can
evolve obstetric procedures which improve the natural birth process. A
few interventions are undoubtedly beneficial and these are sincerely appreciated, but they are appropriate in only a small proportion of births
and so have only a marginal influence on mortality and morbidity . . .
By contrast, many interventions undoubtedly cause positive harm; further interventions have to be devised in the hope of counteracting this
harm, but often succeed only in compounding it. (289)
Supporters of hospital, physician-attended births claim that birth is a
naturally risky physiologic process that entails grave risks for both mother
and fetus if not overseen in a medically managed, physician-controlled
setting. The foundation for this group’s opposition to home birth and
to nonbiomedical (caregiversis the small but ever-present possibility of
an “emergency, in which even a few minutes’ delay can result in death
or injury to the mother or infant” (Wolfson 1986:929). The view that
childbirth is a crisis that should only be managed in a hospital where
emergency equipment and procedures are accessible can be observed in
the ritual practices of conventional birth (Kitzinger 1978; Davis-Floyd
1992). Information on the preparatory routines and expectations is plentiful in the literature (for example, in Martin 1987; Mackey and Brouse
1988; Cassidy-Brinn et al. 1984). Epidural anesthesia, for example, is
a commonly accepted means to control pain (Sargeant and Stark 1989),
yet it often slows labor, causes “failure-to-progress,” and ultimately may
necessitate cesarean section delivery (Thorpe et al. 1989). Episiotomy,
lithotomy position, artificial rupture of membranes, continuous external
fetal heart monitoring, perineal shaving, cesarean section delivery, induction or augmentation of labor if contractions are not regular enough for
the attendant’s convenience, and forceps or vacuum devices to extract the
fetus are used commonly in the name of “safety,” even for low-risk births,
although considerable iatrogenic risks are associated with their use (Tew
1990; Cassidy-Brinn et al. 1984; Arms 1975; Hoff and Schneiderman
1985). A cascade effect of interventions tends to result, and the negative
effects of one human intervention or labor management technique then
require yet another intervention to correct the first. For example, artificial
rupture of membranes may result in prolapsed cord, intrauterine infection, or both. Another more complex example shows that an approach as
simple as the lithotomy position, in which the mother lies horizontal on
her back with her legs in the air can slow labor (due to lack of gravity),
compress the vena cava (causing fetal distress), and increase pain, which
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then may require use of drugs to reduce pain and augment labor (Tew
1990:120-137; Mitford 1992:147-149; Arms 1975; Thorpe et al. 1989).
If used during the pushing stage, the lithotomy position may necessitate
episiotomy and even use of forceps (Odent 1992; Cassidy-Brinn 1984:92101).
The American College of Obstetricians and Gynecologists tries to normalize hospital birth by sanctioning technological intervention and dismissing any possible benefits of home birth and of the much lower infant
mortality rate claimed by lay midwives compared with those of obstetricians and gynecologists (Hoff and Schneiderman 1985; Broom 1991:3537). When the data are examined, studies clearly show that planned
home births have lower intervention rates, lower complication rates, and
lower morbidity and lower mortality rates than do either hospital or unplanned home births (Durand 1992; Abraham-van der Mark 1993:9-14).
Similarly hospital births and home births attended by midwives have
lower morbidity and mortality rates than do those attended by physicians
(Durand 1992; Brackbill et al. 1984:69; Burnett et al. 1980; Mehl 1977;
Stewart and Stewart 1977). In a retrospective study of 1,707 births, including all pregnancies accepted for care at The Farm Maternity Center
in Tennessee (excluding spontaneous abortions before week 28), Durand
found that home births attended by lay midwives appear to have been accomplished as safely as hospital births (Durand 1992). This study also
showed that the hospital birth group had a more than tenfold increase in
cesarean section delivery compared with the home births (16.46 percent
compared with 1.46 percent), and the difference in amount and intensity
of delivery intervention was even greater (26.60 percent compared with
2.11 percent).
Evidence from the now ethnically diverse Netherlands shows that
although more than 32 percent of births are attended by midwives at
home, their infant mortality rate is only 60 percent of that in the United
States. There fewer than 8 percent of all births are by cesarean section, whereas the rate in the United States is 24 percent (Abraham-Van
der Mark, 1993:5; American College of Obstetricians and Gynecologists
1981; Hafner-Eaton 1992). Examining home births in the Netherlands’s
13 largest cities, Stewart (1977) found that the perinatal mortality rate decreased the most in cities that had the highest percentage of home births
rather than hospital births. Again Tew’s secondary analyses of the original
data confirm the positive findings (1990:266-268).
Against this wide-reaching background of risk perception and the social
dominance of the biomedical construction of birth, direct-entry midwives
struggle to preserve their autonomy as members of a profession more an-
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Birth Choices 819
cient than obstetrics and more attuned, they believe, to the psychological
and physical needs of women giving birth. Supporters of home birth and
lay midwifery perceive birth as a normal, rather than abnormal, function
of women’s bodies, just as walking, aging, or any number of other functions are considered. They link any risk or complications associated with
birth to the “mother’s total state-her mind, body, beliefs. emotions, and
environment” (Wolfson 1986:91617) instead of only to physical causes.
In addition interventions or unfamiliar environments are viewed as major
causes of risk and maloccurrence (Cassidy-Brinn et al. l984:92- 101).
Kate Bowland, who is now a certified nurse-midwife but once was the
lay midwife plaintiff in a licensure case discussed in the next section, believes that the midwife’s “role is to guard and sanctify” birth, and that
a midwife helps the birth process along by “giving [a woman’s] whole
being information” (Bowland 1991 :39). Midwives have a noninterventionist philosophy and do not “deliver babies,” but instead “teach women
how to give birth” (Rothman 1982:61).
The home birth model reflects an effort by midwives to supplant the
relatively new concept of low-risk birth as a pathologic occurrence. This
model contends that most birthing occurrences are well within the power
of the laboring woman or her attendant to correct. This perspective could
be misconstrued as victim blaming, so it is vital to stress that care is
supervised and not merely haphazard. Midwives offer exhaustive prenatal
care and overall maternal health screening, instruction about birth and
newborn care, avoidance of unnecessary medical interventions, important reduction in anxiety, and mutual trust between themselves and their
clients (Ashford 1990). Lay midwives have a special body of knowledge,
gained through experience and familiarity with the female body, that they
pass along to women, their partners, and families during pregnancy and
birth. The combination of these features appeals to a segment of the population that desires control over their bodies (Krantz et al. 1980) and to
those trying to avoid intervention and anxiety-producing environments
(Mitford 1992; Odent 1992; Lederman et al. 1978, 1985; Cranley et al.
1983; Limburg and Smulders 1992).
Contemporary lay midwives in the United States have a unique history:
Unlike the “partera” of Mexican American communities (Buss 1980) or
the old-fashioned “granny” midwives of Appalachia and African American communities who are midwives as natural extensions of their family
and group role, modem lay midwives tend to be white, middle-class
women who choose this traditional vocation as their career, usually in response to dissatisfaction with the dominant paradigm of birth (Reid 1989).
Midwives have acquired more clients over the years and have come under
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considerable legal and biomedical scrutiny. (For an excellent discussion
on aspects of midwives’ regulation as an expanding health occupation,
see DeVries 1985, 1986.)
Midwifery and the Law
Birth attendants who are not licensed by individual states as either medical practitioners or as midwives (in states allowing lay midwifery) have
a history of struggle for their autonomy to practice. In this section we
analyze the ways in which lay midwives are regulated by the states and
some specific legal cases that show the tendency for courts to defer to the
dominant biomedical discourses on the nature of birth attending.
The types of midwives vary and must be addressed by statutes designating lawful birth attendants. Certified nurse-midwives, whose work is
“expressly permitted in all fifty states” (Reilley 1986:1125). represent a
compromise between obstetricians and lay midwives. Officially the profession of nurse-midwifery was created and recognized in 1925. Certified nurse-midwives are registered nurses who receive additional training
in obstetrics and are regulated, to a degree that depends on the state,
by the American College of Nurse-Midwives (Reilley 1986:1121; Reid
1989:221). When comparing risk-adjusted outcomes of nurse-midwives
with family practitioners, Hueston and Rudy (1993) found that physicians were more likely to augment labor artificially, rupture membranes,
perform episiotomies, have patients with third or fourth degree tears, perform more cesarean section deliveries, and to perform them at an earlier
stage of labor. Nurse-midwives are biomedical practitioners who offer an
alternative to physician-guided birth, but for the most part they are relegated to the hospital for their work and must have physician backup for the
deliveries that they do attend. To nurture good relations with obstetricians, who provide this backup, the American College of Nurse-Midwives
officially urges women to have their babies at a hospital or birth center (McIntosh 1989:492), although some nurse-midwives practice home
birth. Still many hospitals expressly disallow the nurse-midwife to attend
births within the hospital (or disallow their right to attend home births if
hospital privileges are granted).
Lay midwives, in contrast, do not have the same degree of professional
autonomy as do either obstetricians or even nurse-midwives. Although
some might say that lay midwives have more general freedom because
they are not forced to practice under physicians (DeVries 1985:146), their
status is tenuous because of the legislative and judicial deference to ob-
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Birth Choices 821
stetrics as the best, safest approach to childbirth. Lay midwives are a
fragmented group because they have no central, national organizational
structure, and because the states regulate their activities within a vast
spectrum of allowable practices. As with other regulated professions, differences in state regulation account for large disparities in the quantity
and quality of this group. Lay midwives are regulated at several levels
in the United States. As of 1989, lay midwifery was explicitly legal in
twenty-three states; however, the quality of these data are suspect because state laws are diverse, dated, and subject to varying interpretations.
Other states, such as Colorado, outlaw midwifery as being contrary to
the legitimate practice of medicine but exempt nurse-midwifery from this
restriction (Reilley 1986: 1 128). Some states authorize nurse-midwivesto
practice but make no mention of lay midwives at all, thereby allowing
their practice as long as they abide by “prohibitions against the unauthorized practice of medicine” along with other citizens (Reilley 1986: 1129).
Still, other states recognize both levels of midwifery and provide for
licensing methods for lay midwives, although “compliance” procedures
may be unnecessarily difficult or, to the other extreme, absent (Reilley
1986: 1130; DeVries 1985, 1986).
Completely apart from their legal status, lay midwives regulate themselves on a statewide basis. This is not unlike many other professional
groups’ self-regulatory policies. The Oregon Midwifery Council (OMC),
for example, is the regulatory body for Oregon direct-entry (lay) midwives and has its own certification board, procedures, and membership
restrictions and responsibilities. The OMC has existed since 1977 and
was founded “to promote excellence in the practice of Midwifery [sic]”
(Oregon Midwifery Council 1992). Among the OMC member midwives,
several women are certified midwives. These women have successfully
completed an intensive testing period to the satisfaction of the OMC certification board, which is composed of OMC member midwives and one
or two members of the medical profession (“licensed professionals”).
OMC members may also obtain specialty certification to perform certain
higher-risk procedures, such as breech or twin births or both. DeVries
(1986) notes that lay midwives have developed a strategy involving a
system of self-regulation. Subsequently they seek to have these regulatory systems written into their state laws. Recently Oregon passed a state
licensing bill (SB 1063) that will provide for voluntary licensing (requiring minimum levels of experience and examinations) and reimbursement
for licensed lay midwives by the state Medicaid program. Oregon’s state
health commissioner, a physician, stated that the law requires more con-
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tinuing education requirements than are demanded of physicians (Gafhey
1993). This state provides a good example of the progression from an
unregulated profession, to self-regulated, to a voluntary licensure and reimbursement; whether the licensure will become mandatory, outlawing
nonlicensed midwives, is not known.
As established in Jucobsen v. Massachusetts, 197 U.S. 11 (1904) and
by many subsequent cases, each state has a specific and large power that
“must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health
and the public safety” (at 25). This police power has been reaffirmed
in almost all U.S. Supreme Court cases since Jucobsen, attesting to the
strong control that states have and hold dear in matters pertaining to their
citizens’ health. State police powers therefore extend to issues of childbirth, and specifically to the types of persons who can and cannot legally
assist, oversee, or intervene in births. Because each state legislature has
such freedom in policing the public’s health, laws regarding the legal
status of lay midwives vary widely across state lines.
When lay midwifery has been addressed by the courts, the question
posed has been whether lay midwifery “constitutes the practice of medicine” (Wolfson 1986:929),which is exclusively the domain of biomedical
professionals. This issue has been debated in the courts since the beginning of the twentieth century, and as we show in the following case
outlines, the courts have generally taken the view that, in states where
midwifery is not a licensed activity, the actions of lay midwives are irresponsible and interfere with the states’ duties to protect and police the
public’s welfare. Court action such as this indicates that state legislation
reflects the viewpoints and values of obstetricians, who only relatively
recently have become the dominant birth practitioners (Reid 1989:226).
Because legislation reflects the work of popular representatives, we could
say that the dominant American trend is to invest in the specialty of obstetrics the total “social authority” to “regulate” the “actions” of their
“subordinates in the medical hierarchy” as well as practitioners who operate and philosophize completely outside the biomedical realm. In a similar
vein, society has invested obstetricians with the “cultural authority” to
“shap[e] . . . patients’ understanding of their own experience” to such
an extent that these professionals’ perceptions of the risks associated with
birth have become our own, making any other option besides a controlled
hospital birth seem unnecessarily dangerous (Starr 1982:14). This is despite the fact that multiple cross-national studies have shown that home
births, attended by either midwives or physicians, have perinatal mor-
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Birth Choices 823
tality rates less than one-half of those of hospitals, even after controlling
for the medically assessed risk level of the pregnancy (Kitzinger 1991:4243). In a large-scale 1986 study, Tew reported that the perinatal mortality
rate was consistently “higher for doctors in hospitals (18.9 in 1,000 with
83,351 births included), than for doctors at home (4.5 in 1,000 with
21,653 births), than for midwives in hospitals (2.1 in I.000 with 34,874
births), than for midwives at home ( 1 in 1.000 with 44,676 births).” Tew
boldly asserted that this evidence suggests that the obstetrician may “actually provoke and add to the dangers . . .” whereas the midwife attendant
“is the most effective guardian of childbirth.” She also added that “the
emotional security of a familiar setting, the home, makes a greater contribution to safety than does the equipment in hospitals to facilitate obstetric
interventions in the case of emergency” (Tew 1990:267).
When a lay midwife is brought to court because she is allegedly practicing “medicine” illegally without a license, the courts often uphold the
“view of the medical profession” (Wolfson 1986:938) that lay midwifery
and home births are dangerous and threatening to the common good. This
is contrary to lay midwives’ assertions that nonmedical birth assisting is
safe and that antimidwife statutes are constitutionally flawed.
In one of the earliest court decisions regarding lay midwifery, Commonwealth v. Porn, 82 N.E. 31 (1907), the Supreme Judicial Court of Massachusetts found that Hannah Porn, a nurse, had practiced medicine without
a license “by the use of instruments and the giving of prescriptions”
(at 31). This case set a strict precedent for the boundaries constituting
“medicine.” Porn was a trained nurse, with an additional “diploma” from
the Chicago Midwife Institute. However, because Massachusetts law required a license to dispense drugs and to use medical instruments, because
“medical and popular lexicographers define midwife as a female obstetrician,” because “as matter of common knowledge,” obstetrics “has long
been treated as a highly important branch of the science of medicine,” and
because she did not have a medical license, Hannah Porn. under purview
of the court, was guilty of practicing medicine without a state license “in
the opinion of experts” (at 32). The court did grant that “childbirth is not
a disease, but a normal function of women” (a view perhaps not shared
by physicians later in the century) and that “we are far from saying that
it would not be within the power of the Legislature to separate by a line
of demarcation the work of the midwife from that of the practitioner in
medicine” (at 32). but nonetheless the court set the pattern of judicial
bowing to the standards and values of obstetricians.
The case of Bowland et al. v. Municipal Court for the Santa Cruz
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County, Judicial District of Santa Cruz County, Sup., 134 Cal. Reporter
630 (1976), further delineated an acceptable interpretation of the “practice of medicine” as exclusive of the work of lay midwives. The Supreme
Court of California found that the statutes restricting midwives to the attendance of “inormal childbirth without the use of drugs or instruments”
were not, as Bowland and her colleagues believed, “unconstitutionally
broad” (at 633). This court further held that, pursuant to Section 2141
of the California Business and Professionals Code, pregnancy can be
construed as “a physical condition,” for which “diagnoses, treat[ment],
operat[ing] ,or prescrib[ing]” without legal certificationconstituted a misdemeanor (at 632). Once again, the letter of the law and a court’s interpretation of it reflected the view of proponents of hospital and physicianattended birth that home birth, even low-risk home birth, is risky and
that the profession of lay midwifery, when unregulated, threatens the public’s health, safety, and welfare. The Bowland case also set a precedent
for courts to deny a parental right of privacy in childbirth decisions (as
explained in the next section of this article).
In Smith v. State of Indiana, ex. rel. Medical Licensing Board of Indiana, 459 N.E:. 2d 401 (1984), the Second District Court of Appeals in
Indiana affirmed a lower court’s finding that Vickie Smith, an unlicensed
midwife, broke the law because she practiced medicine without a medical or midwifery license. Showing the judiciary’s power of interpretation,
the court “construct[ed] . . . the [vaguely worded] applicable statutes” to
mean that “midwifery does constitute the limited practice of medicine”
(at 405). In Indiana at the time of litigation, a statute existed granting
“unlimited license to practice medicine” to physicians (at 405). Indiana
code defined the practice of medicine as “holding oneself out to the public as being engaged in the diagnosis, treatment, correction, or prevention
of any disease, ailment, injury, infirmity . . . pain or other condition of
human beings, or the suggestion, recommendation or prescription or administration of any form of treatment, without limitation . . .” (at 403).
This is a very broad definition of medicine that probably would preclude
many public health officials from performing their tasks as well. “Medicine” has a vast meaning in that state, and Vicki Smith and her colleague,
according to the Superior Court of Marion County, Indiana, and the Second District Court of Appeals, were practicing “it” in their unlicensed
midwifery practices. The constitutional issues brought to the Court of
Appeals by Smith and her colleague were waived by the court because the
midwives did not mention these concerns when they appealed the case.
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Birth Choices 825
The alleged vagueness of the Indiana statutes in question was never addressed by this court, in fact, except in its statement that “[wlhere statute
is ambiguous or unclear, Court of Appeals may construe provisions of that
statute” (at 402).
Issues of substantive due process often arise from legal battles over
the status of lay midwives. When statutes restricting the activities of lay
midwives bear “a rational relation to the protection of public health and
safety,” the courts generally uphold them. The courts’ interpretations of
what is reasonable tend to reflect the views of the medical profession
(Wolfson 1986:938). In Leigh v. Board of Registration in Nursing, 481
N.E. 2d 1347 (198.5), for example, a Massachusetts registered nurse was
enjoined from practicing as a lay midwife because she had not completed the training and certification process to become a nurse-midwife,
as required by Massachusetts law. The court therefore held that Leigh’s
Fourteenth Amendment right to be free from the state’s attempt to “deprive any person of life, liberty, or property, without due process of law”
(Article XIV, Constitution of the United States) was superseded by the
state’s interest in the “public’s health, safety, morals, or some other phase
of the general welfare” (Reilley 1986:1132-33). The irony in this case
was that anyone except registered nurses can practice as lay midwives.
Although not illegal, the autonomy of lay midwives in Massachusetts was
also severely restricted by the Leigh court’s decision.
A final constitutional consideration pertaining to lay midwifery is
whether midwives who are “prosecuted under statutes that differentiate
between lay midwives and nurse-midwives’’ (McIntosh 1989:503) are
granted equal protection under the law, as promised in the Fourteenth
Amendment, which ensures that no state shall “deny to any person within
its jurisdiction the equal protection of the laws” because of classification
(Article XIV, Constitution of the United States). As established in Dandridge v. Williams, 397 U.S. 471 (1970), “[ilt is enough that the State’s
action be rationally based and free from invidious discrimination” (Wing
1990:121) when a charge of denial of equal protection is made. This
“rational basis” test is the second tier of the two-tier test to determine
if equal protection is indeed violated; the first test being whether a putative violation can withstand “close scrutiny” by a court. In midwifery
cases, however, as in many other cases, the Supreme Court’s precedent
of deferring to the legislature regarding social and economic statutes has
been followed. Courts have been hesitant to apply the first-tier test of
equal protection violations-“close scrutiny”-to state midwifery stat-
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Utes. Thus these laws “are unconstitutional only if the means selected
by the statute are not reasonably related to a legitimate state interest”
(McIntosh 1989:507).
Because the states hold broad powers to make laws pertaining to the
public’s health, midwifery regulations vary across state lines and depend
on whether a woman is a lay midwife or a nurse-midwife. Many of these
regulations are vague and inconsistent (Reilley 1986:1125).Generally the
courts have held that pregnancy is a “physical condition” requiring medical attention, that the use of medical instruments and the dispensing of
any drugs constitutes the “practice of medicine,” and that, unless licensed
by the state, midwives are not qualified to practice medicine because they
operate outside of the biomedical paradigm of childbirth. In the following
section, we briefly address a related question: “Do parents have a fundamental right to choose the birth sites and attendants for the births of their
children?”
Choice, Childbirth, and the Constitution
The debate over a parental constitutional freedom of choice in childbirth
turns to the issue of the right to privacy. Is there a constitutional right
to privacy that pertains to childbirth choices? Do the states have such a
compelling, as well as rational, interest in protecting the lives of pregnant
and childbearing women and the potential lives of their fetuses that the
states can pre-empt the power of parents to choose home births with midwives? If there is such a compelling interest, then states and the Federal
government have been delinquent in not providing universal coverage for
completely comprehensive prenatal and perinatal care.
Balancing the states’ power to regulate childbirth requires that the right
to privacy in the reproductive and family planning contexts be examined. In Griswold v. Connecricur, 381 U.S. 470 (1965), the United States
Supreme Court recognized that a state law barring married persons from
obtaining contraceptives was unconstitutional because it violated marital “zones of privacy” with an “unnecessarily broad” “sweep” (at 485)
(Wing 1990:80). Eisensrudr v. Buird, 405 U.S. 438 (1972) established
that “[ilf the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision of
whether to bear or beget a child” (at 453-54) (Wing 1990:83). Regarding the issue of contraception and family planning, then, the precedent is
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Hafner-Eaton and Pearce
Birth Choices 827
clear: Men and women have a right to privacy that safeguards their ability
to purchase and use devices to prevent conception.
In Roe v. Wade, 410 U.S. 113 (l973), the Supreme Court ruled on a
woman’s right to choose an abortion. In the first trimester of pregnancy,
because the fetus is not viable and because a first-trimester abortion is
safer than carrying a pregnancy to term, the Roe court ruled that the state
cannot interfere with a woman’s choice to abort a fetus. In the second uimester of pregnancy, but before fetal viability, the state can only regulate
abortions when such regulations are reasonably related to the state’s interest in protecting the woman’s health. In the final trimester, however, because the fetus if viable and the state has an interest in its “potential life”
and in the health of the mother, the state can regulate and even prohibit
abortions (Wing 1990:87). Although the Roe decision set the precedent
that future courts interpreted quite broadly, it nonetheless recognized a
constitutional right to privacy and to choice in matters of procreation.
Extending this line of reasoning one step in Doe v. Bolton, 410 U.S.
179 (1973) (at 198-200), the Supreme Court struck down a Georgia
statute requiring that abortions be performed only in hospitals accredited
by the Joint Commission on Accreditation of Healthcare Organizations
(then the Joint Commission on Accreditation of Hospitals). The Court’s
reasoning in this holding was that there was “no reasonable relationship
between these requirements and the state’s legitimate interest in protecting the health of the mother or regulating the quality of medical care”
(Wing 1990:88). Exactly ten years later, in Akron v. Akron Centerfor Reproductive Health Inc., 462 U.S. 416 (1983) and in Planned Parenthood
Association v. Ashcrofi, 462 U.S. 476 (1983), the Supreme Court invalidated an Ohio municipal ordinance and a Missouri statute requiring that
all abortions after the first trimester be performed in a hospital. Given
the epidemiologic evidence on the outcomes of abortions performed elsewhere, there was no rational basis for this requirement. Given this reliance
on outcomes, the Supreme Court should favorably examine the perinatal
mortality evidence on home births.
The U.S. Supreme Court has not yet ruled on home birth and lay midwifery issues. State Supreme Courts have, however. In Bowland (1976).
the California Supreme Court decided that a section of the state Business
and Professions Code that makes unauthorized medical practice a misdemeanor did not breach a parental right to privacy (Bowland at 638).
Should parents not (with a slight change of phrasing of the verbatim Eisenstadf decision) “have the right to be free from unwarranted governmental
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828 Journal of Health Politics, Policy and Law
intrusion into matters so fundamentally affecting a person as the decision
[where and with the help of whom to] bear a child” (Eisemtadr at 45%
54)? Citing the compelling interest of the state in the life of the “unborn
child,” which supersedes a woman’s right to privacy at viability, the Bowland court decreed that “the right to privacy has never been interpreted so
broadly as to protect a woman’s choice of the manner and circumstances
in which her baby is born” (Bowlandat 638). The court ultimately held
that it was constitutional for the state to require “valid medical licenses”
of “persons assisting women in childbirth,” including women (Reilley
1986: 1141). Because midwives holding “valid medical licenses” in California could only attend low-risk births and could not use “any instrument
at any childbirth . . . except such instrument as is necessary in severing
the umbilical cord . . .” or not employ “any artificial, forcible, or mechanical means [of assisting birth], . . . or [perform]any version,” among
other things (Bowlandat 632). the parents’ agency in choosing childbirth
settings and attendants was sharply curtailed by this court.
From the perspective of medical practitioners, the birth process is too
dangerous to allow nonbiomedically trained and regulated professionals
to attend women’s labors. This is somewhat ironic from the perspective of
medical training because, as Annas notes, the common axiom in medical
schools and teaching hospitals is “see one, do one, teach one” (Annas
1989:23). The US. Supreme Court’s findings in Roe, however liberating
they proved to be for women’s agency in choosing abortions, reflected
the Court’s attempt to “strike a balance between the woman’s right to
choose a particular course of medical treatment and the state’s interest in
maternal health or the potential health of the fetus” (Wolfson 1986:944).
This effort hints that the High Court might uphold state laws that mandate physician-assisted hospital births if states can prove that they have
these compelling interests, and if these laws withstood both the “close
scrutiny” and “rational basis” tests. Under the doctrine of “parens patriae,” the states conceivably could try to regulate where and how birth
occurs (Wolfson 1986:942). These legislative and judicial tendencies reflect an incorporation of biomedical values into the institution of government. Obstetricians claim duties to both women and fetuses (Wolfson
1986:939). Their claims have been validated by state case laws that deny
parents the fundamental right to choose the site and attendants for birth on
the grounds that there is a compelling state interest in protecting the life of
the fetus as well as the woman (Bowland).The rights of women and families to choose nonmedical birth processes, locations, and attendants are
superseded by the states’ interpretation of birth and the associated risks
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Birth Choices 829
according to the dictates of obstetrical professionals. not by input from
epidemiologic data and human concerns.
Recommendations and Conclusions
Quite logically we might wonder why, if this evidence is true, we have
not shifted our paradigm away from childbirth and pregnancy regarded as
pathologic processes or at the very least as events requiring technological intervention and the protection of the hospital environment? Given
the frequency of childbirth, why has the professional literature not been
bombarded with studies or statistical reports documenting the positive
outcomes of midwife-attended deliveries or home birth? Why has the
media not seized the opportunity to add fuel to this fire? Furthermore,
why have consumers not demanded the attention of the aforementioned
stakeholders in this matter? One central explanation or several synergistic
contributory factors may explain this resistance. We might assume that
the medical industrial complex (as referred to by Vicente Navarro [ 19841,
E. Richard Brown [ 19791, McKinlay [ 19841, and others) has covertly
conspired to create and maintain a monopoly not only on the scope of
practice .of nonphysician practitioners but also on the information that
might undermine this monopoly. Certainly in the Rockefeller Medicine
Men, Brown (1979) established a strong argument for this perspective as
the main reason that physicians gained societal power earlier this century.
Although this theory is certainly plausible in the case of obstetrics today,
it is probably too simplistic given the current heterogeneity and fragmentation of the medical profession, the legal structure of the United States,
and the overt political cooperation granted to the mass media by so many
groups. Therefore we focus our discussion on multiple-factors reasoning.
Interestingly Tew's prologue to Safer ChiWbirrh? (199O:viii-x) describes the difficulty she encountered when trying to publish her results on
childbirth in the United Kingdom. The obstacles she faced illustrate one
of the primary mechanisms for social control in modem society. Those
who control the media, including professional journals and monograph
publishers, have agendas and also have their vested stakeholders who lend
credibility to their institutions and overall reputations. The trail leading
to this component of power includes the fact that physicians sit on most
editorial boards of health services journals, the most probable arena in
which to publish these results.
Organized obstetrics (American College of Obstetricians and Gynecologists in the United States) has a clear financial interest in retaining
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830 Journal of Health Politics, Policy and Law
pregnancy and childbirth within its exclusive domain. When the birth rate
is high and the physician supply is low (particularly in the obstetrics specialty), organized obstetrics behaves less territorially and is more likely
to allow nonobstetrician physicians and nonphysicians a broader scope of
practice. Similarly, if an abundance of low-income, unsponsored, or geographically isolated patients exists, the profession will allow more legislative freedom to these practitioners to treat these “less desirable” patients.
This may be particularly true if physicians perceive these patients as more
difficult, time consuming, or more likely to file a liability suit. However,
when there is an oversupply of physicians, or when well-insured patients
are scarce, the profession is likely to tighten their reigns and limit the
scope of practice of anyone appearing to erode their practice or income
potential. Practicing obstetricians also may control the future supply of
obstetricians by limiting the number of residency slots available in their
specialty. In some areas, consumers have been successful in changing
physician practice style toward one that is less technologically oriented.
Still, for physicians, this approach is one that is probably unfamiliar, more
time consuming, perhaps uncomfortable (both psychologically and physically in terms of position or other choices), and one that shifts the power
from the physician to the delivering mother. In a system that still has remnants of fee-for-service incentives, the number of patients physicians see
or the number of procedures (particularly invasive) they perform provides
strong incentive not to shift paradigms.
Although physicians have a strong influence on the scope of practice of
other (or future) physicians and nonphysicians (such as midwives), hospitals also may act as formidable forces in this arena. During the last decade,
hospitals have experienced decreasing censuses, even to the point of closure. Thus hospitals have a strong financial incentive to market hospital
delivery as desirable for both families and their physicians (Sager et al.
1991). Many hospitals have catered to consumer pressure by modernizing
their labor and delivery suites to appear more like home settings yet still
maintaining the physician’s access to technology (Tew 1990; de Haven
Pitcock and Clark 1992). These changes have been marketed aggressively
to consumers as incorporating the best of both approaches.
Obstetricians, hospitals, and other medical professionals do not, for
the most part, want lay midwifery and home birth to be legally sanctioned, based on concern about the inaccurately perceived risk and the
prospect of having outside competition. The courts will continue to find
in many states that lay midwifery, unless licensed and limited, constitutes
the practice of medicine according to legislative statutes. Legal code, in
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Hafner-Eaton and Pearce
.
Birth Choices 831
turn, seems to reflect the prevailing values of a profession allowed by our
society to formulate and influence social norms. Often social norms are
not based on epidemiologic data that show long-term health trends or outcomes in large populations; rather they are shifted, manipulated, or maintained by key power-holding groups who may have vested interests. The
key to changing inaccurate social ideas about the safety of childbirth at
home and about lay midwives as birth attendants is to continue to conduct
scientifically rigorous studies, educate about the findings, and enact legislation that reflects an acceptance of alternatives. As Peterson states, in a
social learning analysis of more broad health care reform, “These should
be issues open to careful empirical assessment and determination. . . . A
significant feature of social learning is the opportunity and incentive for
“information.” “knowledge,” and “analysis” to reflect the interests and
biases of whoever is communicating the conclusions” (Peterson 1993).
As the United States again seriously considers health care reform,
policymakers should use the full scope of empirical data to ensure access
to alternatives in care and still protect the public’s health. Where equivalent quality is possible, freedom of choice in provider and location should
be incorporated into the reform structure. Bills such as the WellstoneMcDermott-Conyers single-payer National Health Program would offer
the most freedom of choice in provider and protect the public from the
potentially high costs of care. If the United States follows the European
lead in which three-fourths of births are at least partially midwife attended, an estimated $8.5 billion might be saved based on $1,200 as the
average cost of a midwife-attended birth (Midwives Alliance of North
America 1993) and $4,200 for a physician-attended vaginal birth (Health
Insurance Association of America 1993). Through its use of licensed
direct-entry midwives, Oregon expects to save $3.5 million per 1,000
births (Johnson 1993). Using more conservative calculations, the shift
to a less interventionist model with midwives as primary attendants of
low-risk births could save the United States approximately $1 to 3 billion
per year without jeopardizing health status. Indeed, in 1985 the World
Health Organization called for an increase in use of midwives as the primary caregivers and attendants at births, not only to control costs but
also to improve the quality of the birth experience for babies and parents
(WHO 1985; Mitford 1992; Gaskin 1994). This organization has strongly
supported legislation in several states to legalize or license direct-entry
midwives as a way to improve access, outcomes, and choice.
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832 Journal of Health Politics, Policy and Law
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