A bit of research and a tidbit about Midwifery and the law


Research published [in 2007] concluded that hospitals’ articulated reasons for closing or placing limits on their related midwifery services are not necessarily what is motivating such moves.

Looking at two cases in which hospital-affiliated midwifery services had good outcomes, the researcher in this report conducted 52 detailed interviews with midwives, nurses, administrators, childbirth educators, policymakers and physicians and reviewed archived data such as e-mail, policy statements and memos.

In one of the cases, the hospital had claimed that too many of the women served were high-risk, so midwifery was not safe. In the other case, an increase in malpractice insurance was given as the reason for closure. No documentation backed up either of these claims; and the interviews and data analysis showed that the midwifery practice in fact represented competition for the hospital, doctors or both. In other words, the hospitals and doctors got less business if women had access to midwives, yet the public messages related to safety and liability.

The author of the study also pointed out that the US medical education system pays subsidies for medical residents, creating a disincentive to using midwives. Finally, she noted that since most state laws require that midwives be overseen by doctors, they are dependent on their competition, putting them at a disadvantage.

This small study reflects the reality that health care, as we know it in the US, is not necessarily about providing the best care for citizens, but about protecting the interests of the system. The logic of cost-saving and efficiency is also lost in this system.

~ Social Science & Medicine 65(3): 610-21

 Midwifery and the Right to Privacy   

The argument that restricting midwifery violates a mother’s right to privacy is futile. A woman has a fundamental right to make personal decisions about procreation, marriage, contraception, child rearing and education; but she does not have a fundamental right to decide how, where or under whose assistance she gives birth because, after the second trimester of pregnancy, the state acquires an interest in protecting the unborn, “viable” child. A woman’s freedom to choose must yield to this interest. Thus, the right to use a midwife is not a fundamental right. Challenges to statutes restricting that right on grounds the statute violates a mother’s right to privacy must survive only rational basis review, and therefore, will likely fail. The case law shows us why.

In 1976, California required midwives to be certified. Three uncertified midwives challenged the statute on grounds that requiring certification violated a mother’s right to privacy. The California Supreme Court held that, because a mother’s privacy interest came second to the state’s interest in protecting the mother and unborn child after viability, the right to use a midwife was not a fundamental right and the statute must survive only rational basis analysis. Establishing qualifications on which consumers could rely made the certification requirement rationally related to protecting mothers and newborns.

In 1987, a New Jersey appellate court upheld a statute requiring that a nurse have a license beyond the traditional nursing license to practice midwifery. Furthermore, nurses could practice only in licensed facilities with health care teams. A nurse challenged the act on grounds that it violated the right to privacy by precluding parents from using a birthing style and qualified attendant of their choice. The court held that, because the statute did not require women to give birth in a hospital or to obtain medical treatment, but merely regulated nurse-midwifery, no fundamental issue was raised and rational basis analysis applied. The statute survived rational basis review because the license and health team requirement was a reasonable approach to establishing the safest conditions for births attended by nurses.

In 1991, two Colorado direct entry midwives challenged a statute requiring one to have a nursing or medical license to practice midwifery. The midwives argued that the statute violated mothers’ right to privacy by precluding them from choosing their method of childbirth. Citing Roe v. Wade, the Colorado Supreme Court held that the right to make personal choices about procreation did not extend to choosing whether to use a direct entry midwife to assist in childbirth. Thus, requiring midwives to have licenses did not violate the right to privacy.

~ Erik L. Smith
  Excerpted from “Midwifery and the Constitution,” Midwifery Today, Issue 65

Read more of this article excerpt in the full online version of E-News at: http://www.midwiferytoday.com/enews/enews1022.asp

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