Yale Journal of Law and Feminism - part 2
Obstetricians do not provide primary care to the majority of the healthy pregnant women in any European country.163 In a hospital birth, the mother's efforts become a means for helping the doctor deliver the baby.164 As soon as a pregnant woman enters the hospital, "active management of labor" by the obstetrician begins. The physician is the one who performs. He or she delivers the baby at the appropriate time, while the woman in labor is required to remain passive.165
Expensive diagnostic tests are the rule rather than the exception for hospital births, even when the procedures have not been tested over the long term. An example of this is ultrasound scanning. The benefits of ultrasound have never been found to outweigh the potential risks to the fetus. Scientists theorize that routine ultrasound may cause fetal brain damage, visual and hearing impairment, chromosomal damage, or may result in childhood cancer. Studies to determine whether, in fact, these effects are occurring have been insufficient.166 The World Health Organization recommended against the regular use of ultrasound in 1984.167 Nevertheless, it has become routine. Traditional methods of assessment, however, usually work just as well as ultrasound scanning.168
Obstetrical procedures have become standardized. Obstetricians rely on interventions and drugs extensively during the birth process. For example, the use of fetal heart monitors is now commonplace, although the advantages of using them are unclear. They often restrict a woman's movements during labor.169 They have been related to increasing caesarean section rates and impersonal treatment.170 Electronic monitoring is no more accurate than the use of the traditional fetal stethoscope.171 Monitoring requires that the woman remain in the dorsal position. This places weight on blood vessels that carry oxygen to the fetus and thus possibly contributes to the distress that the monitor is designed to measure.172 In 1978, the National Center for Health Services Research (NCHSR) announced that "electronic fetal monitoring may do more harm than good" and expressed concern about the lack of medical evaluation before its introduction.173
Similarly, researchers are beglnning to be concerned that the use of drugs during labor may interfere with the ability of the infant to function after birth. 174 Hospitals use a powerful synthetic hormone, Oytocin (Pitocin, Syntocinon), to induce labor artificially or to stimulate contractions. Inducing birth with pitocin subjects the woman in labor to increased pain, and she consequently incurs greater risks to herself and the baby from analgesic (pain-relieving) drugs administered to decrease her discomfort. Induced birth has been shown to relate to longer retention of the placenta, post-partum hemorrhage, prolapse of the uterus, and post-partum depression.175 Induction is not normally necessary. Studies have shown that alhough a pregnancy prolonged after 42 weeks can affect perinatal outcome, induction of labor does not improve uhe baby's chances of survival.176
The medical model assumes that relieving pain is always a worthy goal. Until recently, demerol (meperidine) was the analgesic drug most frequently used during labor. Demerol is still used in some hospital obstetrical units, despite wording in the package insert explaining that the drug crosses the placenta and can depress the respiratory and psychophysiologic functions of the newborn. In a well-controlled investigation, John Morrison, an obstetrician at the University of Mississippi, found that one of every four infants of mothers who received only 50 milligrams of meperidine within one to three hours before delivery required resuscitation at birth.177 Stadol (butorphanol) and nubain (nalbuphine) are commonly used to control pain during labor today. The body eliminates stadol faster than demerol. Like demerol, however, both stadol and nubain have serious respiratory-depressant effects on the infant.178
Epidural anesthesia is another highly acclaimed intervention; it allegedly allows a pain-free birth without interfering with the mental state. Hospitals use bupivacaine most frequently. Most or all sensation below the waist is removed by injecting the anesthetic at the mid-back, making it beneficial in caesarean sections and for difficult births. In normal birth, however, it deprives the mother of the ability to push her baby out and can easily complicate the labor.l79 Most obstetricians quietly agree that epidural block increases the rate of cesarean section.180 It is also-associated with significantly longer labors, higher use of oxytocin, and more deliveries using forceps. 181
As the overuse of fetal monitors and drugs during labor and delivery illustrates, premature intervention can create a "snowball effect," requiring more and more interventions and increasing perinatal risks. 182 The resulting iatrogenic or "doctor-caused" injuries result in extraordinarily high costs.183 A recent Oxford University study found that doctors and hospitals often make the wrong decisions in treating pregnancy and labor, causing both medical and economic harm. 184 Pointing out the dangers of the current system of obstetrics, the authors of the study noted that doctors are disease-oriented and that normal pregnancy, when treated like a disease, has a very poor outcome. 185
The current frequency and likelihood of malpractice litigation orients doctors toward preventing lawsuits; this orientation adversely affects women and babies. Induction of labor at or before forty-two weeks, for example, has become common to prevent the poor infant outcomes that are sometimes associated with the delivery of infants born post-term (beyond forty-two weeks gestation).186 But induction itself increases the likelihood of a caesarean section, which in turn increases the risks to both mother and infant. "Caesarean delivery is associated with much higher material morbidity and mortality rates than vaginal delivery."187 Ironically, liability may actually increase due to induction of labor, which clearly has the potential to backfire as a means of avoiding liability.
Most women who deliver in the hospital will experience a surgical technique.188 If they do not experience episiotomy, they are likely to deliver via caesarean section. Four obstetrical procedures - caesarean sections, episiotomy, repair of obstetric lacerations, and artificial rupture of membranes - accounted for eighteen percent of all surgical procedures
performed in hospitals in 1990.189 Diagnostic ultrasound comprised ten percent of all nonsurgical procedures, while fetal EKG and fetal monitoring accounted for eight percent.l90 Episiotomies were performed routinely in the United States by the 1950s, and even today are very common in spite of research showing the assumptions underlying the routine practice to be unjustified.191 The surgical incision heals no more easily than a natural tear and does nothing to insure a healthy baby in an uncomplicated delivery.l92 In 1976, the first empirical study to determine the long-term effectiveness of episiotomies found that they were associated with prolapsed uteri, tears in the vaginal wall and sagging perineums. They were previously believed to prevent these conditions.193 Episiotomies, however, continue to be performed to facilitate stitching after the birth since repairing a tear can be more time consuming.l94
Whether an episiotomy is"necessary" is often left to the discretion of the doctor. In 1990, episiotomies were being performed at the rate of 55.8 per 100 vaginal deliveries.l95 During labor, if the obstetrician decides that the woman is "failing to progress," there is a high likelihood that she will undergo a caesarean section. One out of every four women who are in labor in hospitals is taken for major obstetrical surgery. Physicians' rationale for this statistic is that operative deliveries "minimize the risk of injury, disease or death for mother and child."l96 In fact, delivery by caesarean section carries a greater risk of illness and death for the mother, and perhaps for the infant as well.l97 The risk of death to the mother alone is two to four times that associated with vaginal birth.l98
Caesarean sections are also associated with a risk of abnormal blood clotting, injuries to the surrounding organs, higher rates of infertility, and much slower recoveries after the birth.199 Caesarean-born babies are at a greater risk for low birth-weight, premature birth and birth injuries than those born vaginally.200 The overuse of caesarean sections also adversely affects the skill of obstetricians, depriving them of experience in delivering babies vaginally in complicated cases.201 Rather than risk potential problems of vaginal delivery, obstetricians often opt for the caesarean section as an easy way out.202
Errors by doctors in the timing of elective caesarean sections contribute to respiratory distress syndrome (RDS), a condition caused by immaturity of the lungs that can lead to fetal death. One study found that one out of every eight caesarean sections results in RDS, the most common complication of caesarean sections.203 RDS is also one of the major factors associated with Sudden Infant Death Syndrome (SIDS).204 Despite the obvious fact that avoiding unnecessary caesareans is the most effective means of avoiding physician-caused prematuriy and RDS,205 a recent study at Oxford suggests that more than fifty percent of the caesarean sections performed in United States hospitals today are unnecessary.206
There are other costs associated with the overuse of caesareans. Normal sized babies delivered by caesarean section frequently have lower Apgar scores than babies delivered vaginally.207 The increased use of caesarean sections does not contribute to a reduction in infant mortality.208 Moreover, women who have caesareans must be hospitalized twice as long as those who deliver vaginally.209 Thus, the incredibly high rate of caesareans in the United States results in awesome human and financial costs. In 1988, the national caesarean section rate skyrocketed to 24.7%, from 5.5% in 1970.210 By 1990, of the 2.83 million live births, 23.5% were caesarean sections.211 Yet, rates higher than ten or fifteen percent are unjustifiable.212 For example, in the United States, the estimated cost of unnecessary caesarean sections for 1986 was just under two billion dollars.2l3 In the mid-1980s, doctors estimated that when the caesarean section rate increases by just one percent, U.S. hospital costs go up by over $54 million.2l4
It is notable that countries with some of the lowest perinatal mortality rates in the world have caesarean section rates of ten percent or less.215 The following chart compares caesarean section rates for various countries:
C-SECTION RATES 2l6 ....
..............COUNTRY...........NUMBER OF C-SECTIONS PER 100 BlRTHS
.......... Czechoslovakia............................................7
.......... Japan.........................................................7
.......... Hungary....................................................10
.......... Netherlands...............................................10
.......... England and Wales (U.K.)............................10
.......... New Zealand..............................................10
.......... Switzerland...............................................11
.......... Norway.....................................................12
.......... Spain........................................................12
.......... Sweden.....................................................12
.......... Greece......................................................13
.......... Portugal....................................................13
.......... Italy.........................................................13
.......... Denmark...................................................13
.......... Scotland....................................................14
.......... Bavaria.....................................................15
.......... Australia...................................................16
.......... Canada......................................................19
.......... United States.............................................23
.......... Puerto Rico................................................29
.......... Brazil........................................................32
Studies have found that women beginning labor under the care of midwives experienced well under half the number of caesarean sections than carefully matched women receiving care from obstetricians.217
Our high-tech society has not yet realized that there are limits to the desirability of technology, especially with regard to its impact on a natural event like birth.2l8 Between 1984 and 1987, the number of obstetrical procedures increased enormously. Use of diagnostic ultrasound increased by 350%; vacuum extraction increased 132%; manually assisted delivery increased 300%; fetal monitoring increased 42.7%; artificial rupture of membranes increased 107%; medical induction of labor increased by 162%; repair of obstetrical lacerations increased by 39%; and caesarean sections increased 16%.219 Almost all of these interventions - many of which were unnecessary - occurred in the hospital. The interventions make hospital birth far less safe than our technology-loving society would expect.220
The need for maternity services by well-trained providers is escalating, especially in rural areas. In 1987, a survey of members of the American College of Obstetricians and Gynecologists (ACOG) found that forty-one percent of them had limited their obstetric practice, and twelve percent were no longer accepting pregnant patients.221 Many specialists have stopped delivering babies because of the high cost of malpractice insurance. 222 Moreover, obstetricians providing care are extraordinarily busy. The short amount of time that obstetricians spend with their patients has been proven unsatisfactory to many women, and significantly deters communication. Some patients also dislike authoritarian physician mannerisms.223 Obstetricians have notoriously "poor doctor-patient relationship[s]" in the obstetrician's office and the hospital delivery room.224 A 1981 study found that nurse-midwives spend an average of twenty-four minutes per visit with their clients. In contrast, a 1975 study found that prenatal care office visits with a physician lasted ten minutes, and thirty-two percent of obstetrician visits lasted five minutes or less.225 One recent study compared the satisfaction levels of women with midwives and obstetricians as primary-care providers: eighty-eight percent of midwife clients were "very satisfied," as compared with only forty-five percent of obstetrician patients.226
B. Midwifery Model
Midwifery is indispensible and an essential part of good obstetrical organization, since midwifery means: protection of health and normality, whereas obstetrics, as part of medicine, be!ongs to the "department of knowledge and practice, dealing with disease and its treatment".... To care for pregnancy and childbirth, you need a midwife and a doctor. I hope that they will ... respect and admire one another and will know that they are both needed and complementary.227
All the European countries with perinatal and infant mortality rates lower than that of the United States use midwives as the sole birth attendant for at least seventy percent of all births.228 In Japan, the country with the lowest infant mortality rate in the world, midwives are the primary birth attendants.229 Researchers agree that countries that rely heavily on professionally trained midwives consistently have the lowest infant mortality and the lowest birth trauma rates.230 In order to improve its perinatal mortality rate and the health status of women and infants, the United States should emulate policies in countries that have lower infant mortality rates.
Programs to decrease poverty, provide good nutrition, and offer social support are the most effective, cost-saving ways to avoid poor outcomes of pregnancy and improve infant health.231 Traditional prenatal care alone is not enough.232 Midwifery is socially oriented preventive care, which incorporates prenatal care and a concern for the social and emotional aspects of pregancy and birth in order to meet the individual needs of each woman.233 Midwifery presumes that childbirth is a healthy and normal event. A holistic approach in which the mind and body are mutually important to the outcome,234 midwifery recognizes that in childbirth, mind and body cannot be separated: "A woman's body works best when she feels confident, secure, emotionally supported, and on her own ground."235
Midwives focus on providing primary maternity care rather than on what can go wrong in the pregnancy. Primary care involves education, health promotion, nutritional screening and counseling, and social support, as well as climcal asessment.236 Midwives do the same kind of screening as physicians during prenatal visits, but they have a broader emphasis and spend more time with each woman. Midwives encourage self-help and personal responsibility as goals for each woman. The midwife spends time teaching in order to remove the mystique surrounding pregnancy and to empower the client. She teaches the woman or couple that pregnancy is a time for "psychological as well as physical growth and development."237 In comparison with obstetrical care, this type of personalized prenatal care results in better client participation and satisfaction.238
After a midwife determines that the pregnancy is normal,239 she becomes familiar with her clients' lives in order to inform the woman or couple of the available options regarding the setting and type of birth.240 The care is woman-centered and, since the fetus is thought of as part of its mother, midwives assume its needs are met when the mother's needs are met.241
Midwives believe that the birthing woman has a right to responsibility over her own body, her baby, and her birth.242 At the birth the midwife "catches" the baby; she does not "deliver" it. She assists the laboring mother; she does not control her. Midwives let nature take its course, intervening only when clearly necessary. Intervention or "doing something" to the woman to try to push the progress of the labor is avoided for as long as possible. The midwifery model of birth has no strict time limits. Each woman's labor and delivery is seen as unique.244 Skilled midwives claim that the biggest lesson they've had to learn is to "sit on their hands and not do anything."245
Midwives recommend benign methods to stimulate labor when a woman's pregnancy approaches the "post-mature" stage. Enemas, nipple stimulation, or sexual intercourse sometimes work as well or better than drugs.246 The woman is sent to the hospital for induction only if these measures are ineffective.
In a midwife-attended home or birth-center birth, the woman is not required to lie down. She is not "attached" to the bed and has no IV poles or monitors attached to her.247 She can get up and walk to the bathroom in privacy and is encouraged to empty her bladder frequently during labor.248 She can eat in the first stage of labor, and is offered drinks frequently.249 Vaginal exams are done periodically, but not on a rigid schedule as in hospitals. The laboring woman's support person may be intimately involved, massaging or Iying in bed with her.250
Experienced midwives usually recognize that the psychological condition or comfort of the woman may cause her labor to start and stop. This frequently occurs when a laboring woman enters a hospital for childbirth. Her contractions, though strong and regular on entry, may become weak and spasmodic.251 If a woman is worried while she labors, she may stop having contractions until her concern is resolved.252 For this reason, home birth may be ineffective for some women. A woman who thinks that hospital birth is safer than out-of-hospital birth may stop having contractions until she is hospitalized.253 During the second stage of labor, from full dilatation of the cervix through the birth, the woman is wide open, usually not in acute pain, but anxious not to be moved.254 As she enters the second. stage, she may experience an uncomfortable low backache and a drop in morale. The midwife empowers the-laboring-woman-with-encouragement, sincerity and understanding.255 To be certain that the baby is experiencing no distress, the rnidwife uses a special stethoscope to keep track of its heart rate.
At "transition," when the woman's cervix is fully dilated, the midwife helps her into positions that facilitate the downward movement of the baby. At this point, most women feel a strong urge to push the baby out. Some women may deliver without any deliberate pushing. The actual length of time and amount of work required to deliver the baby differs with each woman.256
In the medical model, the second stage of labor currently lasts fifty minutes.257 Once labor starts, it cannot stop and start again and still be considered "normal." Any pause in labor triggers medical intervention. In the home or birth-center environment, the midwife understands that the second stage may last up to three or occasionally four hours.258 When the baby's head is emerging or "crowning," the midwife often exerts gentle pressure to guide it out slowly and carefully without damage to the perineum. Experienced midwives deliver breech babies and large babies without tears by repositioning the woman to facilitate the birth. Shoulder dystocia or "stuck shoulders," frequently a side effect of drug-induced labor, is common in hospitals but rarely occurs in home birth.259
Episiotomy is not routine in home birth. When they are necessary, midwife episiotomies are generally much smaller incisions than physician-performed episiotomies.260 When the baby emerges, it is immediately placed in its mother's arms. Midwives often clean and diaper the baby for the mother. Then, if necessary, the midwife administers local anesthesia and repairs the perineum .261
Most American midwives observe the respiratory status of the infant and record an Apgar score. Babies whose mothers were undrugged during labor usually breathe spontaneously. For the rare exception, the midwife uses portable resuscitation equipment that she carries to each birth.262
If the third stage, the expulsion of the placenta, takes longer than twenty minutes, the midwife suggests non-interventive techniques such as breast stimulation. Breastfeeding the baby may help expedite expulsion by stimulating contractions of the uterus. The midwife monitors the woman for excessive bleeding during this period, prepared to arrange a safe transfer should measures within her scope of practice prove ineffective.263
After the mother and child are clean, safe, and comfortable, the midwife offers counseling and support and makes an appointment to see them both the following day. She often makes home visits for up to six weeks after the birth. According to Sheila Kitzinger,
A carefully planned and lovingly conducted home birth, in which the rhythms of nature are rcspected and the woman is nurtured by attendants who have the knowledge and understanding to support the spontaneous unfolding of life, is the safest kind of birth there is, and the most satisfying for everyone involved.264
Although obstetricians and family practice physicians sometimes do provide midwifery service as identified by the midwifery model, the limits of medical education and practice coupled with fear of punishment by colleagues for not following obstetric specialist standards make physician-provided midwifery services rare.265
IV. MIDWIFERY AND PUBLIC POLICY FACTS, CRISES, SOLUTIONS
Legislators and other policy makers in the United States, under the influence of medical lobbyists, frequently treat birth as an event requiring the mechanisms of acute medical care. Many states continue to restrict the practice of midwifery to medically trained nurses. The prospects for judicial reform of the medical hegemony over childbirth are dimming. A 1977 California case and a recent Illinois case both suggest that courts are unwilling to entertain arguments about constitutional issues surrounding the practice of midwifery.266 Arguments about both the individual woman's privacy right to choose the circumstances of her delivery and the due process right of midwives to practice their profession have failed in the judicial arena.
At the same time, evidence suggesting that midwives and obstetricians are both necessary to a working system of care - that they are "not interchangeable as providers of care"267 - continues to gain prominence in the health care field worldwide. The media have focused on the national crisis in obstetric care, but have regularly ignored midwives.268 It is time for legislators and other policy-makers, as well as the national media, to recognize the advantages of midwifery.
A. Evidence Regulators Should Consider
A 1991 article in the Journal of the American Medical Association stated that "the continuous presence of a supportive female companion during labor and delivery could significantly reduce the need for Caesarean section."269 According to the authors, studies in Guatemala had shown that not only did women with a female companion experience far fewer c-sections, they required fewer obstetrical interventions, [had] shorter labors, and [experienced] fewer perinatal problems [with] the fetuses and the neonates."270 The implications for the quality and cost of perinatal care, were said to be "highly significant." The challenge, the doctors said, is to "turn to obstetric technology only when necessary, relying instead on the practice of continuous labor support to help the birth process follow its natural, normal course."271
In a speech to the U.S. Commission to Prevent Infant Mortality, Marsden Wagner, regional director of the World Health Organization in Europe, charged that the United States' focus on medical care as an answer to high infant mortality has never been effective.272 Instead, he recommended that the United States spend less money on medically oriented prenatal care and interventionist obstetrical care, and devote more resources to developing a strong, independent midwifery profession.273
British statistician Marjorie Tew demonstrated that "high techno;ogy can rarely make birth safer, whether the predicted risk is high or low."274 Tew's scientific analysis of thousands of births in Holland revealed that after thirty-two weeks gestation, the perinatal mortality rate was far lower when the mothers were under the care of midwives than when obstetricians were the primary caregivers.275 For premature babies, midwives had similar outcome statistics to those of physicians; the chance of survival for these very small babies was about the same regardless of attendant or place of delivery.276
Studies aimed at proving the hypothesis that midwife-attended home birth is dangerous, on the other hand, are old and unreliable. The most commonly used "study" was published by the American College of Obstetricians and Gynecologists in the 1970s.277 The study claimed that "out-of-hospital births pose a two to five times greater risk to a baby's life." But the cited study lumped miscarriages, premature births, taxi cab deliveries, and other unplanned precipitous births together with out-of-hospital births that were planned and attended by trained midwives.278
A true scientific study, however, was performed at about the same time. The 1970 Mehl study matched 1046 women who were planning home birth with 1046 women who were planning hospital birth for age, social parity, socioeconomic status, and riak factors. All outcomes in the home birth cases that had to be transferred to hospitals were attributed to home birth. The results of the study were remarkable:
The hospital births had five times the incidence of maternal high blood pressure (possibly an indication of greater physical and emotional stress);
The hospital births had three and one-half times the amount of meconium staining (fetal bowel movement expelled into the amniotic fiuid, indicative of fetal distress);
The hospital births had eight times the shoulder dystocia (the fetal shoulder getting caught after the head is born; midwives handle this by turning the woman to hands and knees position which is still not frequently used in the hospital);
The infant deaths, both perinatal (during birth) and neonatal (after birth) were essentially the same for the two groups;
Apgar scores (indicative of the condition of the baby) were better for the home birth babies (though caregivers in either setting may introduce biases into these readings);
More than three times as many babies in the hospital required resuscitation;
Four times as many hospital babies became infected;
Thirty times as many hospital babies suffered birth injuries (attributable to forceps);
Fewer than five percent of the home-birth women received analgesics or anesthesia, while seventy-five percent of the women in the hospital group were administered such drugs;
Caesarean sections were three times more frequent in the hospital group;
Nine times as many episiotomies were performed in the hospital group and nine times as many severe (third- and fourth-degree) tears occurred in the hospital group.279
B. Existing Statutes and Regulations
Despite the convincing evidence in support of midwifery, state laws differ radically regarding licensing and practice requirements. Nineteen states and the District of Columbia place legal prohibitions on midwifery and only allow its practice by nurse-midwives. In four states - Maryland, Ohio, West Virginia, and Wisconsin - midwifery is statutorily defined as a function of nursing, so practice by non-nurse midwives is illegal.280 Midwifery (except for nurse midwifery) is prohibited in Illinois, Nebraska, and the District of Columbia because it is defined by statute as "the practice of medicine."281 Statutes require midwives to be certified nurse-midwives in five states: Hawaii, Indiana, New York, North Carolina, and Virginia.282 In seven other states - Alabama, Delaware, Georgia, Kentucky, New Jersey, Pennsylvania and Rhode Island - only nurse-midwives may practice, because licensing is performed by medical authorities.283 Direct-entry and lay midwives do not practice in Iowa because in 1978 the state Attorney General defined midwifery as "practicing medicine without a license."284
Colorado, Florida, Louisiana, Montana, Texas, and Washington have elaborate statutes governing the practice of direct entry midwives; a bill passed by the California General Assembly governing the practice of direct-entry midwives is expected to be signed into law.285 In nine states Alaska, Arizona, Arkansas, Minnesota, Missouri, New Hampshire, New Mexico, Oregon, and South Carolina - statutes allow midwives to practice under the authority of state agencies.286 Sixteen states have no specific regulatory statute. In ten of these states - Connecticut, Idaho, Kansas, Maine, North Dakota, Oklahoma, South Dakota, Tennessee, Vermont, and Wyoming - "the practice of medicine" is defined narrowly, limiting its scope to the treatment of abnormal conditions.287 In Mississippi, midwifery is defined as part of the practice of medicine, except in the case of "females engaged solely in the practice of midwifery."288 Michigan, Nevada, and Utah construe "the practice of medicine" broadly,289 increasing the vulnerability of midwifery to tighter medical control. The state of Washington was first to grant true professional autonomy to direct entry midwives.290 In an exciting move toward legislative recognition of an independent professional midwifery organization, the 1993 Colorado statute governing the practice of direct entry midwifery suggests that the state utilize a professional competency examination designed by the Midwives Alliance of North America, Inc., an organization formed to support direct entry midwifery as well as nurse-midwifery.
C. Examples of Judicial Action
The U.S. Supreme Court has never decided a constitutional issue regarding midwifery. In 1977, the California Supreme Court held that a woman has no privacy right to choose "the manner and circumstances in which her baby is born."291 According to the California court, Roe v. Wade's trimester system precluded such a right.292 Since the state's interests are paramount over the woman's privacy rights in the final trimester of pregnancy, the court reasoned it follows that her privacy rights cannot prevail during labor and birth.293 Thus, the state may require that birth attendants have valid licenses (and presumably may regulate midwifery in other ways as well), even when it has no laws prohibiting unattended childbirth outside the hospital.294 The court suggested that "further arguments as to the safety of home deliveries are more properly addressed to the Legislature than the courts."295
A recent federal case concerning the statutory treatment of midwifery similarly suggests that independent licensing standards may be best achieved through intensive state-by-state lobbying, and not by claiming in courts a "right" to practice midwifery. In Peckmann v. Thompson,296 two unlicensed midwives challenged the constitutionality of the Illinois Medical Practice Act,297 under which they had been indicted for practicing midwifery without a license. Although the court found the statute unconstitutionally vague with respect to whether or not the legislature had intended to include midwifery in its definition of the practice of medicine, the court supported the constitutional validity of such a policy based on the police power of the state.298 The court deferred to the legislature:
Under the 1987 Medical Practice Act, Illinois eliminated the separate licensing procedure for midwives which it had previously employed. Although the wisdom of the change in treatment of midwives may be debated, there is nothing in the Constitution which prohibits Illinois from rationally exercising its police power toward midwives; the Constitution does not demand that midwifery be recognized or licensed in Illinois.299
Unless proponents can convince skeptical courts that midwifery is a fundamental constitutional right, prompting strict scrutiny of state regulations restricting its availability, activists should focus on convincing legislatures that independent licensing of midwifery is in the best interests of the state. Proponents should present to legislators the evidence that changes in midwifery could save lives and money. Low birthweight is the major cause of infant mortality in both Europe and in the United States.300 Low birthweight infants "are forty times more likely to die within the first twenty eight days of life than normal weight infants."301 Half of low birthweight babies have some degree of mental retardation; they also have a high incidence of epilepsy, cerebral palsy, and learning or behavioral problems.302
The most logical and fiscally responsible way to deal with low birthweight is to prevent it in the first place. The alternative is to reduce the impact with expensive, "high tech" neonatal intensive care units (ICUs) and expanded medical care.303 The cost of saving these babies by the latter route is astronomical. In Florida, the medical costs for a premature, low birthweight baby has been estimated at between $16,136 and $174,278, 304 and the approximate lifetime cost for custodial care of a low birthweight baby with complications is $500,000, not including costs for education and social and economic services.305
Dr. Thomas Brewer, a leading expert on metabolic toxicity in pregnancy, says that the presence of more than six hundred neo-natal intensive care units in the United States today is "a crime against the health of our people.... A child in a neo-natal intensive care unit is an abused child. We don't need 600 neo-natal intensive care units in a country that is as rich as ours. We have no standards."306 Five years earlier, activist Angela Davis had testified before the California Department of Consumer Affairs about the prevailing approach of the medical establishment to solving the crisis:
As growing numbers of medically indigent women are forced to go without prenatal care and proper nutrition, thus producing very low birth weight babies, every effort is made to keep those infants alive ... through the use of expensive, profit-making technology .... The medical establishment's ... solution to an embarrassingly high rate of infant mortality in this country's poor and Third World communities is increased reliance on the technological miracles that keep low birth weight babies alive, many of whom are born prematurely because their mothers could not obtain early equal respectful care ....307
Professor Davis highlights the way in which NICUs are in fact an exorbitantly expensive and inadequate "band-aid" for a mostly preventable injury.
A large group of practicing midwives could increase participation in prenatal care and reduce the incidence of low birth weight and the need for neonatal intensive care units by providing more affordable, accessible services than the medically-oriented status quo. The National Commission to Prevent Infant Mortality has suggested that even small improvements in preventive care would result in an immediate national savings of 70 to 95 million dollars.308 Requiring midwives to first become nurses is unnecessary and counterproductive to the goal of increasing the number of midwives. Such a requirement would slow down the education process considerably, and might discourage those people who would like to become midwives but are not interested in nursing. The idea that midwifery is nursing is an unfortunate but correctable misconception. Midwife Caroline Flint writes,
"As a nurse you will learn to take care of bedsores and to prevent them, you will be able to scrub ... amputations ... Iook after diabetics ... learn about congestive cardiac failure, how to make a bed, the care of ... coronary thrombosis, subarachnoid hemorrhage, concussion ... kidney dialysis, giving medicines - all thoroughly useful knowledge which no sane person could do without before becoming a midwife? Or is it? 309
A 1981 World Health Organization Organization Regional Office report noted that, because midwifery and nursing are separate disciplines, they should be studied, considered, and regulated separately.310 The weight of the evidence and statistics suggests that states should create a system of regulation or certification to govern the practice of qualified, trained midwives.311 The ideal statute would allow a midwife to qualify as a professional if she had completed nursing and midwifery training, as required for nurse-midwives, or if she completed midwifery training and a comprehensive apprenticeship program.312 With statutory authority, midwifery could finally claim its rightful place as an independent profession.3l3
VI. CONCLUSION
Because the safety of hospital and medically oriented birth is so questionable, the state's interest in protecting mother and child is not served by a statute allowing total control by allopathic physicians over maternity care. The challenge is to create a system of regulation that ensures competence, involves consumers, and allows for independence.3l4 Using Washington's midwifery laws as a model, states should design public policy to allow and encourage the development of an independent midwifery profession.
Five recent legislative events indicate that the international movement to recognize and promote midwifery is accelerating. Two populous states have passed bills allowing the training and licensing of direct-entry midwives - Florida, in 1992 and California in 1993; Oregon law now authorizes a state agency to license direct-entry midwives. In 1993 Colorado enacted a law that requires registration of direct-entry midwives and recommends that registration be premised on passing an examination designed by a professional midwives' association. Finally, the House of Commons Health Committee in the United Kingdom published new findings regarding maternity care.
A study conducted by the Florida Senate Committee for Health and Rehabilitative Services recommended prescribing core competencies for licensed midwives, encouraging hospitals and physicians to establish collaborative relationships with licensed midwives, developing collaborative relationships through county public health units to provide services to Medicaid clients, and encouraging physicians and certified nurse-midwives to provide more home birth services.3l5 Committee Substitute for House Bill 553 passed and was signed into law by the Governor on April 8, 1992.316
In 1992, in a move that the United States would be well-advised to emulate, the British House of Commons Health Committee issued recommendations that strongly favored the profession of midwifery:
On the basis of what we have heard, this Committee must draw the conclusion that the policy of encouraging all women to give birth in hospitals cannot be justified on grounds of safety.
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We conclude that the experience of the hospital environment too often deters women from asserting control over their own bodies and too often leaves them feeling that, in retrospect, they have not had the best labour and delivery they could have hoped for.317
Lawmakers can afford to ignore neither the risks involved in hospital birth nor the research and statistics validating the safety and importance of the midwifery profession. State power is supposed to provide for the general welfare of citizens and secure them against the consequences of ignorance, deception, and fraud.318 Broad medical practice acts that protect unsubstantiated medical assertions and make criminals of competent midwives provide no such security. If public policy is to improve the health of mothers and children, it must allow the profession of midwifery to develop fully, independently, and in its rightful place - the home.
Copyright 1993 by the Yale Journal of Law and Feminism
The author wishes to thank the following people for their assistance and personal attention to this project: Mary Chaisson, Larry George, Maura Ghizzoni, Doris Haire, Sheila Kitzinger, Bill Lewis, Tom Marks, Becky Martin, Jo Anne Myers-Ciecko, Michel Odent, Nal Stern, and Beth Swisher.
This paper is dedicated to American midwives who have suffered injustice in the struggle to preserve informed choices in childbirth for all women.