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About Homebirth Legal Battles

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Sorry to hear that the "plague" has spread to Illinois. In the not too distant past, I was a traditional midwife supporting homebirths in NY State. Four years ago I was served with an order to Cease and Desist by the State Dept. of Health. I, too, had naively shunned politics. Being the single mother of three did not leave much time for anything but midwifery and mothering. (That was before being forced into the realization that politics was going to find me.) We decided to immediately sue the State. The federal civil case spoke the to rights of consumers to give birth where and with whom they decided and the right to practice and provide the service of homebirth. I can only encourage you to fight the good fight and remember its worth fighting. Battles may be won and lost, but the births should never be surrendered.

Here in New York despite the levy of heavy fines after an eternity of administrative hearings, I am still resolved in the knowledge that resistance is the RIGHT course of action. We did not win the first round in Courts in terms of direct entry but we have been able to set a course for homebirth. Furthermore, our case and others have raised public consciousness and awareness. (NY has had more midwifery publicity then any other state in the union last year) These assaults on homebirth midwifery have become the rallying point for pro-active support and action.

You should always listen to your heart and follow a course that speaks to your own integrity. In fairness, for some this means acquiescence. For others it might mean moving, underground resistance, or openly challenging the State. Please be careful not to judge one another for the personal decisions that must be made. Only each person knows how much fight they have in them and how far they are willing to go. I have never once regretted our decision to fight. It was empowering to stand up and know that the service that we had provided was competent even if it was illegal. That is the bottom line, the state doesn't need to prove you were incompetent or even unsafe, ONLY that you are doing something illegal.

So, what to do?

  1. Most importantly shop for a good lawyer. (A lawyer that understands state administrative hearings and constitutional law.)
  2. Each States statute may be worded differently then other States and should be reviewed by an attorney to see if the language of the statue can actually be used to help you. By way of example: in States like CT. and Mass., the Courts used the statute to distinguish direct entry midwives from laws governing Nurse Midwives. There are also examples of midwifery being distinguished from the practice of medicine. Again, a cautionary note; these are offered by way of example and without actually interpreting the language of the Ill. law one can not assume that these other examples have any relevance to your state. There are many other examples of States in which the courts have determined that the statue DOES include ALL midwives and the practice of midwifery in all settings. This is why I suggest that your particular statue is examined closely.

    Even if the statute is drafted so that the definitions do apply to homebirth practice, if the statute effectively prohibits homebirth consumers from obtaining midwifery services then the statue may be unconstitutional. The courts have yet to determine whether homebirth is a fundamental right protected by the constitution. This may also be an approach that will benefit consumers and midwives.

    ASIDE: My husband is an attorney and freely offers advice over the phone to any midwives or attorneys that want a second opinion. His name is Leonard Kessler and the phone number during the day at his office is 914-294-3276. I've listened to him talk many a midwife ( in many states) through different legal battles. He believes that everyone should stay informed and he is always willing to help. In the evening he can be reached at 914-355-1416 which is also our fax number and faxing a copy of the statue in your state would be helpful if you want to ask questions about the interpretation.

    In addition my lawyer, (no, my husband was not my lawyer, but an advisor to our case) Michael Sussman, who handled our case in federal court and the administrative hearings, is also willing to share information with others. 914-294-3991. He has great understanding of the issues, having been a former homebirth client and teacher of childbirth education classes.

  3. While we decided to fight our order to cease and desist, we could have chosen to negotiate and sign a restraining order which would have saved us a great deal of money. In all honesty, I was very angry that our safe conservative practice that was serving the community of homebirth parents was being attacked. There were no complaints against me. I was just determined (and still am) to find a way for the greater community be provided the choice in place of birth. (In a moment of victimization, I said to my partner, why us? She replied, "We always knew this was a possibility." That snapped me right out of victim village and into reality. Wise women, she is.)
  4. Organize your consumers immediately. You don't need a large number of them but they have more power then ANY group of professionals (except a professional lobbyist with a great deal of money). Because midwifery is a legally recognized profession, the state has the right to determine how the profession is regulated because the STATE has the right to protect its citizens! (Of course we all know that many people that stay at home to birth, due so to protect themselves from unwarranted intervention.) The citizens are the ones that have any clout with state officials.
  5. It looks like the State is out to put an end to illegal or homebirth midwifery in Ill.. I doubt that anything is going to "blow over". Get prepared these folks play hardball.
  6. My experience was that there was nothing "nice" about them, even though I wanted to find something good about them, they had a job to do and as far as they were concerned I was a criminal. At one point, still in denial, I remember saying to my husband (on my third day of testifying) couldn't we just bring in a plate of homemade brownies and all sit around the table and talk about this like reasonable adults? The hearings seemed so alien to the way in which I was accustomed to interacting with others. (It certainly wasn't 'Kansas' and the men and women behind the curtain were more like the smoky image then the kind-hearted wizard.) But you can survive it and I do feel defending our practice was the right thing to do.

  7. Choose your battles wisely. There were some that could not be won with the tools that we had and were frustrating to fight. In NY, IMHO, I believe the NARM battle is up to the NARM board. We fought for NARM in our federal lawsuit (but that is whole other discussion). On the other hand, the consumer battle in the form of a possible class action lawsuit might hand carry some weight. You only need twenty-five consumers to put one together. You might want to consider it as we are in NY. If you do, the first thing to do is to canvas all careproviders in your state so that you can represent the facts about homebirth. (I am enclosing a recent post that we sent out so that you can see how we did it…look for it in another post under "fact finding mission")
  8. Ultimately your particular circumstance and the way the law impacts on you is part of a greater trend; who gets to control birth and the " birth industry"? I often thought I would be okay because my practice was safe and established with four docs to back up at different hospitals. Unfortunately, these are not defenses to the states ultimate goal to control and regulate your practice. Each should take pride in their practice. You should also appreciate that it is worth defending.


    In other grey area states surely but it is not a far fetched idea that even states with recognition would feel the heat too.
    Absolutely. I'm usually an optimistic person but a reality check reveals that this is a national trend and we need to stay very aware and active about what is being done and can be done in each state. Let's not reinvent the wheel in each state. We are more then willing to share everything we have in order to help others. I am sure others are too. Ultimately a national database on legal issues of midwifery and homebirth would serve each situation. (has someone come up this already?)
In any event my thoughts and prayers are with you. Please feel free to inquire about anything at all that we can do. Keep your head up and your vision on the bigger picture. Most importantly I guess I would share with you, even though it was and is a difficult thing to do, do not at any time take any of this personally. This is not about you as midwives or women-it is about control and economics.

Remember to breathe!
God Bless.
Julia Lange Kessler

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