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New York - Class Action Suit for Homebirth Rights

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Date: Wed, 30 Apr 1997 11:58:08 -0700
From: Julia Lange Kessler 
Subject: Keeping you updated...LONG
Hello All,

This will be a long one.

In terms of networking let me fill you in on recent developments.

Regards~~~~~~Julia Lange Kessler

The following is that transmission.

I have answered as many questions as I can.

I would like to be able to publish parts of this as a "Q and A" on our web page. Would that be okay with you? I am planning on sending this to a few key members. These issues should be thought about by many so that they can be thoroughly answered. I wouldn't need to use your name (on the web site) or that of the coalition, just a basic Q and A format. Please feel free to send these answers to anyone on the coalition. If you send me the email address list I will be happy to do it myself and to answer any further questions. I would also be willing, as would one of the attorneys on the lawsuit, to join in on a phone conference perhaps to answer any further questions raised by the coalition. If someone else has a better idea then this one, please ask them to share it with me.

We cannot remain in fear. We must move forward. Sometimes risk is part of life. Consumers willingly trust us to serve them at their births. They put their lives and the lives of their children in our hands. If they are willing to risk the very lives and health of their children, even if it is a small risk, are we not willing to take a risk for them in insuring their right to birth at home? This has nothing to do with licensure or certification; the issue is basic fundamental privacy. When does the state tell us how to live our family lives?


Am I understanding correctly that the May 31 meeting is like a kick-off/planning meeting specifically for New York?
Yes and no. While we are putting our heads together in NY to consider the very best approach, we will also be considering the best way to organize and coordination this series of class action lawsuits with the other states that are interested. Anyone attending will get a primer in Class Action Lawsuits 101. I have asked other states to either send me a copy of their laws or bring them in May. There should be a small handful of constitutional lawyers available to advise or guide other folks from other states.

I had been planning to e-mail you that after some delays our newsletter is finally getting printed this week and mailed by the end of the week. I hope the New York report will get some response.
Thank you we need all the help we can get.

I have talked about the class action suit idea with some of the coalition members. Here are some ideas that came up of some things that should maybe be considered in framing the lawsuits (you may have thought of these already...).
As I am thinking about this I am also wondering if there is any downside to this strategy.
The biggest risk is that the courts could say that you have no fundamental right to a homebirth. In which case we'd be right back where we started.

What if you bring all these class action cases and the courts rule that you can have a home birth ONLY if attended by a licensed midwife or other licensed health care professional. This could make things worse by making it a crime for parents to deliver their own babies--this was always the out in New York--creating a situation such as in California where they are considering punishing parents for having a birth without medical assistance.
The possibility of any state making it a crime to deliver your own baby is a possibility in ANY state. You may not have had any trouble yet but that doesn't mean that it can't happen if the circumstances are bad enough. That is why it is so important that we establish homebirth as a fundamental right.

There is always a chance that each state could say that they have the right to regulate. The objective is to secure the right to a homebirth. While there are no guarantees, even a decision by the courts recognizing the right to homebirth would be an important step forward. Once in place, we can build on that foundation. Until that fundamental right is recognized, homebirthing parents are always at risk. They are at risk now. In reality, things are not very secure for homebirths in the current climate. At best quiet and calm can and is easily disturbed by the state when they choose. There is much work to be done and we have to begin with a first step even if it means risking a stumble.

Right now there is no fundamental right to a homebirth. Once you establish that fundamental right then you move out of regulatory mode and can move into constitution law and constitutional rights. For example: Brown vs. the Board of Ed. was a case that said that segregation was unconstitutional. (That was 25 yrs. ago) From this, through the years, the courts have applied this basic principle to particular situations to correct discriminatory practices in how the children are brought to school, how the schools are funded, and many other particulars all flowing from a basic fundamental right. Similarly, once homebirth is recognized as a fundamental right, the particulars as to who attends those births, whether midwives are available, and whether a particular circumstance violates this right will be determined. While we can't predict the ultimate outcome, at least homebirth as a FUNDAMENTAL RIGHT will be given protected status by the courts; a status which it does not currently enjoy. This is our first goal.


In New York, they would say that they have midwives who can do home births and it is not their fault if the "professionals" refuse to practice in that environment.
Just to be clear, in NY, there are about 50 or so midwives (licensed) that want to do homebirths and cannot because of the law. The written practice agreement makes it impossible for them do homebirths. The inability to practice at all-any setting- even with a license is also a situation that is happening here. We hope that they (the CNM's)will file an Amicus brief (as friends of the court) in support of the lawsuit. In addition we also hope to file a brief on the behalf of the DEM's that want to attend homebirths and can't because of the law. Isn't this a place where the licensed and unlicensed midwives can meet? In concern for the consumers? I am hoping that the one place where the ACNM and MANA can agree is in their concern for the health and rights of the consumer.

And of course you get back to the issue of whether they are trying to stop home birth or restrict the practice of DEMs, the midwives who practice home birth.
I am not sure that homebirth is illegal in any state. Just the midwives who practice home birth. So the question is will the NYS suit address the issue of DEMs or just home birth? If it just addresses home birth then you might get a bigger boost for CNMs. On the other hand, suits arguing for DEMs run into licensing arguments.....and so it goes, around and around.
I would not consider it a victory if we won a bunch of home birth suits and only CNMs or MDs could perform the birth.
DEM'S have had their day in court in both NY and NJ. Unfortunately, the courts in terms of the states regulatory power have dealt with those cases. In the law, the states are presumed to have that power and challenges to the state regulations in this context are almost always doomed to fail. Right or wrong, we need a better approach if we are to be successful. That is why the approach to establish homebirth as a fundamental right is SO IMPORTANT. Once recognized as a fundamental right then the burden shifts to the state to prove that their regulations don't infringe upon THAT right. Working from the solid foundation of a fundamental right, DEM's, CPM's, CM's, CNM's consumers and all of us that support homebirth will be better served.

In the states that recognize DEM's the establishment of homebirth as a fundamental right will not restrict DEM's. In the states DEM's are recognized they would continue to be recognized. Perhaps in the states where they are not, those states may reconsider. (They would have to if homebirth becomes a fundamental right.) Ultimately, homebirth is the root from which midwifery is grown and promoting homebirth will not harm midwifery. (Actually midwifery will be promoted through homebirth)


These points are very close to home for me, also, since no CNMs attend home births in Georgia, in fact very few even want to, and in general the medical climate is very anti- home birth and midwives who are not directly employed by doctors.
If the state finds homebirth to be a fundamental right then you will attract practitioners to your state that can meet that need. It's the old, "if you build it, they will come" adage. If the consumers shout, " I WANT TO BIRTH AT HOME" you know as well as I that there is tons of literature to support it's safety, although safety is not the issue here. They will come. They will come in the same way that they started building birth centers and hiring midwives because it will be consumer driven and quite frankly someone will be able to make a living doing it! This is economics. We can use the economics to provide safer births for the women in each state. It may not happen right away but we must start somewhere. (We are "grassroots" after all.)

It seems to me that there are a number of issues... Among them the right of Practitioners to accept or refuse clients or procedures-- for example, doctors may be qualified to perform abortions but cannot be required to (at least that is true in GA); if doctor consultation and referral agreement is required, but doctors cannot be forced or required to enter such an agreement, then you have legal attended home birth in principle, but it is non-existent. And the big issue -- is it or is it not a right to choose where and with whom to give birth, and under what circumstances?
We have to establish the fundamental right to homebirth. Otherwise the state can regulate you to the their hearts content. It's all in how you approach the walls of the fortress. If you approach from a wall with no DOORS you will never get in. (this is the side of state regulation) if you approach it from the side of a fundamental rights, not only is there a door but the door is wide open for all kinds of entry. (There might even be neon lights guiding you in!)

My understanding is that there are pretty good constitutional/legal principles about protecting babies and children from neglect and maltreatment and that parental rights can be superseded when the child's welfare is perceived to be in jeopardy. Some do-it-yourself home birthers have been threatened with having their children taken away on child neglect charges. It is always the mother's right to choose even when choosing home clearly jeopardizes her life or her baby's? Is that what we want? Or is it only OK to choose home with a "qualified" attendant? Then we are back to the availability of such attendants, and if such is not available, the mother is faced with a one in four likelihood of major abdominal surgery even against her will. What a mess!! I am rambling a bit here, but those are some of the things I'm thinking about, don't necessarily have any brilliant ideas about, but am concerned that the ramifications are thought through very carefully.
You raise some important considerations regarding the administration of health care in your community. These considerations exist whether or not homebirth is recognized as a fundamental right. My only caution is the easy but unfair analogy of abortion to homebirth. This is what the courts have done but let's pause and think about it. An abortion is a procedure that always results in the destruction of a fetus. Homebirth in a low risk community is safe and beneficial to the newborn and the parents. Unlike abortion, homebirth (if not suppressed) will flourish, its support network will grow and the section rate will decrease.

All of these issues are rather complicated. I don't see any easy way around it. It may take a series of lawsuits but we do believe it can be done and to the benefit of all. As I said earlier, "If we build it, they will come." We must begin to break ground.

Respectfully, Julia Lange Kessler

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