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NY Update 5/16/97.

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Date: Fri, 16 May 1997 13:47:50 -0700
From: Julia Lange Kessler 
Subject: NY Update 5/16/97.

To all those wanting to stay updated on the NY Action, this is the latest edition. It is another set of good questions(which came in on Wednesday 5/14) that I hope have good answers. I have not included the name of the person asking the questions. I will answer and I have asked Leanna Hoodes to also add her thoughts. For those of you that have asked, Leanna is a political activist by profession (what a life!) and has successfully navigated many a political movement. Leanna’s thoughts will be at the end of this post. (Leanna will have the agenda completed by early next week for your approval-she is also working on a brochure which will describe what a class action lawsuit is and how the classes are involved.)

I will answer all questions as completely as possible, so keep those cards and letters coming! Some answers may seem redundant to you or you may have encountered them before, bear with me. Good questions are probably lurking in everyone's mind. Let's keep communicating.


I repeat: Please send me info on what this lawsuit is about! I think it detrimental to present this to the public before midwives even know what it is about.
This was posted on the midwifery list and is the main intent of the lawsuit. I am sure you have seen this before.

The overall picture could look like this: Each state (it would be nice to get at least ten) will bring a class action suit, to be filed on the same day as every other state. The class action suit should name as many people as you can find (the sky is the limit here) to say that they wanted to have a homebirth with a legal careprovider but were able to find one that could attend a homebirth (due to the laws in each state).

The publicity should be coordinated. A press release (with contact people) should also be released in each state at the same time, same day, noting all of the other states that are participating. This will be great media and draw lots of attention to the issue. While each state brings its own suit we should be able to save money by sharing experts and the like.


If there is a presentation for Michael to give and something for Leanna to moderate then there must be a plan.
Michael wants to educate consumers about the law, what it is that infringes upon their rights and how it can possibly be corrected. Leanna is there to make sure that the meeting stays organized and on target...

How can you avoid what happened at Bear Mt. if people are going in cold?
Most consumers are coming, I would imagine, because they want to DO something in NY or they have been oppressed by the law. They are not coming in the cold.

I do not think your civil lawsuit was about DEM's in NY.
It was ALL about DEM'S. It lost. (This sounds harsh, but is meant to be realistic). Perhaps I can send you the original complaint and the final decision that was sent into the state when we filed the civil lawsuit. [Anyone that wants this info can send a TWO stamped, self-addressed big envelope to me at 271 Gardnerville Rd. New Hampton, NY 10958 and I'll send it.]

This new class action will be designed to free homebirth from the strangle hold of the statue...nothing else. The commitment to DEM and other issues is not diminished by a commitment to HOMEBIRTH!! For over four years through legal action, advocacy and activism HOME fought for DEM's and others who wanted to attend homebirths. The focus of this meeting is HOMEBIRTH. We need to establish, in the law, that homebirth is a fundamental right that is as scared as freedom of religion, freedom of speech!

Homebirth is not a fundamental right at this time. Freedom of FAMILY needs to be as ingrained in our culture as the concepts of freedom of religion and freedom of speech.


We all think about our clients when we look at the big picture. I look at them every day when they choose us over a CNM for a homebirth.
Good, then I would hope that you would want to protect their being able to at least continue to choose homebirth.

I do not care who does a women homebirth as long as she still has the option. I do however think they care. They do want DEM's.
Even assuming a consumer preference for providers ( a fact not yet confirmed) the courts have repeatedly held that the consumers HAVE NO RIGHT TO CHOOSE AN UNLICENSED PROVIDER. Significantly, in making this ruling about DEM's the court also expressly held open the issue of whether consumers have a right to a homebirth! And so, here we are in the reality of the present, with homebirth hanging on by a thread. How do we protect homebirth?

Remember when Chiropractors had to fight for the right to practice? The AMA said just become OD's and you can still do it.
Even the DC's(Chiropractors) have to go to school to be licensed and licensed they MUST be to practice. DC's cannot apprentice or be validated by apprenticeship alone. The chiropractor example is one that really only validates the CNM model for they did not ask for apprentice ship models. (By the way, I do think that apprenticeship is a valid way of learning and that it is possible to satisfy current social criteria by passing an exam. This is the expectation of the culture we live in. Passing the exam or getting a license do not insure competency...if it did we would not have people losing their licenses, but that's another issue.)

I still think we should include something with DEM's on the lawsuit. Do you want a list of ideas for that? Would it even be considered?
Again, we are open to considering anything, but the focus of the meeting is to follow the courts lead and on make homebirth available to everyone. Anyone with objections can meet or talk with us before hand...just let me know.

I have been told by lawyers that you should always ask for more than you can get. A court likes to get rid of something.
I wish that were true in these kind of cases, but what we have found is that in civil action if you give the court too many issues to focus on, they will not answer the main and most important issues. This is what happened in the last lawsuit for the DEM's. The issue of the practice agreement while included was totally unaddressed in the decision. We must focus on the most important issue, that being homebirth, to get a result for homebirth.

I would be better if Midwives where privy to what you are trying to do before the meeting. What is the reluctance?
How do you interpret 'reluctance' on my part? I have told you all that there is. Our aim is homebirth. I have put out everything on the net and in the flyer.

This is about HOMEBIRTH...the fact that there are providers that want to attend homebirths and can't is a travesty of justice for the providers and the consumers! The consumers are all that we can focus on for they have more rights then anyone else, but not enough rights to be attended by a DEM. In reality, the most we can hope for with the DEM community in NY is to find a way to get everyone licensed, which I think/hope we have done through Empire.

The court has given us this direction to follow. Your concerns are valid. This meeting is for this particular action. Whatever you want to do is okay and we won't do anything against any action that you want to take. (And perhaps we can even help each other) This action is just the next thing to happen. This action might be the one place where everyone can meet.

Forwarded from L.:

In a movement as broad as this one, there are many roads to take -- indeed there are many destinations we are heading towards. Sometimes we choose the roads carefully, and at other times we are thrust on to them by circumstances. In this case, we were thrust into the legal arena (by the State's action against Julia, Karen, and Roberta), and it has continued to be the appropriate avenue. Unfortunately, legal action must, by its nature, be determined by legal constraints, and often leaves much of the decision-making as to strategy up to the lawyers. It is not always possible to have discussions/debates as to where to go next.

The current action comes directly out of the decision by the appeals court -- they left a door open on the question of whether or not women had access to homebirths. Therefore, this is where we are going with the lawsuit.

You are right however, that it does not address many other issues. That is left for another "day," or potentially, another type of action; for instance, legislative. We cannot (and should not) do everything for the entire movement. But this is the logical next (best) step. This is not to say that HOME and other groups should not be doing other things also, but we are all limited in our time/energy/resources. Others must see other paths and take them, and we all try to give support, when and how we can.

As to this meeting, it has a very specific purpose. That is, to "publicly" [in a private meeting] explain the nature of the class action lawsuit, elicit help and participation from the class(es), and possibly elicit similar lawsuits in other states. We will also be examining, briefly, the possibility of concurrent legislative advocacy on this issue. Other issues will have to wait. If many are concerned about the direction that HOME is going, that is perhaps the impetus for another meeting similar to Bear Mountain (do we really want/need to go there again?).

In the meantime, we all need each other's support. We are proceeding with this action, and hope that we have your support. If not, we will proceed anyway, and hope that at some future time you will have time/energy/inclination to be there, and we are always open to that. In addition, as you proceed with the avenue(s) that you will take, we will try to work with you. That is what a movement is all about -- while we are of many minds, we are all in this together.

This from JLK:

Let's meet in a neutral place to discuss any further objections that you may have or we can alternately set up a phone conference. Have a good weekend everyone and please keep checking your email for the agenda.

Your input is invaluable!

Julia Lange Kessler.

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