Questions and Answers about the
H.O.M.E. Class Action Lawsuit

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Question: Is there is any downside to the class action strategy?

Answer: 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.

Question: 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.

Answer: 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.

Question: 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.

Answer: Just to be clear, in NY, there are about 50 or so midwives (licensed) who 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 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 Direct Entry Midwives (DEM's) who 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.

Question:I am not sure that homebirth is illegal in any state. Just the midwives who practice home birth. So the question is will the New York State suit address the issue of DEM's or just home birth? If it just addresses home birth then you might get a bigger boost for Certified Nurse Midwives (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.

Answer: 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)

Last updated Friday, August 29, 1997

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