Is there is any downside to the class action 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
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
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.
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
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.
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
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.
Last updated Friday, August 29, 1997