While no state in the US has laws or regulations that restrict where or how a person gives birth, it turns out that some states’ midwifery regulations end up limiting birth options for families. And, in the familiar “keeping women safe” rhetoric of anti-choice activists, over-regulation of home birth midwives can have a similar effect of making birth less safe, as some people are choosing to birth at home anyway—just without a skilled birth attendant by their side.
In Arkansas, home birth candidates are required to undergo a risk assessment that includes a pelvic exam to obtain STD testing and a Pap smear or HPV test before they may seek out care from an out-of-hospital midwife. And while it makes sense for these midwives to decline care to high-risk patients as part of their scope of practice, the risk assessments in Arkansas aren’t even done by the midwives themselves, but by physicians, nurse practitioners, or certified nurse-midwives who aren’t affiliated with out-of-hospital practitioners.
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“Generally, regulations only have to meet a very low standard of being plausibly connected to their purpose, not arbitrary. I am not sure that a vaginal exam would even meet this very low standard,” says Indra Lusero, a staff attorney for National Advocates for Pregnant Women (NAPW) and the founder of the Birth Rights Bar Association.
“Yes, in a vaginal birth, a baby goes through the vaginal canal. But, two things make a vaginal exam insufficient for determining capacity for home birth: 1) the vagina’s significance in birth is really temporary and only relevant during the final stages of labor and 2) there are other, way more important organs and systems and conditions that need to be functioning to support a vaginal birth before the baby even makes it to the vagina,” Lusero says.
While certain conditions are widely agreed to be contraindications for home birth—like having a placenta that covers the cervix, for example—many of the worst-case scenarios are difficult to predict prior to the onset of labor. This is why home-birth preparation includes plans for transferring care to a doctor or hospital if medical intervention or facility care is needed at any stage of pregnancy or during labor, Lusero says.
In Arizona, regulations require midwives to perform vaginal exams throughout a patient’s labor, which some patients object to because, A) they’re uncomfortable when not in labor and in labor they can be excruciating, and B) after the water breaks, vaginal exams can increase the risk of infection. (OB/GYNs also perform vaginal exams during delivery, but they aren’t required to do so, and patients are able to, in theory, decline those exams.)
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But, if patients want midwifery care outside of a hospital setting, they have no choice but to submit to assessments and exams, which raises all kinds of alarm bells about consent and the rights of pregnant people to make medical decisions for themselves.
Common midwifery restrictions include mandating certain tests and exams (such as STD testing, blood tests, urine tests, and glucose tests) and limiting patients that are considered high risk. Some of these restrictions are more legitimate than others, says Jacqueline K. Hammack, a civil rights litigation attorney, who is licensed in the state of Louisiana and serves on the board of the Birth Rights Bar Association.
“A fetus with suspected or diagnosed congenital anomalies that may require immediate medical intervention” seems like a legitimate obstacle to home birth, but “a history of severe psychiatric illness in the six-month period prior to pregnancy” and “primapara [a person giving birth for the first time] older than 40” seem laden with value judgments, Hammack says.
Especially that last one. Complications could arise for anyone at any point during a pregnancy and people would be transferred to another care provider if necessary. But because the regulations prescribe a blanket prohibition against home birth for every first-time pregnancy where someone is older than 40, without any consideration for individual health status, Hammack says that feels like a value judgment rather than a warranted regulation.
“A statistical increase in [complication] risk does not mean that every individual within the higher-risk category will experience complications that cannot be competently handled by a home birth midwife,” she says. “Thus, in my view, a restriction that applies to every individual who falls within the higher-risk category without any mechanism that allows for exceptions based on individual circumstance unnecessarily constrains the agency and autonomy of pregnant people over 40.”
There are lots of reasons that people choose home birth—some choose it for religious reasons, some for the feeling of comfort and safety that they feel at home, others for their belief in the natural process of birth and their desires to birth without interventions.
Kristen Cormier of Loreauville, Louisiana, ended up with an unwanted Cesarean section for her first child’s birth because her baby was in a breech position. Following a prenatal appointment, her doctor abruptly sent her across the hall to be admitted to the hospital. Her then-husband didn’t even arrive until she was already lying on the operating table.
While they were prepping her in the operating room, Cormier says the nurses were belittling her and mocking her request to wait to start surgery until later that evening because they were prepped and ready to go. Her baby was born healthy, but Cormier remembers how, as she was getting prepped to be moved to the gurney afterward, “I kept hearing a loud tapping, echoing sound only to realize that it was the sound of my tears hitting the cold metal table that I was on, and it seemed sad to me that no one in that entire room recognized or cared that I was crying…not even me.”
Wanting to avoid another experience like that, Cormier hoped to have a midwife-attended home birth for her second child. But, because she’d had her first child via C-section seven years earlier, she was disqualified under Louisiana midwifery regulations, which prohibit out-of-hospital midwives from attending anyone who’s had a prior Cesarean. (The American College of Obstetricians and Gynecologists, or ACOG, is also opposed to home births after a C-section.)
Not wanting to have a repeat C-section, and still traumatized from her experience giving birth in a hospital, Cormier, 37, and her partner decided to take matters into their own hands and have their baby at home, without assistance.
Unassisted childbirth (UC) is an independent home birth option done without outside professional support. Some people choose UC for spiritual reasons or for privacy, others for financial reasons or lack of insurance, and still others out of DIY-resiliency and their innate beliefs about the normalcy of birth. But as restrictive midwifery regulations increase, some people choose UC more out of desperation than out of conviction. And because of the number of unforeseen things that can go wrong during delivery, unassisted birth can be risky.
In that way, midwifery regulations are similar to TRAP laws that target abortion providers with the effect of restricting abortion access: Midwifery regulations impose undue burdens that end up restricting access to home births supported by skilled professionals.
“While there’s nothing wrong with choosing unassisted birth, it’s a big responsibility and adequately preparing for it is no small undertaking, which means it’s simply not an option for many families,” Hammack says, adding, “and since [Louisiana] passes its midwifery regulations under the guise of safety and ensuring good birth outcomes, it is telling that what the regulations actually do is force families to accept risks that would not exist if they could be assisted at home births by skilled attendants.”
While people choose home births for many reasons, for people with past sexual trauma or abuse, or those who’ve had a prior traumatic hospital experience, though, a home birth can feel like the only option that feels emotionally and physically safe. In that way, restricting access to a skilled birth attendant isn’t just an infringement of a pregnant person’s right to make their own medical decisions, it’s also considerably cruel: For many people with pre-existing traumas, being required to have sensitive exams performed by someone other than their own provider in order to get approval for a home birth can feel extremely violating.
It’s generally pretty easy to see the cruelty of the anti-choice movement. People walking into an abortion clinic endure angry zealots yelling “murderer!” in their faces, face carrying an unintended pregnancy when they can’t access abortion care, and could be subject to prosecution if they attempt an abortion on their own. The cruelty of limiting birth options, especially access to home births, is less visible.
Birth choice is often seen as an unnecessary privilege rather than a right. But, our choices about our reproductive health—whether they’re regarding contraception, abortion, pregnancy, or childbirth—should all be protected, like every other healthcare option.
“They’ve stolen a move from the abortion playbook as they’re regulating midwives,” says Julie Regina Gunnigle, a lawyer in Arizona who advocates for midwives who’ve had their licenses suspended or revoked for violating the state’s regulations.
Gunnigle says that both abortion and midwifery regulations hinge on keeping patients safe, but she insists that none of the laws actually enhance patient safety. What it really boils down to is that physicians—who are often the medical board members charged with writing and enforcing midwifery regulations—generally believe that these “lower-level professionals” are not professionals, she says.
“They’ve said as much in court,” Gunnigle says. “So the doctor testifies, and one of the very first things that I bring up is there’s three really important ACOG opinions that talk about maternal decision-making and choice, and how every choice needs to be accompanied by full, informed consent, and every choice is valid, and we don’t attack women based on their choices. And the answer’s always ‘Yeah, but these are midwives, it doesn’t apply to midwives.’ So the cognitive dissonance there is palpable.”
The pro-choice slogan about abortion being a decision “between a woman and her doctor” is something Gunnigle finds problematic because it fuels the idea that physicians have some warranted level of decision-making power when their patient happens to be pregnant. “It’s not a choice between a woman and her doctor, it’s not shared decision making. That narrative is really bad,” she says. “It’s a choice a woman makes with consultation from a licensed healthcare professional of her choice. But that doesn’t fit on the bumper sticker.”
While most other professionals are governed by people within those professions, in some states, home birth midwives are not represented fully (or even partially) on their governing boards. In Arkansas, out-of-hospital midwives are governed by the state Board of Health. Their governing board includes doctors, optometrists, nurses, veterinarians, administrators, and not a single midwife. Hammack says that dynamic positions doctors as “gatekeepers for out-of-hospital birth.” That’s a problem because it limits midwives’ ability to exercise independent, professional judgement.
The ideal setup, Hammack says, is to have the practice of midwifery governed by a board of midwives rather than physicians, and for the regulations to allow independent practice, facilitate collaboration between midwives and obstetricians, and include systems of accountability by midwife peers.
When Cormier went into labor last spring, her seven-year-old daughter was at a planned weekend sleepover at her grandparents’ house. Cormier spent much of the day riding out her contractions in the warm, soothing water of her bathtub. But when her water broke, the fluid was stained with meconium, the baby’s first bowel movement. Cormier was instantly alarmed. She knew that the presence of a bowel movement in the ruptured waters wasn’t necessarily a dangerous situation in and of itself, but without the tools, education, or assistance to determine otherwise, she and her partner decided not to risk it, and headed to the hospital.
Her partner hurriedly ran around the house snatching necessities, then told her to grab anything else she needed while he pulled the truck up to the door so she wouldn’t have to walk far. She shuffled to the fridge and pulled out an overripe pineapple and a half-full Ozark water bottle.
The axle-breaking Louisiana roads were brutal on Cormier. Looking back, she wonders why she chose those two “necessities” that she’d grabbed from the fridge, but on the drive, she clung to them for dear life, steadying herself through contractions and mentally preparing for the battle she expected to have with the hospital staff.
When they arrived, the disappointment settled in as she absorbed the contrast of the new environment. The beeping machines, the constant questions, and the bustling staff were all flashing signs that she was far from the quiet intimacy and the healing experience that she’d hoped this birth would bring.
During the last few hours of labor, she was glad to finally be left alone and retreated into her own world, barely aware of her surroundings. Her baby was born without complications, and she had a successful vaginal birth after Cesarean (VBAC)—a feat in itself in many hospitals. But she still has complicated feelings about the experience and her choices. After the birth, she bled heavily to the point of fainting and knows that, even if she’d stuck it out at home for the birth, she would have required a hospital transfer. Still, she refers to her first birth as a “failure” and her second as “cowarding out.”
That’s one of the ramifications of restricting someone’s autonomy during birth—the experience becomes one where a patient can feel powerless. This sets them up for trauma and future complications when interfacing with similar scenarios because of those triggers.
“‘The only thing that matters is a healthy mom and baby.’ You hear this over and over again until your ears could bleed. It’s so condescending—like someone’s experience doesn’t matter. It matters!” Cormier says. “Any woman who suffered a hospital birth trauma then gets rejected by midwifery for recurring pregnancies—which makes the scar of the initial hospital birth trauma even worse—is going to have some serious emotional woes. Being in such a defeated emotional state during pregnancy is not safe.”
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