The gentlebirth.org website is provided courtesy of
Ronnie Falcao, LM MS, a homebirth midwife in Mountain View, CA

More Legal Strategy

Let me preface this response by telling you all that HOME does nothing haphazardly, they can't afford to. They brainstorm, check, and recheck everything before moving forward. They don't want to waste ANYONE'S time or energy and certainly don't have $$$ to waste.

The defensive posture of some unlicensed direct entry is understandable considering what we have all been through in NY. 15 or 16 midwives either stopping practice or moving to a more midwife friendly States, or hoop jumping to become legal. But NO ONE has any intention of doing anything that will hurt the direct entry midwives in NY. This was explained at a private direct entry luncheon meeting that HOME arranged with Mike Sussman within the Vestal meeting. The Vestal meeting was well attended by members from HOME, NYFOM, MANY, ACNM, attorney's, numerous consumers and other interested parties. When the Vestal meeting ended all left in agreement, were charged and enthusiastic. For those of you listers: M.Sussman is the civil rights attorney with an incredible track record. He is one of the lead attorneys for the NAACP, he is known the world over and handles cases throughout the US. His children were born in both a birth center, and homebirth settings. I was with Mr. and Ms. Sussman during the births of their children. He is an excellent attorney and Dad. Having known him some ten years, I trust his judgment and so do the members of HOME. For years he has been one the most vocal and ardent supporters of direct entry midwifery.

Similarly, I have great respect for Faith and her ideas. HOME and NYFOM (along with their attorneys) are open to other suggestions and how to approach the State. But you should know that we have looked long and hard at this. We have checked and rechecked this tentative plan to insure its feasibility with a number of attorneys, midwives, consumers and advocates.

With that introduction the following are some thoughts ascribed by attorney Sussman in reflections upon Faith Gibson's recent post:

Faith wrote:

[T]he specific principles upon which the constitutional challenge rests is VERY important, because if we blow it (wasting money and political energies of our organizations), it could take 10 more years just to get back to square one. From my personal experience and legal research, i am convinced that certain elements are crucial to any successful legal/constitutional challenge. In particular, i believe that counting on the "the woman's right to choose" (a form of the abortion debate) as THE lynch pin of our legal strategy is fatally flawed [and ] a rabbit hole.

Mike Sussman additionally writes:

"[Ms. Gibson's further discussion has] really tracked our argument in the US Court of Appeals which was, simply stated: women have a fundamental right to privacy, which includes making critical decisions involving childbirth; because this is such a core value, to defend regulations which attempt to limit this right, the State must show that they are supported by a compelling State interest; the state cannot do so here because the evidence establishes that midwifery, particularly when attending to "normal pregnancies" is as low risk, if not more, than hospital-based or doctor-assisted births; thus the State's regulations are overly restrictive and cannot be justified as compelling and must be struck.[Aside: Numerous affidavits were presented to the Appellate judges, including one from Dr. Wagner, as well as other doctors that were homebirth friendly, licensed midwives, unlicensed midwives, a zillion consumers, etc. swearing to the efficacy of homebirth practices] Unfortunately, we lost because (a) the court refused to recognize that women have a fundamental right to choose their caregivers (an extension of the privacy cases I still feel is supportable) and (b) the Court, in a very statist posture, gave great discretion to state legislatures to regulate (on heath and safety grounds) the granting of licenses to midwives (the setting of substantive criteria and rules of entry) and ruled that the regulations (and their effects) need not be empirically justified (through evidence of their need). Rather, the suppositions and prejudices of State legislators, as well as their notions of tradition and the rightful role (read "none") for midwives could govern and control.

Just to repeat: the Second Circuit decision suggests that if women, who may have a right to home birth, cannot get attendants qualified by the State for that practice, perhaps an irrationality can be attributed to the State law-if that happens, we can re-open the debate" (M H Sussman by fax : 7/20/97).

From Julia:
We appreciate all contributions to these legal dilemma's and will continue to be sensitive to alternate perspectives because this is a work in progress.

Midwifery is an art form, we all practice it differently and if we are any good, we listen to our hearts first. The practice of law (what little I know of it from my four years of marriage to an attorney) also is practiced differently by different lawyers. If they are any good, they practice from their heart, doing what is right.

The freedom to birth in America is in a state of flux. To open the door to free birth, we must each join the search for the key. NO one really knows which key will open the door. This is the key that we are trying-this time. It seems feasible and it is one more step along the way to an ultimate goal, which we should all share; the sanctity of birth and midwifery's role in protecting and promoting healthy birth.

Reading that post from the AMA just shows that we must be getting closer to being on track. (Every time that they come out with a statement against midwives and other professions-they must feel just a bit threatened.) Consider that there are 300,000 [!] members of the AMA and even if we combine both MANA and the ACNM we are only 9,000!!! We must not fight amongst each other considering those numbers. We have to go at this is ANY way possible for as long as we can….

For HOME (and I have been given permission to speak for them): The consumers, their legal advisors and all that are involved in this organization have always been committed to pro-active legal action and will continue to be until birth is freed in NY. I hope this answers any questions that anyone may have concerning the actions of HOME/NYFOM.

Respectfully,
Julia Lange Kessler.