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Date: Wed, 30 Apr 1997 11:58:08 -0700
From: Julia Lange Kessler
Subject: Keeping you updated...LONG
Hello All,
This will be a long one.
In terms of networking let me fill you in on recent developments.
Last weekend I briefly attended the MANA Regional Conference to promote
the lawsuit in other states. I believe that there are two other states
that definitely want to commit. (Delaware and Maryland, possibly Virginia)
This will have to be a committee that should be formed in May for promotion
of the lawsuits in other states.
There was a speaker at the conference that was published in the ACNM Journal.
Alice Baliss's article was a review of all of the literature that confirms
that homebirth is SAFE. She is a literature expert. Although she was preaching
to the converted at the conference, she would make a great witness for
an uninformed jury and publicly said she would be a witness.
Other ideas that have rolled in have to do with a speaker that will be
in Syracuse on May 9th. We can look forward to hearing about this person
from Roberta and Jackie.
A small meeting will take place to consider the agenda (for the May meeting).
When we have that in order I will email you all an agenda for YOUR CONSIDERATION
AND APPROVAL. At the present time I will probably let Michael Sussman (attorney)
and Leanna Hoodes have the final say when all additions are added. Michael
will be the main speaker and Leanna will moderate to keep things under
control.
I understand from Roberta that a letter about the May meeting is going
out to all the ACNM chapters. This is wonderful, I hope we see a good number
of them there.
I am enclosing an email transmission that I had with Susan Hodges. Susan
Hodges is the head of Citizens for Midwifery (CfM) a national organization.
She has been very enthusiastic about the lawsuit and brought up the possibility
to "the coalition". I am not sure who is on the coalition and frankly it
doesn't really matter. What does matter is that they raise some questions
and some fears that need to be addressed. I have done so in a manner that
suits me but perhaps you may have other ideas or other questions for that
matter. A great deal of the footwork on this lawsuit will be in education.
Let's make sure that we educate folks correctly and that we are all on
the same page. In this way we will cut down on the confusion.
Regards~~~~~~Julia Lange Kessler
The following is that transmission.
I have answered as many questions as I can.
I would like to be able to publish parts of this as a "Q and A" on our
web page. Would that be okay with you? I am planning on sending this to
a few key members. These issues should be thought about by many so that
they can be thoroughly answered. I wouldn't need to use your name (on the
web site) or that of the coalition, just a basic Q and A format. Please
feel free to send these answers to anyone on the coalition. If you send
me the email address list I will be happy to do it myself and to answer
any further questions. I would also be willing, as would one of the attorneys
on the lawsuit, to join in on a phone conference perhaps to answer any
further questions raised by the coalition. If someone else has a better
idea then this one, please ask them to share it with me.
We cannot remain in fear. We must move forward. Sometimes risk is part
of life. Consumers willingly trust us to serve them at their births. They
put their lives and the lives of their children in our hands. If they are
willing to risk the very lives and health of their children, even if it
is a small risk, are we not willing to take a risk for them in insuring
their right to birth at home? This has nothing to do with licensure or
certification; the issue is basic fundamental privacy. When does the state
tell us how to live our family lives?
Am I understanding correctly that the May 31 meeting is like
a kick-off/planning meeting specifically for New York?
Yes and no. While we are putting our heads together in NY to consider the
very best approach, we will also be considering the best way to organize
and coordination this series of class action lawsuits with the other states
that are interested. Anyone attending will get a primer in Class Action
Lawsuits 101. I have asked other states to either send me a copy of their
laws or bring them in May. There should be a small handful of constitutional
lawyers available to advise or guide other folks from other states.
I had been planning to e-mail you that after some delays our
newsletter is finally getting printed this week and mailed by the end of
the week. I hope the New York report will get some response.
Thank you we need all the help we can get.
I have talked about the class action suit idea with some of
the coalition members. Here are some ideas that came up of some things
that should maybe be considered in framing the lawsuits (you may have thought
of these already...).
As I am thinking about this I am also wondering if there is
any downside to this 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 we started.
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.
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.
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.
Just to be clear, in NY, there are about 50 or so midwives (licensed) that
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 (the CNM's)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 DEM's that 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.
And of course you get back to the issue of whether they are
trying to stop home birth or restrict the practice of DEMs, the midwives
who practice home birth.
I am not sure that homebirth is illegal in any state. Just
the midwives who practice home birth. So the question is will the NYS suit
address the issue of DEMs or just home birth? If it just addresses home
birth then you might get a bigger boost for 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.
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)
These points are very close to home for me, also, since no
CNMs attend home births in Georgia, in fact very few even want to, and
in general the medical climate is very anti- home birth and midwives who
are not directly employed by doctors.
If the state finds homebirth to be a fundamental right then you will attract
practitioners to your state that can meet that need. It's the old, "if
you build it, they will come" adage. If the consumers shout, " I WANT TO
BIRTH AT HOME" you know as well as I that there is tons of literature to
support it's safety, although safety is not the issue here. They will come.
They will come in the same way that they started building birth centers
and hiring midwives because it will be consumer driven and quite frankly
someone will be able to make a living doing it! This is economics. We can
use the economics to provide safer births for the women in each state.
It may not happen right away but we must start somewhere. (We are "grassroots"
after all.)
It seems to me that there are a number of issues... Among them
the right of Practitioners to accept or refuse clients or procedures--
for example, doctors may be qualified to perform abortions but cannot be
required to (at least that is true in GA); if doctor consultation and referral
agreement is required, but doctors cannot be forced or required to enter
such an agreement, then you have legal attended home birth in principle,
but it is non-existent. And the big issue -- is it or is it not a right
to choose where and with whom to give birth, and under what circumstances?
We have to establish the fundamental right to homebirth. Otherwise the
state can regulate you to the their hearts content. It's all in how you
approach the walls of the fortress. If you approach from a wall with no
DOORS you will never get in. (this is the side of state regulation) if
you approach it from the side of a fundamental rights, not only is there
a door but the door is wide open for all kinds of entry. (There might even
be neon lights guiding you in!)
My understanding is that there are pretty good constitutional/legal
principles about protecting babies and children from neglect and maltreatment
and that parental rights can be superseded when the child's welfare is
perceived to be in jeopardy. Some do-it-yourself home birthers have been
threatened with having their children taken away on child neglect charges.
It is always the mother's right to choose even when choosing home clearly
jeopardizes her life or her baby's? Is that what we want? Or is it only
OK to choose home with a "qualified" attendant? Then we are back to the
availability of such attendants, and if such is not available, the mother
is faced with a one in four likelihood of major abdominal surgery even
against her will. What a mess!! I am rambling a bit here, but those are
some of the things I'm thinking about, don't necessarily have any brilliant
ideas about, but am concerned that the ramifications are thought through
very carefully.
You raise some important considerations regarding the administration of
health care in your community. These considerations exist whether or not
homebirth is recognized as a fundamental right. My only caution is the
easy but unfair analogy of abortion to homebirth. This is what the courts
have done but let's pause and think about it. An abortion is a procedure
that always results in the destruction of a fetus. Homebirth in a low risk
community is safe and beneficial to the newborn and the parents. Unlike
abortion, homebirth (if not suppressed) will flourish, its support network
will grow and the section rate will decrease.
All of these issues are rather complicated. I don't see any easy way
around it. It may take a series of lawsuits but we do believe it can be
done and to the benefit of all. As I said earlier, "If we build it, they
will come." We must begin to break ground.
