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

New York Legal Situation - Follow Up on Class Action Lawsuit

This is the follow up on the above lawsuit.

We'll need as many consumers as we can gather to join the CLASS ACTION lawsuit!

Please consider this proposal. We need your help. The states that have the most oppressive laws, as well as being somewhat organized are necessary to pull this one off.

Sisters/Citizens-

As you may know the Appeal in the Second Circuit in the federal lawsuit was lost in NY State this past week. Of course we are disappointed but not discouraged. Our original approach raised a broad spectrum of issues ranging from credentialing to challenging the State's intrusion into birth. The court, while deciding that the state does have a right to regulate midwifery, has yet to address and determine issues regarding the restrictive and prohibitive impact of the law on consumers and homebirth. This may take a few tries but try we must.

Our next approach will be to bring a series of coordinated class actions in many states which have restrictive and prohibitive laws infringing upon consumers and homebirth. In terms of birth each state has different laws so it has to be hashed out in each state. But, if each state that is oppressed by inability to birth at home were to join in and coordinate with us and file at the same time, we could truly make an impact.

The overall picture could look like this: Each state (it would be nice to get at least ten) will bring a class action suit, to be filed on the same day as every other state. The class action suit should name as many people as you can find (the sky is the limit here) to say that they wanted to have a homebirth with a legal careprovider but were able to find one that could attend a homebirth (due to the laws in each state).

The publicity should be coordinated. A press release (with contact people) should also be released in each state at the same time, same day, noting all of the other states that are participating. This will be great media and draw lots of attention to the issue. While each state brings its own suit we should be able to save money by sharing experts and the like.

To accomplish this participating states will coordinate with the main office (for now I am volunteering myself and Homebirth Options Midwifery IndependencE [H.O.M.E]). It would be fantastic if we could all the organizations could work together on this one (I think we can all agree on the issue of homebirth).

Please let me know if you are interested. My email address is :

homebrth@warwick.net.
snail mail:
Julia Lange Kessler
271 Gardnerville Road
New Hampton, New York 10958.

Date: Wed, 02 Apr 1997 06:47:49 -0800
From: Julia Lange Kessler 

I wanted to let you know about the Appeal . It was finally answered. I received the news on Monday, but was unable to write you until today...

The appeal was answered this week by Judge Parker in the US Court of Appeals in the Second Circuit.

These excerpts are from The NY Law Journal (3-31-97):

A NY Law that requires certification in order to obtain a midwife's license has been found constitutional by a Manhattan federal court appeals court.
The state has identified an interest in protecting the health and welfare of mothers and infants stated Parker.
Recounting the state's argument that direct-entry midwives may not be able to handle potential physical complications during pregnancy and labor, such as pregnancy-induced hypertension of fetal distress, Parker concluded that the restrictions in the Professional Midwifery Practice Act are rationally related to safety concerns and not a violation of due process. [During the process of appealing this decision there were a number of affidavits from clients who had pregnancy induced hypertension and fetal distress-which were properly managed by direct entry midwives. The court seemed to miss those affidavits.]
The US Supreme Court has not interpreted the right of privacy so broadly that it encompasses the right to choose a particular healthcare provider.

From the actual appeal:

Basically, people have no right to practice their profession without state regulation, the court reasoned, and some basis can be imagined for the restriction here imposed. Therefore they pass muster.(stated by the attorney on the case)

While the decision seemingly closes the door in NY State on direct entry midwifery practice outside of the parameters of the Midwifery Practice Act, the courts have left open whether the choice of homebirth is a fundamental right guaranteed by the Constitution. The court has also left the question of whether the practice agreement requirement of the law is an illegal barrier to protected birth choices (namely homebirth). They want us to reprove how the practice agreement gets in the way-again.

NY, in a similar fashion to many other states, requires licensed midwives to obtain a practice agreement from a doctor or hospital before they can practice. If the doctor or hospital doesn't want the midwife to attend homebirths, then she steps outside the law if she attends one. This continues to be unacceptable. Even if EVERY midwife could acquire a practice agreement and attend any type of birth she deemed appropriate-that she/he even has to obtain a practice agreement is WRONG. It is a discrimination against midwives and right now it also discriminates against the women that want the services that midwives have been trained to offer.

Ultimately, the issue is not whether homebirth midwives are able to secure practice agreements, but whether homebirth is a fundamental right and not merely a privilege to be granted within the confines of the law.

Of course we are disappointed, but not discouraged. It is our intention to go back and start again. Meetings are already set to begin. I'll keep you all informed as news arises. Independence is crucial.

Respectfully,
Julia Lange Kessler

Massachusetts Midwives Sentenced for Attending Births in New York

Date: Tue, 18 Mar 1997 11:29:41 -0500

To all who may be interested,

Last week two Mass. mw, Kathleen Maye and Allison Nash, were sentenced. They plead guilty to reduced counts of practicing midwifery without a license. This Thursday, March 20, there will be a rally in front of the Gov. Mansion to protest and show support for Kathleen and Allison.

While both midwives are legal in their own state coming across the border to NY and attending women is illegal. It is illegal for all unlicensed DEMS and CPMs because the state won't give us the opportunity to become licensed. You need to attend some midwifery board meetings (it is controlled by a pharmacist, CNMs, and OB docs., one civilian who hardly attends). They refuse to acknowledge NARM or to contemplate alternative ed such as Florida has. The only way for DEMs to get "licensed" is for them to complete a bach degree and then attend the ONLY non-nurse midwifery school in the state....located in Brooklyn, NY. Its pretty much off limits right now to us DEMs who are stuck in the rest of the state. It would be great but many of us can't leave or move our families for 10 mo. Hopefully things will improve. O ya, I forgot to mention then they have to have a "written practice agreement" with a doc, doesn't happen too often-competition. So far no one has graduated and no one has passed the ACNM exam.

So yes midwives are still illegal in NY unless they are CNMs who have permission to practice from a doc, at this time there are four in the Rochester area and I believe 1 or 2 in the NY city area.

Class Action Lawsuit

The following background information should help in understanding the series of events that have taken place in New York State and what we are going to accomplish with the Class Action Lawsuit.

1992: Passage of the Professional Midwifery Practice Act. Midwifery is separated from Nursing. The new title Certified Midwife is to designate the new midwifery program graduates or anyone that can prove equivalency and pass the qualifying exam. The law incorporated all previously certified midwives. Traditional midwives, those that provide the majority of homebirths, are not incorporated but instead have been prosecuted under this law. Most Certified Nurse Midwives are precluded from homebirth practice due to the statutory requirement for a written practice argument from a physician. Only a few physicians will give permission for a midwife to practice in a home setting.

1994: Homebirth midwives Karen Pardini and Julia Lange Kessler are served with orders to cease and desist the practice of midwifery. Because they are charged in a Department of Health (DOH) proceeding, administrative hearings (17 days) take place without a right to a jury.

The administrative judge is an employee of the very same department that has pressed the charges against them. The decision of the commissioner of the same department was rendered almost two years later. Their fines for unlicensed practice totaled $19,000. Also during this time a federal lawsuit is filed against the state by Julia Lange Kessler and a number of consumers. The lawsuit spoke to the rights of midwives to practice and provide homebirth services. The lawsuit also addressed the rights of consumers to give birth where and with whom they choose. A trial was not granted in the lower courts and was appealed to the Second Circuit Court of Appeals.

Between 1994-1997: Fifteen homebirth midwives are either ordered to stop practicing or arrested. Homebirth parents have been called before grand juries, have had their homes searched and have been harassed by the police, the DOH and the Attorney Generals office.

1995: Homebirth midwife Roberta Devers Scott is arrested, handcuffed, and charged with a felony for unlicensed midwifery practice. The charge is reduced to a misdemeanor and Roberta pleads guilty under threats of imprisonment. Roberta is appealing the misdemeanor charge, oral arguments will be heard this summer.

1996: Two Massachusetts midwives (who practice legally in their home state) are charged with unlicensed practice in NY. These midwives also plead guilty to a reduced charge.

1996 and 1997: Hundreds of consumers come to rallies scheduled on four separate occasions to call attention to the lack of legal homebirth providers and their inability to exercise their right to birth at home. Families are fed up with the criminalization of midwives and their dwindling options to have attendants provide homebirth services.

Also in 1996 and 1997: The Governor, State Board of Education, DOH, and the NY State Midwifery Board have been inundated with thousands of letters by consumers and others expressing outrage, concern and questions about the State's position on homebirth attendants and the consumers right to homebirth. These letters have made the ground fertile for a Class Action Lawsuit which is the next logical step in the process to legal homebirth.

1997: The federal case which was not heard in the lower court was appealed to the Second Circuit Court of Appeals. The appellate decision upholds the lower court's ruling that the state may regulate midwifery but the door is left open by the court as to whether homebirth is a fundamental right which is being infringed upon by the State's regulation.

Immediate action is being taken to begin this Class Action Lawsuit in which we urge you to participate. A Homebirth Issues/Action Meeting will be taking place on May 31st. At that meeting we hope to promote understanding of the legal issues that surround homebirth. Legal Action to secure the right to have a supported homebirth will also be discussed. Other states will participate and file coordinated class action lawsuits. Homebirth is a healthy safe birth decision which needs your support if it is to be made available.

Please join us on May 31st at 10am in the Vestal Public Library

We need to keep up the heat in NY. This action will take the pressure needed to create change to a new level. Stay with us on this one. If this effort is successful it will make a positive change for all of us and for future generations.

If you cannot join us please consider contributing to this grassroots effort. Donations are necessary to continue communication and networking. Everyone who works toward this effort is a volunteer, but mailings etc., can be quite costly. Please contribute, every donation counts as we move toward legal action. Only you can make this happen!

WE NEED YOUR IDEAS, WE NEED YOUR AFFIDAVITS AND WE NEED YOU TO WIN THIS CRITICAL BATTLE.

Donation checks can be made to H.O.M.E. (an organization dedicated to legal action for homebirth)

Our new address is:

 PO BOX 166 Walden, NY 12586.
 Please add LAWSUIT in the memo part of your check.