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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
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)
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
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)
Last updated Friday, August 29, 1997
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