by Susan Hodges

In discussions about legislation and regulation of midwifery, a number of arguments have come up along the following lines: Don't we have a constitutional right, based on rights to privacy and choice, to choose where and with whom to give birth? After all, if the law says we can choose to have an abortion, how can it then not allow us to choose where and with whom to give birth? We should not have to have any regulation of midwives, and if we support regulation like licensing, we are giving up our rights, agreeing that the government should intrude into those private aspects of our lives.

Are these effective arguments that help move midwifery forward? The purpose of this article is to briefly discuss some information and considerations regarding constitutional rights that are pertinent and can help us assess the validity and usefulness of these arguments.

For more detail, I recommend a paper by Chris Hafner-Eaton and Laurie K. Pearce of Oregon State University: "Birth Choices, the Law, and Medicine: Balancing Individual Freedoms and Protection of the Public's Health" (Journal of Health and Politics, Policy and Law, Vol. 19, No. 4, Winter 1994, pp 813-835). Also relevant is "Having Babies at Home: Is It Safe? Is It Ethical?" by Gerard Alan Hoff and Lawrence J. Schneiderman (Hasting Center Report, Vol. 15, No. 6, December 1985, pp. 19-27). These authors, both physicians, explore issues of risk and personal freedom, and conclude that "home birth does not represent a clear and present danger to the common good."

THE CONSTITUTION

First, some general review about the Constitution. This is a federal document, which, among other things, enumerates and protects certain rights. Rights not specifically listed may be addressed by the states. The Constitution does not prohibit states from enacting laws that curtail our freedom as long as Constitutionally-protected rights are not violated. A state legislature can enact a law that may violate the Constitution, but it stands as law until it is repealed or successfully challenged and thrown out by the courts. The U.S. Supreme Court is the ultimate interpreter of the Constitution through its rulings on the constitutionality of challenged laws.

An important point to understand is that Constitutional interpretations are decided in courts of law, not in state legislatures. In general, legislatures are not the places to effectively raise constitutional issues, especially if your argument goes against legal precedents and challenges long-standing constitutional interpretations. Legislators want to get their bills passed, and a bill which requires a new interpretation of the Constitution may be seen as risky and more difficult to pass.

DOES THE CONSTITUTION PROTECT A WOMAN'S RIGHT TO CHOOSE THE PLACE
AND ATTENDANT FOR CHILDBIRTH?

Childbirth is not mentioned in the Constitution, although several parts of the Constitution are relevant to our midwifery issues. The opening paragraph of the Constitution says, "We the People of the United States, in order to ... promote the general welfare ... do ordain and establish this Constitution..." The Ninth Amendment, which has been interpreted by court decisions to protect the right to privacy, reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Tenth Amendment says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The First Amendment, besides specifically protecting religious freedom, forbids Congress from making laws that abridge "the right of the people to peaceably assemble."

While these points can all be seen (by us) as protecting our "rights" to choose where and with whom to give birth, their interpretation is complicated by the fact that the life of the fetus and of the newborn, and therefore childbirth itself, is considered to be part of the "general welfare."

There are a number of situations in which the "general welfare" and individual rights are in conflict. Where parental rights and beliefs are in conflict with the safety and welfare of children, the U.S. Supreme Court has consistently ruled that the welfare of the child almost always supersedes the desires of the parent. For example, adults who are Jehovah's Witnesses can refuse life-saving blood transfusions for themselves, but may not refuse this treatment for their children if needed. Rulings have been similar for Christian Scientists who choose prayer over medical attention. These rulings and others reflect our culture's belief that the parent does not have a fundamental right that supercedes the welfare of the child, even when the parent is exercising her specifically protected right to religious freedom. The concepts behind these rulings are the basis for many child welfare laws, such as child labor laws (protecting children from exploitation) and social welfare laws addressing the abuse and neglect of children.

The goals of protecting children from mistreatment and harm at the hands of their parents or other adults may not be perfectly accomplished, but would we really prefer a society where no one has authority to intervene on behalf of children who are abused or neglected?

IF WE CAN CHOOSE ABORTION, HOW CAN A STATE OUTLAW
MIDWIFE-ATTENDED HOME BIRTH?

The ruling in Roe v. Wade (which determined that the opportunity to choose an abortion is a protected right) actually undermines rather than strengthens freedom of choice in childbirth. This ruling is based on the viability of the fetus outside the mother, and spells out that once the fetus is considered viable (after the second trimester), its welfare supercedes the mother's rights and choice, but not the mother's life and health. To successfully argue that being deprived of choice for the setting and attendant for childbirth in itself significantly harms the mother's life and health would require overcoming our dominant cultural belief in the superiority of medical care, and it would be difficult to convince judges that such harm would be so significant and compelling as to supercede the perceived likelihood of harm to the baby from settings or unregulated attendants the mother might choose.

How did our society come to recognize "fetal rights" even to the point of court-ordered cesarean sections. An excellent book is "Recreating Motherhood: Ideology and Technology in a Patriarchal Society" by Barbara Katz Rothman (New York: W.W. Norton & Company, 1989).

PAST SUPREME COURT RULINGS

The bottom line is that the Constitution does not specifically protect any right to privacy for childbirth. The case of Jacobsen v. Massachusetts, 197 U.S.11 (1904), along with many other U.S. Supreme Court cases since, established that each state has power that includes making "reasonable regulations established directly by legislative enactment as will protect the public health and the public safety." State powers extend "specifically to the types of persons who can or cannot legally assist, oversee, or intervene in births," according to Hafner-Eaton (see reference above). Since each state has exercised its powers differently, midwifery regulation (or lack thereof) varies widely among the states.

THE ROLE OF CULTURE AND BELIEFS

The Constitution and our laws are living, evolving systems. Interpretations of the Constitution and of the content and application of laws reflect the dominant beliefs and values of the society and of individual judges and legislators â?? not necessarily of the majority and not necessarily what we as individuals agree with.

For a variety of historical and cultural reasons, we live in a society where bio-medical (allopathic) care and standards are considered good and safe, while all other kinds of care are generally considered worthless at best and, more often, downright dangerous. Legislators and judges are human and are members of this society, so their actions, decisions, and opinions reflect the cultural norms and their own sincere beliefs. The combination of culture and legal precedent have resulted in recent cases where judges have declined even to hear at least three different midwifery-related lawsuits in different states that argued that citizens have constitutional rights to choice and privacy in childbirth.

When people go to legislators and legislative committees demanding their "rights" to midwives and home birth, they are often perceived as demanding something that is dangerous, that goes against everything the legislators believe, and that challenges their serious responsibility to "protect the general welfare," because midwifery and home birth are far from the mainstream in our society. Working for universal availability of the Midwives Model of Care really means shifting our culture's perceptions and beliefs about childbirth so that midwifery and out-of-hospital birth are included in the "norm."

??Mainstream cultural beliefs can be changed – that is how women got the vote and what the civil rights movement was about, for example – but it does not happen overnight. The relevant judicial interpretations and constitutional amendments resulted from years of work, public education, and persuasive arguments in the media as well as in the courts. All of these efforts helped shift cultural values so the legal changes could be accomplished. Large segments of our society had to be convinced and willing to support change before progress was made. The midwifery issue is not entirely analogous, but widespread cultural beliefs about childbirth are critical factors, just as cultural beliefs about racism and women's roles were critical factors in civil rights and women's suffrage.

CONCLUSION

The opportunity to choose where and with whom to give birth is not a "right" as the Constitution has been interpreted thus far. The main argument for denying citizens the right to choose certain attendants and settings appears to be the states' established "general welfare" interest in protecting babies from harm, based on their perceptions of safety and risk in childbirth. The solution would seem to be to change their perceptions of safety and risk in childbirth, then to convince judges and legislators alike that midwife-attended birth, at least with a credentialled or licensed midwife, in or out of the hospital, is at least as safe as doctor-attended hospital birth. Whether or not this can be accomplished solely in the courts is debatable; while the "perfect" case might still come along and establish this argument, it would be wise for midwifery advocates to consider other strategies in the mean time.

In devising strategies, we can get bogged down in how we "ought to be able" to do it, as in "this is our right, we should not have to do anything." Alternatively, we can look closely at how things actually are (even if we do not agree or like the situation), and ask ourselves how we can use elements of the existing situation to help achieve goals for promoting the Midwives Model of Care. In other words, we can argue from a "rights" perspective, which will almost certainly involve long, difficult, costly legal battles to overturn long-standing constitutional interpretations, with no guarantee of success; or we can approach state governments and argue from the standpoint that "midwifery is good" and supports the "general welfare" aspects of the Constitution, an argument with much more appeal and extensive supportive evidence.

For either approach an enormous amount of education will be required. People, especially legislators, do not change fundamental beliefs on the basis of one paper, no matter how well-written, nor on a single argument. The case must be made again and again, from all angles, in talks, in the press, on information sheets, whenever and wherever an opportunity occurs or can be made. In addition, the playing field is not level; public education to change the public's perception of childbirth and effective maternal care is also needed to prepare the constituent base for supporting midwifery-friendly legislation and persuading the decision-makers in the face of well-organized and well-financed opposition.

Citizens can certainly argue that, particularly with the CPM credential to satisfy the state's need for accountability, midwifery and out-of-hospital birth settings cannot legitimately be denied to us on the grounds that their use presents a clear and present danger to the general welfare, since they promote healthy babies and mothers at least as effectively as the medical approach which is currently acceptable.

Working together with commitment and persistence, midwifery advocates can put the Midwives Model of Care "on the map" and persuade legislatures to support it, paving the way for many, many women and families to be empowered through their midwife-attended out-of-hospital births. Reinterpretation of the Constitution is not required to achieve this goal.

This article is reprinted from Citizens for Midwifery News, January 1997. Permission to reprint with attribution.