Home Birth: A Womans Right to Choose

1
Home Birth A Womans Right to Choose

• The Unconstitutionality of South Dakota Law

2
What Happened to Home Birth

• Home Birth was the primary method of birth in the
  United States until the early 1900s
• The influx of allopathic medicine during the
  industrial revolution greatly reduced the number
  of midwife assisted home births
• This is because OBGYNs discovered that assisting
  in child birth is a cash cow

3
The Benefits of Home Birth

• Home birth is only recommended for low risk
  pregnancies
• As early as 1939, researchers agreed that
  perinatal mortality rates among low risk
  pregnancies was lower for those children born at
  home
• 26.6 per every 1,000 live births at home
• 50.4 per every 1,000 live births in a hospital

4
The Benefits of Home Birth

• In 2000, two Canadian researchers, Kenneth C.
  Johnson and Betty-Anne Daviss, studied over 5,400
  low-risk pregnant women planning to birth at home
  in the United States and Canada
• They discovered that medical intervention rates
  of planned home births were dramatically lower
  than of planned hospital births

5
South Dakota Statistics

• In South Dakota, the South Dakota Nurse Midwives
  Association have evidence of an infant death rate
  of 2.5 per 1,000 live births
• South Dakota Department of Health has found an
  infant death rate of 4.5 per 1,000 live births of
  children born in a hospital.
• Even in such a small state as South Dakota, the
  numbers show that home birth is the safer option
  for low risk pregnancies.

6
Europe

• Despite what happened in the US, most European
  countries widely promote and utilize home birth
  as the primary birthing method today
• In fact, over 70 of births in Europe take place
  at home
• Compare that to the mere 1 in the US
• The World Heath Organization publically promoted
  home birth as the primary method of
  birthingciting both health and economic factors

7
Why Europe Encourages Home Birth

• (1) Economic Factors
• Physician assisted hospital births are more than
  10 times likely to require expensive intervention
  than a midwife assisted home births
• Midwives charge less and use less expensive
  techniques when assisting in the birth of a child
  
• Studies show that 8.5 billion dollars could be
  saved if the United States utilized midwives in a
  manner similar to Europe

8
Why Europe Encourages Home Birth

• (2) Health and Safety of the Mother and Child
• Statistics show that every European country that
  uses midwives for at least 70 of all births has
  a much lower perinatal and infant mortality rate
  than the United States
• For example, in the Netherlands, where only 32
  of births are preformed at home, it still
  maintains a 60 lower infant mortality rate than
  the United States

9
Why Europe Encourages Home Birth

• (3) Woman prefer home birth
• Much of this desire stems from the approach
  utilized by midwives
• Midwives view birth as a natural biological
  process whereas physicians view birth as a
  pathological medical condition
• Midwives tend more to the needs of the mother as
  well as the baby and create a more relaxing and
  comfortable environment as opposed to the sterile
  white environment that exists in a hospital.
• Freedom of choice in regards to the birthing
  process

10
Freedom of Choice

• For Example, woman are more free to choose their
  birthing position with a midwife
• A study conducted in Zurich, Switzerland found
  that of the 489 women that gave birth at home,
  90 were able to freely choose their birthing
  position.
• Only 59 of the 385 women who gave birth in a
  hospital were able to choose their birthing
  position
• This is significant because the lithotomy
  position (on the back) is the most utilized
  position of hospital physicians.
• However, this position is shown to cause many
  birthing complications, such as the slowing of
  labor, the need for forceps and episiotomies.
• Home birth gives the woman the option to give
  birth standing up, squatting, or in water

11
The Problem

• Despite the overwhelming evidence of the benefits
  of home birth, South Dakota law outright bans the
  admittance of any lay midwife and constructively
  bans any Certified Nurse Midwife from practicing
  within the state
• Additionally, South Dakota law is blatantly
  unconstitutional

12
Types of Midwives

• Lay or Direct Entry Midwife
• Completed a course of study in midwifery and
  participated in an apprenticeship with a more
  experienced midwife
• Certified Nurse Midwife
• Registered nurses who have furthered their
  education in obstetrics

13
South Dakota Law

• SDCL 36-9A-2 states
• "No person may practice or offer to practice as a
  nurse practitioner or nurse midwife in this state
  unless the person is currently licensed to
  practice by the boards
• By requiring a midwife to be a nurse midwife,
  South Dakota law prevents a lay midwife from
  becoming licensed in South Dakota

14

• South Dakota is only 1 of 11 states that
  statutorily bans the admittance of Direct Entry
  Midwives
• 2 states technically allow Direct Entry Midwives,
  however they have no licensing mechanism
• All other 38 states allow some form of Direct
  Entry Midwifery
• ALL States (except South Dakota) allow Certified
  Nurse Midwives to practice independently

15
South Dakota Law

• Technically, SDCL 36-9A-2 allows a Certified
  Nurse Midwife to practice in South Dakota
• However, SDCL 36-9A-15 requires that before a
  CNM may assist in a birth, either at home or at a
  private birthing center, that midwife must secure
  a collaborative agreement with a licensed
  physician

16
Collaborative Agreement

• SDCL 36-9A-15 requires that each collaborative
  agreement have the following components
• a written agreement
• authored and signed by the nurse midwife and the
  physician with whom the nurse midwife is
  collaborating.
• The agreement must define or describe the agreed
  upon nurse and medical functions the CNM may
  perform
• A copy of each collaborative agreement must be
  filed with and be approved by the boards prior to
  performing any of the acts contained in the
  agreement.
• SDCL 36-9A-17 additionally requires that the
  physician keep in constant contact with the CNM
  regarding the case

17
The Problem..

• Not one single physician in South Dakota will
  sign a collaborative agreement
• The South Dakota Board of Nursing and the South
  Dakota Board of Medical and Osteopathic Examiners
  refuse to accept any collaborative agreement that
  include home birth
• Therefore, South Dakota constructively prevents
  any Certified Nurse Midwife from assisting in a
  home birth within the state

18
And Nobody Will Listen

• The South Dakota Certified Nurse Midwives
  Association advised the State Board of Nursing
  and the South Dakota Department of Health of this
  ongoing problem, but have received no response
• In 2007, the South Dakota Nurse Midwifes
  Association attempted to pass legislation that
  would remove the collaborative agreement
  requirement
• However, the South Dakota Board of Nursing, Board
  of Medicine, South Dakota Hospital Association,
  Department of Health and South Dakota Nurses and
  Medical Association outright opposed the bill and
  it was killed in committee before it reached the
  house floor

19
The Result

• Of the 21 licensed Certified Nurse Midwifes in
  South Dakota
• half work on the reservation
• half work in a hospital setting
• Not one single Certified Nurse Midwife has their
  own independent practice in South Dakota
• Midwives are being forced across our borders to
  make a living

20
Insult to Injury

• SD for many years has threatened to prosecute
  midwives for assisting in home births, but never
  did
• Recently, threats have become a reality
• In the early 1990s, Judy Jones was prosecuted
  and held in contempt for assisting in a home
  birth
• In 2003, two more midwives were imprisoned for
  assisting in a home birth

21
Unconstitutionality of South Dakota Law

• South Dakota Law violates the constitutional
  right of privacy guaranteed by the 14th Amendment
  by inhibiting a womans right to choose the
  method of child birth
• Additionally, South Dakota Law violates a
  midwifes constitutional right to practice ones
  profession and constitutes gender discrimination

22
Right to Privacy

• A long line of Supreme Court cases have concluded
  that there is an implicit right to privacy within
  the constitution with respect to reproductive
  freedom
• Griswold v. Connecticut
• Married couples right to use birth control
• Eisenstadt v. Baird
• if the right to privacy means anything, it is
  the right of the individual, married or single,
  to be free from unwarranted governmental
  intrusion into matters so fundamentally affecting
  a person as the decision of whether to bear or
  beget a child

23
Right to Privacy

• Roe v. Wade
• Women have a constitutional right to have an
  abortion within the first trimester
• There is no United States Supreme Court cases
  specifically on a womans right to choose how to
  give child birth
• However, we argue that if a woman can choose
  whether not to have a child, she should be able
  to choose how she wants to have her child

24
Right to Refuse Medical Treatment

• In Cruzan v. Director, Missouri Dept. of Health ,
  the U.S. Supreme Court held that a person has a
  constitutional right to refuse medical treatment
• South Dakota law forces a woman to give birth in
  a hospital, usurping her constitutional right to
  refuse medical treatment from a doctor

25
Right to Pursue Ones Profession

• The Fourteenth Amendment of the United States
  constitution states nor shall any state deprive
  any person of life, liberty, and property,
  without due process of law
• The right to pursue one's profession is a
  recognized property right under the 14th
  amendment
• Greene v. McEroy 360 U.S. 474
• However, courts have held that the right to
  practice in one's chosen profession is not a
  fundamental right, thus only the rational basis
  standard applies
• Hence, the state always wins and midwives lose
• But there is light at the end of the tunnel.

26
Gender Discrimination

• South Dakota midwifery laws violate the Equal
  Protection Clause of the 14th amendment because
  they constitutes gender discrimination
• Gender discrimination is tested by middle level
  scrutiny
• Substantially related to an important
  governmental interest
• There is hope for midwives!

27
Gender Discrimination

• The majority of courts and Websters Dictionary
  define a midwife as
• A woman who assists at childbirth
• South Dakota Chapter 36-9A directly regulates lay
  midwifes and CNMs
• Considering that the profession is predominantly
  filled with women and the definition includes the
  term woman, the South Dakota statutes would
  constitute gender discrimination and middle level
  scrutiny would apply
• Considering all of the statistics showing the
  overwhelming benefits of midwife assisted births,
  it would be difficult for South Dakota to argue
  that their outright ban is substantially related
  to an important governmental interest
• There is still hope for Midwives!!

28
Conclusion

• The benefits of home birth are not only supported
  by medical findings, home birth encompasses a
  woman's right to reproductive freedom in choosing
  where she wants to deliver her baby
• South Dakota should recognize the benefits of
  home birth as well as protect the rights of its
  citizens and either promote the use of
  collaborative agreements or outright repeal the
  collaborative agreement statutes
• Additionally, South Dakota should join the
  majority of states in allowing lay midwives to
  practice
• It is arguable that South Dakota is harming its
  citizens by forcing mothers to give birth in a
  hospital, not to mention hindering their
  constitutional rights