Katherine Prown, Ph.D.
As of May 2004, twenty-one states meet each of the three criteria necessary for providing direct-entry midwives (DEMs) full protection from criminal prosecution: a statutory definition of the practice of DEM, exemption from medicine and nursing statutes, and a statutory mandate authorizing regulation through licensure or registration. In two of those states, New York and Rhode Island, DEMs must undergo credentialing through the American College of Nurse-Midwives Certified Midwife (CM) program. In Delaware, regulations require physician supervision, and so far no DEMs have been able to acquire a Delaware license. So for all practical purposes, DEMs who trained through the apprenticeship model or through a non-ACNM accredited school of midwifery may practice with full legal protection in eighteen states. (DEMs in California have been unable to meet the physician supervision requirements mandated by their licensing regulations, and it remains to be seen to what extent this leaves them vulnerable to criminal prosecution versus administrative discipline). In states where midwives practice with full statutory protection, they remain subject, with rare exceptions, to civil or administrative disciplinary action and may lose their license, but don't face criminal charges or risk prison time.
In the remaining thirty-three states (plus the District of Columbia) that don't meet the criteria for offering protection against criminal prosecution, DEMs are vulnerable to charges ranging from practicing medicine, nursing, or nurse-midwifery without a license to manslaughter, child endangerment, and possession or use of controlled substances. As Ida Darragh outlines in Chapter One, many midwives have long operated under the assumption that states without a DEM statute are "alegal," a word that doesn't officially exist but has been understood to mean neither authorized nor forbidden by law, or "unregulated." But the problem with this concept, as more midwives are beginning to realize, is that the practice of midwifery-that is, the act of attending women in childbirth-is defined and regulated in all fifty states, through the medical and/or nursing practice acts, all of which contain broadly worded language that defines various acts associated with the practice of midwifery as either medicine or nursing.
Medical practice statutes fall into three categories, each of which renders the practice of direct-entry midwifery in the non-protected states unlawful to varying degrees: those that explicitly define midwifery as the practice of medicine, those that define only the treatment of illness or infirmity as the practice of medicine, and those that define any and all acts associated with the practice of any and all healthcare professions as the practice of medicine. The risks facing midwives in states that fall into the first category are clear. Anyone practicing midwifery without being licensed as a physician or nurse is acting in violation of the law and is subject to criminal prosecution (though in Missouri, for example, the statute also states that, while engaging "in the practice of midwifery is unlawful" under the medical practice act, not "every act of midwifery engaged in without a license" is unlawful. Thus it remains open for prosecutors to test and the courts to determine what specific acts associated with attending childbirth are actually in violation of the statute, which points to the reasons why a statutory definition of DEM is one of the necessary components for providing full legal protection).
At the other end of the spectrum are states such as Maine or Ohio, whose medical practice acts refer only to the diagnosis, relief, or curing of diseases, ailments, defects, or complaints, terms that clearly don't apply to the attendance of women in uncomplicated childbirth. However, midwives in those states who treat complications such as postpartum hemorrhage or who counsel women about ways to lower blood pressure or treat urinary tract infections are, in fact, acting in violation of the letter of the law and are vulnerable to criminal prosecution as a result. Further, all midwives who carry and/or use Pitocin and other anti-hemorrhagic medications without a statute explicitly authorizing them to do so are subject to prosecution under medical practice statutes as well as those regulating the possession and use of controlled substances.
The medical practice statutes in most states fall into the third category, containing language that defines the diagnosis, treatment, or correction of any and all human conditions, ailments, diseases, injuries or infirmities, real or imaginary, by any and all means, methods, devices or instrumentalities, as the practice of medicine. Midwives in these states may believe that as long as they don't use invasive procedures, they're not "treating" laboring women. The courts, however, have disagreed and have generally held that acts ranging from cutting the cord and suturing tears, to monitoring heart tones and conducting internal exams, constitute the treatment of a human condition and are prosecutable if the person performing those acts isn't licensed as a physician or nurse.
To understand the broad reach and scope of the language used in the statutes defining medical practice, it's important to keep in mind two points. First, the wording they contain wasn't just stumbled upon by inept legislators who didn't really intend to define the act of attending women in childbirth as the practice of medicine. On the contrary-the statutes were written and promoted by the medical lobby and are the culmination of a century-long campaign to establish allopathic medicine as the default healthcare modality in the US, with the power to define, control, and/or eliminate any and all other forms of healthcare practice.
Midwives aren't the only practitioners who were targeted. Chiropractors, osteopaths, podiatrists, homeopaths, herbalists, and even bonesetters were all considered mainstream practitioners until they were outlawed and effectively de-legitimized by the medical licensing campaigns of the early twentieth century. The only professions that have survived the drive toward monopoly have been those that were either absorbed by allopathic medicine or managed to pass statutes providing for licensure under terms that define the acts they engage in as healthcare providers as separate, distinct, and exempt from the practice of medicine.
The second point to keep in mind is that appellate courts have overwhelmingly held that statutes restricting access to direct-entry midwives or subjecting them to regulation via medicine and nursing statutes are not overly broad, do not violate due process (including the right of midwives to earn a living at their chosen profession) or the right to privacy. One of the few exceptions to these trends, Kansas v. Ruebke, applies only to the actions of the midwife plaintiff and not to all midwives in the state, and only then because the midwife in question was deemed exempt to the practice of medicine because she was working under physician supervision. The courts, in short, have continued to follow Bowland v. Municipal Court, which established that the right to privacy does not include the right to choice of childbirth attendant (for a more in-depth analysis of the legal status of direct-entry midwives see, "To Become a Midwife: Reducing Legal Barriers to Entry into the Midwifery Profession" and Appendix II: Midwifery and State Law Desk Reference).
A number of misconceptions remain about the role the courts have played in establishing the legal status of DEMs in states that don't define, exempt, or license their practice. Many midwives are under the assumption that their practice is "legal by judicial interpretation," yet this term, for a number of reasons, holds no meaning. Only appellate court rulings carry the force of law; lower, trial-court rulings establish no precedents and, while they may influence another judge presiding over a similar case, do nothing to prevent other midwives in a state from being charged with the same crime, or the same midwife from being charged more than once in connection with different births (both scenarios have already happened). And in a number of states, such as Massachusetts and Oklahoma, for example, favorable court rulings were handed down before the current medical practice acts were passed, making the rulings void.
The intricacies of timing aside, the primary point to keep in mind is that midwives practicing in states where a trial court has acquitted another midwife or declared that midwifery is not the practice of medicine are still vulnerable to being charged under medicine and nursing practice acts, as well as with manslaughter, child endangerment, and possession or use of controlled substances. And in states where appellate courts have addressed midwifery law, only the Kansas courts have offered any degree of protection, yet even in that case, the protection is limited. As many midwives are aware, the Illinois supreme-court ruling-which held that in the absence of a law defining and exempting their practice, DEMs are regulated under the nurse practice act-is more representative of the direction recent judicial trends have taken.
"Legal but licensure unavailable" is another misleading term that has been used to describe midwives in states where old midwifery statutes remain on the books. The campaign to eliminate the legal practice of traditional direct-entry midwifery took many years. In most states, before legal DEM practice was eliminated altogether and/or replaced by laws governing nurse-midwives, midwives were subject to assorted registration and permitting laws regulating them through the department of health and requiring them to meet certain training, hygienic, and moral criteria. As nurse-midwifery emerged as a viable alternative to traditional midwifery, most states eventually replaced older systems of registration with laws mandating licensing through medical and nursing boards. However, in some states, such as Alabama, Georgia, and Kentucky, abandoned, or "orphaned," midwifery regulations directing the department of health to register or issue permits to midwives were never removed from the books, thus making it appear as if a mechanism for legalizing DEM practice exists where none does.
So what conclusions can be drawn about the legal status of direct-entry midwives? The only firm conclusions that can be made are that the states where DEMs are fully legal are those states that define their practice, exempt them from the medical and nursing practice acts, and provide for regulation via licensing or registration. Even in a state like Mississippi, where the medical practice act specifically exempts "females engaged solely in the practice of midwifery," DEMs remain vulnerable to charges of practicing nursing without a license, thanks to the broadly written wording of the nurse practice act. Furthermore, the lack of a statutory definition of "practice of midwifery" leaves Mississippi DEMs in much the same position as DEMs in the "illegal" state of Missouri, where the medical practice act also leaves open to judicial interpretation what types of specific activities midwives regularly engage that do or do not constitute the practice of medicine.
The degree to which DEMs remain at risk of prosecution in the thirty-three states (plus the District of Columbia) that don't meet all of the conditions for lawful practice is highly variable, even within states. Whether a midwife will eventually face charges or not depends largely on whether prosecutors in her region decide to enforce the letter of the law. In some states all it takes is a complaint from a physician for prosecutors to start issuing cease and desist orders or filing charges. In other states midwives can practice without incident for years, until a poor outcome or a politically ambitious prosecutor suddenly shifts the climate from tolerant to hostile. No one can predict with any certainty what an individual midwife's risk of criminal prosecution is. All that can be said with accuracy is that every midwife in the states that don't meet the three criteria for offering full legal protection is at risk.
One of the best ways midwives can determine their personal degree of risk is to talk to other midwives, especially those who have been practicing for many years. Often they will have a better sense than attorneys might about what the legal climate in a given state is likely to be. So in addition to listing the statutes in each state that may be used to define, regulate, or prosecute DEMs, we've also included a list of midwives who have agreed to serve as contacts for people interested in knowing more about the legal climate, along with the names of friends-of-midwives and midwives organizations. Wherever possible, we have also included the names of midwife-friendly attorneys, many of whom have a great deal of knowledge and experience in midwifery law. In addition, we've noted which states have a history of investigating or criminally prosecuting DEMs, along with those in which investigations or criminal cases are currently being pursued.
Disclaimers