Disasters Lying in Wait: Over-Medicalization of the Birthing Process and the Lifesaving Practice of Midwifery

• Author: Fulton Wald
• Position: Georgetown Law, J.D. 2022; Kenyon College, B.A. 2017
• Pages: 145-186

NOTE

Disasters Lying in Wait: Over-Medicalization of

the Birthing Process and the Lifesaving Practice of

Midwifery

FULTON WALD*

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

I. THE DANGERS BLACK PATIENTS FACE WITHIN HEALTHCARE

INSTITUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

A. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

B. MODERN IMPACT OF THE U.S. LEGACY OF REPRODUCTIVE RACISM . . 152

C. ALABAMA....................................... ....... 154

II. LICENSING AND INTEGRATION OF MIDWIVES . . . . . . . . . . . . . . . . . . . . . . . . 156

A. LICENSING DIFFICULTIES FOR MIDWIVES . . . . . . . . . . . . . . . . . . . . . . 156

B. PENNSYLVANIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

C. WASHINGTON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

III. ECONOMIC BARRIERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

A. OVERVIEW OF ECONOMIC COMPETITION BETWEEN MIDWIVES AND

OBSTETRICIANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

B. CIVIL SUITS UNDER THE SHERMAN ACT AND GOVERNMENT

INVESTIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

* Georgetown Law, J.D. 2022; Kenyon College, B.A. 2017. © 2022, Fulton Wald. I’m forever

grateful to the incredible GLJ team whose feedback and edits transformed this paper. Particularly,

Madeline Emmett, Kristen Green, Annie Dang, Radiance Campbell, and David Offit whose expertise

with words (and the Bluebook) knows no bounds. Thank you to Rosie Gilroy, Kate Dellis, and Camille

Baptista for their essential feedback. Thank you to Ayres Stiles-Hall at Concord Academy, whose

encouragement has led me to pursue writing with confidence—this may be my first publication, but

hopefully not my last. And thank you to Tompkins, whose patience, support, and kindness could never

be reduced to words. The world is better with you in it. Finally, to the strongest woman I know: my

mom, a writer and artist who raised my sister and me all on her own. You taught us to read and write

with passion. While my name may be on this paper, every word I have ever written can be attributed to

you.

145

1. Sweeney v. Athens Regional Medical Center. . . . . . . . . . 165

2. Nurse Midwifery Associates v. Hibbett . . . . . . . . . . . . . . 166

3. FTC Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

C. MOVING FORWARD WITH ANTITRUST CLAIMS . . . . . . . . . . . . . . . . . . 168

IV. SOLUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

A. UNIVERSAL HEALTHCARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

B. COVERING MIDWIVES UNDER MEDICAID . . . . . . . . . . . . . . . . . . . . . . . 174

C. TRAINING MORE MIDWIVES IN SOUTHERN STATES . . . . . . . . . . . . . . . 179

D. CREATING ACCESSIBLE BIRTH CENTERS OVERSEEN BY MIDWIVES. . . 183

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

A midwife looks at a pregnant woman and sees a beautiful, normal, physiolog-

ical, wonderful event about to happen . . . . An obstetrician looks at a pregnant

woman and sees a disaster lying in wait for them. If you’ve got these two

health care professionals working together as a team and meeting in the mid-

dle, what you end up with is really good health care.

— Sally Collins, Associate Professor of Obstetrics, University of Oxford

1

Kate Womersley, Why Giving Birth Is Safer in Britain Than in the U.S., PROPUBLICA (Aug. 31,

2017, 8:00 AM), https://www.propublica.org/article/why-giving-birth-is-safer-in-britain-than-in-the-u-s

[https://perma.cc/E74H-FNC5].

INTRODUCTION

In the United States, physicians preside over 90% of births, yet the country par-

adoxically has the worst maternal and infant mortality rates of any wealthy nation,

with risks up to three times higher for Black and Indigenous American women.

2

This

1.

2. See Sandi Doughton, The Case for Midwives: Washington State Leads the Nation in Midwifery

Care, SEATTLE TIMES (Mar. 15, 2020, 7:00 AM), https://www.seattletimes.com/pacific-nw-magazine/

the-case-for-midwives-washington-leads-the-nation-in-midwifery-care-giving-women-another-childbirth-

option/ (“[There are] rising levels of complications and premature birth; C-section rates more than twice

the recommended level; a looming shortage of obstetricians; and sky-high spending.”); see also

Christopher Ingraham, Our Infant Mortality Rate is a National Embarrassment, WASH. POST (Sept. 29,

2014, 10:38 AM), https://www.washingtonpost.com/news/wonk/wp/2014/09/29/our-infant-mortality-rate-

is-a-national-embarrassment/ (citing a Centers for Disease Control report finding that the United States has

a “higher infant mortality rate than any of the other 27 wealthy countries”).

This Note acknowledges that not all pregnant people are women, nor are all people who are able to

become pregnant women. By referring broadly to “healthcare” and “patients” wherever possible, we

remember that many people encounter the obstetric and midwifery care systems discussed in this Note.

However, in line with the Trans Journalists Association’s guidelines, this Note retains gender-specific

language (e.g. “pregnant women”) if discussing a study that only includes cisgender women. It also

retains “maternal mortality” as a term of art. See Statement, Trans Journalists Ass’n, TJA Best Practices

146 THE GEORGETOWN LAW JOURNAL [Vol. 111:145

for Trans-Inclusive Language in Abortion Coverage (May 5, 2022) (available at https://acrobat.adobe.

com/link/track?uri=urn:aaid:scds:US:b4cff98c-6335-3157-a972-ef08d07b8f1f#pageNum=1).

problem has only worsened over time—maternal mortality rates in the United States

have almost doubled in the last twenty years, with 60% of these deaths estimated to be

preventable.

3

See Sofia Jeremias, The Rise of Midwives in Rural America, DESERET NEWS (Sept. 2, 2021, 12:00

AM), https://www.deseret.com/2021/9/1/22650628/the-rise-of-midwives-in-rur al-america-nurse-

midwifery-maternal-death-rate-medicine [https://perma.cc/84Y2-MBX7].

A myriad of issues contribute to these mortality rates. The U.S. for-profit

healthcare system creates high financial barriers to access and wealth inequality gaps

are at an all-time high; people of color in the United States are disproportionately

impacted by poverty, and this results in people of color disproportionately dying in

childbirth due to structural barriers inhibiting their access to prenatal or postnatal care.

These mortality rates are indicative of the nation’s long history of reproductive vio-

lence against people of color, particularly Black women. From its legacy of slavery to

forced sterilizations and the overturning of Roe v. Wade,

4

U.S. institutions continue to

harm people of color. While many different tactics on various institutional levels are

needed to combat these issues, this Note highlights midwifery as an essential part of

the solution to high U.S. maternal and infant mortality rates.

5

In Europe, 70% of births involve midwives assisting in a hospital setting; how-

ever, the U.S. maternal mortality rate is three times higher than the United

Kingdom (UK)’s and eight times higher than Iceland’s, the world’s leader in

maternal survival rates.

6

If the United States has comparatively one of the highest

rates of medical professionals overseeing births, why are its survival rates so

abysmal in comparison? In the UK, midwives preside over more than half of all

births.

7

In Nordic countries and France, midwives are even more commonplace,

overseeing the majority of births.

8

U.S. citizens have accordingly increased usage

of midwives over the past few decades. Between 2007 and 2015, the percentage

of out-of-hospital births rose from 0.9% to 1.5%, with 63.1% of out-of-hospital

births in 2015 occurring at home and 30.9% occurring in midwife-attended free-

standing birth centers.

9

However, these numbers are nowhere near comparable to

those in Europe. If the United States made a concerted effort to match Europe’s

3.

4. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022).

5. This Note does not pretend to address all aspects of U.S. maternal and infant mortality rate

disparities. Rather, this Note centers the specific crisis of Black women’s birth outcomes in Southern

states. Additionally, while a focus on Southern Black women of course includes Southern Black

disabled women, trans people, and other intersecting identities, this Note does not intend to address the

unique challenges these Americans face in accessing pregnancy care—instead, the author invites future

research and scholarship in the area.

6. See Jessica Brown, The Fight for Birth: The Economic Competition That Determines Birth

Options in the United States, 52 U.S.F. L. REV. 1, 6 (2018).

7. See id. at 7.

8. Doughton, supra note 2. Even Kate Middleton, Princess of Wales, gave birth to her children via

midwife. Id.

9. See Linda Levinson, Solving the Modern Midwife Problem: The Case for Non-Nurse Midwifery

Legislation in Pennsylvania, 91 TEMP. L. REV. 139, 140–41 (2018).

2022] DISASTERS LYING IN WAIT 147