AuthorHickey, Jennifer

"Many of our problems in US maternity care stem from the fact that we leave no room for recognizing when nature is smarter than we are. "

--Ina May Gaskin, Birth Matters: A Midwife's Manifesta


The United States was recently dubbed "the most dangerous place in the developed world to give birth." (1) Over seven hundred pregnant women or new mothers die in the United States each year. (2) Infants are dying at an alarming rate as well. (3) Our shockingly high and ever-increasing rate of maternal mortality, particularly among Black women, has garnered significant national attention. Further, many women experience mistreatment at the hands of their health care providers, including the imposition of unnecessary or unwanted medical interventions during birth. Aside from causing emotional and physical trauma, such interventions have been directly linked to increased maternal mortality. (4)

The state has done little to address or even examine the underlying systemic causes of this harm, particularly the role of medicalization. Birth in the United States is overwhelmingly medicalized and socially and culturally positioned as a high-risk condition in need of medical intervention, rather than a naturally occurring process in need of social support. The United States is among a small number of industrialized nations that use physicians, rather than midwives, as the primary care providers for low-risk births, (5) yet our maternal mortality rates are significantly higher. (6) And women who birth with midwives experience far fewer interventions and better overall treatment. Instead of taking steps to support midwifery and normalize birth without intervention, the state allows medical professionals to discredit and suppress midwifery and sometimes actively participates in this campaign by criminalizing out-of-hospital birth. In sum, the United States is failing birthing women.

Birth in the United States is overwhelmingly considered a private matter between a woman and her doctor. The perceived autonomous nature of the doctor-patient relationship, coupled with the rise of medical consumerism, functions to absolve the state of its responsibility for birth. Additionally, birth is framed as the product of individual choice, which further allows the state to ignore positive obligations towards birthing women and instead facilitates punitive responses when a woman makes the "wrong" choice that may harm her fetus. The legal and social framing of birth injury as a violation of individual rights obscures the state's responsibility to address birth injury as a social harm necessitating response and reform to societal institutions. Such reform necessarily includes addressing the harm caused by excessive medicalization.

Scholars and advocates arguing for greater state support of midwifery typically ground their theories for state responsibility in regulation of unfair market practices or improved support of maternal decision making. (7) Unfortunately, these arguments only further confine the state and society to their limited roles. This Article instead argues for a responsive state that affirmatively provides a meaningful and safe birthing experience to all women by nature of its obligation to provide its citizens with the tools needed for resiliency. (8) This entails recognizing that birth is not a private event, but rather a social one, stemming from our collective responsibility for societal reproduction. Thus, the state is obligated to recognize and remedy the widespread social harm caused by medicalization of birth.

Part I provides a comprehensive overview of medicalized birth in the United States and its attendant problems. Part II explores the many benefits of midwifery in addressing these issues and the current constraints on the midwifery profession. Part III discusses the state's limited and problematic attempts to address birth injury. Part IV explores how the medical and cultural privatization of birth as the product of individual choice forecloses meaningful state response, examining birth in the time of COVID-19 as a salient example. Part V then concludes by establishing a better approach to state responsibility that obligates the state to actively promote non-medicalized birth.

  1. Birth in the United States

    Birth in the United States today is a product of social, cultural, and clinical norms and practices that have shifted dramatically over time. While now overwhelmingly considered a medical event, childbirth was not always confined to hospital rooms. For centuries, birth in the United States predominantly took place in the home, aided by midwives and community members. (9) Birth was considered a natural, celebratory process rather than a pathological event requiring medical intervention. With rapid speed, pregnancy in the United States transformed both socially and clinically into the overwhelmingly dominant medical model of today. While nearly every other industrialized nation eschews medical intervention for the vast majority of births, hospital birth attended by trained surgeons is the norm in the United States. (10) The powerful rhetoric of pregnancy as a high-risk event in need of medical management both stems from and perpetuates this hegemonic model of birth. At the same time, infant mortality rates are shockingly high compared to other countries. Maternal mortality rates are alarmingly high and continuing to rise. Women are increasingly facing mistreatment at the hands of their health care providers and suffering the real and lasting effects of birth trauma.

    This overview of birth in the United States begins with a history of the transformation of childbirth in the United States from a natural process to a medical event. It next discusses the infant and maternal mortality crises and the ways in which they are furthered by excessive medicalization. It concludes with an examination of the increasing mistreatment of birthing women by medical professionals.

    1. Medicalization of Birth

    The story of birth in the United States is one of rapid transformation. For hundreds of years, women gave birth in their homes with the assistance of midwives and without medical intervention. (11) In just half a century, clinical and social attitudes shifted dramatically to regard pregnancy and birth as a medical condition that must be managed, rather than as a naturally occurring process. (12) As a result, hospital births attended by physicians quickly became the dominant model of care.

  2. Communal Childbirth

    Birth in the United States began as a non-medical communal experience and remained that way for centuries. In colonial America, women gave birth in their homes with the aid of the community. (13) Midwives were the primary skilled birth attendants for a large percentage of births in the United States from the colonial period to the Great Depression. (14) Physicians began practicing obstetrics as early as the second half of the eighteenth century, but they initially participated in only the most difficult births. (15) The simplicity of early medicine allowed for cooperation between midwives and physicians for much of the eighteenth century. (16)

    1. Rise of the Physician

      In the late eighteenth century, perceptions began to shift, and women started hiring physicians to attend their low-risk births. (17) Many thought that American physicians, trained abroad or through apprenticeships, would be able to offer services that midwives could not because of their formal education. (18) Additionally, physicians were able to administer opium and use forceps, technological advances that were thought to improve birth outcomes. (19)

      At the same time, the medical profession was becoming more exclusive. (20) Male physicians who once practiced as a pastime or second career began devoting more time to the profession, while changing social notions dictated that women were ill-suited to provide obstetric care. (21) Thus, "the status advantages of [a male physician's] gender" and the "popular image of superior education" combined to perpetuate the notion that physicians could provide a safer and more comfortable birth experience than midwives. (22)

      This burgeoning "exclusivity of the medical profession" inevitably led to tension between physicians and midwives. (23) Those suddenly practicing medicine full-time found themselves competing with midwives for patients. This economic competition undoubtedly spurred efforts to discredit midwifery as primitive and unsafe, a campaign that continues to this day. (24) Additionally, medical professionals relied on racial and ethnic stereotypes to discredit midwifery throughout the nineteenth and early twentieth centuries. At the time, midwives attended a large majority of births for Black and immigrant families. (25) In numerous anti-midwifery statements released during this time, health professionals denigrated midwives as "ignorant, untrained" foreigners (26) or "superstitious negro[es]" (27) who practiced in "filthy" and "unhealthy" environments. (28) The image of the dirty ignorant midwife was subsequently propagated by a number of women's magazines. (29) This campaign against midwives of color had a profound suppressive effect on the entire midwifery profession. (30)

      The powerful effect of this discourse cannot be overstated. Evidence available at the time simply did not support the notion that physician-assisted birth was safer, yet its popularity among middle- and upper-class women continued to rise. In fact, many historians believe that nineteenth-century physicians may have increased maternal mortality. (31) These physicians experienced a host of complications in their obstetric practices, caused in part by the unnecessary and inappropriate use of medical interventions such as bloodletting, drugs, and forceps. (32) At the very least, birth outcomes did not improve with physicians rather than midwives in attendance. (33) For example, a medical professor conducted a study of U.S...

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