AuthorAnderson-Seller, Rachel


Birthing people in the United States pay more than citizens of other high-income countries and receive lower quality care, most of which is provided by physicians in hospital settings. Legal restrictions on midwives--the result of two centuries of pervasive sexist, racist, and anti-immigrant campaigns--prevent birthing people from making meaningful choices about their preferred birthing location and attendant, even though hospital births carry risks of their own. Policymakers may be hesitant to amend legislation and regulations due to a misperception that community birth is unsafe and that those who choose it are irresponsible. However, the COVID-19 pandemic presents an opportunity for change. In an effort to avoid hospitals, which are overwhelmed with COVID-19 patients and have enacted strict limits on support personnel during labor, birthing women are increasingly turning to community birth. Midwives and their clients can capitalize on this increased demand by advocating for an updated maternal care system.


In February 2020, the National Academies of Sciences, Engineering, and Medicine released a landmark 352-page report entitled Birth Settings in America: Outcomes, Quality, Access, and Choice (hereinafter, "National Academies Report"). (1) The National Academies Report, requested by the bipartisan Congressional Caucus on Maternity Care, (2) found that many women (3) do not have meaningful access to choice in birth setting. (4) No birth, whether it takes place in a hospital, a freestanding birth center, (5) or at home, is risk-free. (6) However, women are prevented from assessing the various risks associated with each birthing location and then using that assessment to make their own informed decisions when their insurance restricts access to providers who practice outside of hospitals, (7) or when their state law criminalizes the providers who would attend a community (8) birth. (9)

Later that same month, scientists began issuing ominous warnings of the new coronavirus, which was first discovered in China and began spreading during winter 2019. (10) By March, the disease had arrived in full-force, and hospitals began to prepare for the impact. Hospitals' actions had direct consequences for pregnant and laboring women. Some hospitals completely shut down maternity wards in order to save space for COVID-19 patients. (11) Others encouraged women to induce labor at thirty-nine weeks in a counterproductive effort to speed up birth (women whose labor is induced tend to spend more time in the hospital). (12) Still others forced women to give birth alone--only revising their policies after receiving a governor's executive order (13)--or forcibly separated women from their newborns. LaToya Jordan of Brooklyn gave birth in Long Island's NYU Winthrop Hospital on March 30, 2020. (14) After she arrived to the hospital with a cough, the hospital tested her for COVID-19 and then immediately separated her from her husband for the duration of her labor. (15) When her daughter was born, Ms. Jordan was not allowed to touch the baby or even remain in the same room with her. (16)

In response to these draconian restrictions and out of fear of contracting the virus itself, women began looking to home birth. (17) However, many states do not offer licenses to the midwives who would typically attend a home birth. (18) In those states that do not offer licenses, midwives are subject to criminal prosecution, (19) and families who wish to birth with a midwife at home have no method of verifying the midwife's training and credentials. (20) Even in the states that do offer licenses, many do not authorize midwives to practice autonomously, which has the practical effect of restricting them to hospital settings. (21)

Since the mid-18th century, physicians have been consolidating power at the expense of midwives and the women they serve. (22) The United States has one of the highest levels of neonatal (23) and maternal (24) mortality of any high-resource country, even though the U.S. spends more than any other country on childbirth. (25) Women have been engaging in a concerted effort since the mid-20th century to bring birth back to the community and reclaim their autonomy in the birthing process, (26) but they have encountered many roadblocks along the way. The shift to hospital birth and the legal barriers to physiologic birth (27) in a community setting are well-documented. (28) This Note seeks to provide state-specific context for those barriers, which have persisted despite evidence that hospital birth is not necessarily superior, and presents the COVID-19 pandemic as a watershed moment that can and must lead to wide reform.

This Note begins in Part I by detailing the history of childbirth in the United States as well as the social and legal factors that contributed to its transition from the home, under the care of a midwife, to the hospital, attended primarily by physicians. Part II continues with modern definitions of midwifery credentials, an explanation of the benefits of midwifery care and community birth, and the obstacles that birthing people face in securing a community birth for themselves. Each state has its own unique history of midwives and the efforts to regulate them. Part III of this Note presents a close look at the recent history of regulation in four states, selected for their diversity of regulatory schemes and populations. Part IV explains how circumstances have changed due to the COVID-19 pandemic and how this can be an opportunity for midwives and their supporters to increase access to midwifery care.

  1. History of American Birth: From Home to Hospital and (Somewhat) Back Again

    Giving birth in a hospital is a relatively recent phenomenon. Before the 18th century, virtually all babies were born at home, with midwives or female friends and family members in attendance, and homes remained the dominant birthing location in the United States until the 20th century. Part I chronicles the shift from the home into the hospital as well as more recent efforts to bring birth back into the community.

    1. Childbirth in Colonial America and the Early United States

      Until relatively recently, pregnancy and childbirth tended to dominate women's lives. White American women gave birth to seven live children, on average, at the beginning of the 19th century, and rates remained this high throughout the century for women of color and immigrant women. (29) Pregnancy and childbirth were dangerous and took both a physical and psychological toll on women. (30) Women took for granted that a pregnancy could very well end in the death of their child, themselves, or both. In 1852, one woman kept a journal once she discovered she was pregnant so that her child would have a way to remember her, should she die giving birth. (31) Even women who survived often had to deal with permanent physical limitations that resulted from injuries sustained in childbirth. (32)

      Prior to 1760, white women in the North exercised considerable control over the physical location and attendees of the birth itself. (33) Childbirth was a social event, with a midwife and sometimes a large circle of friends in attendance. (34) Midwives generally played a supportive role in the process, spending most of their time waiting and encouraging the birthing woman, although they did have some mild means of intervention in cases of particularly long labors. (35) In cases where a midwife did need to call a physician, it was not to assist with a live birth, but to dismember and extract the fetus in an effort to save the mother. (36) Although women gained strength from the presence of their friends who had successfully endured childbirth, high mortality rates made it a fearful event, and women with the economic means to do so began to explore options for a safer or less painful birth. (37)

    2. Men Enter the Birthing Room, and the Move to the Hospital

      The first man-midwives--the ancestors of today's obstetric physician--in the United States were wealthy men who had the means to study medicine in Great Britain. (38) Physicians occupied a high social rank due to their gender and perceived superior education, although in reality most American doctors had been trained through apprenticeship, just like the midwives. (39) In the South, the physicians' whiteness also contributed to their "legitimacy." (40) To the woman eager to have a less painful and fearful birth, the physician could argue that he was a better choice over the midwife because of his training in anatomy and in the use of forceps. (41) The dichotomy between the medical model and midwifery models of childbirth was evident immediately. Unlike the observational midwife, physicians felt compelled to intervene in the process. (42)

      After men were welcomed into the birthing room by women seeking a safer delivery, women also began to move to the hospital in search of a pain-free delivery. "Twilight sleep" was a method developed in Freiburg, Germany in the early 20th century, which involved injecting women with scopolamine and morphine at the onset of labor. (43) If the procedure was successful, the drugs would put her into a state of semi-consciousness, and although she experienced pain, she would have no memory of it. (44) The procedure was relatively dangerous, and one quarter of babies required resuscitation. (45) Twilight sleep and its promise of "painless" childbirth became a feminist issue, and the media blamed physicians, who were slow to adopt the procedure in America for reasons of safety, for cruelly withholding it. (46)

      Physicians eventually acceded to the demands in what would prove to be a turning point for physician-controlled childbirth and the elimination of the midwife, who had no access to the drugs or medical training required to administer the twilight sleep cocktail. The women who had demanded control and the power to choose a painless hospital birth were presented with a cruel...

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