Knowing About Legality and Illegality in Midwifery Care in the United States
“I was a sociologist before I was a midwife. It’s the same. Except some of us touch vaginas.”
—Sarah, a midwife from Oklahoma, at the Midwives Alliance of North America Conference
“Different bodies of knowledge are produced in different settings.”
—Barbara Katz Rothman, A Bun in the Oven (2016, pp. 132–133)
“We tell ourselves stories in order to live.”
—Joan Didion, We Tell Ourselves Stories in Order to Live (2006, p. 185)
“IF YOU PRACTICE HERE, you’re probably gonna get prosecuted and sent to jail. I’ve been prosecuted criminally [three times] in South Dakota.” That’s how Gina describes her thirty years working as an “outlaw midwife” from an “illegal state.”1 In early June 2007, I drove a dusty dirt road east and north across the South Dakota border, a few miles into Minnesota, and down a quarter-mile driveway—past horses, cows, and goats—to Gina’s small farmhouse surrounded by several outbuildings and a neat-as-a-pin yard. The home was no different from dozens of similar 100-acre plots in the rural southwestern Minnesota countryside. This uniformity benefited Gina, who has attended more than 600 births and trained at least a dozen apprentices. She used this farmhouse as a safe house and site of practice; in 2007 she operated across state lines to keep herself out of jail. When I drove up that summer day, a visibly pregnant woman was getting into the passenger seat of a waiting car. Gina waved good-bye to her before she greeted me and we walked to the small, two-room outbuilding that was meticulously arranged for her midwifery practice.
In the late 1990s, in Yankton, South Dakota, Gina first went to trial, charged with practicing without a license. Gina had previously trained as a certified nurse midwife (CNM) but was practicing as a “direct-entry” or “lay” midwife, an unlicensed midwife who has become skilled through a mix of apprenticeship and book learning. “They found me not guilty,” Gina tells me about those charges in the 90s. This wasn’t the end of her legal trouble, though. After the jury’s not-guilty verdict, the state successfully sought an injunction against her midwifery practice.
At this point in our conversation, Gina opened a folder to show me the cease and desist order she received from the state, an order that she continued to violate:
[This one says] I can’t practice as a CNM without a license, which I don’t believe I’ve done. But in its definition, [the judge] said since I’ve admitted to such things as providing food and fluids, and putting a cold washcloth on the forehead and pressure to the lower back, and um, hot moist pads, uh, and a few more midwifery kind of things like listening to fetal heart tones . . . or prenatal massage or cutting the cord. These are things that only a certified nurse midwife can do in the state of South Dakota. And I thought, “That is absolutely ridiculous!”
Gina tells me that after she received the cease and desist letter, “I’m sure that the state of South Dakota thought I had quit.” But, after much prayer and discernment, “I continued practicing as a direct-entry midwife.”
I had first met Gina at a South Dakota Safe Childbirth Options conference in Custer, South Dakota. The event focused on the lack of access to labor and delivery care in the state, which is especially problematic for rural families living far from hospitals. During the course of an intensive weekend of workshops, I attended a session meant to prepare husbands to handle emergencies that come up during unassisted birth, as well as classes on prenatal nutrition, decisions regarding vaccination, and the history of midwifery in the state. As a participant-observer, I gave a lecture on the laws relating to coercive force during childbirth. While in Custer, I connected with midwives and their advocates. Each told me, “You have to interview Gina.” That’s how I ended up, a year later, sitting with Gina in rural Minnesota.
After Gina’s first acquittal, she was found guilty of violating the injunction against her practice and given a suspended sentence of sixty days in jail and a $5,000 fine. She tells me that she was “scolded” by the judge and told to stop her practice. But her calling was too strong and the need for her skills too great for her to listen to the law. Women would choose to give birth with no assistance at all before going to the hospital—such was the strength of their faith, their desire to avoid a hospital birth experience, or their distance from quality medical care. Relying on her faith, Gina reasoned that she would be there for those women, whether it was legal or not:
I wasn’t sure what to do. I’m a Christian and I love the Lord very much and, and as a Christian I can’t just go out and quote “disobey the law,” you know, and here they’re saying that I’m disobeying the law, which has nothing to do with what I was doing. And I didn’t feel I was disobeying it, but I went to the Lord and I said, “Lord, I’ve got to know why I’m doing this. Am I just doing this because I enjoy being with moms and babies? If that’s the only reason, then that’s not a good enough reason, and I need to stop.” And, so I really prayed about it. I prayed. I fasted. I got counsel from some Godly friends that I knew would understand both sides of the issue. And, and I just waited on the Lord, for Him to show me what He wanted me to do.
Reading her Bible one morning, Gina tells me, she read a passage that made clear to her that God had called midwives to practice with women who needed them. Feeling that this was her ministry, she continued in her practice as a direct-entry midwife in the state.
Shortly after this decision, Gina attended a particularly traumatic birth that culminated in the need to transport her client and baby, in a blizzard and via helicopter, to the regional hospital for emergency care. The baby had been born at home with shoulder dystocia and a cord wrap and was not breathing well but did have weak heart tones. Gina did CPR until the child could be transported and intubated. The baby lived in the NICU for several days before passing away.2 Gina found herself, again, in court, charged with practicing medicine without a license, in violation of the cease and desist order.3 She told me, “Well, I knew I was in trouble, not that I was doing anything wrong.” She was not charged with negligence or held responsible for the child’s death. Rather, she explained, “They charged me with four counts . . . of practicing unlicensed midwifery. And so that’s what I was convicted of; I was convicted of all four counts”:
[The judge] could have sentenced me to a year in jail on each of the four counts and $1,000 fine. But, she sentenced me to 180 days in jail on each count and a $500 fine; and the prosecuting attorney wanted a reimbursement to the family for what they had paid me for the birth.
And so she said [I owe] a $500 reimbursement to the family. And the family refused to accept that.
Then she suspended all the jail time but thirty days. And so I had to pay the $2,000 fine, and I served thirty days in jail . . . for being a midwife in the state of South Dakota.
When I asked Gina what that was like, a grandmother midwife spending thirty days in jail, she answered simply, “It was not easy.” And then she laughed and told me to read her book.
Gina’s exhortation reaffirmed my desire, as a sociolegal scholar, to write my own.
Birthing a Movement: Midwives, Law, and the Politics of Reproductive Care is a sociolegal story that weaves together legal pluralism, legal mobilization, legal consciousness, and legal implementation in order to better understand their constitutive interactions in the creation of professional boundaries and disciplinary knowledge. In it, I examine the multiple ways that midwives and advocates mobilize to expand access to reproductive care, as well as the seemingly contradictory impulses they have in both seeking, and seeking to avoid, the state. The book is also, at its core, an argument about the need for holistic, embodied, and integrative sociolegal research and a reminder for us to take seriously the stories we tell about law in society, as those stories create spaces within which justice can flourish.
The legal landscape of homebirth midwifery in the United States is pluralistic. I mean this first in the classical sense of legal pluralism, whereby we notice that formal, state-promulgated rules and practices exist side by side—and sometimes in tension with—traditional or folk practices that also have the normative force of law.4 Midwives use practices handed down through professional generations—a Gaskin maneuver to turn a breech baby, for instance—alongside law that places a breech delivery outside of their scope of practice. And, second, I use the term “legal pluralism” to highlight that the formal, state-promulgated rules and practices are themselves pluralistic; a certified professional midwife (CPM) might have a legal and regulated practice in Oregon, but when she moves to Illinois, that same practice is no longer legal and is not regulated. Midwives in the United States participate in legal systems that Boaventura de Sousa Santos might say are typified by “interlegality” and in what Sally Merry has termed the “new legal pluralism.”5
At its most elemental, this book examines and showcases the legal pluralism that governs those who attend to people who labor and deliver.6 These midwives go by several different designations that indicate their training, their attitudes, their scope of practice, and their legal status—many of which are determined by the laws (and norms) of their locale and which might shift due to geography or politics. This pluralism necessitates that we take care to articulate a common language and understanding of who attends birth in the United States.
Most births (98%) in the United States take place in hospitals and are attended by obstetrician-gynecologists (ob-gyns) and a nursing staff.7 Ob-gyns are specialist allopathic doctors who have trained in women’s reproductive health. Obstetrics is the medical practice of working with pregnant and laboring women; gynecological practice covers the rest of women’s reproductive lives, including menopause.8 Nurses who work labor and delivery are also specialists, focusing on labor and delivery only; they do not do whole woman health nor reproductive care outside of labor and delivery.9 These practitioners (ob-gyns, labor and delivery nurses) are experts in hospital birth and the medical model of care. If you labor and deliver in the United States, it is almost certain you will be in their hands.
A small but increasing percentage of hospital births (around 8%) are attended by certified nurse midwives (CNMs),10 who also attend to prenatal care and do postnatal follow-up. CNMs are accredited by the American College of Nurse-Midwives. They sit for their exams after earning their BS in nursing, achieving an RN certification, and then receiving their MS in nursing. CNMs are authorized to practice in hospitals in all fifty states,11 and in birth centers in thirty-seven states, plus the District of Columbia.12
When I first interviewed Gina, CNMs in South Dakota could practice legally in hospital settings, but not at home; they gained legal status for homebirth in South Dakota in 2013. CNMs may legally attend homebirths in all fifty states, but the vast majority of births attended by certified nurse midwives take place in the hospital, and most CNMs self-select into hospital practices. In 2014, the year of the most recently available data, 94.2 percent of all births attended by CNMs were hospital births; 3 percent occurred in free-standing birth centers, and 2.7 percent were homebirths.13 As of May 2015, there were 11,194 CNMs registered with the American College of Nurse-Midwives (ACNM).14 Although the story of how CNMs gained professional prominence and legal status is fascinating and important,15 this book does not recount that story.
Rather, this book focuses on certified professional midwives (CPMs), direct-entry midwives, and their advocates. CPMs are not nurses. They operate outside of the medical model; they attend only out-of-hospital birth. In this book, I use “midwife” generally to refer to any person who is not a nurse midwife but who is trained to attend during labor and delivery and to provide pre- and postnatal care. When I am writing about particular practitioners, organizations, or communities, I use the designation that they adopt to refer to themselves. Because my primary interest in this book is the fight for and over the CPM credential, most (but not all) of the midwives whom I spoke with are practicing as, or aspiring to be recognized as, CPMs.
There are currently two paths to the training required for CPM certification by the North American Registry of Midwives (NARM). Potential CPMs must hold a high school degree or equivalent and either apply for certification through a portfolio evaluation process (PEP) or graduate from a didactic program approved by the Midwifery Education Accreditation Council (MEAC). Certification of CPMs rests on establishing competency through skills assessment and exams. Potential CPMs going through PEP must undertake clinical training or apprenticeship under the supervision of an experienced preceptor for at least two years. During that training, they must observe ten births in any setting and in any capacity; assist a preceptor in twenty births, twenty-five prenatal exams, twenty newborn exams, and ten postpartum visits; and serve as the primary provider (still under supervision) at twenty births, seventy-five prenatal exams, twenty newborn exams, and forty postpartum visits. After accruing this experience, candidates may sit for the CPM exam. MEAC-accredited programs organize their clinical training to coincide with didactic learning; in addition to the clinical practice as above, MEAC applicants must take a course on cultural competency and must attend at least two planned hospital births.
Until recently, most CPMs were achieving their competency through apprenticeship programs, and apprenticeship is the more traditional route to gaining expertise in midwifery. Increasingly, however, CPM candidates are attending MEAC-accredited schools—in part because federal student loans now cover the expenses of such programs and because many states are beginning to condition legal status on a didactic route to certification. There are midwives who are wary of these didactic requirements. They worry that these requirements will constrain access to the profession for candidates who live far from a MEAC-accredited school or have other barriers to that education. They also worry about the loss of women’s ways of knowing and transmitting knowledge, when apprenticeship is no longer the primary mode of education.
CPMs do not have hospital privileges in any jurisdiction; they only attend out-of-hospital birth and provide the pre- and postnatal care associated with it. They almost always practice in a client’s home. Only 8 percent of CPMs responding to the North American Registry of Midwives’ most recent “job analysis” survey indicated that their primary workplace is a birth center.16 In 2016, the most recent year for which there are data available, there were 2,069 CPMs registered with NARM and active in their profession.
While the legal status for certified nurse midwives has been relatively stable since the mid-twentieth century, the legal status for CPMs has been contested and in flux since the mid-1970s, and especially since around the year 2000. When I started this research, in 2006, twenty-two states licensed and regulated CPMs; twenty-eight refused to. CPM practice was illegal in South Dakota when I interviewed Gina; it remained so until June 17, 2017. By fall 2019, thirty-five states licensed CPMs, and all but one of those regulates their practice.17 CPM practice remains illegal in eight states, where it could bring felony convictions and penalties that include imprisonment. CPMs are unregulated, with a confused and confusing legal status in the remaining seven states. Many of those states have active consumer and advocacy movements attempting to achieve legalization, regulation, and licensure for certified professional midwives.
CNMs and CPMs have a long and sometimes contentious relationship. In some states CNMs lobby against legalization for CPMs. But sometimes it is a mutually beneficial relationship, and the CNMs and CPMs support each other’s practices.
Finally, some midwives are neither CNMs nor CPMs. Their designations vary according to state law, academic background, and personal preference. These titles include licensed midwives, lay midwives, direct-entry midwives, traditional midwives, and birth attendants. These practitioners have almost always been trained through apprenticeship, though some have gone through nursing or other didactic learning programs but do not identify as CPMs or CNMs when practicing out-of-hospital birth. Some of them desire CPM credentialing and regulation and actively advocate for their state to adopt those standards. Others eschew credentialing for religious, spiritual, or political reasons and vigorously seek to avoid the CPM credential and state involvement with their practice. Some of these midwives actively oppose legislation meant to regulate their practice and license CPMs.18
These disparities in legal status and nomenclature, and the rapid movement toward licensure in several states, can be confusing for practitioners and consumers alike. When I lived in California, I had the option of a homebirth attended by a legal, licensed, and regulated CPM or CNM, or a hospital birth attended by either an ob-gyn or a CNM. Now that I live in Iowa, a state that still refuses to license CPMs, I could have either an in- or out-of-hospital birth attended by a certified nurse midwife, and I could also rather easily find a CPM, but she wouldn’t be governed by any state body and could find herself charged with the felony of practicing medicine without a license. Just four hours north, in South Dakota, are midwives like Gina, who—until gaining legal status in the summer of 2017—might well have operated out of safe houses in bordering states to avoid cease and desist orders. Four hours south, in Missouri, both CPMs and CNMs operate legally—but CPMs do so without regulatory governance—some in birth centers that do not comport with state ambulatory surgery center laws recently used to limit abortion providers by regulating clinic location, size, and staffing. CPMs in Missouri are also always under threat that legislators will rescind their legal status.
Mapping the regulatory web that midwives operate under within various jurisdictions is partly a project of legal pluralism. In addition, understanding the distinctions in practice, self-perception, and relationship to medicine and state underscored by these designations—as well as grasping how state and medical power have contributed to this plurality—touches on legal mobilization and legal consciousness. Midwives in illegal and/or unregulated states find themselves in a seemingly unsustainable situation and are often envious of their professional sisters in places where regulation and licensure are available. In those states, advocates must work on two projects simultaneously: They must convince state legislators of the legitimacy and safety of midwife attended homebirth, while also building a birth culture that will support them with a diverse set of clients who want out-of-hospital birth experiences. In legal and regulated states, midwives must also create a strong and supportive birth culture while dealing with the existence of barriers to safe practice that result in poorly integrated care, and, often, poor outcomes for moms and babies.
Legal mobilization scholars, and the movement actors they study, have long recognized that law is sometimes a strategic resource to be used instrumentally for the advancement of movement goals. Movement activists often explicitly acknowledge the instrumental use of law to be part of a multipronged strategy, and frequently these activists acknowledge trade-offs when they adopt legal mobilization as a technique.19 Individuals within marginalized groups clearly have the ability to knowingly make meaningful compromises while pursuing legal mobilization.20 Such mobilization holds both opportunities and constraints; through it, activists may knowingly accept otherwise unwanted normalization (or, domestication) of their claims in order to achieve victory.21 And, there are frequently debates within movements and among movement activists about the decision to pursue legal mobilization at all.22
As well, multiple scholars of legal mobilization point in various ways to the constitutive power of law and rights claiming as a partial answer to the question of why social movement actors continue to engage with the legal system, even when it might seem to fail, restrain, or limit them.23 When individuals within a group mobilize to use law in order to articulate a rights claim, they participate—even when they fail or when their efforts come up short—in reshaping the content of that right. Social movement actors engaged in legal mobilization often see and understand that law is constitutive of meaning and engage in a process of “legal translation” by which their claims are made legible to legal actors.24
As much recent work on CPMs evidences, midwives and their advocates have focused their mobilization efforts since the mid-1980s on seeking professional status.25 Their advocates have been primarily casting their cause as a consumer movement meant to expand the birth options of moms and families. While some midwives do not welcome, nor want, state regulation, the dominant paradigm for organizing has been to seek licensure and state recognition. Midwives and their advocates are engaged in a multipronged set of strategies to increase access to homebirth midwifery care through expansion of CPM licensure. Their actions range from political mobilization, in the form of lobbying legislators and engaging in electoral politics, to social movement activities meant to change a culture of birth in a given locale through Red Tent events, Labor Day picnics, film screenings, and engaging the media.
Some of their actions can be easily understood as legal mobilization strategies,26 from the defense of midwives in criminal cases to the tort actions brought by lawyers against doctors accused of obstetric violence during hospital birth. These sorts of cause lawyering activities are joined with legal mobilization that focuses not on rights, but on seeking governance through regulation and regulatory policy.27 Nationally and locally, midwives and advocates engage in cultural spaces ranging from alternative health fairs to hospital delivery rooms, legislative and regulatory spaces like the state house and the medical board, and in explicitly legal spaces like the courtroom.
As Ronen Shamir has pointed out, it isn’t always necessary or useful to distinguish among the various forms of legality that activists and lawmakers engage with, as they create social change. He writes, “Legislation, adjudication, regulations, and enforcement are all part of the matrix of how things get done.”28 In large part because of how they view the roles of law, the state, medicine, and midwifery, midwives “get things done” using a broad range of political, legal, and cultural strategies.
In 2019, midwives in Kentucky and Hawaii achieved legal status; they followed on the heels of Alabama and South Dakota (2017), Maine and Michigan (2016), Maryland (2015), Rhode Island (2014), and Indiana (2013). As I write this in 2020, there are active movements to legalize and regulate midwifery in four states and on the island of Puerto Rico. The bill to legalize midwifery in Iowa just died in subcommittee, but Illinois and Georgia still had bills pending, and advocates were cautiously optimistic. Consumers and midwives in five additional states and the District of Columbia are working toward launching reinvigorated legislative efforts. Though change takes time, midwifery advocates have had steady success in expanding access to care.
1. Gina is a pseudonym. I have given pseudonyms to every formal interview subject in this book, as well as to the quoted individuals that I recorded during participant-observation. The exceptions to this rule are when I’m speaking about a scholar or activist who is well-known in birth justice circles, and I’m quoting from that person’s statements made during public presentations and conferences. If I am quoting from an interview with those people, I have given them pseudonyms.
2. I relate this story almost exactly the way that Gina explained it to me, in order to understand her perspective regarding her interaction with law and practice. But, I must note that Gina did not tell me the child had died; I learned that through press accounts after our interview. I have also, since that interaction, read press accounts, anti-midwife blog accounts, critiques of Gina’s practice, and court documents. The reports are inconsistent: Some say the baby lived four days, some say seven. Some indicate there was a dispute about hospital procedure; some blame doctors for overmedicating the infant, others say Gina’s incompetence and reliance on faith sealed the child’s fate. I do know that, during my fieldwork in South Dakota, Gina was well regarded by homebirth families and often hired by the families that constituted the core of activists around the issue of midwifery in the state.
3. Gina notes, in conversation with me, that the prosecutor was both “the best in the state” and married to the CEO of one of the region’s major hospitals.
4. Merry 1990; Moore 1978.
5. De Sousa Santos 1987; Merry 2012.
6. The vast majority of midwives in the United States (and globally) identify as women, and they serve clients who also identify as women. However, not all people who labor and deliver identify as women, and the Midwives Alliance of North American recognized this in a move for gender-inclusive language within their core competencies. In this book I use both terms (“women” and “people who labor and deliver”) as well as “mother” and “client” to denote those people whom midwives serve.
7. Centers for Disease Control and Prevention 2017; see also MacDorman and Declercq 2018.
8. In the United States, medical doctors receive didactic training (medical school) for four years after graduating college; they then enter a residency period, during which they specialize. An ob-gyn residency is typically four years. After residency, doctors sit for board certification exams and must keep current via continuing education.
9. Labor and delivery nurses typically hold a bachelor of science degree in nursing (BSN), a four-year degree; after passing examinations to be certified as a registered nurse (RN), they begin working in labor and delivery while working toward certification in their area of specialty (obstetric nursing).
12. www.birthcenters.org; www.acnm.org
14. Ibid. An additional ninety-seven practitioners are certified midwives—midwives with a BA in a subject other than nursing, but who have otherwise completed the graduate training required to be certified by ACNM.
15. Rooks 1997; Varney and Thompson 2015.
18. At this point, when I’m giving presentations on midwifery to audiences unfamiliar with the practice, I usually get a question about doulas. Doulas are not midwives, and they do not use medical training in their support of pregnant and laboring people. Doulas may be certified by DONA International or by the Childbirth and Post-Partum Professional Association. Doula certification and licensure are not currently required for practice in any state.
19. Handler 1978.
20. Bell 1992; Crenshaw 1988.
21. Kirkland 2003; McCann 1994; Silverstein 1996.
22. Vanhala 2011.
23. Engel and Munger 2003; Gleeson 2009; Goldberg-Hiller 2002; McCann and Silverstein 2008; Paris 2001; Rosenberg 1991; Sarat and Grossman 1975; Scheingold 1974; Tushnet 1987.
24. Paris 2010.
25. Beckett and Hoffman 2005; Craven 2006, 2010; Davis-Floyd 1993, 2006a, 2006b; Davis-Floyd and Johnson 2006; DeVries 1985; Hoffman 2008; Kline 2019.
26. A rich literature on legal mobilization shows us how frequently social movement actors mobilize discourses of rights, seek legal recognition, and advance political aims. See Barclay, Jones, and Marshall 2011; Barnes and Burke 2012; Burstein and Monaghan 1986; Engel and Munger 2003; Gleeson 2009; Goldberg-Hiller 2002; Handler 1978; Kessler 1990; Kirkland 2003; McCann 1994; McCann and Silverstein 2008; Paris 2001.
27. Morgan 2003.
28. Shamir 1993, p. 363.