2009 PushSummit: Free the Midwives!

Amie Newman

If you are pregnant in Alabama and you'd like to birth at home, you have every right to do so. But don't expect to do it with the provider of your choice.  Midwifery is illegal in Alabama, as it is in 25 other states. The 2009 PushSummit in Birmingham this week will address this and much more.

If you are pregnant in Alabama and you’d like to birth at home, you have every right to do so. But don’t expect to do it with the provider of your choice.  Midwifery is illegal in Alabama, as it is in 25 other states. A birthing woman would be committing a crime by having a midwife – even a certified, licensed midwife – with her.

It is no coincidence, therefore, that The Big Push for Midwives, a national effort to create regulation and licensure for certified professional midwives (CPMs) in all fifty states, plus Washington DC and Puerto Rico, is holding their 2nd annual PushSummit in Birmingham, Alabama this week. 

The Birmingham Weekly reported this week that advocates from over 13 states will gather in Birmingham to share strategies, both legislative and educational, for how to expand access to out-of-hospital birth and the midwifery model of care around the country. 

It’s particularly timely given the fact that we’re now talking national level health care reform. There has never been a more critical time to advocate for expanding women’s options to access the safe prenatal, childbirth and postnatal care providers of their choice. According to The Big Push, we could be saving billions of dollars per year in this country if all low-risk, healthy women (regardless of income level) were given the option to birth out-of-hospital and with the care provider of their choice. Steff Hedenkamp of The Big Push has been verging on heroic in her quest to ensure that everyone understands just what’s at stake. From her statement in March of this year at the Iowa White House Forum on Health Reform: 

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"The Obama Administration could save the country billions of dollars by overhauling the American way of birth, and endorsing the significant value that access to legal and regulated CPMs brings…The recent Milbank report conservatively estimates savings of $2.5 billion dollars a year if the cesarean surgery rate is brought down by 15%."

Hedenkamp does not mince words when she explains exactly why American women find themselves attempting to access a health care system that prioritizes power over evidence:

"The only reason why CPMs are not being utilized in all 50 states to their maximum effect is because a special interest lobby – organized medicine – has been fighting them every step of the way, by its own admission, using "hardball tactics" because, again by their own admission, they can’t win on the merits. They can’t change the evidence."

Meanwhile, this week at the PushSummit, the hard core, grassroots work to expand health care access for women in this country continues. The Alabama Birth Coalition, one of the co-sponsors of the PushSummit (along with the Alabama Midwives Alliance), will benefit from a concert this evening (‘Free the Midwives!’) that will kick off the Summit. The local show will raise funds to help support the passage of a 2010 Alabama state legislature bill to legalize CPMs, as well as to defray costs associated with the conference.

The PushSummit runs from July 12 – 15th. We’re hoping to receive some updates from folks at the conference so check back for more!

News Maternity and Birthing

Midwives Fight to Make Their Practice Legal Again in Delaware

Emily Crockett

Currently, in Delaware, it’s effectively illegal for a trained, certified midwife to attend a home birth. A new bill introduced in the state legislature last week aims to change that, and is one example of how a growing movement of midwives is seeking to change inconsistent state laws that often criminalize their practice.

Currently, in Delaware, it’s effectively illegal for a trained, certified midwife to attend a home birth. A new bill introduced in the state legislature last week aims to change that, and is one example of how a growing movement of midwives is seeking to change inconsistent state laws that often criminalize their practice.

Midwifery is not technically forbidden under Delaware state law, advocates told Rewire, but certified professional midwives (CPMs) hired by pregnant women who want to give birth at home face a legal catch-22. CPMs undergo three to five years of training and assessments to become nationally certified, but they still usually need to be licensed in individual states. To get a license in Delaware, midwives have to form a collaborative agreement with a doctor—but no doctor will sign such an agreement, because most malpractice insurers won’t cover CPMs or home births. And if a midwife delivers a baby without obtaining this agreement, she faces a felony charge and a fine of at least $1,000 for the unauthorized practice of medicine. These criminal charges were made explicit last year in a contentious bill that passed last-minute at the end of the session.

“The Department of Health in Delaware wrote rules that make no sense,” Susan Jenkins, steering committee member of the Big Push for Midwives Campaign, told Rewire. There are also only three CPMs in Delaware, Jenkins said, two of whom have been issued cease and desist orders for attending home births and who could face felony charges. (Jenkins is also an attorney who has represented one of those women.) The third CPM did manage to get a collaborative care agreement signed, but that’s because she only works with Amish clients, who generally don’t sue or go to hospitals.

Jenkins noted that the state’s small number of practitioners is mostly due to the harsh regulatory environment, and that more would be likely to practice in the state if they could get licensed. Helping midwives get licensed is the goal of HB 319, sponsored by Rep. Paul Baumbach (D-Newark), which would form a council to write rules and regulations for the practice of midwifery. The Midwife Advisory Council’s rules would be subject to approval by the Board of Medical Licensure and Discipline, and the council would be made up of three CPMs, a certified nurse midwife (a midwife who is also trained as a nurse), an obstetrician, and a pediatrician.

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About 20 midwives, doulas, and expectant mothers lobbied Delaware legislators to support the bill, sharing their stories of successful home births and arguing that mothers should be able to legally choose the birth option they feel is most right for them.

Delaware isn’t the only state where a tangle of old and new laws and regulations has either directly or indirectly outlawed the practice of non-nurse midwifery. According to data from the Big Push for Midwives Campaign, as many as 22 states do not legally authorize CPMs to practice. Midwives won victories most recently in California (where a new law provided for licensure and removed a requirement that midwives be supervised by doctors) and Hawaii (where two bills seen as hostile to midwives were defeated).

Katie Prown, a Big Push for Midwives steering committee member who has worked on pro-CPM campaigns in 19 states, told Rewire that midwife advocacy occupies a strange ideological space: It brings together women from both the pro-choice and anti-choice movements, and it leads to battles in states with either liberal or conservative legislatures. In the latter case, she said, “Whoever the majority party is, the caucus is divided, and we always find supporters [of hostile legislation] owe a lot of their campaign cash to the medical lobby.”

A 2006 battle for pro-midwife legislation in Wisconsin took legislators completely off-guard, Prawn said, because of the strength and breadth of the grassroots movement behind it. “The feedback we got was that this was the first bill in years where people were hearing from literally every single district in the state,” Prawn said. “The most conservative and the most liberal member of the state senate were both sponsoring the bill. Nobody had seen that in years.” The kicker, she said, came when the campaign flooded the halls of the state house with Amish and Mennonite supporters of the bill to flummox opponents who had been invoking the Amish in their arguments.

Critics of midwifery say home births are less safe than hospital births, while midwives point to more favorable research and say studies claiming home births to be unsafe are biased. But regardless of where the scientific consensus ends up, advocates say, there will always be some percentage of women who do not want to deliver in hospitals, and the goal should be making non-hospital births safer, not outlawing them.

“It is just lazy to assume that all the people who choose home birth do so because Ricki Lake told them to,” said Farah Diaz-Tello, staff attorney with National Advocates for Pregnant Women, referring to Lake’s 2008 pro-home birth documentary The Business of Being Born. “They have needs and concerns that aren’t being met in hospitals and birthing centers, and instead of pushing them further to the margins, we need to try to address those needs and make sure that the care they get is as safe as possible.”

Moreover, Diaz-Tello said, since even relatively safe activities will never be 100 percent safe, “safety” is often used as a pretext to carry out other agendas, especially those that end up harming women. States like Texas and Mississippi, for instance, have nearly regulated abortion out of existence in the name of “safety,” she said.

“This is why birth is such a feminist issue and a reproductive rights issue,” Jenkins said. “It’s a choice that women and their families should be able to make.”

Investigations Law and Policy

Free Market Groups: The Invisible Hand in the ‘Hobby Lobby’ Case

Sharona Coutts

New research reveals the Hobby Lobby and Conestoga Wood cases are a product of deep coordination between anti-choice and free market groups.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

In the world of big lawsuits, they call it “air traffic control”: One person, or organization, becomes the point person for recruiting plaintiffs, coordinating multiple legal briefs, and ensuring that everyone submits their filings on time.

And in the landmark case going before the U.S. Supreme Court this Tuesday, challenging the contraception mandate in the Affordable Care Act—the Hobby Lobby and Conestoga Wood cases, which are being heard together—the role of air traffic controller was played by some of the nation’s most radical anti-choice and free-market groups on the political right, according to emails obtained by Rewire through public records requests.

The documents consist of emails between dozens of anti-choice and free-market groups, and high-level state employees in Ohio, Michigan, Alabama, and West Virginia. They reveal that the role of air traffic control in the Hobby Lobby and Conestoga litigation was played by the Alliance Defending Freedom, an Arizona-based nonprofit with just over $40 million in assets, according to its most recent auditor’s report.

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“My name is Anna Hayes, and I’m a legal assistant at Alliance Defending Freedom working with Matt Bowman and Greg Baylor on the HHS Mandate cases,” read one email dated August 16, 2013. The “mandate” refers to the health law’s requirement that insurance policies cover a range of primary preventive care, including contraception, without a copay. The inclusion of contraception in policies—irrespective of who pays the premiums—is at the center of the Hobby Lobby and Conestoga Supreme Court cases. “Greg asked me to contact you letting you know that he will be coordinating the amicus efforts for the Conestoga Wood case.”

Hayes sent her email to senior government staff in three states—Ohio, Alabama, and Michigan—and kick-started a chain of correspondence that culminated in Ohio and Michigan taking the lead in submitting briefs, along with 18 other states, in opposition to the contraception mandate.

The Hobby Lobby case has become one of the most watched on the Supreme Court’s calendar this year. It pits conservatives against progressives and the public health community over the Obama administration’s signature healthcare law, as well as a range of hot-button issues that span the spectrum of the conservative movement—contraception, whether corporations can be said to have religious rights, and the different rights of nonprofit and for-profit entities.

As a result, groups from diverse political and philosophical backgrounds have weighed in, with many filing what are known as “amicus curiae” briefs, a type of filing submitted by experts in the particular topic being considered by the court. In fact, with 84 such briefs filed, Hobby Lobby has become one of the biggest amicus cases to date.

“There’s been an alliance and a symbiotic relationship between the religious right and corporate America,” said Stephen Spaulding, policy counsel at Common Cause, a nonpartisan group dedicated to government transparency. “And an amicus strategy is the tactic they’re using.”

It’s not unusual for groups, and even individuals, to submit amicus filings, and indeed, many of the amici briefs filed in the Hobby Lobby case were written in support of the contraception mandate.

What is unusual, however, is for the public to gain an insight into how these efforts are coordinated behind the scenes.

Though not widely known, the Alliance Defending Freedom’s influence has grown rapidly in recent years. The group’s model is to participate in litigation directly, as well as to give grants to other groups and individuals to pursue other lawsuits. According to the group’s most recent tax filings, it made more than $4 million in grants in 2012, supporting litigation and other conservative activities by groups and individuals all over the world.

And the Alliance has also played a key role in corralling the conservative push to defeat Obamacare.

The email from Anna Hayes—the Alliance’s legal assistant—was sent to Frederick Nelson, Andrew L. Brasher, and Eric Restuccia, senior officials in the offices of the attorneys general or solicitor general in Ohio, Alabama, and Michigan, respectively.

Nelson—who is the senior advisor and director of major litigation for Ohio’s attorney general, Mike DeWine—replied:

Thanks. We had talked with Matt [Bowman] about Ohio and Michigan taking the lead on the cert amicus regarding this issue that we’ve briefed in a variety of other cases; Eric and I will follow up with Andrew, too, and get a sense as to what his thoughts are as well. We look forward to moving ahead.

By “cert,” Nelson was referring to a petition asking the U.S. Supreme Court to hear a case—that type of petition is known as “certoriari,” or “cert” for short.

As indicated in that email, Ohio and Michigan did take the lead; the names of those states are at the top of the amicus brief submitted along with 18 other states.

Three months later, Matt Bowman sent another email to Restuccia, suggesting changes to the arguments Michigan had made in its brief.

“Your less-religion-friendly counterparts from California etc filed this brief in support of the government,” Bowman wrote on November 4, 2013, referring to the amicus brief filed by California, Massachusetts, and 14 other states. “Perhaps you might tailor some of your state-policy arguments to what these states had to say.”

And it wasn’t always the Alliance reaching out to state attorneys’ offices.

Just a few days after Anna Hayes sent her note to the staffers in Ohio, Alabama, and Michigan, a new member of West Virginia’s solicitor general’s office wrote to Bowman, asking whether the Alliance could include that state in any “new amicus opportunities.”

“Greetings from West Virginia!” wrote Julie Marie Blake, a former corporate lawyer at Baker Botts in Washington, D.C. “I started in the [solicitor general’s] office here just this mid-month, after a crazy month of moving and bar study. … I’m working as a law clerk here until my bar admission goes through, hopefully some time in October. (Fingers crossed that I passed the exam + prayers welcome). I hope you have been doing well since I saw you in June.”

Blake told Bowman that West Virginia was “really looking to ramp up its amicus practice.”

“If you or allied friends ever have cases that need state amicus or party support in the future, please keep the WV [Solicitor General] in mind and reach out to us.”

In response, Bowman wrote Blake that the Alliance would “love to work with you on amicus opportunities,” but indicated that Ohio and Michigan had already taken the lead on the Hobby Lobby and Conestoga briefs.

Blake replied, “We’ll get in touch with them about joining. Please do keep WV in mind for any future briefs you need a state to take the lead on (SCOTUS or otherwise.)”

West Virginia is one of the states that signed the amicus brief filed by Ohio and Michigan.

Blake did not respond to Rewire’s questions about her association with the Alliance Defending Freedom, or whether the tone and content of her notes suggested an inappropriate degree of coziness between the state solicitor general, and an outside group.

But Spaulding, from Common Cause, said the nature of the communications raised concerns.

“The solicitor general swore an oath to uphold the Constitution and the rule of law, and from time to time that’s going to mean taking amicus interests,” he said. “But the public interest always needs to be the first priority, not advancing the interests of third party outside groups, with their own interests and agendas.”

It wasn’t just states who were included on these emails. Amongst the 72 recipients of a December 9, 2013, email sent by Casey Mattox, a senior counsel at the Alliance, were congressional staffers, including a staffer from Sen. Ted Cruz’s office. Other groups with staff on the list were the Texas Justice Foundation, the Heritage Foundation, the Cato Institute, as well as a partner from the international law firm Jones Day.

And the recipients list included James Bopp Jr., a lawyer who was involved with the Citizens United case, as well as with a group called Committee for Truth in Politics, which drew criticism for refusing to file returns with the Federal Elections Commission.

To be sure, the parties who support the contraception mandate would have engaged in similar cooperation and strategic coordination of their briefs in the Hobby Lobby case. Rewire is not suggesting any illegal conduct based on the contents of these documents.

But in light of the high stakes of Tuesday’s hearing, there is added interest in knowing who is really involved in generating the arguments that are ostensibly submitted by the states.

“There’s clearly a coordinated strategy going on,” said Spaulding. “This is a Supreme Court that found that corporations are apparently entitled to spend unlimited amounts of money on elections notwithstanding the fact that the Constitution protects the rights of human beings. Now it’s considering arguments that corporations have religious freedoms. Both the religious right and corporate America stand to benefit from that.”

With reporting by Sofia Resnick.