High Tech vs. High Touch

Non-Nurse Midwives and the Law

The cover of our June 18, 1993 issue, when this 
story originally ran
The cover of our June 18, 1993 issue, when this story originally ran

Ed. note: This article is a reprint, originally published in The Austin Chronicle June 18, 1993.

It's 11:00 on Tuesday morning at the East Austin clinic and Mary Barnett has already given contraceptives to two teenagers, ages 14 and 15. The next client is 15 years old, pregnant and crying. This morning, Barnett, a certified nurse midwife (CNM), has seen ten patients. Many speak only Spanish. Some, even though several months pregnant, are getting health care for the first time.

One of a handful of nurse midwives working in Austin, Barnett looks drained. Her appointment with the 15-year-old mother-to-be took longer than expected. Wiping tears from her own eyes, she hurriedly reads through the next client's file. She says it is like this most days. See one patient, do a quick exam, then get ready for the next one.

Part of a health care system struggling to keep up with the demand for maternal care, the clinic at 2nd and Comal, run by the City of Austin and Travis County, is one of the few places where women with little or no money can get prenatal care. Paula Quick, the registered nurse in charge of women's health, says Tuesday morning was typically busy. "We could be open 12 hours a day, seven days a week," says Quick. "And still not see all the women who need care."

The situation at the East Austin clinic is occurring throughout Texas and the rest of the country: There is a shortage of health providers willing to take care of indigent women and infants. This lack of adequate health care for pregnant women contributes to an infant mortality rate that puts America on par with many Third World nations.

Here are some statistics on prenatal care: Nearly one fourth of all pregnant American women get no health care during their first trimester, when critical issues such as diet and family history are usually addressed. More than 20% of all pregnant women and almost half of the pregnant teens in Travis County got inadequate prenatal care in 1990. Statewide, the situation is worse. According to the Texas Department of Health, some 100,000 women (31.6% of all pregnancies) received late or no prenatal care in 1991. In addition, 93 of the 254 counties in Texas either have no hospitals or have none that provide obstetrical care.

Despite the need for more primary care providers, hundreds of non-nurse midwives in Texas cannot practice their trade without being harassed by the medical profession. Two non-nurse midwives in Austin were recently prosecuted (and acquitted) for attending a home birth that doctors considered high risk. Nationwide, hundreds of other non-nurse midwives operate illegally. At present, midwives in California, Illinois, Nebraska and Kansas are facing prosecution for practicing their trade.

While highly publicized initiatives such as The Austin Project aim to reduce premature and low birth weight babies, the reality is that pregnant women in Austin must wait weeks to see a health professional. For example, pregnant women may be forced to wait up to two months before they can get an appointment at the South Austin clinic at 1st and Oltorf. To deliver their babies, they attend an area hospital such as Brackenridge Hospital, where they are attended by obstetricians because non-nurse midwives and CNMs like Barnett cannot deliver babies in Austin hospitals.

At a time when health care costs are soaring, many non-nurse midwives are ready and willing to provide care to uninsured women, but they are being prevented from doing so by an entrenched medical system that appears more interested in protecting their client base than in providing health care. While many American doctors argue that all babies should be born in the hospital, midwives argue that hospitals aren't always essential. They argue that 95% of the time, birth occurs without complications and that doctors tend to use high tech, high-cost procedures that have little or no benefit for the patient.

As the Clinton Administration searches for ways to reduce health care costs, non-nurse midwives (also called direct entry midwives or lay midwives) and CNMs are delivering babies in homes and independent birthing centers for about half the cost of a hospital delivery. But because doctors are unwilling to work with non-nurse midwives, and the insurance industry won't provide insurance for home births, midwives are only able to do home births for middle-class and upper-class patients who are willing to pay for a home delivery out of their own pocket. Meanwhile, because Medicaid will not pay midwives for home births, federal and county taxpayers must pay for women to have hospital births that cost about twice as much as a home delivery or a delivery at an out-of-hospital birthing center.

While CNMs are legal in all 50 states, thirteen states and Washington D.C. have laws that make non-nurse midwifery illegal. Fewer than twenty states have laws that clearly allow for non-nurse midwives, and the rest of the country falls into a legal grey area. All across the country, non-nurse midwives are clashing with medical doctors. The reasons for the animosity are not clear nor are they simple. The cynical view says that (mostly) male doctors are trying to protect their turf and patient fees from female midwives. Another (more charitable) view says that doctors want to assure that all health care providers are well trained to assure that women get high quality care. Whatever the reason, there is a tremendous amount of antipathy between the mainstream medical industry and non-nurse midwives who generally believe that doctors have made pregnancy and childbirth too technical, too impersonal and too expensive.

Midwives argue (and are supported by several studies that show) that their infant mortality rate is significantly lower than that of doctors operating in hospitals. Able to spend more time with their patients, they also argue that they give better, more comprehensive care to their clients. "You cannot divorce the medical, physical and spiritual components of birth," says Marimikel Penn, a non-nurse midwife for 20 years who operates the New Life Birth Center in Austin. "Hospitals haven't begun to look at the emotional and spiritual components. Birth is a spiritual experience."

Prosecution and Legislation in Austin

Several nurses and doctors who were interviewed for this story believe that the prosecution of Niki Richardson and Barbara Christman was just a matter of time. "It was bound to happen," said one.

The case, brought by the Travis County Attorney's office is indicative of the attitude toward non-nurse midwives in Austin. In December of 1991, the two midwives were charged with a violation of the Texas Lay Midwifery Act, a Class C misdemeanor that carries a $200 fine. The county alleged that Richardson and Christman endangered the lives of a mother and baby (Ann and Adam Beckman) because they assisted the mother -- who had had a previous baby by Caesarean section -- in a vaginal delivery at home.

Vaginal births after Caesarean (VBACs) are considered by many obstetricians to be a high risk birth that should only be handled by a repeat Caesarean, but many non-nurse midwives help women have VBACs. In fact, they are a major part of many midwives' clientele. And the rest of the medical community seems to be coming around to their view; VBACs, not allowed at Brackenridge Hospital until 1992 are now being performed there by some doctors.

Although there were some complications at birth in the Beckman case, and the baby was later admitted to Brackenridge Hospital for a battery of tests, mother and child are both fine. And Beckman did not encourage the county to press charges against the two midwives, nor did she feel that she had inadequate care.

When the case went to trial last June, before Justice of the Peace Scott Davis, county attorneys argued that non-nurse midwives can only attend "normal childbirth." The prosecutors argued that the woman was a high risk patient because of the previous Caesarean delivery. The prosecution lost. Christman and Richardson were acquitted after running up $13,000 in legal fees.

Dr. George Sharpe, who heads the neonatology training program at Brackenridge is a well-known opponent of non-nurse midwives and home birth. Sharpe, who says that his second child was delivered by a midwife in a Swedish hospital, believes that the risks of home birth are unacceptable. Parents who deliver at home are "willing to accept the price of the infant's life as a condition for home delivery," he said. Sharpe (who said he has yet to attend an unnecessary Caesarean section) believes there is no reason for babies to be born anywhere but the hospital.

Saying he favors increased use of CNMs, Sharpe says the debate between non-nurse midwives and doctors isn't about turf. "I'm just interested in delivering good healthcare ... I am dubious about the quality of the care given to some of these infants [by non-nurse midwives]."

Very few doctors in Austin are willing to work with non-nurse midwives. One doctor who practices in East Austin and is sympathetic to midwives, but didn't want to be identified, said that doctors don't want to back up non-nurse midwives because, "You can lose your insurance. It asks you on your malpractice insurance form if you back up midwives."

The training of non-nurse midwives lies at the heart of the conflict. Doctors generally believe non-nurse midwives lack adequate training. But increasingly stringent requirements in Texas as well as new regulations by the Midwives Alliance of North America mandate that practicing non-nurse midwives must complete coursework, clinical work, CPR training and ongoing education requirements. The most common way for non-nurse midwives to gain experience is through an apprenticeship with an established midwife.

Non-nurse midwives have always been able to practice legally in Texas. But they have been battling for decades to keep their legal status. A 1959 court case over the legality of midwifery found that "Childbirth is not a disease nor a disorder but a normal function of womanhood."

Over the past five years, the Association of Texas Midwives (ATM) has been trying to upgrade the status of non-nurse midwifery. During the recent legislative session, the ATM tried but failed to get legislation passed that would have created a licensing system for non-nurse midwives in Texas. Even though they lost they still want the Texas Board of Health to create and monitor a licensing system similar to that for nurses and nurse practitioners. In addition, they want to be allowed to legally deliver VBAC babies, so that prosecutions like that of Christman and Richardson won't happen again.

The ATM bill, HB 1849, was sponsored by Wilhelmina Delco of Austin, but it didn't get very far. Then, with the help of Rep. Glen Maxey, ATM tried to get an amendment attached to the health agency sunset bill, but that too failed, by a vote of 110-26. Elizabeth Lee, lobbyist for ATM, says the opposition of the Texas Medical Association killed any chance the bill had this session. ATM plans to try again when the Legislature comes back in two years.

Meanwhile, non-nurse midwives cannot admit their clients to the hospital, administer drugs or do any type of sewing of the skin, even if there is a tear in the mother's perineum during delivery. Despite the limitations, some 300 non-nurse midwives (about a dozen of them in Austin) deliver nearly 6,000 babies a year in Texas. Non-nurse midwives are particularly active in South Texas where there is a critical lack of prenatal care. Over 10% of all babies in Cameron, Starr and Willacy counties, which are among the poorest counties in the state, are delivered by non-nurse midwives.

A National Perspective

Medical costs in the U.S. are skyrocketing. With costs increasing by some 15% a year, Americans now spend nearly $1 trillion a year on health care and one-third of that is spent on hospital care. And hospitals make a lot of money delivering babies. Not counting prenatal and postnatal care, Americans spent more than $22 billion in 1990 on deliveries alone. (If delivering babies were a corporation, it would be the 15th largest company in the United States, ahead of Shell Oil.)

Nearly one-third of the $22 billion is spent on Caesarean sections, many of which are unnecessary. Only Brazil ranks ahead of the U.S. in the number of babies that are delivered via surgery. Of the 4.1 million births in America in 1990, 23.5% were delivered by Caesarean. According to figures from the American College of Obstetricians and Gynecologists, the cost of these 982,000 Caesarean births at an average cost of $7,826 was $7.7 billion. Comparatively, there were 3.1 million babies born in the U.S. in 1990 in regular vaginal deliveries that averaged $4,720 apiece, costing Americans more than $15 billion.

The high rate of Caesarean sections has attracted criticism from midwives and doctors alike. A recent report by the Centers for Disease Control found that American obstetricians performed 349,000 unneeded Caesareans in 1991. The CDC believes that American doctors should reduce their C-section rate to 15%. The CDC estimated that American consumers would have saved over $1 billion in 1991 if doctors had stayed at that level.

Compared to other countries, our Caesarean rate looks outlandish. Japan has a Caesarean rate of about 7%, the lowest in the world. Japan, which also has the lowest infant mortality rate in the world uses midwives to deliver babies. Japanese doctors support midwives during births, but the midwives deliver the babies. The infant mortality rate in the U.S. (10.5 per 1,000 live births in 1987) is double that of Japan. We rank 24th in the world in the infant mortality rate, yet we spend twice as much per capita on health care than the Japanese.

Japan, Great Britain, Sweden, Denmark and Holland all have lower infant mortality rates than the United States and all of them utilize midwives -- highly trained and backed up by doctors -- as primary care givers. Most women in these countries also deliver their babies in the hospital, but in Holland, some 35% of women deliveries occur at home with the help of non-nurse midwives.

Birthing centers offer a low-cost alternative to hospitals. Operated by CNMs or non-nurse midwives, birthing centers can provide services for a fraction of the cost of hospital birth. While a single delivery at Brackenridge Hospital can cost $5,000, women can get prenatal, delivery and postnatal services at a birthing center for less than $3,000. A home birth with prenatal and postnatal care costs less than $2,000.

Giving Birth to a Scintillating Conclusion

Midwifery may be the second oldest profession. There are at least three references to midwives in the Bible (Genesis 35 and 38 and Exodus 1). From ancient times through the Middle Ages and into early Colonial America, birthing babies was the domain of women. In fact, men who tried to see a woman in labor were often dealt harsh sentences. One such unfortunate, a man who dressed in women's clothing to view a birth, was burned to death in Hamburg in 1522, just nine years after the first book on midwifery was published in Germany.

The first school for midwives was established in Edinburgh, Scotland, in 1726. It formed the basis for midwifery in the United Kingdom, which continues to flourish today.

While midwives in other countries enjoy status on par with doctors, non-nurse midwives in America are fighting to keep out-of-hospital birth a viable option. Two generations ago, the majority of American children were born at home. Today, 99% of babies are born in the hospital. The change has resulted from the increasingly corporate attitude of American medicine. It has also come about because hospitals have pushed to gain recognition and revenue. At the same time, Americans have come to believe that hospitals are the only safe option for having a child. This has fostered the growth of expensive birthing centers in hospitals that now must have patients. Downsizing, now part of corporate parlance in America, has not been embraced by the medical profession.

The change in American medicine has not necessarily resulted in better care. Large segments of the population, particularly indigent and uninsured pregnant women, still receive inadequate attention, resulting in premature babies that must be cared for with hyper-expensive machinery which is paid for by all health care consumers. At Brackenridge, the cost of keeping a baby in intensive care for one day exceeds $1,000 per day with the average premature baby staying some two to three weeks. Severely premature babies can stay up to six months, with costs exceeding $200,000. The cost of caring for these low weight and/or premature babies is paid for by all health care consumers.

Changing the role of health care so that non-nurse midwives are included in the system could help alleviate some of the problems of caring for indigent women. Early intervention by non-nurse midwives in poor communities could help reduce the incidence of premature and low weight birth babies. Non-nurse midwives and CNMs could save consumers billions of dollars if they were encouraged by Medicaid and insurance companies to do routine deliveries at home or in birthing centers instead of in hospitals. In addition, home visits by non-nurse midwives can help encourage good parenting and health practices among undereducated women. The World Health Organization has endorsed non-nurse midwifery in America saying that "a strong independent midwifery profession is an important counterbalance to the obstetrical profession in preventing excessive interventions in the normal birth process." A study of midwifery published in the American Journal of Public Health in May of 1992 said, "Midwives can help relieve problems of access for poor and minority mothers." It also said, "Mothers and babies have distinctly better than average outcomes when births are attended by midwives either in or out of the hospital." Despite these endorsements of midwifery, our health care system will need more than a few CNMs and non-nurse midwives to lower our infant mortality rate. Drug addiction, teen pregnancy, dietary patterns and other factors all contribute to our inability to care for young children. And because these problems occur frequently among the poor, the problem is exacerbated.

The debate over midwives, like the debate over acupuncture, chiropractic and other non-mainstream medical practices, is complex. Issues like turf, capital investments in hospitals, drug company profits, insurance and other issues come to the fore. Non-nurse midwives argue that the politics that keep them out of the delivery room go beyond money. Maggie Bennett of the California Association of Midwives is trying to push a midwife licensing bill through the California Legislature. To Bennett the real issue is about power over women's bodies. "It's a reproductive rights issue," she says. "It's about who controls health care in this country and it's about access to choice."

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Mary Barnett, midwives, midwifery, certified nurse midwife, CNM, Paula Quick, non-nurse midwives, The Austin Project, Brackenridge Hospital, Marimikel Penn, New Life Birth Center, Niki Richardson, Barbara Christman, Texas Lay Midwifery Act, Ann Beckman, Adam Beckman, Scott Davis, George Sharpe, Midwives Alliance of North America, Association of Texas Midwives

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