In January, the U.S. women’s health movement celebrated the 40th anniversary of Roe v. Wade, which gave women the right to legal abortion. In the decades since Roe, health activists have focused on advocating for reproductive justice, which demands that women have the right to be parents — as well as the right not to parent — and to decide where, with whom, and how we give birth. Reproductive justice includes the rights to accept or refuse any type of maternity care and to access this care from respectful and culturally appropriate providers — which are essential for women to be able to make the best decisions for themselves and their families.
The movement for reproductive justice is far from over, and women’s experience during childbirth stands out as a key area for improvement. The vision for reproductive justice and birthing rights is to improve outcomes for women and their babies while honoring women’s fundamental right to control their bodies and reproductive lives.
Most people think that the U.S. is a safe place to give birth but — for many women — it’s not. American women experience breathtakingly high rates of maternal death and disability: they have a greater risk of dying during pregnancy or childbirth than women in 49 other countries, including Kuwait, Bulgaria, and South Korea.i Maternal morbidity is disproportionately suffered by women of color: Black women are nearly four times more likely to die in childbirth than White women.1 Given the United States’ advanced health care system and infrastructure, both survival and dignified care should be the norm.
Most women in the U.S. (82%) give birth at some point, and many have a wide range of values and preferences about how they wish to experience childbirth.ii Some women prefer to receive care from a physician, others a midwife, while still others opt not to receive professional assistance at all. Some women’s values or culture orient them to giving birth at home or in a birth center. Others need immediate access to high-tech monitoring, intervention, and medical pain management, and need to give birth in a hospital. Still others opt for a hospital-setting birth, but want to avoid interventions unless they are medically necessary. Many women’s options are constrained by their insurance coverage: with hospital births averaging between $10,000-$23,000, paying out-of-pocket for childbirth is beyond many women’s means.iii
Women’s rights are undermined by any inability to receive safe care and act on their preferences. Yet, in our society — where medically managed childbirth and women’s oppression are the norm, and racism in health care is pervasive — too many women experience discrimination, punishment, or mistreatment in maternity care. In addition to institutionalized discrimination against women, explicit legal or policy barriers often hamper women’s choices.
Seemingly small, incremental restrictions can impose significant roadblocks to women’s access to safe and respectful maternity care. For example, many U.S. hospitals restrict women’s choices by banning women from having a vaginal birth if they had cesarean surgery for a previous birth.iv These bans impact a large proportion of hospital patients, either through explicit prohibitions against vaginal births or a lack of physicians who will attend these deliveries. In 2010, a National Institutes of Health advisory panel noted that women’s childbirth preferences should be honored and urged hospitals and professional societies to revisit these bans.v
In addition, many states outlaw the practice of midwifery by midwives who do not first train as nurses,vi preventing women from using these providers during childbirth. Other states license both nurse-midwives and Certified Professional Midwives, but restrict their scope of practice.vii Even in states where midwives practice legally, insurance may fail to cover their services, which just as effectively eliminates the option.viii There have been cases where families who used a midwife were charged with child abuse or neglect.ix The end result is that many women are forced by legal restrictions and/or insurance company requirements to give birth in a hospital, when they would not otherwise choose to do so and where their only option may be to undergo cesarean surgery.
Other examples of punishment and mistreatment of childbearing women include medical staff threatening to involve child protective servicesx and, in at least one known case, a woman losing parental rights as a consequence of refusing to consent to cesarean surgeryxi; police visiting the homes of women who planned a home birth and, in several known cases, law enforcement physically restraining a woman and transporting her to a hospital to undergo surgery;xii and hospital staff mistreating families who transfer in from a planned home birth.x These cases are at the extreme end of the infringement of rights during childbirth that many women experience.
As we celebrate Roe, we also recognize the law’s power to revolutionize women’s reproductive experiences by empowering their choices or restricting their rights. Further, an enshrined legal right does not alone guarantee a woman’s ability to access or enjoy that right. One of the oldest lessons of the women’s health advocacy movement rings true: health care rights are meaningless without access to providers and social supports to make choice meaningful.
Legal Advocates for Birth Options & Rights (LABOR) was founded in 2010 to address women’s legal rights during childbirth and remove legal barriers to reproductive justice for birthing women. LABOR identifies legal barriers to reproductive justice in birth, and gathers and facilitates a network of attorneys whose legal skills can protect, promote, and defend women’s childbirth rights. While we do not offer direct representation, the questions we receive help illustrate women and providers’ range of legal concerns. For example:
- I want a home birth but I had a cesarean for my first baby. State law says a licensed midwife can’t attend me at home and the closest hospital that will take me is 100 miles away. How can I get the law changed? What risk does my midwife face if she serves me in violation of the law?
- I want to go in to labor naturally but my doctor sent me a letter firing me as a patient because I am 40 weeks pregnant and do not wish to be induced without medical indication. I can’t find someone else who will take my insurance. Is this illegal patient abandonment?
- I am a midwife practicing legally. The local hospital makes a report against my license for any and all transfers of my clients, even when I follow medically appropriate protocol. One doctor told me they are determined to “shut me down.” What can I do?
- I am an obstetrician and want to back-up our local midwives to provide continuity of care to patients. My practice group said they will fire me if I do, and my hospital is refusing home birth transfers. Is this legal?
- I am an obstetrician and want to offer my patients an opportunity to have a vaginal birth after a prior cesarean. My liability insurance company said I will lose my coverage if I do. How can I change the contract?
As women who had given birth, and as sisters, advocates, and friends, LABOR’s founders had often been asked to provide legal support and advice in our own communities. We saw the need for coordinated legal strategies, and for a place to support one another and achieve reproductive justice for birthing women. The problems and solutions we face are as multi-faceted as the system, but we begin with the simple premise that pregnant women have a fundamental right to give birth safely and decide the circumstances of our births. Learn more about LABOR at birthoptionsandrights.org.
This article was written by: Rebecca Spence
Rebecca Spence is an attorney and bioethicist practicing in Northern Virginia. She was a 2011-2012 Law Students for Reproductive Justice Fellow. Rebecca founded LABOR in 2010 with Susan Jenkins, Esq., and it remains her most important pro bono project.