Up Against the Birth Monopoly

Home births are catching on, but the medical establishment seems determined to outlaw midwives.

Santa Cruz, California; March 6, 1974. It was nearly noon on a Wednesday morning when a man phoned the Birth Center, a volunteer community home birth service. "Please send a midwife quickly," he begged. "Terry is in labor." With feelings of misgiving, Linda Bennett, a midwife, and Jeanine Walker, an apprentice, drove to the address given. They knew the pregnant woman, Terry Johnson, and her husband, Peter, but not well. She had made only a few visits to the center and was not due to have her baby for two or three months. It was unlikely she was in labor.

At the apartment they were greeted by men dressed like hippies. Terry didn't seem to be there, but the men said she was in the shower. As Bennett tells it, one of the men tried to press a 50-dollar bill into her hand. She refused to take it and laid it on the table, but it was slipped into her purse.

The rest can be guessed. The "husband" and his "friends" were really undercover investigators and cops: agents of the California Attorney General's Office, the Bureau of Medical Quality Assurance, and the local police. When Bennett started toward the bathroom to speak to Terry, she and her assistant were arrested. The charge? "Practicing medicine without a license"—a violation of the California Business and Professions Code.

Two policemen took them away for booking. The other agents proceeded to the Birth Center and broke in on a meeting of pregnant women and mothers with newborn babies. They had come for the regular weekly "rap session" and found themselves in the middle of a police raid.

Kate Bowland, director of the center, was arrested and hauled off to join Bennett and Walker in the Santa Cruz jail, though not before the local media had been alerted and she had given interviews to reporters. To substantiate the charge of practicing medicine, the agents seized such "incriminating evidence" as notebooks, blood pressure cuffs, stethoscopes, and even diapers.

It was the beginning of an all-out attack by the medical establishment on the growing home birth movement, which had begun in the late 1960s and was in full swing by the mid-1970s—as evidenced by such developments at the Birth Center.

The center had been founded in a spirit of enthusiasm, defiance, and hope. A number of couples in and around Santa Cruz were arranging to have their babies born at home even though no physicians in the area would attend a home birth. Although at first these couples were from the "counterculture," by 1970 they were being joined by middle-class couples—people who ordinarily went to hospitals and paid a good price to have an obstetrician deliver their babies. They were willing to pay for the best, but that was not what they felt they were getting, and they began to drop out of the system.

In January 1971, according to natural childbirth educator Raven Lang, a group of Santa Cruz obstetricians and public health officials decided that the doctors should refuse to give prenatal care to any woman known to be planning a home birth. Since prenatal care is a major factor in assuring a safe delivery, home birth proponents sought an alternative.

Led by Raven Lang, a small group of lay midwives (midwives who are not nurses), childbirth educators, and sympathetic nurses organized the Birth Center, using part of a suburban house for their headquarters. The center provided counseling, classes, and discussion groups—and, compliments of the nurses, prenatal examinations. Within three years, beginning in 1971, the eight-woman staff had attended nearly 300 births in Santa Cruz County. The center was a success—entirely too much so from the point of view of the doctors who enlisted the state to put it out of business.

California regulators developed an elaborate scheme that culminated in the events of March 6, 1974, at Terry Johnson's home and later the Birth Center. It involved an assortment of government agencies, 13 undercover agents, one pregnant accomplice (a clerk in the Department of Consumer Affairs), and untold tax dollars. Not since the early decades of this century, when in cities like New York the public health officials made great "sweeps" to round up immigrant midwives, had a group of unlicensed midwives been subjected to such investigation, entrapment, and arrest. And why were they unlicensed? Because in one of the Catch-22s of the regulatory state, the California legislature decided in 1949 that lay midwives could no longer be certified in that state.

The three women from the Birth Center did not give up readily. In court, their defense argued that assisting at a birth does not constitute the practice of medicine as defined in the Business and Professions Code, since childbirth is not a disease. The defense also challenged the constitutionality of the state's interpretation of the code, arguing that enforcement abridges a woman's right to choose her birth attendant, thus violating the right to privacy.

The case went through several appeals, finally reaching the State Supreme Court, which ruled against the women in 1976. Argued the court in its decision:

…normal childbirth, while not a sickness or affliction, is a 'physical condition' within the meaning of the Business and Professions Code. …it is clear that the practice of midwifery without a certificate is prohibited.

The argument about a right to privacy was summarily dismissed:

…the right of privacy has never been interpreted so broadly as to protect a woman's choice of the manner and circumstances in which her baby is born.…

It is true that the Legislature has never attempted to require women to give birth in a hospital, or with a physician in attendance.…But the state has a recognized interest in the life and well being of an unborn child.

Having won their point, the district attorney's office decided not to prosecute after all. The midwives could have appealed to the US Supreme Court, but if they lost there it might impose the definition of midwifery as the practice of medicine upon the rest of the country. They did not want to risk losing the case for mid wives elsewhere.

The Birth Center was no longer a threat to Santa Cruz obstetricians, but women continued to look for alternatives to hospital delivery and found people to help them. Although out-of-hospital births account for only 3.6 percent of the births in California, in some counties the percentage is 10–20 percent, and in Mendocino County, north of San Francisco, it's 50 percent. The California Association of Midwives estimates that there are about 600 lay midwives in practice in the state, some with such good reputations they're booked ahead for months.

With justification, California has been credited with being the fountainhead of the home birth movement. Nationwide, of the 3.3 million births a year, 2 percent are out-of-hospital, and the number is increasing. We don't know what percentage of these are deliberately planned, however, just as we don't know how many hospital births reflect willing acceptance of hospitalization or resignation because no other options are readily available.

As the idea of home birth caught on throughout the country, it attracted not only enthusiastic supporters but the kind of opposition faced in Santa Cruz, characterized by harassment and the use of political power and force. There's an all-out war being waged in every part of the country—directed against parents who want a particular experience of which the medical establishment does not approve, and against anyone who will help them. From Alaska to Florida, from New York to California, there's not one state where midwives, or even doctors, can without difficulty of one kind or another provide home birth services to parents who request it, and not one state where parents are free of possible intimidation and censure for choosing this alternative. Some have even been threatened with charges of child abuse! And all this despite the fact that in no state is home birth illegal, and in no state is it illegal for a doctor to do home deliveries.

If couples are planning a home birth, they may, like the women in Santa Cruz, find themselves denied prenatal or postpartum care. Helen Burst, president of the American College of Nurse Midwives, says she quit her job in disgust when the South Carolina hospital where she was working ordered her to refuse prenatal care to parents whom she knew were planning a home birth. To provide such care is to condone home birth, she was told—and this is an "unprofessional" attitude.

Lay midwives (those without institutional training) face the possibility of arrest for practicing medicine without a license in those states where lay midwifery is illegal—and it is legal in only 14. There have been a number of trials and hearings and some convictions. So far, none have actually done jail time. Dee Burns, a midwife in southern California, will probably be the first. She was convicted in March 1981. Her appeals have been unsuccessful, and she is resigned to spending 30 days in the Ventura County Jail.

Sympathetic physicians stand to lose hospital privileges or malpractice insurance if they back a midwife (provide consultation or admit her patients to the hospital in case of emergency) or if they provide prenatal care to a "known" home birth parent. As with Helen Burst, this is called "condoning home birth."

Doctors who are willing to attend home births are few and far between, and a number of them have had their licenses suspended or revoked on charges of malpractice. Usually, such tactics as hearings and court proceedings against home birth doctors are unnecessary. Errant doctors are brought into line merely with a threat of loss of hospital privileges or insurance.

At the legislative level, the game is played fast and loose. Perhaps there's an old law on the books permitting lay midwifery. Then an effort may be made to repeal the law—but secretly, attached to a bill or at the end of a session. That was tried in Maryland in 1976, but midwives heard about it, showed up at the hearing, and managed to defeat it—to the consternation of doctors and the Department of Public Health.

But most states have no provisions for licensing lay midwives, and the medical community intends to keep it that way. Any attempt to legalize lay midwifery is fought tooth and nail. In California, where a strong faction within the Department of Consumer Affairs wants to see midwifery legalized, the California Medical Association has given a Priority I status to three recommendations: to continue opposition to lay midwives and home birth, to set up a task force for collecting "statistical and other material" to corroborate this opposition to midwives and home birth, and to obtain an attorney general's opinion on whether registered nurses are legally permitted to deliver babies and, if so, to "seek means by which such practice can be terminated." (Presently in California there are two RNs doing home deliveries.)

In Ohio, a bill nearly passed that would have made practicing midwifery without a license a felony carrying a five-year prison sentence and fine. (It also granted subpoena power to the Ohio Medical Board and granted that board the right to suspend a doctor's license without a hearing.) The bill lost by one vote in the lower house, having cleared the senate unanimously. Recent legislation in Ohio would restrict the hospital privileges of certified nurse midwives.

The recent experience in Alaska is unique. A bill sponsored by Democrat Bryon Rogers and cosponsored by Libertarian Dick Randolph has been approved. It legalizes lay midwifery and sets up a system of voluntary certification. (Certification is not a mandated condition for practice, and lack of certification is not a criminal offense.)

Even teaching about childbirth in ways not approved by the medical profession can be subject to state action. A Bakersfield, California, home birth physician, Carrie Teasdale, was planning to hold a class in natural childbirth through the Adult Education Department of the University of California, Santa Barbara. It was to be held on a weekend and carry one unit of credit. Local doctors objected, and the university withdrew its support. "So much for academic freedom," Dr. Teasdale told the press.

All these actions by doctors and their allies are in one way or another reaffirmations of the official position of the American College of Obstetricians and Gynecologists (ACOG), a 23,000-member trade association. According to ACOG's 1975 statement of policy on home deliveries: The "potential hazards" of labor and delivery "require standards of safety which are provided in the hospital setting and cannot be matched in the home situation." Warren Pearse, M.D., executive director of ACOG, editorialized in the organization's newsletter in July 1977: "Home delivery is maternal trauma—home delivery is child abuse!"

There are many people who plan never to have children or, if they do, will go straight to the nearest hospital. They find it difficult to appreciate fully the problems faced by home birth parents. "Yes, a woman has the right to a choice, and yes, the doctors are behaving abominably, but what's that to me?" they ask.

It matters because the right to choose where to have one's child, and under what conditions, is a little-recognized but important issue in the area of civil and individual rights. Historically, the political and legal developments in matters surrounding childbirth have been illustrative and often predictive of political and legal developments in health care in particular and government control in general—a distinction it shares with institutionalized psychiatry.

For over 500 years, beginning in the Renaissance, the medical profession has been consolidating its power base and is so involved in our lives that its influence goes virtually unchallenged. This has been accomplished in large part through enlistment of the state to enforce various controls. Medicine and government are interlocked as closely today as were church and state during the Middle Ages. Psychiatrist Thomas Szasz has aptly labeled this present institution the "therapeutic state," as distinguished from the "theocratic state" of the Middle Ages.

Now while the dependence of the medical establishment on the state has often been noticed, the converse is not generally realized. Without the cooperation of the medical profession, the state would not be as powerful as it is. It was largely through demands from medical organizations and from influential physicians—for everything from licensing of "approved" practitioners to health codes—that regulatory agencies came into being. Doctors were the first to lobby successfully for mandatory controls, monopolistic privileges, and other "reforms" of their profession.

Control over childbirth (who could attend, where it could take place, what practices were permitted or outlawed) established the precedents for other kinds of controls. State licensing of midwives was the first licensing of any class of health care provider. Originating in Germany in the late 15th century, just as the old guild system was breaking down, it led to licensing of other classes of practitioners and ultimately to the licensing ("professionalization") of trades and services as diverse as CPAs and car mechanics.

Midwives, during the colonial period and at other times, were required to report all births to the authorities and to give testimony in cases involving suspected illegitimacy or infanticide. Doctors, bound by the Hippocratic Oath, were under no such obligations. Nor were doctors under state mandate to provide care to anyone who needed it or to limit the amount charged for their services—requirements that were imposed on midwives.

Today there are at least 70 federal programs, administered by several agencies, that concern themselves with pregnancy outcome. The blunt wording of the Bowland decision handed down by the California Supreme Court presents the general rationalization: "The state has a recognized interest in the health and well being of an unborn child."

A number of people, including many doctors, foresaw what would happen and tried to give warning. They were ignored. After all—how could anyone object to helping newborn babes and their mothers? Laws were passed, agencies established—all in the name of health, the "public good," and "a recognized interest." Anyone concerned about the lack of freedom in our lives today should be aware of the issues involved in the home birth movement. If you want to know what's to come in our "therapeutic state," watch developments on the home birth front.

"When I first heard about home birth, I thought, my god—why would anyone want to have a baby in a manger!" This reaction of attorney Gail Roy Fraties is typical of many upon learning that there are women in this country who are taking what seems to be three steps back into an abyss of ignorance and superstition. But Fraties, as a trial lawyer, has now handled the defense of several home birth practitioners, examined the evidence, and changed his mind.

Couples seeking this alternative do so for a variety of reasons that together spell "control"—control over their birth experiences, the kind of control that cannot be guaranteed in a hospital setting, where even obstetricians who reject medical intervention in normal childbirth are often subjected to censure from hospital boards. Home birth proponents view childbirth not as a sickness, nor as a pathological condition, but as a natural process in which the rule is, the less intervention the better. They want to avoid certain hospital procedures—"prepping," I-Vs, "nothing by mouth" orders, and the use of medication to relieve pain. They want to choose who is to be present—husband, friends, other family members; to move about during labor; to be unrestricted during delivery; and to be able to choose the most comfortable position for giving birth. (This may mean being on one's hands and knees or standing, in contrast to the customary hospital position, in which a woman lies flat on her back with her legs up in stirrups.)

Above all, these women believe it best to deliver at their own (or rather, the baby's) time and not to have labor induced or augmented by drugs or mechanical means. The possibility of a Caesarian section (C-section) is a major concern, and with the C-section rate skyrocketing, it's easy to understand why. It was 5.5 percent in 1970; now it's averaging 20 percent nationwide and rising every year.

"I didn't see why we should pay a lot of money to have them do a lot of things to me that I didn't want them to do," is how a Los Angeles attorney sums up the reasons for her choice. She succinctly expresses the attitude of countless other women.

What type of parents are choosing alternative births? Those interviewed by anthropologist Lester Hazell in a 1975 study (nearly 300 couples in the San Francisco Bay area) were white, middle-class, and often college-educated. They were homeowners and had one or two cars, and the husband was employed in any one of a dozen occupations from law and teaching to farming and truck driving.

Home birth is not just a white, middle-class phenomenon, however. It is also coming to be chosen by middle-class blacks, for example. In Los Angeles, two black, certified nurse midwives have established practices to meet this demand.

There is also evidence that if the market were opened up, the demand for this kind of service would be startling. In an article published in 1971, Ellen Steckert, professor of folklore at Northwestern University, reported on her investigation of attitudes toward childbirth, doctors, and medical care in general among poor Appalachian white women who had moved to Detroit. Their responses were very similar to those so often evident among wealthier women: a belief that childbirth is a "natural process" and not a disease, a concern about intervention by doctors, a fear of surgery, etc. "The women interviewed," reported Steckert, "often expressed a desire to have their children at home, and probably would have, had it not been for the fact that the doctors they contacted refused to make home calls and that without a doctor attending, birth certificates became a legal problem."

It's always been there—the possibility that the rate of nonhospital births, currently at 2 percent, might become 5 percent, then 10 percent—and then what would happen? The medical profession predicts disaster, a return to the days of high infant and maternal mortality. In 1900, when nearly all babies were born at home, the maternal mortality rate was 60 deaths per 10,000 live births. Today it is less than 3/10,000. The neonatal mortality rate (NMR—from birth through one week of age) is approximately 12.5/1,000.

There are several reasons for the rapid decline in birth mortality, however, that have nothing to do with hospitalization. One is the enormous improvement in nutrition, another improved sanitation and greater attention to personal hygiene. We're simply better fed and cleaner than folks were 80, or even 50, years ago, and that's reflected in our mortality statistics. Another factor was the discovery of sulfa drugs (1936) and penicillin (1940), which brought the problem of infection, which was far more prevalent in hospitals than in home settings, under some kind of control.

The fact is that there have been a number of studies, sponsored by different health departments and other government agencies, that have evaluated the performance of midwives and compared their outcomes with those of physicians or hospitals. In virtually every study back to 1895, midwives were found to have results equal or superior to physicians' and hospitals'. This is especially surprising as the mothers whom midwives attended were often poor and thus undernourished and ill.

On January 4, 1978, the American College of Obstetricians and Gynecologists issued a press release claiming that data from eleven state health departments for the years 1974–76 show that "out-of-hospital births pose a 2 to 5 times greater risk to a baby's life than hospital births." But a press release is not a study—the raw data have never been released. Critics were quick to notice that the nonhospital births included not only those carefully planned and attended but unattended births, late spontaneous miscarriages, births in taxi cabs on the way to the hospital, etc.

Precisely these factors were taken into account in a more thorough analysis of some of the data prepared by Claude A. Burnett III, M.D., of the Center for Disease Control in Atlanta, and colleagues from the center and other institutions. Their findings appeared in the Journal of the American Medical Association (Dec. 19, 1980).

Dr. Burnett and his colleagues had compiled the statistics from North Carolina for the ACOG press release. But they didn't stop there. They dug beneath the surface data, examining all the nonhospital births that had occurred in that state from 1974 through 1976. There were 1,296. The neonatal mortality rate (NMR), at 30 deaths per 1,000, was two and one-half times the hospital NMR of 12/1,000.

When Burnett and his colleagues classified the out-of-hospital (OOH) births according to planning status and attendant present, however, "a different picture emerged." The NMR among planned OOHs dropped to 6/1,000, while for unplanned OOHs it jumped to 120/1,000.

And that's not all. There were really two subdivisions of planned OOHs—those attended and those deliberately unattended by a physician or midwife. Of the 100 births in this latter category, there were three baby deaths (NMR—30/1,000). There were 768 births attended by lay midwives, with three baby deaths. The authors of the study found that all three were attributable to congenital anomalies incompatible with life. Even counting these deaths, the NMR for births attended by lay midwives was 4/1,000—or one-third of the hospital NMR of 12/1,000.

These lay midwives are "grannies." They are licensed and work mainly with poor, black women—women who are, the authors of the report noted, demographically defined as high-risk. No licenses have been issued since 1964, and only a few grannies are left. In view of these statistics, however, it would seem worthwhile to follow the suggestion of the authors and not be too quick to phase out midwifery.

The doctors in North Carolina didn't see it that way. Shortly after this article appeared, a bill was introduced into the state legislature—An Act to Abolish the Practice of Lay Midwifery. It didn't pass, but only because of the lobbying of home birth proponents. However, a substitute bill, for the study and regulation of midwifery in North Carolina, did get approved.

A few years earlier the Arkansas State Board of Health had decided to make midwifery illegal. Letters were sent to the few grannies still practicing. Minnie Mae Farr, a woman with 20 years' experience and an excellent record, received one that began: "Dear Ms. Farr: The time honored profession of 'permitted' midwifery has ended and will become illegal on January 1, 1979 if a fee is accepted for services." She was advised that if she continued her life's work after that date she would face "problems of a legal nature."

The action by the North Carolina legislature and of the Arkansas Board of Health are part of a larger effort being carried out in southern states to eliminate "pockets" of midwifery by grannies. Granny midwifery was an effective, low-cost system of providing a health service. The midwives had received basic instruction and were registered with the state. A woman wanting to be attended by a granny had to have a card signed by a local doctor certifying that she was in good health and could deliver at home. Since these women had little money, doctors were willing to let midwives have that tiny corner of the market. Then, during the 1960s and even more during the '70s, large sums of federal money became available for health care and the construction of huge medical centers. It then made sense to try and pull every woman they could through the doors of the hospitals to justify their existence and expense. As the letter to Ms. Farr in Arkansas exclaimed, "The future, which is not too distant, will bring modern protective obstetrical services within easy reach of all our state's citizens."

Where it is legal for lay midwives to attend home births, lay midwifery is being "phased out." Where couples who want a home birth have little choice but to turn to unlicensed lay midwives, occasions to haul the midwives into court are seized upon. One of the more-publicized attempts to solve "the midwife/home birth problem" in this way took place in the small agricultural community of Madera, California. Many of the residents are from Mexico, having come to work in the fields. On November 28, 1979, three young women of evident Mexican background brought a newborn baby boy to the emergency room of the local hospital. They said he had been born about 10 minutes earlier. The parents, Graciella and Eugenio Villa, were undocumented aliens who lived in Fresno, 20 miles south. It was their first child.

Although he appeared dead, a nurse attempted mouth-to-mouth resuscitation, and an electrocardiogram (ECG) picked up a heartbeat. Adrenalin and sodium bicarbonate were administered intravenously, and the heartbeat became strong and regular. Suddenly the ECG indicated critical distress, then nothing. Twelve minutes later he was pronounced dead.

It was learned this had been a planned home birth and that the birth attendant was Rosalie Tarpening, a licensed physical therapist who lived on the outskirts of Madera. Her home was adjacent to the office and examination rooms she shared with her husband, Donald Tarpening, a chiropractor. The doctors at the hospital knew of Mrs. Tarpening. She had delivered 350 babies over the preceding eight years.

Two days later a 15-man SWAT team surrounded their property, entered the house, and took Mrs. Tarpening away for questioning. Then they tore apart the house, her office, and her husband's office, looking for drugs and other "evidence." No illegal substances were found. She was charged with grand theft, practicing medicine without a license, and first-degree murder.

Rosalie Tarpening was not the first midwife in California to face a murder charge. A year earlier, Marianne Doshi had been arrested after a baby she delivered had died in a hospital where it had been taken due to complications during birth. The basic charge was practicing medicine without a license—"bumped" to a felony (second-degree murder) because a death had occurred. At a pretrial hearing the judge threw the case out, declaring that in his opinion, parents have a constitutional right to have their babies at home.

Mrs. Tarpening was not so fortunate. There was a lengthy preliminary hearing, then, in August 1981, a three-week jury trial. Her trial attorney, Gail Roy Fraties, managed to have all the charges dismissed except one: "practicing medicine without a license in such a way as to endanger mother and child." In his client's defense on that charge, Fraties contended that, according to the California statute governing physical therapy, she was permitted to treat "a physical condition" and so was practicing within the limits of her license.

One of the expert witnesses at the trial (and the only defense witness called during the pretrial hearing) was Edith Louise Potter, M.D.—a world-renowned pathologist and authority in the field of infant and fetal death. Her textbooks are the standard reference works on that subject. Her testimony, based on the autopsy report, was directed toward establishing the cause of death.

When Potter took the stand during the pretrial hearing, she made it known that the emergency room doctor had ordered that oxygen be administered through a flexible tube inserted down the baby's windpipe. Although the attending physician and the coroner claimed that the baby died from lack of oxygen, "There's no doubt in my mind that the cause of death was air put into the baby's trachea at too great a pressure," Dr. Potter told the jury during the trial. "That baby had its lungs blown out!"

"Did Mrs. Tarpening do anything, in your opinion, that would endanger the mother or child?" asked Fraties.

"Absolutely nothing." Then she thought a minute. "Yes, she did one thing wrong. She sent the baby to the hospital. She should have left it with its mother. It would be alive today."

Fraties built an excellent defense and presented a moving summation. Yet when the jury returned after several days of deliberation, Mrs. Tarpening was found guilty.

I wanted to know how they had arrived at such a verdict and phoned some of the jurors. "Let me tell you," said one man. "If she had been facing a homicide charge, she'd be completely free today. It was the hospital that killed the baby." I asked if he favored an investigation of the hospital—which had been suggested following the hearing." Absolutely. There's no question the doctors killed the baby—and then they turned the light on Rosalie."

"But if that's so, why did you find her guilty?" I asked.

"Well, she shouldn't have been using an instrument to examine the mother. That was dangerous."

"An instrument?"

"Yeah—one of those things doctors use in examinations."

It turned out that in one of the photos taken by police during their search was a speculum, a device used in gynecological exams but not during labor. It was from a kit of obstetrical and gynecological instruments that Dr. Tarpening had acquired during his training as a chiropractor 35 years earlier. Neither he nor Mrs. Tarpening ever used it in their work, and he had forgotten about it until it was dumped out of a storage drawer.

Calls to several other jurors confirmed what the first had said. Although neither prosecution nor defense had referred to it, the jury assumed the speculum had been used during the delivery and constituted "endangering mother and child."

Evidently, Judge Clifford Plumley did not approve of the verdict. He sentenced Mrs. Tarpening to a year in jail, then suspended the sentence. The prosecuting attorney was furious and claimed that "the people" had been robbed.

The reasons for Graciella Villa's choice of birth attendant are obscured by the sensational aspects of the case, but they deserve mention. Mrs. Villa specifically wanted a woman to deliver her baby and did not want to go to the hospital, as she had heard "stories" about hospitals. From friends she learned of Mrs. Tarpening, a woman willing to help other women have their babies. Mrs. Tarpening's profession was physical therapy and nutritional counseling, and although she had delivered 350 babies, midwifery was a small part of her practice. She was responding to a demand in the community—one which doctors ignored. Rather than meet the demand, the doctors used the courts.

It is not only lay midwives like Rosalie Tarpening, and Linda Bennett of the Santa Cruz Birth Center, who face the fury of the medical establishment. Certified nurse midwives (CNMs) are having their own problems, even though these midwives are part of "the establishment." CNMs are registered nurses who have completed a program in midwifery at a recognized institution and are certified by the American College of Nurse Midwives (ACNM). Their training is intended to prepare them for handling uncomplicated births, working "under the direction of" an obstetrician-gynecologist. At least that's the position of the American College of Obstetricians and Gynecologists (ACOG), to which ACNM agreed in a joint policy statement in 1975. Some hospitals have interpreted "direction" as meaning an ob-gyn must be in the room with the CNM during a delivery, although ACOG literature says this is not required.

There are some 2,500 CNMs in the United States, with approximately 220 graduating each year. They try to find work in hospitals, but very few will hire them; or they may work for doctors who have birth centers. Some open their own birth centers, in cooperation with sympathetic physicians who provide hospital back-up in case of complications. There are about 100 birth centers in 28 states, staffed by 200 or so CNMs. Some are freestanding centers (not in or attached to a hospital) where women can go to have their babies; some offer home birth services; and some are in hospitals. All this is legal.

But CNMs have met resistance from physicians, hospitals, and government officials in at least 12 states and the District of Columbia, according to Sally Tom, CNM, a spokesperson for ACNM. When nurse midwifery and out-of-hospital births come together, the resistance can be particularly virulent, as illustrated in the case of the Maternity Center Association of New York City.

For 60 years the MCA has been involved in maternity care in that city, especially among immigrant women. In 1917 it established a program for prenatal care and maternal education and in 1931 founded the first school of midwifery in the United States. For the next 20 years the MCA provided a midwifery service for women in low-income neighborhoods, which was phased out in the 1950s during the great push for hospital delivery.

In 1973 MCA began developing another new, equally innovative program under the leadership of Ruth Lubic, CNM: the Childbirth Center (CbC), an out-of-hospital maternity center for low-risk patients, with the aim of "attracting back to the system families engaged in do-it-yourself home birth." The center was the first of its kind in the country. Set up in a former townhouse, it offers a complete maternity service, including prenatal care, childbirth preparation classes, accommodation for labor and delivery, and nearby hospital back-up. By August 1981, nearly 1,000 births had taken place there, at a cost of about half the hospital fee.

In testimony before a congressional subcommittee, in December 1980, Lubic described the difficulties encountered as they tried to get the CbC under way: opposition from ACOG, the state and national American Academy of Pediatrics, the New York State Medical Society, the chairmen of obstetrics and gynecology at six of New York City's seven medical schools; trying to prevent commercial and medicaid reimbursement; interfering with hospital back-up; discrediting the CbC with nurses, foundations, and health insurers; attempting to have its license revoked; harassing families who consulted individual obstetricians; and "falsely alleging maternal, fetal, and neonatal mortality." The city's Health Department made "unwarranted demands for data" and at one point threatened to have the police barricade the MCA's doors.

C. Arden Miller, M.D., who worked with Dr. Burnett compiling data for the study on out-of-hospital births in North Carolina, described the situation as he saw it to a group of professionals:

The splenetic passion which the medical establishment, and particularly the obstetric community of New York City, attaches to the risks of the Maternity Association's Childbearing Center is spectacular to behold. Efforts to force closure of the center, depriving it of consultation and back-up supportive service, have been thwarted only by the most heroic perseverance by Ms. Lubic and her Board of Directors. Why does this molehill of a demonstration project attract all the lightning deserving of an Olympus?

But there were people in high places on the MCA's side, some even in the Health Department and on hospital staffs. They supported the center and guided it through the bureaucratic and professional quagmire. And last year the MCA was awarded a grant of nearly $256,000 from the John Hartford Foundation of New York City, and its plans are to promote "wider public understanding of the birth center concept."

Of all the organized opposition to the home birth movement, probably the most dangerous is legal action against the Association for Childbirth at Home, International (ACHI). It strikes at the life-line of the movement—teaching about childbirth and dissemination of information—and raises the constitutional issues of free speech, free assembly, and the right to be secure against unreasonable search and seizure.

ACHI, a grassroots teaching organization, was founded in 1972 by Tonya Brooks, herself a home birth mother and lay midwife, in response to parents' demand for more information on the birth process than is available in childbirth education classes. For couples in areas where there are no free-standing birth centers, lay midwives, or doctors or CNMs willing to do home births, the only alternative to going into a hospital is to stay home and have an unattended birth, which as the North Carolina statistics show, can be risky. ACHI does not approve of unattended births per se but attempts to narrow the margin of risk by providing couples with what Brooks describes as "essential and accurate technical obstetrics." It is the largest home childbirth education organization in the world; 40,000 couples have taken the basic eight-week course.

ACHI's greatest strength is in the Midwest, so perhaps it was not purely coincidental that their troubles began in southern Illinois. In early May 1978, ACHI instructor Cathryn Feral, who was living in the small community of Harrisburg, gave a brief talk on a local public TV channel—telling about the organization and announcing she'd be available for classes. She describes her talk as "real conservative," but that's not how two Harrisburg obstetricians perceived it, and they requested an investigation.

In October Feral received two subpoenas, for herself and ACHI, ordering her to appear within 10 days in Springfield, the state capital, "to testify…in regard to matters relating to your business transactions with consumers of Illinois since September, 1976, concerning ACHI's series of childbirth classes in violation of the Illinois Consumer Fraud and Deceptive Practices Act."

She was instructed to bring 71 pieces of information, including the names, addresses, and phone numbers of all parents anywhere who had taken the course; a complete list of doctors, CNMs, midwives, and others who were helping ACHI; a list of all ACHI instructors; information regarding insurance; information about compensation for assisting at a birth; and on and on. There was even a request for Feral's driver's license number.

In a letter to the editor of the Illinois Times in February 1979, Richard Cosby, first assistant attorney general, tried to assure readers "that we are treating this case with the same approach as the 27,000 others that move through our office each year." But in a phone interview, Wayne Wiemerslage, the original investigator for the Department of Consumer Affairs, admitted that the list of 71 items was "a little longer than usual." But, he explained, "This is a very important case." When pressed, he further admitted that the number of items ordinarily requested in an investigation is 15, or at most 25 or 30.

There was a strong likelihood that turning over everything demanded would result in punitive measures against supportive doctors and other professionals and the harassment of many parents. Brooks and Feral decided to fight and began a long journey through the courts. ACHI won at both the trial and the appellate level. The Appellate Court ruled that under Alabama vs. NAACP (1958), no organization can be forced to turn over its membership and furthermore that the Illinois Consumer Fraud and Deceptive Practices Act was not intended to include educational organizations in its scope. The Illinois Attorney General's Office appealed.

In May 1981 the case was heard by the Illinois Supreme Court. ACHI's attorney, Mary Lee Leahy, argued that "the defendants are engaged in activities protected by the First Amendment: teaching and advertising regarding that teaching." Enforcement, she noted, would have a "chilling effect on free speech."

Following the formal presentations, one of the judges asked Joseph Keenan, counsel for the Attorney General's Office, if he had any public relations material from ACHI to include as evidence to justify the investigation. He hadn't—not one brochure or pamphlet. "It seems to me," the judge remarked, "that you're on a fishing expedition."

"No, your Honor," Keenan protested. "We're not just fishing."

"Well, what are these people supposed to have done? Have they requested money be sent in? Have they made any special claims?"

"No, your Honor, but this is an organization which deals with matters of health. They're teaching about childbirth, and in matters of health and childbirth the state has a compelling interest."

This line of reasoning prevailed. In November the court handed down a verdict. ACHI had lost badly. Concerns about a possible "chilling effect" on the exercise of free speech were tossed into the judicial waste basket: "…the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity."

But no "harmful speech" had even been entered as evidence, so the court drew upon the case of United States v. Morton Salt (1949) for jurisdiction of any and all investigation by government agencies:

The only proper power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so.…Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.

This decision should be very sobering to anyone who believes in the Bill of Rights and assumes that the principles embodied in it are somehow inviolate.

Although ACHI would like to carry the case to the US Supreme Court, the cost is prohibitive. Also, as with the litigation involving the Santa Cruz midwives, there's a danger that if they lost at the federal level, every childbirth education organization in the country would be affected. They may be anyway. In May, ACHI was notified that the Illinois Department of Consumer Affairs would be filing an injunction prohibiting their advertising or teaching in Illinois. Tonya Brooks fears that consumer affairs departments in other states may follow suit. It's already rather chilling.

There's a tendency for observers of the medical profession to explain the actions of its members as motivated essentially by a desire for great financial remuneration. The reason, therefore, that obstetricians are behaving as they are toward midwives is to keep them off their professional turf—which is a very bright green. Obstetrics is a high-earning medical specialty.

But the matter is not simply reducible to economic concerns. If money were the only consideration, why don't more sharp ob-gyns open birth centers and go directly after the market? Some do—but they face a lot of peer pressure. Also, the opposition to home birth is not limited to doctors. Law enforcement officials and others in government are part of it. What inspires investigators to set traps to catch midwives? What motivated Terry Johnson, a clerk in the California bureaucracy, to use her body, and her baby's body, against other women who had done her no harm? It's not enough to say, "Doctors have power." The question then is, "How did they get that power—who gave it to them?"

We live in a society where attainment of physical and mental well-being has replaced spiritual salvation as the dominant cultural value. A significant number of people accord it an importance above wealth, love, justice, or liberty, and they expect government to secure to them its blessings.

But that's not all. Although there is a common shared interest in health and well-being, there are differences of opinion about how these can best be attained. Current medical practices and theories are of two sorts—"orthodox" and "unorthodox." Orthodox medicine is merely the winner that emerged from a long struggle between several schools of medicine that flourished and competed with each other during the 19th and early 20th centuries. It was then called "allopathy": "a system of medical practice which combats disease by the use of remedies producing effects different from those produced by the disease itself" (Webster's Collegiate Dictionary, 1951). Then as now, drugs and surgery were the chief means by which allopathic physicians combatted disease and tried to alleviate suffering. They relied heavily on "the heroics" (bleeding, purging, and induced vomiting).

It was the allopaths (also called "the regulars") who fought for government licensing and the regulation of medicine. They were eventually successful. By means of political maneuvering, and with financial assistance from Andrew Carnegie and John D. Rockefeller, they established a monopoly over health care in this country and made the word allopathic synonomous with medicine.

What today is called "unorthodox" medicine is based on an entirely different approach: stimulating and helping the body to strengthen and utilize its own resources, innate healing powers, and immune systems. Great emphasis is placed on nutrition and the taking of supplemental nutrients. Unorthodox practitioners, even those who are M.D.s, often claim they aren't practicing medicine at all—meaning they don't rely on drugs and surgery—but are simply helping the body regain or maintain a normal state of health.

The home birth movement is an outgrowth of the natural childbirth movement of the late 1950s and 1960s. Both are part of the broader movement in unorthodox medicine. The debate between the medical establishment and the home birth advocates is one of competing ideologies. In every argument, whether in a doctor's office or before a legislative committee, the rhetoric on both sides reflects and expresses these fundamentally opposing points of view about the nature of health and disease, the capabilities of the human body, and the role of the health care practitioner.

Doctors believe that hospitals are the safest place to have a baby; that's why they can ignore study after study to the contrary. They "know" the studies are "inconclusive." That is why the California Medical Association is now impelled to collect data against home birth and midwives; it is necessary to "prove" these a danger, thereby justifying the opposition to them. That is why the medical profession dismisses as "anecdotal" all reports and accounts by parents, and even by physicians, extolling the benefits of home delivery.

That is why doctors could look at the autopsy report in the Rosalie Tarpening case and not see that it was their bungling that killed a baby. And when Dr. Potter held it before their faces, they sought some other explanation, as though to say, "We know hospitals don't kill babies—we know home birth does."

And that is why Dr. Potter's testimony was so devastating. It was the testimony of a person who could step out of the belief system that she shares with the doctors, look at the evidence, and say, as she did: "I don't believe in home birth, but I know midwives don't kill babies. In this case the hospital was to blame."

There is something more powerful than money that motivates men and women: a conviction that they are right and that they're doing the right thing. Not only are doctors convinced they are right; they have convinced many others that they are. Policemen, government agents, district attorneys—as upholders of the social order in the "therapeutic state," they follow doctors' orders. When they go "red lights and sirens" all over town to arrest a midwife, they look on this as part of their responsibility to "the public." When they launch an investigation into an organization that is teaching about childbirth, they don't see it as trampling on the Bill of Rights. They're stamping out heresy. They consider it their duty.

It is impossible to predict the outcome of the struggle. The fundamental issue is not whether home is a "better" place to have a baby or whether a midwife can do a "better" job than a doctor or whether unorthodox medicine has more demonstrable validity than orthodox as a way of dealing with sickness and pain. As expressed by Dr. Edith Potter to an audience of home birth supporters following the preliminary hearing in the Rosalie Tarpening case:

I think that your feeling about home delivery is determined in part by your general outlook on life—your general philosophy. How paternalistic do you think the government ought to be? How much pressure should the government put on us to do what it wants us to do?…If you think we ought to have a free choice in our lives…we have to decide as we do in a presidential election.…I think this is a matter of free choice, and nobody ought to tell us what we're going to do.

To the question, How did doctors get power? Who gave it to them? the answer is: We did, and we're still giving it to them. Until many more people decide that liberty is the primary value, that it is more important than health or anything else, the situation for the midwives, the home birth doctors, the home birth parents—or the rest of us—is not really going to change.

Sarah Foster is a free-lance writer. This article is a project of the Reason Foundation Investigative Journalism Fund.