Welcome to Blawg Review #158! Today is
International Midwives' Day (sometimes called "
International Day of the Midwife"), when traditionally I remind my readers to call, write, or email their midwives and thank them. Accordingly, the theme of today's Blawg Review is "Midwives and the Law":
But the midwives feared God, and did not do as the king of Egypt commanded them, but saved the male children alive... Therefore God dealt well with the midwives, and the people multiplied and grew very mighty. And so it was, because the midwives feared God, that He provided households for them.
-Exodus 1: 17, 21 (NKJV)
For those of you who are wondering, "What's a Midwife? Are they still around?", I would invite you to visit the
Wikipedia on the subject before reading any further. Also, for a look at modern, urban midwifery,
rent or
buy Ricki Lake's (yes,
that Ricki Lake's) movie
The Business of Being Born. By the way, Ms. Lake is scheduled to discuss her movie today on
The View.
, you may well ask. In most industrialized countries in the world, midwives attend 70% to 80% of all births and are the primary providers of maternity care. The U.S., where hospital- and home-based midwives attend less than 8% of all births (and despite spending the most per-capita on health care), ranks
near the bottom of developed countries in terms of infant and maternal mortality rates.
A few quick definitions. There exists in the U.S. a class of midwives which is unique to this country, the
Certified Nurse-Midwife (CNM). In every state, CNMs are licensed to practice with varying degrees of autonomy. CNMs have their own legal issues; however, they are not usually subject to being arrested, sued, or otherwise prosecuted merely for practicing midwifery, and I will not deal with those issues today.
Rather, when I use the term "midwife", I am referring to direct-entry midwives (DEMs); those who have completed a course of study and an apprenticeship in midwifery, but who are not also nurses; and who are licensed by the
North American Registry of Midwives as Certified Professional Midwives (CPMs), and/or licensed under a particular state's regulatory requirements for direct-entry midwives (variously termed "Licensed Midwife", "Certified Midwife", and so forth). They are almost never hospital-based.
The term "lay midwife" is, increasingly, only used for uncertified or unlicensed midwives who are educated through informal routes. They may also be called "traditional birth attendants", "community midwives", "traditional midwives", etc.
Although planned homebirths with CPMs
have been shown to be just as safe (with fewer complications) as hospital births, only 22 states specifically authorize the practice of direct-entry midwifery. Ten states prohibit the practice of midwifery outright (in Missouri it is a felony), while in the remaining states the status is a little less clear:
[M]any midwives have long operated under the assumption that states without a [Direct Entry Midwifery] statute are "alegal," a word that doesn't officially exist but has been understood to mean neither authorized nor forbidden by law, or "unregulated." But the problem with this concept, as more midwives are beginning to realize, is that the practice of midwifery - that is, the act of attending women in childbirth - is defined and regulated in all fifty states, through the medical and/or nursing practice acts, all of which contain broadly worded language that defines various acts associated with the practice of midwifery as either medicine or nursing.
-Katherine Prown, Ph.D., "Understanding the Legal Status of Direct-Entry Midwives: an Introduction" , From Calling to Courtroom
Currently, a midwife can be licensed & regulated in one state, but in a neighboring state with the exact same credentials she is subject to charges ranging from practicing medicine, nursing, or nurse-midwifery without a license, to manslaughter, child endangerment, and possession or use of controlled substances. Moreover, it is not always clear what the legal status of midwifery in a state is; some states, such as Pennsylvania, in which the practice of midwifery was long considered "legal", have suddenly begun to prosecute midwives. Many direct-entry midwives are under the mistaken impression that they are practicing legally, when they are in fact at risk.
And you thought that multijurisdictional practice of law issues were complicated.
I was going to include a list of midwifery-related legal resources, but it was getting a bit long, so I've published it as
a separate post.
One more quote and then on to "This Week in the Blawgosphere":
We who live in the United States are fully aware how different our country is from most others when it comes to midwifery and the way the state looks at childbirth. If we try to list every variety of midwife that has come into existence during the last half-century, we have to write a very long sentence with lots of adjectives and commas. We lead the world in the number of criminal trials for the practice of midwifery or the practice of medicine, or even manslaughter or second-degree murder charges brought against unlicensed midwives. In this dubious sweepstakes, we have the company of our neighbor to the north, Canada, which got itself into a similar societal mess a century ago by neglecting to create a way for midwives to continue to exist by following the example of the rest of the industrialized world.
— Ina May Gaskin, "Unity: An Elusive but Necessary Goal for US Midwives and Their Advocates," Midwifery Today Issue 64.
Blogging and BlawgingMidwives tend to be a little (ok, a
lot) less tech-savvy than, say, lawyers; although I've noticed the younger generation is changing that somewhat. On the sidebar of
The Baby Blawg, you will find a list of "birth biz blogs", many of them written by midwives. There's some great stuff there. Besides me, the only blogs I can think of right now that write specifically about midwifery legal issues are
Midwifery World, Jennifer Block (
Pushed Birth), and possibly the
Citizens for Midwifery blog.
Real Lawyers Have Blogs, but does your employer have a
Law firm blog policy?
Bag and Baggage's Denise M. Howell discusses
Blawgs In (Magazine) Space.
Nick Holmes of
Binary Law explains
what makes a good blawg; Anne Reed of
Deliberations suggests that
Alltop offers a great way to find them (
Finding Good Blogs), and
Scott Greenfield concurs, but thinks that
It also is going to give an odd impression to the person who doesn't know much about the blawgosphere, since there doesn't seem to be any particular rhyme or reason to why blawgs are listed in any particular order . . . . This page makes no distinction for the looker who doesn't know what he's looking at.
There seemed to be a great deal of discussion regarding the creation of law.alltop.com ("
Blawgs Get Kawasakied"), including at Jim Calloway's
Law Practice Tips Blog, Brett Trout's
BlawgIT, and
Sheryl Sisk Schelin's
The Inspired Solo; but
NY Personal Injury Lawyer Eric Turkewitz feels Personal Injury blogs were
Dissed Again.
Coming and GoingCheck out this new blog,
The Legal Antiquarian. And say goodbye to
Decision of the Day's Robert Loblaw who is
calling it quits and hanging up his keyboard.
Social MediaJohn Phillips presents
Young Teachers Gone Wild posted at
The Word On Employment Law. And learn about
Social Media's Impact on Health Care at Bob Coffield's
Health Care Law Blog.
Would you turn down a job offer from a firm that did not allow you to access social networking sites such as Facebook or MySpace?
No Facebook? No thanks!Searches and SeizuresIn another turn, [Midwife Marcia Kay McCulley] was arrested in March at her birthing center in front of two couples and their babies. A witness said about a half-dozen Medical Board officers came to the center, and one of them had his gun drawn.
"It seemed like the kind of conduct you would use on a drug house or on a dangerous criminal," said Jett Whitworth, who was in the waiting room with his wife and their 6-day-old girl.
- "Midwife disputes health allegations", Ventura County Star, May 12, 2007
From
The Faculty Lounge, Dan Filler informs us
Canada Supreme Court Nixes Suspicionless Dog Sniffs. And
EFF's Jennifer Granick helps out with
Protecting Yourself From Suspicionless Searches While Traveling.
Hiring a LawyerFrom Calling to Courtroom: A Survival Guide For Midwives has a wonderful chapter entitled
Looking For a Lawyer (And Why You Should Do it Sooner, Not Later).
Austin Criminal Defense Lawyer Jamie Spencer presents
Hiring a Jerk to be Your Lawyer. And watch out -
Eliot Spitzer Enters Private Practice.
After my first son was born, and until about six months after my second was born, I practiced law from home, as did my husband for a time. Do you care if your lawyer has an office? Susan Cartier Liebel of
Build a Solo Practice, LLC, writes
When Going Home To Go To Work Benefits The Client.
Legal DraftingMark Liberman of
Language Log parses
Closer, my ex, of you;
Ken Adams discusses
"Survival" Provisions; and
Conglomerate's Christine Hurt asks
Who Wants in on the Nineteenth Edition of the Bluebook?Trial PreparationTom O'Connor of
Law Technology News claims
Bates Stamps' Days May Be Numbered.
Lean and Mean blogger Stewart Weltman
makes easy work of taking expert depositions.
South Carolina Trial Law Blog's guest blogger Brian Ford gives advice on
Using Multi-Media at Trial.
Trials and Class ActionsOccasionally I will hear rumors of an effort by midwives and midwifery consumers to bring a class action suit against insurance companies for denying coverage of their services; or aginst someone (obstetricians?) for restraint of trade. The
Class Action Blawg provides a most helpful
Partial Glossary of Representative Actions and Terms.
Drug and Device Law has a long but worth-it post ("
New Decisions Raise Old Issues") that refers to
Bendectin which, as a three-time
HG sufferer, I sure wish was still available.
Judges & JuriesPicking a Jury? Anne Reed writes
"Your Honor, I Move To Strike Your Mother For Cause".
JD Hull opposes
the elected judiciary at
What About Paris? (a/k/a "What About Clients?")
Law Ingenue loved her Civil Procedure professor (
Law Ingenue: Civil Procedure... Or Is It?) and so did I. In fact, Prof. Mayo not only
blogs on health law, but
writes poetry columns.
Speaking of poetry, and because no Blawg Review is complete without either Limerick or Haiku, recovering lawyer Madeleine Begun Kane (
Mad Kane's Humor Blog) presents
Ode To A Grudge-Holding Judge:
There once was a federal judge
Who was famous for holding a grudge.
But his clerk found a way
To get him to say,
“I forgive you.”
She bribed him with fudge.
Perhaps this Oklahoma judge needed some fudge as well -
Publish or Perish: Lawyer Sanctioned With Order to Write Bar Journal Article by Alan Childressat at
Legal Profession Blog:
She ordered the offending attorney "to submit to the Oklahoma Bar Journal for publication an article pertaining to civility and professionalism as they relate to adversary proceedings." He has six months to write it.
Consider yourself warned.
Family Law Midwives' conferences often contain one session on family law basics. Usually these are conducted by other midwives; but sounds like a good marketing opportunity to me.
There was lots of blogging this week on the raid on the Texas FLDS compound. My
major interest in the case was the allegation that nursing babies were being separated from their mothers.
Austin blogger Scott Henson (
Grits for Breakfast) says
More law blawggers need to weigh in on West Texas polygamy case. Robert J. Ambrogi talks about
An Army of Lawyers in West Texas. Eugene Volokh had
several posts concerning facets of the case arising from the raid on the FLDS' Texas compound. Audree Heath at
World on the Web addresses
Polygamy and religious rights. And J. Craig Williams (
May It Please the Court) pens
Who's On First? The Polygamous Mess In A Texas Courtroom.
Speaking of J. Craig Williams, my
blogging about Placentophagy does not hold a candle to his
Blood Sausage post.
Birth Certificates, Social Security, and Taxes. Oh My.One issue that parents living in, and midwives practicing in, "illegal" states face is, how to file for a birth certificate. Should a midwife sign the birth certificate, or will this bring her to the attention of local authorities? And if she doesn't, what additional documentation must the parents provide in order to register the birth?
Without a birth certificate, you cannot get a social security card, a driver's license, or pretty much any job for which you are not paid in cash. Although I have known parents who delayed obtaining social security numbers for their children, without one you cannot claim them as dependents on your tax return (unless you are Amish, by the way. Hint, hint.). I recently filed an amended tax return because I neglected to include my most recent
tax deduction child one year, and discovered that, while my children may be priceless to me, to the IRS they are worth $1000 per year. Each.
Why is My Rebate So Small? Tax Girl's got the lowdown on
The Incredible Shrinking Tax Rebate. Nick Cowen asks
Should Inheritance Tax Be Defended? (
Civitas Blog), and
Pundit Mom wants to see your I.D.
Women's Bodies, Women's Wisdom?
Having given birth to three babies, I sometimes think about having "a little work done". But then I realize that I am a mother, and my body looks like the body of a mother, and to try to look as if I have not had three babies would be an insult to mothers everywhere. Besides, how would I explain the surgery to my children without
Encouraging Vanity and Misogyny? (Frank Pasquale of
Concurring Opinions). And though I cringe to mention it, my body is not
Just like open-source software! (Ann Bartow,
Feminist Law Professors).
On that topic, among birth-related (non-legal) blogs,
Birth Rape (see also
More Than a Traumatic Birth) is being widely discussed. The legal implications are obvious - I have heard stories of women, even in my own community, who have been given
unwanted (and unconsented-to) episiotomies, even while kicking and screaming "No!". Unfortunately, attorneys (prosecutors or plaintiff's) seem reluctant to pursue litigation. But I wish more lawyers would join this conversation. The situation is so bad that those in the birth biz are discussing, writing about, and conferencing on post-traumatic stress disorder. No wonder women are rejecting hospitals and doctors and birthing at home with midwives.
Green ThingsThis week I ran across
Bamboo Diapers. I'm skeptical. David Yaussy at
WV Environmental Law discusses
Bamboo as Environmentally Sustainable Crop. And
AgLawyer Susan Schneider reflects on
Recent Perspectives on Meat Production.
Well, that's a wrap for Blawg Review #158! Thank you, everyone, for you submissions. A special award goes to Anne Reed of
Deliberations as the "Most Suggested" blawger.
Blawg Review has information about next week's host, and
instructions on how to get your blawg posts reviewed in upcoming issues.
(Chapters 6 & 7).
Posts
