Mama's Got a Plan:

Maternity Care, Health Insurance, and Reproductive Justice


Unregulate me?

This post was conceived with the help of The Big Push for Midwives, which also helped out with its delivery.

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Private Membership Associations

Earlier this year, news articles reported on criminal actions against community (out-of-hospital) midwives in Indiana and Nebraska following infant deaths. More recently, the work of one midwife in Minnesota was highlighted; she was not under state investigation, nor were any bad birth outcomes mentioned. 

What do these three midwives have in common? They all have formed Private Membership Associations (PMAs), legal instruments that claim to exempt their members from state regulation. Clients of these midwives become members of PMAs, which supposedly allow them to essentially contract out of state governance of their midwives. 

However, in reality it doesn’t work that way. States with licensing regimes, like Indiana, allow their state midwifery boards to issue complaints against negligent midwives, whether the midwives have obtained licenses or not. Because the unlicensed practice of a profession is a criminal offense, these complaints are often conveyed to the state attorney general’s office, after which charges may be filed against the midwife. In states that do not offer licensing of community midwives, like Nebraska, the route to criminal charges is much more direct: reports of a bad outcome may land immediately on the county prosecutor’s desk.

The cartoon above is our take on why PMAs are a bad idea, and why midwife licensing is a good idea. Many people these days mistrust government – and who can blame them? But remember: the answer to bad law isn’t no law; the answer to bad law is good law.

An aside about PMAs, birth outcomes, and midwife arrests

When midwives are arrested after a newborn or maternal demise, as in the news articles linked above, some readers find it tempting to channel their lock-em-up-and-throw-away-the-key rage right at them. Allow us to take this opportunity to remark that physicians rarely face arrest when their patients die. Furthermore, this post is in no way a comment about the outcomes in any of the births in the news articles or on the level of skill and training possessed by the midwives who attended those births. Midwives are often blamed for bad birth outcomes no matter what their license status, training, skill, or education. The shamefully high infant and maternal mortality rates associated with conventional hospital-based care, on the other hand, is just starting to be questioned.

Image credits

All images are shared under a Creative Commons license, unless otherwise noted. Where required by license, changes to the image are noted.

Panel 1: 

Panel 2: 

  • The Fortress Midwifery building is really part of the
    Golubac Fortress in the Đerdap national park in Serbia.
    The image is from Max Pixel and is in the public domain.
  • The Viking longboat is by Midnightblueowl. We added the torch by Kiernax.
  • The bomber is by U.S. Air Force. The image is in the public domain.
  • The helicopter is by Capt. Richard Barker. The image is in the public domain.
  • The sailing ship is a photograph of Cannon Fired by Willem van de Velde the Younger, 1707. The photo is by the Rijksmuseum, Amsterdam and is in the public domain.
  • The Virginia-class attack submarine is by Owly K. The photo is in the public domain.
  • The cannon is from a photo of the Saint Kitts – Brimstone Hill Fortress, taken by Martin Falbisoner.

Panel 3

  • The background is a photo of the Ballroom at Rideau Hall, Ottawa, by Dennis Jarvis. We cropped the image, edited out some chairs along the back wall, and swapped the portrait of Her Majesty Queen Elizabeth II with one of Martha Ballard, midwife. 
  • The lectern is from “WikiData Presentation 2018,” by Michelle Nitto
  • The pink house in the poster is of Zemīte Manor, by J. Sedols.
  • The projector screen is from Max Pixel.
  • The midwife/breastfeeding mother is by Renoir. She is wearing an oxytocin necklace. Her bag is from Needpix.com. It is filled with a water bottle by wraithrune, a yoga mat by MikesPhotos, and a sweet little stuffed cow by OpenClipart-Vectors.
  • The Big Push for Midwives logo is from The Big Push for Midwives! You should check them out!
  • Finally, the speaker at the lectern is Cynthia Jackson, CPM, LM, of Michigan: midwife extraordinaire and unparalleled portrait subject. The photo is used with permission. Ms. Jackson runs Sacred Rose Birthing Service and is a founder of the Mosaic Midwifery Collective, both in Detroit. 
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Just say … what?

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Bibliography

  • Catharine A MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass; London: Harvard University Press, 1994).
  • Elizabeth Kukura, “Birth Conflicts: Leveraging State Power to Coerce Health Care Decision-Making” 47 (2018 2017): 48.

Image credits

All images are shared under a Creative Commons license, unless otherwise noted. Where required by license, changes to the image are noted.


Drugs are bad

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Just one of those inconsistencies

Condemnation is a typical response to mothers who ingest opioids while pregnant. But these women are at risk of receiving much more than a scolding: they may lose their state benefits, their children, and their liberty. Mandatory reporting laws in many states turn health care providers into informants who connect the dots between health care, child welfare authorities, and law enforcement. Reporting of drug-using pregnant people is heavily racialized.

These same health care providers and institutions, however, are content to fix up their laboring patients with epidurals that contain opioids. Epidurals certainly make patients quieter, as the provider in Frame 2 suggests; they are also increasingly demanded by patients who are not permitted to move around during labor, whose contractions have been artificially strengthened with Pitocin, or who are experiencing long labors as a result of physiologic responses to the hospital environment.

Note: No one is suggesting that women in labor should not receive epidurals, only that patients should not be tricked or coerced into epidurals for providers’ benefit, and that patients should have true informed consent with explanations of both benefits AND risks.

Emerging evidence suggests that people exposed to opioids in utero are more likely to develop opioid addictions later in life. We hope that this recognition does not trigger greater retaliation against opioid users who face the sanctions shown in Frame 1, but instead explores all the factors that shape a system that leads to opioid use of any kind by any birthing person.

Further reading

  • Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, 2011.
  • Lynn M. Paltrow, “Roe v Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration,” American Journal of Public Health 103, no. 1 (2013): 17–21.
  • Khiara M. Bridges, The Poverty of Privacy Rights, 1 edition (Stanford, California: Stanford Law Books, 2017).
  • Kajsa Brimdyr and Karin Cadwell, “A Plausible Causal Relationship between the Increased Use of Fentanyl as an Obstetric Analgesic and the Current Opioid Epidemic in the US,” Medical Hypotheses 119 (October 1, 2018): 54–57, https://doi.org/10.1016/j.mehy.2018.07.027.

Image credits

All images are shared under a Creative Commons license, unless otherwise noted. Where required by license, changes to the image are noted.

  • Frame 1: The pregnant woman is by creativeitchalways. She was originally holding an orange drink; it was replaced by an orange water bottle created by alistairjtp. This image is in the public domain. The doctor’s office background is by annekarakash. The pointing hand is by Tumisu; the white sleeve was added later. The police officer’s hand is by Andrew Griffith; it is isolated from a much larger image of a police officer standing with his arms crossed. The handcuffs are from Needpix.com.
  • Frame 2: The laboring woman is from Max Pixel. The doctor’s office background is by Omar Bárcena; the image shown is a much smaller piece of the original photo. The downplaying hand is by truthseeker08; the white sleeve was added later. 


How bad can it be?

How bad can it be?

Very.

Some women1 are pregnant. Some women are fat.2 Some women are fat and pregnant. Almost all of these women need jobs, the same as anyone else. Employment discrimination in hiring is sadly not unknown to many would-be employees, but the fat-and/or-pregnant job-seeker encounters specific additional challenges.

Pregnant?

The Pregnancy Discrimination Act of 1978 forbids employment discrimination on the basis of pregnancy, considering it a form of sex discrimination. The strongest protections apply to the hiring process, but are difficult to access unless an employer documents their decision to discriminate. Employers are not allowed to ask applicants if they have children, plan to have children, or are currently pregnant. Of course, at a certain point a pregnancy becomes visible – unless it is mistaken for fatness.

Fat?

Discrimination faced by fat people is widespread. Fat people are seen not only as failures at controlling their body size, but also as generally untrustworthy, incompetent, and unhealthy. Most U.S. jurisdictions offer no legal protection against weight-based discrimination in employment or any other context. Even if legal protection were available, remedies might remain elusive should traditional code words for overlooking fat applicants be used: “unprofessional appearance” or “incompatible with company image.” Now for the double whammy …

Fat AND pregnant?

Yes, Virginia, fat people get pregnant and have babies! It is in these circumstances that employers fall prey to the particularly injurious prejudices about fat people, who are so often characterized as being “one cheeseburger away from a fatal heart attack.” Imagine if a fat person is also pregnant! It’s practically a death sentence! This rate of fatality would be highly inconvenient to employers – not to mention the fat person herself – if it were true.

There are higher risks of some complications of pregnancy associated with higher body weights, but that is true of other (visible) conditions as well: very low body weight, twin or multiple pregnancy, and pregnancy for African-American women, whose maternal mortality is tragically 3-4 times that of white women. The scientific evidence is finally beginning to concede that higher mortality for the African-American population is not the result of race, but of racism. The role of bias and stigma may also be behind the associations of certain types of risk with bad outcomes for fat pregnant women. Regardless of the science, the popular perception is as stated in Frame 4: hiring a pregnant fat woman will bankrupt your business through high health care costs3 when her pregnancy inevitably goes south.

Why do these beliefs persist?

The cultural understanding of women’s participation in the workplace remains far from settled, at least when women take valued positions previously held exclusively by men. Even women who are not pregnant or incapable of becoming pregnant can suffer from employer suspicion that members of the sex that “naturally” acts as family caretakers are likely to be called to do just that, to the detriment of their jobs. Applicants who are pregnant are felt to be freeloading: if other new employees are not permitted to take leave until they have put in the required amount of time, why can babymakers? They should have kept their legs closed!

As for fat pregnant women, well, should they really be permitted to reproduce? Not only will they almost certainly harm their babies and themselves in the process, draining company and public health dollars at an alarming rate, but they might produce more little fat people. A job would just encourage them! 

While these last paragraphs are increasingly sardonic, they illustrate the result of combining over a century of anti-fat bias, medical eagerness to believe that fat is the cause of all ills, pressure on businesses to reduce health care spending, an economic framework that blames the need of the human race to reproduce on the people doing the reproducing, and a general lack of understanding that we are all in this together. And this moral mess hasn’t even begun to address the additional and intersectional issues encountered by LGBTQ people, people with disabilities, or immigrants.

“I want to do the right thing – what is it?”

You don’t really need us to tell you, do you? Stop discriminating! 

Admittedly, it’s not that simple. However, like charity, abuse begins at home – and that’s a good place to stop abusing your fat friends and family members. Even if you’re doing it because you’re “concerned for their health.” Especially then.

Then take up the standard in your workplace. Make sure that both pregnant and fat people are accepted as full members of the workforce. If you are responsible for hiring, then you are especially positioned to make change. Finally, when the common beliefs about fat and/or pregnant people begin to budge, work with policymakers to forbid this kind of discrimination. 

1We usually use the phrase “pregnant people” or “birthing people.” However, because the topic of this cartoon is extremely gendered, we will refer to “women,” with the understanding that pregnant people who do not identify as women face additional problems beyond the scope of this post.
2The accepted medical term these days seems to be people who “have obesity.” We use “fat” as the term preferred by the fat acceptance movement.
3Obviously, the structure of the U.S. health care payor system is a key culprit in employers’ general fears about health care costs. This post is not trying to solve that problem. One thing at a time, okay?

Bibliography

 

Image credits

All images are shared under a Creative Commons license, unless otherwise noted. Where required by license, changes to the image are noted.


It COULD fall …

So many chickens!

At what point do we worry that the sky is falling? At what point is the sky falling? The fear and the actuality can be connected with a line as thin as an EFM trace.

Continuous electronic fetal monitoring (EFM) was introduced to American maternity care in 1970 with the untested promise that it would reduce the incidence of cerebral palsy (CP) by half. CP is a collection of conditions said to be caused by fetal oxygen deprivation during labor and birth. For over 30 years, the scientific community has recognized that EFM has failed to deliver on its promise. Worse than that failure, however, is EFM’s track record of causing an increase in medical interventions, most notably cesarean surgery, which in turn is responsible for increased morbidity and mortality.

Yet EFM is still used in most U.S. births. Furthermore, EFM is so entrenched in hospital practice that true informed consent for its use is rarely given; indeed, patients find themselves almost completely unable to refuse continuous monitoring. How did we get to this place where the standard of care is endangering good care?

CIRCUMSTANCERESULT
EFM was put into use six years before the passage of the Medical Device Amendments Act of 1976 that authorized the Food and Drug Administration to begin regulating medical devices.EFM use was institutionalized with minimal oversight. The lack of regulation allowed EFM manufacturers to grow to an over $2 billion industry.
EFM enables nursing staff to track multiple patients from a central bank of monitors, thereby cutting down on staffing that would be required to monitor patients in person. The electronic feed can also be shared with offsite physicians, allowing them to maintain a private practice and carry out other obligations while still caring for their hospital patients.Staff attention is divided between multiple patients. Patients therefore receive less hands-on attention, allowing abnormalities that may not trigger an abnormal EFM trace to be missed or ignored by providers. Physician interactions with their patients become even more sporadic, sometimes absent until the baby is crowning.
Providers view EFM not as an individual procedure with attendant risks and benefits, but as a part of the standard Labor and Delivery package, for which the patient has signed a blanket consent form upon admission.Patients are not given an opportunity to receive informed consent about EFM use. Since they don’t explicitly consent to EFM, there is no formal opportunity to refuse it. When patients do try to refuse EFM, providers feel tremendous institutional pressure to insist on its use.
It was anticipated that EFM would protect practitioners and institutions from medical malpractice liability. The presence of a physical strip (or, nowadays, an electronic file) containing a record of the entire labor, would surely show where physicians acted appropriately. Plaintiff’s attorneys could likewise rely on the strip to show where defendants acted negligently. Unfortunately, the interpretation of EFM signals is notoriously unreliable and variable.In medmal cases, the EFM strip is now used by both Plaintiff and Defense, with the result that failing to produce a strip in one’s defense is taken as an admission of negligence. Hospital Risk Management departments insist on the use of EFM for potential use in litigation.
EFM’s 99% false positive rate remains unacknowledged in courts of law, where dueling experts defend their variable interpretations of the strip.
EFM was a new technology that promised to help transcend the barrier of the maternal body, allowing physicians to see more closely what was happening within.Physicians have come to depend on EFM, not only because of the predictable technological imperative, but also because hand skills, such as abdominal palpation, are no longer taught.
The American College of Obstetricians and Gynecologists (ACOG), in its latest practice bulletin on fetal monitoring (#106, 2009), acknowledges all the shortcomings of continuous EFM, including its greater than 99% false positive rate for predicting cerebral palsy and its association with increased instrumental deliveries (forceps and cesarean surgery). Nevertheless, its practice bulletin concludes, “Given that the available data do not show a clear benefit for the use of EFM over intermittent auscultation, either option is acceptable in a patient without complications.” In its latest Committee Opinion (#766, 2019) on “Approaches to Limit Intervention During Labor and Birth” (Committee Opinion #766, 2019), ACOG does not actively recommend replacing EFM, but instead suggests providers  consider making arrangements for a hand-held Doppler “for low-­risk women who desire such monitoring during labor.”ACOG’s practice bulletins are subtitled “Clinical Management Guidelines for Obstetrician-Gynecologists.” During litigation, expert witnesses may, depending on specific state law, introduce these guidelines as evidence of standard of care. Because PB 106’s conclusion approves the use of EFM and neglects to note that intermittent auscultation shows a clear benefit over EFM, ACOG’s stance shores up the legal position of EFM use.

The alternate recommendations in CO 766 would be more effective if they were issued in a bulletin that formally replaced PB 106. Since this is not the case, the PB 106 guidelines still stand.

The factors listed above have contributed to the current EFM impasse: everyone is aware of EFM’s essential defects, but all parties seem united in an emperor-new-clothes fiction that EFM is keeping birthing people and their babies safe. However, as mainstream maternity care begins to focus on reducing non-medically-indicated cesarean surgery in order to rein in the shocking U.S. rate of poor outcomes, most particularly maternal mortality, perhaps EFM will be recognized for its causative role in this situation. We can hope and advocate for appropriate steps that will overcome the barriers to replacing EFM with something more evidence-based, effective, and safe.

This cartoon and post are dedicated to Susan Jenkins, Esq., who created the formulation of risk explained in the final frame, and to Thomas Sartwelle, Esq., who has written extensively on the subject of EFM and was kind enough to share his wisdom at the Birth Rights Bar Association 2019 conference.

Bibliography

“ACOG Committee Opinion No. 766: Approaches to Limit Intervention During Labor and Birth.” Obstetrics & Gynecology 133, no. 2 (February 2019): e164. https://doi.org/10.1097/AOG.0000000000003074.

“ACOG Practice Bulletin No. 106: Intrapartum Fetal Heart Rate Monitoring: Nomenclature, Interpretation, and General Management Principles.” Obstetrics & Gynecology 114, no. 1 (July 2009): 192. https://doi.org/10.1097/AOG.0b013e3181aef106.

Berlatsky, Noah. “The Most Common Childbirth Practice in America Is Unnecessary and Dangerous.” Text. The New Republic, August 13, 2015. http://www.newrepublic.com/article/122532/most-common-childbirth-practice-us-unnecessary-dangerous.

Dekker, Rebecca, and Bertone, Anna. “The Evidence on: Fetal Monitoring.” Evidence Based Birth® (blog), May 21, 2018. https://evidencebasedbirth.com/fetal-monitoring/.

Lent, Margaret. “The Medical and Legal Risks of the Electronic Fetal Monitor.” Stanford Law Review 51 (1999): 33.

Nelson, Karin B., Thomas P. Sartwelle, and Dwight J. Rouse. “Electronic Fetal Monitoring, Cerebral Palsy, and Caesarean Section: Assumptions versus Evidence.” BMJ 355 (December 1, 2016): i6405. https://doi.org/10.1136/bmj.i6405.

Sartwelle, Thomas P., and James C. Johnston. “Cerebral Palsy Litigation: Change Course or Abandon Ship.” Journal of Child Neurology, September 2, 2014. https://doi.org/10.1177/0883073814543306.

———. “Neonatal Encephalopathy 2015: Opportunity Lost and Words Unspoken.” The Journal of Maternal-Fetal & Neonatal Medicine 29, no. 9 (May 2, 2016): 1372–75. https://doi.org/10.3109/14767058.2015.1051526.

Sartwelle, Thomas P. “Defending a Neurologic Birth Injury.” Journal of Legal Medicine 30, no. 2 (June 2, 2009): 181–247. https://doi.org/10.1080/01947640902936522.

———. “Electronic Fetal Monitoring: A Bridge Too Far.” Journal of Legal Medicine 33, no. 3 (July 1, 2012): 313–79. https://doi.org/10.1080/01947648.2012.714321.

———. “Electronic Fetal Monitoring: A Defense Lawyer’s View.” Reviews in Obstetrics and Gynecology 5, no. 3–4 (2012): e121–25.

Sartwelle, Thomas P., James C. Johnston, and Berna Arda. “A Half Century of Electronic Fetal Monitoring and Bioethics: Silence Speaks Louder than Words.” Maternal Health, Neonatology and Perinatology 3, no. 1 (December 2017). https://doi.org/10.1186/s40748-017-0060-2.

———. “The Ethics of Teaching Physicians Electronic Fetal Monitoring: And Now for the Rest of the Story.” The Surgery Journal 03, no. 1 (January 2017): e42–47. https://doi.org/10.1055/s-0037-1599229.

Sartwelle, Thomas P., James C. Johnston, Berna Arda, and Mehila Zebenigus. “Cerebral Palsy, Cesarean Sections, and Electronic Fetal Monitoring: All the Light We Cannot See.” Clinical Ethics, May 24, 2019, 147775091985105. https://doi.org/10.1177/1477750919851055.

Wickham, Sara. “The Case against Electronic Fetal Monitoring | Sarawickham.” Sara Wickham: Midwife, Author, Speaker, Researcher (blog), September 8, 2014. http://www.sarawickham.com/research-updates/the-case-against-electronic-fetal-monitoring/.

Image credits

All images are shared under a Creative Commons license, unless otherwise noted. Where required by license, changes to the image are noted.


Don’t buy it!

 

Myth! Myth!

One myth that refuses to die is that patients who refuse a test or procedure Against Medical Advice (AMA) will be billed for all care up to that point, which their insurance company will not cover as a result of the refusal. Since shouting NOT TRUE! NOT TRUE! NOT TRUE! isn’t – or shouldn’t be – as persuasive as evidence, we incorporate a reference to published research in the cartoon itself, and provide this complete citation to the free full-text article:

G.R. Schaefer, et al., Financial Responsibility of Hospitalized Patients Who Left Against Medical Advice: Medical Urban Legend? J Gen Intern Med. 2012 Jul; 27(7): 825–830. https://doi.org/10.1007/s11606-012-1984-x

Should I sign the form?

Hospitals and health systems usually require patients to sign a form acknowledging that they are taking an action AMA, such as discharging themselves from care. This documentation protects the provider from liability in the event that some harm befalls the patient as a result of the refusal. However, a patient’s right to refuse treatment is not conditioned on their signature. In other words, there is no requirement under state or federal law that patients sign such a form.

Why the big deal?

Misconceptions are one thing. But willfully using falsehoods in order to override patient informed consent is quite another. If a health care provider has to resort to effectively threatening a patient with bankruptcy in order for the patient to consent to a course of treatment, then that provider is clearly not thinking of the patient’s best interests or rights. It is not very different from ensuring “compliance” by raising the specter of Child Protective Services intervention or playing the Dead Baby Card.

Takeaways

  1. It’s a myth! Patient refusal of a treatment or procedure will not cause a health insurance carrier to refuse coverage or payment.
  2. Providers who use this myth to attempt to coerce their patients are acting unethically and in violation of the laws of informed consent.

Image Credits

Frame 2.
  • Photo of pregnant person and physician is by Bokskapet.
Frame 3.