Mama's Got a Plan:

Maternity Care, Health Insurance, and Reproductive Justice

Inciting mommy wars

An article of dubious quality quotes President Obama’s remarks on improving daycare:

And sometimes, someone, usually mom, leaves the workplace to stay home with the kids, which then leaves her earning a lower wage for the rest of her life as a result.  And that’s not a choice we want Americans to make.

Then it misinterprets these remarks with this title: Obama on Moms Who Stay Home to Raise Kids: ‘That’s Not a Choice We Want Americans to Make.’

It troubles me that readers take the article at face value and allow discussion of it to devolve into an argument about whether it is “better” for mothers to stay at home with small children or to remain in the paid workforce. These arguments serve only to divide us and to keep us from uniting in support of policies that safeguard all families.

On the whole I believe that making sure families have access to quality daycare is a positive move. I do, however, find some things troubling in the President’s speech.

Choosing to stay home – whose choice?

We love that word “choice,” don’t we? Our lives are just one big candy store and we get to pick whatever we want.


(L) Oliver Tarbell Eddy  (R) Dorothea Lange

The truth is that some people do get to pick, which is not to say that all their choices are necessarily desirable. And some people do not. For example, most people receiving government assistance are required to work outside the home. So if we do believe that it is “best” for children to have their mothers at home, clearly we have decided that some children do not deserve the best.

Equal pay for equal work – but what is work?

rosie the riveterPresident Obama supports equal pay for equal work, and I’m glad of it. But that is hardly a new proposition.

When parents leave the workforce in order to spend more time caring for their children, they are hardly leaving work behind – just paid work. We as a nation are reaping the benefit of these parents’ – mostly women’s – unpaid work. Just this week, the UN Special Rapporteur on extreme poverty called on countries “to recognize unpaid care work as a major human rights issue.”

If we really valued the work that is required to raise our children, we would fairly compensate anyone who took on this task: mothers, fathers, and traditional paid caregivers. These last are often parents themselves, struggling to afford care for their own children.

Many young parents do not consider that when forgoing wages in order to take care of children, they are also forfeiting future Social Security payments. Having children is the number one reason women in the U.S. fall into poverty – it’s easy to see why that is the case, but not why it should be.


Earning a lower wage for the rest of our lives – why?

Do we really believe that motherhood robs us of the ability to be competent workers? At the same time that we laud motherhood as being a difficult yet supremely worthwhile task?

People’s experience of parenthood differs, but it is hard to accept that everyone who makes cabinets or medicines or burgers or nuclear reactors somehow irrevocably loses the ability to do so after spending time with children. We can look to other countries that manage to not penalize women for taking time off work to raise children.

There is no reason we cannot adjust our national policy to support all parents – those who would like to be home with their children, those who would not, and those who want a little of both – regardless of whether they can finance these choices themselves or require government assistance to do so. In the end, parents know what is best for their families and should be able to make these decisions, free from mandates imposed on the basis of economics or skin color or profession. This is the third arm of Reproductive Justice: the freedom to raise our children in safe conditions and with dignity.

Are you listening, President Obama? I’ve just written your next speech for you. obama speaking


Midwife licensure in Delaware

crockett delaware licensureEmily Crockett of RH Reality Check wrote an excellent article on the state of direct entry midwifery in Delaware. She correctly identified the chief obstacle to practice: while the law requires these midwives to maintain collaborative agreements with physicians, physicians aren’t obligated to collaborate. The predictable result: no collaborative agreements and very few midwives who can legally practice.

How it works

A little additional context might be helpful to those wishing to understand how the law works and how it might be improved. First of all, let’s start by clearing up two terms that are often used interchangably, to everyone’s confusion:

  • Certification indicates that a certifying organization has confirmed an individual’s skills, training and education.
  • Licensure means that a state governments has granted a license to practice. Increasingly, state governments base licensure requirements on a specific certification.

For example: A direct entry midwife (i.e. a midwife who is not a nurse) successfully undergoes the education, training, and testing requirements to be certified by the North American Registry of Midwives as a Certified Professional Midwife (CPM). The certification alone does not permit her to practice legally in any state, any more than graduating from medical school allows a physician to practice legally. The midwife is lucky enough to live in Wisconsin, one of the twenty-six states in which CPMs can obtain a license. She applies for a license, pays her fee, and is able to practice under Wisconsin law. She must abide by the licensure requirements in statute as well as any rules that the governing state department or agency has promulgated regarding midwifery practice.

As long as we’re defining terms, let’s talk about different kinds of law:

  • Statutes are what ultimately result when your elected representatives pass legislation. Legislation is hard to pass and hard to amend, so anything that goes into statute should be something that is not expected to change too much over time.
  • Rules (or regulations) are exactly what they suggest: the practical directions for carrying out the legislature’s wishes as expressed in statute. Rules are typically written by whatever board or government department the executive branch of state government appoints or hires to oversee the practice authorized by the statute. Rules are often open to a public comment period or public hearing before they are finalized. Rules are much easier to change than statutes as they don’t need to be voted on in the legislature.

How it works in Delaware

Delaware is one of two states in which CPMs cannot obtain a license but are nevertheless legally authorized to practice. The extent of the authorization in statute is that the Delaware Department of Health and Social Services may issue regulations that:

Control the practice of non-nurse midwives including the issuance of permits and protect and promote the health of all mothers and children[.]  – Del. Code Ann. tit. 16, §122 (3)(h), emphasis added

In other words, the legislature left everything up to the Department of Health and Social Services, so most of the law that controls Delaware CPMs lives in the rules. And those rules, as outlined in Crockett’s article, require a collaborative practice agreement before a midwife can obtain a permit (note: not a license). As an aside, the rules require startlingly little else – the exact fee an applicant must pay, the kinds of births midwives may attend, the medications they may carry. None of these are specified, although there is a suggestion that some of these items fall under the collaborative agreement. It is possible, therefore, that the Department envisioned physicians as setting midwife standards of practice.

What’s the solution?

Current Delaware law may lead concerned parties to oppose regulating midwives. This is unfortunate, in my opinion, because the problem is not that midwives are regulated, but that they are regulated badly. Rather than being licensed as an independent profession, midwives are currently permitted to practice based on subordination to physicians. The remedy is full licensure – and that is exactly what advocates support in a bill currently active in the Delaware legislature.

The devil still remains in the details. Should the bill pass and become law, advocates must remain engaged throughout the process of rule promulgation in order to ensure that the rules are not restrictive to the extent that midwives are unable to practice.

Readers familiar with this issue may have noticed that I have failed to mention the safety of midwife-attended births. That may or may not be a subject for another post. However, in a sense it’s a moot point: the Delaware legislature obviously believes midwife-attended births are safe, because it passed legislation to permit midwives to practice under its constitutional and statutory duty is to protect the public’s health. Families will continue to have midwife-attended births; it is now the legislature’s duty to create an environment where midwives can practice under the protection and discipline of state law. At the end of the day, although licensure does not guarantee quality – just think of other health professions! or lawyers! – it does provide a structure where midwives’ qualifications are knowable and where midwives are subject to rules designed to keep parents and babies safe.


C-section rate a little high? You think?

Social networks are abuzz this week following the publication of the article, “Safe Prevention of the Primary Cesarean Delivery,” developed by ACOG (the American College of Obstetricians and Gynecologists) and the Society for Maternal-Fetal Medicine. ImageThe gist of the article is that the U.S. c-section rate, hovering somewhere around 25% of first-time births (and 33% of all births), is too high and measures should be taken to lower it. I couldn’t agree more.

However, before I fall all over myself congratulating ACOG for its perspicacity, I’d like to call attention to a few truths it has omitted. Commence strategic changes of headgear now!

Image Late to the party

Members of the overlapping midwifery, physiologic birth, and maternity care reform communities have been warning of the dangers of the rising c-section rate for decades. Because of c-sections’ greater risk of injury to both mother and baby as well as the consequent restrictions on mothers’ fertility, many advocates have emphatically sounded this warning for a long time. I think it’s fair to say that gladness reigns in these communities that ACOG has finally gotten the memo, but many of us would have been happier to see ACOG acknowledge its long delay in coming to these conclusions.

In fact, it would have been reasonable for ACOG to concede that perhaps these communities might be correct in some other stances as well:

  • MIdwives are widely acknowledged to be experts in lowering c-section rates, but the word “midwife” appears nowhere in the article. Doulas are mentioned in the context of the benefits of “the presence of continuous one-on-one support during labor and delivery.” However, overlooked is the reason why doulas are necessary: hospitals fail to provide continuous one-on-one support for their pregnant patients. Everyone is familiar with the obstetrician who swoops in at the last moment to catch the baby, but many new parents are not aware that labor and delivery nurses will for the most part be monitoring multiple patients’ fetal monitoring traces from a computer in another room. If ACOG is serious about lowering the c-section rate, it needs to get behind a model of care that can accomplish this. Rather than making patients responsible for providing their own support personnel at added cost, hospitals should step up by establishing and increasing midwifery services and empowering midwives to practice autonomously. As a bonus, hospitals could incorporate doula services.
  • Out-of-hospital midwives, particularly when they are direct-entry midwives rather than nurse-midwives, have long faced hostility from ACOG. It’s time for ACOG to recognize that families plan out-of-hospital births for many reasons, and that no amount of censure by obstetricians will change that. If ACOG is serious about lowering the c-section rate and improving the U.S.’s abysmal maternity and infant mortality rate, it should be falling over itself to learn from these midwives who are experts in protecting physiologic birth. It would also be a show of good faith if ACOG recommended protocols for hospital for receiving appropriate home birth transfers, as home birth is made safer if smooth transfers are a given. Finally, ACOG might consider throwing its political might behind state legislative measures to license direct-entry midwives and to permit nurse-midwives to practice autonomously to their full scope of practice.
  • While the article addressed limits on interventions such as inductions that are known to increase the number of c-sections, it left out others of the other widely acknowledged healthy birth practices, including encouraging patients in labor to move around and to avoid giving birth on their backs, and to refuse unnecessary interventions shown to increase c-sections, such as continuous electronic fetal monitoring.

Overall, I would remind ACOG that its members are experts in performing c-sections – and thank goodness, because this surgery can be life-saving. But to reduce the number of c-sections, ACOG would do well to look elsewhere for guidance.

ImageCausation, correlation, and stigma

It’s not only Weight Watchers, the First Lady, supermarket tabloids, and everyone’s family members who shame people for their size; medicine jumped on this bandwagon a long time ago. It is rare for a research study examining some aspect of pregnancy or childbirth to avoid blaming fat women for increased risk. The ACOG article doesn’t disappoint:

A large proportion of women in the United States gain more weight during pregnancy than is recommended by the Institute of Medicine (IOM). Observational evidence suggests that women who gain more weight than recommended by the IOM guidelines have an increased risk of cesarean delivery and other adverse outcomes. In a recent Committee Opinion, the College recommends that it is “important to discuss appropriate weight gain, diet, and exercise at the initial visit and periodically throughout the pregnancy.”  Although pregnancy weight-management interventions continue to be developed and have yet to translate into reduced rates of cesarean delivery or morbidity, the available observational data support that women should be counseled about the IOM maternal weight guidelines in an attempt to avoid excessive weight gain. (Citations removed)

While to the uninitiated this paragraph might seem eminently sensible, I invite you to consider the following thoughts:

  • The correlational evidence between weight gain and increase in c-sections is somewhat less than solid, by ACOG’s own admission. Even if the correlation were solid, it doesn’t mean that managing weight gain would resolve the problem – after all, the weight gain and adverse outcomes might both be caused by some third factor. Finally, even if causation were shown, there are vast amounts of evidence to show that in general, trying to control weight through restrictive eating and increased exercise is a losing game. In pregnancy, restricting intake may well have harmful effects on the child. One of the best sources for information on these matters is Pamela Vireday’s website, The Well-Rounded Mama.
  • Vireday also points out that adverse pregnancy outcomes for fat women can at least partially be attributed to weight bias-influenced pregnancy management practices. In addition, the effects of stigma as physiological mechanisms are beginning to be known; these effects might also account for some outcome disparities. Rather than demanding that pregnant patients their weight, providers might instead refrain from practices rooted in bias that increase stigma.
  • Finally, because poor nutrition and too much or too little exercise can be bad for people of all shapes and sizes, it would be more reasonable – and easier! – for practitioners to recommend good nutrition and appropriate exercise to all their patients rather than to target fat patients with weight control advice. This approach is in fact a feature of midwifery-led care and of the Health at Every Size philosophy.

However inured we have become to messages positioning fat as the the next Great Terror, I suggests we think critically about fairness, practicality, and evidence when making recommendations about what size or shape pregnant people should be.

Image Let’s blame all the lawyers

Physician anxiety over potential medical malpractice liability is a frequent topic when practice reforms are under discussion, particularly in the high-stake field of obstetrics. The typical solution proposed is tort reform – specifically, legislature-imposed caps on damage awards to injured parties. ACOG falls right into step:

A necessary component of culture change will be tort reform because the practice environment is extremely vulnerable to external medico-legal pressures. Studies have demonstrated associations between cesarean delivery rates and malpractice premiums and state-level tort regulations, such as caps on damages.  A broad range of evidence-based approaches will be necessary––including changes in individual clinician practice patterns, development of clinical management guidelines from a broad range of organizations, implementation of systemic approaches at the organizational level and regional level, and tort reform––to ensure that unnecessary cesarean deliveries are reduced.  (Citations removed and emphasis added)

Caps on damages, currently in place in a majority of states, can certainly lower the costs negligent physicians pay in damage awards and thus lower anxiety about liability, which in turn may lead to fewer c-sections. However, this strategy is akin to alleviating a family’s anxiety about its grocery bills by having it cut out breakfast and dinner each day: it solves one problem while creating a much more serious one.

The civil justice (“tort”) system enables individuals to obtain redress for civil wrongs without deploying government to do so; once a state government has established the necessary courts and basic rules of the game, private entities move the action along. Accordingly, the civil justice system is one of the few arenas in which individuals have the power to challenge negligent behavior of large, influential entities. In the realm of medical malpractice litigation, this capacity is further facilitated by the contingency fee arrangement that allows litigants to engage an attorney without paying a retainer fee. Attorneys front the costs of cases and receive payment only if the case is successful.

To limit the amount of damages awarded by juries is to undercut the redress that injured individuals can receive. If medicine wishes to avoid malpractice liability, numerous solutions are available:

  • Refrain from committing malpractice!
  • Eliminate the need for compensation. If families with babies injured at birth could be sure that the care required for the rest of the children’s lives would be available and accessible to them, one economic motivation for bringing suit would be removed. The considerable power of the medical lobby should be brought to bear on strengthening and broadening collective systems that compensate victims of illness, injury, and disability, such as Medicare and Social Security.
  • An approach pioneered by the University of Michigan demonstrates that liability after adverse events can be reduced when medical institutions provide 1. open communication and record sharing with patients, 2. early offers to settle when the institution is at fault and corresponding refusal to settle when not at fault, and 3. (if the institution is at fault) systemic changes, so the error is not repeated.

The three points above have been made before, and by wiser heads than mine. Rarely discussed, however, is the relative powerlessness of mothers to use the tort system to discourage non-medically-indicated c-sections. As the c-section has grown to an ever-greater proportion of American births, its potential harms have been increasingly played down, particularly those harms that are not apparent until subsequent pregnancies. As a result, projected damage awards are insufficient to induce plaintiffs’ attorneys to mount such cases and tort law thus fails to fulfill one of its functions of a feedback system to deter unsafe medical practices.

In “Distorted and Diminished Tort Claims for Women,” Jamie Abrams contends that tort law has come to privilege the claims of injured babies over those of their mothers in a way that “diminish[es] the birthing woman as a patient and a putative plaintiff.” She connects this primacy of the fetus as patient and plaintiff with the decline of the mother’s role as decision-maker for herself and the fetus. Among her recommendations to reverse this trend, Abrams suggests that “more pursuits of maternal harms claims are necessary. Even if the ultimate damage verdicts are nominal, the pursuit of damages will push courts to consider more carefully the harms to mothers and perhaps influence the standard of care.” If such actions could normalize for attorneys, judges, and juries the idea that unwanted and non-medically-indicated c-sections constitute harm to pregnant patients, just as the ACOG article finally admits, this might re-establish a remedy for patients who have suffered these harms. Furthermore, the tort system’s feedback function would then re-emerge to provide a counterweight to physicians’ traditional concerns that not performing c-sections exposes them to liability.

* * * * *

ImageIn summary, I congratulate ACOG on joining the party, however late, and urge it to mingle with all the guests, giving credit where credit is due. If ACOG can acknowledge the knowledge and experience of pregnant people, midwives, and yes, even lawyers, we might all join together to reverse the mounting c-section trend and make a safer world for parents and babies – and a less anxious one for physicians as well.