Active: State lawsuit challenges Iowa’s unconstitutional competitor’s veto

Emily Zambrano-Andrews has always had a passion for helping expectant parents bring children into the world. But ten years as a registered nurse working in obstetrics only led to her frustration with Iowa’s hospital birth system.

Caitlin Hainley has similar frustrations. Caitlin is a registered nurse and lactation consultant who attended childbirths and provided postpartum care to women for many years. The two women both came to view midwifery as a solution. Accordingly, they attended Frontier Nursing University, became Doctors of Nursing Practice, and attained full licensure as Certified Nurse Midwives.

They have since opened the Des Moines Midwife Collective, a homebirth practice that honors the wishes of women of all income levels to give birth safely and comfortably outside of a hospital setting. Because of the Iowa law, Caitlin and Emily are challenging why they cannot have their own safe midwifery location. Instead, they need to use their clients’ own homes or other locations pre-arranged by clients, including hotel rooms, short-term rentals, or friends’ houses.

The Midwife Collective is also Des Moines’ only home­birth service that is insured and accepts insurance, including Medicaid, allowing them to charge out-of-pocket rates as low as $1,500. By contrast, the only physical birth center in the state charges upward of $10,000. It’s no surprise that demand for their safe, effective, and affordable service has surged.

Emily and Caitlin want to accommodate their growing clientele and broaden their range of childbirth options with the most logical solution: opening a freestanding birth center.

Lower costs, greater autonomy, a homey atmosphere, and compatibility with personal or religious values have contributed to birth centers’ increasing popularity among women with low-risk pregnancies. Staffed generally by midwives, these birth centers provide pre-pregnancy, pregnancy, and postpartum care. And research has shown birth centers are a safe option for mother and child.

Home birth is legal in all 50 states. Iowa is no exception. Freestanding birth centers are also legal in Iowa, but anyone wishing to open one must first endure a complex, lengthy, and expensive Certificate of Need (CON) process to prove it’s needed. Worse, prospective birth centers also require permission from their direct competitors, the most important of which are hospitals—even for the modest two-to-five-bed center planned by Emily and Caitlin.

This “competitor’s veto” gives established businesses, rather than expectant mothers, the right to determine what options are available for giving birth. Nor does this process serve health or safety; it serves only to insulate established businesses from competition.

By granting hospitals veto power over new birth centers, the state prevents people like Emily and Caitlin from offering Iowa’s expectant mothers a safe alternative. It’s no surprise that Iowa has no other freestanding birth centers, despite a loss of 40 birthing units since 2001, and rural hospitals throughout the state continue to struggle and close.

It’s bad enough that in the face of dwindling options for birth, Iowa’s entrenched interests are stymieing innovation through the burdensome CON process. But the state’s competitor’s veto law violates the rights of Caitlin and Emily to provide critical childbirth care and the fundamental right of Iowa mothers to decide the place and manner of giving birth.

Represented free of charge by Pacific Legal Foundation, they are fighting back with a challenge to Iowa’s CON law. A win would alleviate the burden on Iowa’s childbirth system and provide a safe, new choice for expecting mothers.

Joining PLF on this case is Alan Ostergren, president and chief counsel of the Iowa-based Kirkwood Institute.

What’s At Stake?

  • The government shouldn’t shield established businesses from competition. Protecting industry insiders stops entrepreneurs from pursuing their calling and reduces access and choices for underserved consumers.

Case Timeline

January 12, 2023