Active: Federal lawsuit contests Nebraska’s illegal midwife home birth ban

It has long been Heather Swanson’s calling to provide childbirth services, especially to underserved communities. She believes that the ability of mothers to choose where and how to give birth is an important right. So much so that she has dedicated her entire livelihood to the specialty of midwifery. Over the past two decades, she has been a practicing certified nurse midwife (CNM), nurse practitioner, and the Nebraska affiliate president for the American College of Nurse-Midwives,  

While hospitals are still the norm for most births, home birth is legal in all 50 states, allowing parents to create an environment aligned with their religious or personal values, comfort level, and finances. 

This choice extends to the type of birth attendant as well, whether a physician attendant, certified nurse midwife (CNM), lay-midwife, doula, trusted friend or family member, or even an unassisted delivery. Whatever the decision of expectant mothers, such a wide range of choices available for one of life’s most sacred moments is consistent with our nation’s deeply rooted principles of liberty, privacy, bodily autonomy, and the pursuit of happiness. 

Yet these foundational freedoms are under siege by a Nebraska law that defies logic and basic human rights. It is the only state to outright ban CNMs from home births; failure to comply is a felony. Meanwhile, lay midwives and doulas, which are wholly unregulated by the state, face no such restrictions. 

In other words, CNMs, who have the most education and training in childbirth, are uniquely excluded from attending home births while mothers can deliver their babies with help from unlicensed doulas and lay midwives without nursing degrees. 

To make matters worse, Nebraska is among three states that mandate CNMs practice only under a physician’s direct supervision and only in hospitals, public health agencies, or physician-approved settings. Home births are explicitly off-limits even with a doctor present. This is vastly different from other specialized nurses in Nebraska. For example, nurse anesthesiologists have full practice authority without the need for a supervising physician practice agreement. 

The physician supervision requirement serves no health or safety interest; it serves only to protect physicians’ economic interests. Available data show physicians rarely make house calls in Nebraska, making it practically impossible for an expectant mother to have a formally trained medical professional on hand for a home childbirth. 

Disheartened at seeing so many women forced into birth care they don’t desire, Heather has fought valiantly for more than two decades to change Nebraska’s onerous law. Unsuccessful, she left Nebraska for several years to practice in other states, including Texas, where she served as director of a birth center, and South Dakota, and where she still teaches in a nurse practitioner program. 

Heather has since returned to Nebraska to care for her ailing mother. She’s determined to open her own practice, Oneida Health, LLC, but finds herself once again confronted by restrictions on her ability to earn a living. The same restrictions that prevent mothers from having a choice of home birth attendants. 

These restrictions are unjust and unconstitutional. Nebraska’s CNM ban for home births and the physician supervision requirement violate the rights of CNMs to provide critical childbirth care and the rights of Nebraska’s mothers to receive it. 

Represented free of charge by Pacific Legal Foundation, she is fighting back with a federal challenge to Nebraska’s law. A win would alleviate the burden on the state’s childbirth system, allow CNMs to provide midwifery free of arbitrary restriction, and add a safe new layer of choice for expecting mothers. 

What’s At Stake?

  • A wide range of childbirth choices for one of life’s most sacred moments is consistent with our nation’s deeply rooted principles of liberty, privacy, bodily autonomy, and the pursuit of happiness. A law that denies fully trained and certified midwives the right to assist home births and the right of mothers to receive midwifery services is immoral and unconstitutional.
  • When government protects industry insiders, it prevents professionals from pursuing their calling and reduces access, choice, and quality of care for expectant mothers.

Case Timeline

April 16, 2024