The law that turns midwives into felons
In rural Nebraska, an Amish man knocks on his neighbor’s door. His wife is in her ninth month of pregnancy, and he believes his neighbor, Dr. Heather Swanson, can help.
Dr. Swanson is a certified nurse midwife, trained and qualified to help women give birth. She’s successfully assisted at thousands of deliveries, and she teaches other midwives as a professor at a local college.
What’s more, Dr. Swanson would love to help. Attending home births has been her passion and her calling for as long as she can remember. And she knows that without her help, her Amish neighbors will labor alone. In the rare case of complications, giving birth without any professional help can be dangerous, even deadly.
The catch? Under Nebraska law, granting her neighbor’s request would make Dr. Swanson a felon.
Nebraska has the most restrictive home birth laws in the country, allowing only licensed physicians to attend home births. To Dr. Swanson’s knowledge, no physicians in the state currently do so. As a result, women who want to give birth at home in Nebraska cannot legally have a medical provider attend their births.
Medical care is already scarce in Nebraska, especially in rural areas. Over half of Nebraska counties are designated as maternity care “deserts” without any hospital obstetric services. Many Nebraskan women have given birth on the drive to hospitals hours away from their homes—one Nebraska baby’s birth certificate even lists a mile marker as his place of birth. This lack of accessible care may contribute to the state’s high maternal mortality rate. It’s no wonder many Nebraskan women seek an alternative to hospital births.
That’s why Dr. Swanson, represented by my law firm, Pacific Legal Foundation, sued to challenge this law in federal court. The Eighth Circuit recently heard her appeal, and it is currently considering her case. At oral argument, Eighth Circuit Judge Lavenski Smith confirmed with Nebraska’s attorney that the state allows a woman to “have a child at home without any midwife’s services” and thus be “at substantial risk of medical complications.” He asked, “How is she better off there than having the availability of a professionally trained licensed midwife?” The state’s response? They dodged the question of whether Nebraskan women are better off or not, implying that didn’t matter because laws like this one only have to be “rationally related” to safety. Judge Smith said, “That seems… not entirely rational.”
We agree. Nebraska’s law not only makes midwives felons for assisting in low-risk births—it also forces women who want home births into a perilous situation.
After Dr. Swanson filed her legal case, Nebraska State Senator Ben Hansen sponsored a bill that would repeal the state’s home birth law and finally allow midwives like Dr. Swanson to legally attend home births. The bill, LB676, is currently stalled between sessions of the Nebraska legislature. If it passes, LB676 will be a victory for Nebraskan women and the midwives who want to help them.
Through both litigation and legislation, Nebraska’s midwives are fighting for the right to support mothers through childbirth. We hope that the next time Dr. Swanson hears a knock on her door, she will be able to open it with confidence that she can help.
