Continuation -- Historical exploration of the California Medical Practice Act and Midwifery Legislation
** The truth does not need to be defended, only revealed **
The nature of law and "good law" in particular is a paramount issue in regard to non-medical midwifery. Is midwifery the lawful category of domestic remedies as applied to the events of childbearing or is it the crime of unlicensed medical practice? What ever the outcome of this case, it will make law. And if we are going to make law, lets make good law.
................. Good Law .....................
Good laws are ones that don't need to be enforced, they just lie gathering dust in the lawbooks because people are doing or not doing whatever 'it' is, because its right, because its good, because its the thing to do.
Law, in this instance, describes what is agreed upon as "proper" and with rare exceptions, people just go on doing the good things, the right things. For instance, we all agree that violent behavior, especially in regard to a 'helpless child' is bad, its wrong, its harmful personally and socially. Its not that we refrain from abusing our children BECAUSE its against the law, rather that child abuse is against the law because we know its wrong. This could be termed the Zen of lawfullness. Good law takes what is, and codifies it solely for the purpose of permitting social consequences to be applied in those rare instances when an individual offends the commonly-held ethical standard. It does not need to force compliance, it does not push the river.
I believe that it is possible to establish beyond doubt that the uncertified practice of non-medical midwifery is not a public offense. It is harder to establish that it isn't an offense to common-sense.
Emerson said "there is no wall like an idea". To the average layperson that wall is the idea that non-nurse midwifery is a criminal activity unworthy of society's protection and that nurse-midwifery is a superior and more desirable forms of midwifery. For medical professionals the wall is the idea that midwives snatch credulous mother from the safer hands of doctors, thus under-utilizing obstetricians & wasting hospital technology, bot of which are bad for business. For lawyers that wall is midwifery's Dred Scott decision - the Bowland case, which appears to all of us to be immutable. It is a landmark case in that it marks the land we lost. As midwives, we have been renters ever since. For midwives, the wall is our 'downs' syndrome - the only way it ever goes is down and down again! We live in a battle zone and its going badly.
In order for any intelligent person to seriously consider the idea of legal neutrality, we must establish in a credible manner that the passive nature of the legislative authority is not a mistake or oversight begging a decisive judicial remedy. If the premise offends common sense, no matter how favorable the legislative text is, the concept will not prevail. Midwives and lawyers may not be political, but judges are very political. In order to make an unpopular decision, they must be able to demonstrate that their judgement was based on "good law".
The legal neutrality of domestic remedies is 'good law'. It is a sensible solution that does not offend standards of ethical behavior, statutory law or the orderly conduct of state business. It requires no new law or expenditure of state funds. This neutrality does not extend any special privileges or immunity to anyone, especially not to midwives! It decrees all the normal provision of accountability in and under the law, exempting domiciliary midwives from nothing.
*** Healthcare & Gating Mechanisms ***
Gates and gating mechanisms are a concept that come from binary computer languages. A gating mechanism is a binary or yes/no choice in which a series of possibilities become available only after choosing the correct gate. As in air travel, if one fails to enter the right concourse/ie. gate, one cannot board the plane for the desired destination. Likewise, once one chooses a gate & boards the plane, the destination is predetermined and all other options are closed off. A 'yes' to the one becomes a 'no' to the many.
The legislative authority behind the structure of medical regulation rests on a binary 'gate' (yes/no) designated as "treatment of the sick & afflicted". Healthcare is the overarching subject, treatment of the sick & afflicted is the specific topic or 'gate', and treatment with drugs and surgery is a subdivision or category of the topic labeled "treatment of the sick & afflicted".
Medical practice legislation does not subsume the overall subject of health care or the specific topic of 'systems or modes of treating' beneath the subdivision involving the particular treatment modalities known as medicine and surgery. Those who have chosen to "hold themselves out" to "the sick and afflicted" have chosen a particular binary gate. To possess knowledge or skills that will materially benefit the ill and the injured, certain "duties and obligations" are stipulated. This obligation is to be qualified as determined by the provisions of medical practice legislations.
Medical doctors, nurses, nurse-midwives and other medically-oriented careproviders must leave on their journey thru the gate labeled "treatment of the sick & afflicted", which opens up the choice of a medical education. Non-medical midwives, who are engaged in a non-therapeutic, non-medicinal, non-interventive support service to mothers choosing to give birth at home unaided by medical techniques or technologies, must leave by a different gate, as the identified destination is in the opposite direction - rather than a mode of treatment, the goal is to stay in the domain of the normal/social service to the family and to stay out of the medical domain.
Parents who have chosen to give birth at home unaided by medical care are making a binary choice - they are saying 'no' to medically-based obstetrical care in which responsibility for themselves and the baby is turned over to third parties who must not only provide the contracted professional standard of care but stand liable for any perceived breech of contract. Parents who have chosen to give birth at home unaided by medical care are saying 'no' both to drug use and to the 3-sided contractual care of the public domain; they are saying 'yes' to self-reliance and self-responsibility of the domestic domain. This is a respectable and lawful choice.
Traditional birth attendants or non-medical midwives are choosing 'no' at the binary 'gate' called "systems & modes of treating the ill and injured". They are saying 'no' to the verbs of prescribing & administering drugs, diagnosing disease states, ordering treatment regimes, and surgically penetrating the human body and/or severing tissue from it. By saying 'no' to the profession of medical practice, they also are saying 'yes' to the non-medical vocation of traditional midwifery which is founded on maternal or compassionate instincts. The choice NOT to become medically educated is also a choice to become experienced and knowledgeable in the verbs of maternal-child well-being.
*** Medical & Midwifery Education ***
The goals of education depend on the values shared by it's participants. Value is shared appreciation. The medical model, including nursing and nurse-midwifery, shares a common vocabulary based on pathology and dysfunction.
Traditional midwifery training likewise has a creates a common vocabulary based on the values of non-intervention. Traditional caregivers seek to keep a healthy mother and baby in a healthy state during the normal and natural stresses of labor and birth. Non-medical midwives do not "treat" in the sense of a noun that describes a "treatment" done to, but rather "to treat" in the sense of a state of being verb, as in "to treat childbearing as normal function" and "to treat the mother respectfully".
For non-medical midwives to eschew a medical education is not to be ignorant of normal biological function, it is simply to invest one's time, as medical students do, in the study of one's own curriculum. Obstetrics 101 is for medical students, not midwifery students. It displaces the traditions of midwifery and substitutes an inferior product - not because a medical education is in any way inferior but because it is the wrong education for midwives. Legally mandating medical education for a non-medical midwife is to send the midwives to the wrong gate at the airport, insisting that they cannot choose to not board the wrong plane. Those persons who want to stay where they are, are told they must first board the plane, pay for the ticket, travel to the destination and then can catch a plane back if they really, REALLY, want to! And if they are not willing to play by those "rules", they won't be allowed to play at all.
Medical education is far more just a lengthy curriculum of scientific topics, it is a profound socializing process that seeks to eliminate instinctual responses as a foundation for interaction between the 'professional' and the 'patient'. Its goals are to fundamentally change the perspective and permanently alter the medical student's attitudes and basic life philosophy so that the verbs of forcible entry can be accessed with dispassion, as is necessary to fulfil the duties and obligations of a medical practitioner.
For instance, the extraordinary circumstances faced by doctors and nurses in a busy emergency room stagger the imagination. In this i speak from the experience of 7 1/2 as an emergency room nurse. They don't print enough money to truly repay medical careproviders for the mental trauma that their jobs subject them to on a daily basis. They must, no matter how psychologically ovewhelming the situation, engage in highly technical actions with life/death consequences under the stress and duress of the battlefield. These potent verbs of tissue penetration are not bad or wrong when applied in life threatening circumstances but neither is the dispassion they require a possible or desirable goal for everyone. To choose to become medically-educated is right for the people it is right for and wrong for those for whom it is wrong.
Medical practice is a compendium of potent verbs. Those who "hold themselves out" as possessing knowledge or skills that will materially benefit the sick or afflicted, such as differential diagnosis of the medical condition, treatment by the prescription of medicinal preparations (antibiotics, birth control pills), performance of treatments (x-ray, diathermy, ultrasound, etc.) or who penetrate into the human body either thru the skin (using scalpel or needle), severe human tissue (remove tonsils) or enter a sterile body cavity or organ (cardiac catherization) - these things are regulated via mandatory education, competency exams and standards of medical care set by the scientific community. This is as it should be.
*** Orifice maintenance ***
The domain of the social, non-medical, referred to in the medical practice act by the phrase: "domestic administration of family remedies", is the care and concern for the normal functions of the human alimentary canal and reproductive tract. Whether those domestic remedies are expressed in relation to infants, children, the ill or the elderly, the dying or in regard to the events of childbearing and newborn babies, they are social reflections of our maternal instincts.
The care and feeding of others is often unpaid, unglamorous, usually "unprofessional" and usually under appreciated but absolutely essential. Neither rain nor sleet nor dark of night keeps the human alimentary canal & reproductive tract from its biological rounds. The small acts of love and personal courage which individuals offer to one another, especially between a mother and child or a midwife and laboring mother, are most usually seen as politically insignificant, unimportant. Domiciliary midwifery is clearly the oldest helping vocation except for motherhood itself, yet it too remains politically insignificant and unimportant.
Normal functions of the body, the activities of digestive and reproductive processes - breastfeeding, spoon-feeding infants, diapering, toilet-training, menstrual periods, and especially the orifices and sphincters that control each of these functions - from Time Immemorial these have been & continue to be woman's work. Women have the only orifice from which bleeding is "normal"; judging when & how much bleeding is normal is an elemental aspect of a woman's informal education.
While it is doctors and nurses and hospitals that treat women who have too much or too little bleeding or bleeding that comes at the wrong time (for instance while pregnant), it is the women in conjunction with other sources of "domestic edification" that makes the primary judgment of a "problem state". It is their own recognition and determination of that "problem" to be of the nature and magnitude requiring medical care that spurs them to request care from doctors or hospitals. Medical Care given at this juncture is fourth in the logic chain from the primary judgment by women based on the experience of those women with the normal biology of the female reproductive tract. In medical terms, a "primary judgment" is considered to be a diagnosis but with few exceptions, the 'diagnosis' of the physician is a sequel to the social judgments that result in the 'a priori' non-medical 'diagnosis' that a medical problem exists.
The domain of domestic remedies in regard to the events of childbearing is the care and concern for a healthy mother experiencing a normal pregnancy that is followed by the spontaneous onset of labor at term which advances unaided thru its expected stages and culminates in a spontaneous birth of the baby. This is not a medical event and should not be considered an "illegal practice of medicine".
Domiciliary midwives seek first and foremost not to disturb the physiological process. In normal childbearing, as in democratic governments, that which interferes least, serves best. The biology of birth in warm blooded mammals requires that the laboring mother feel both secure and unobserved and that she remain undisturbed. Whereas modern obstetrics is high-technology/low-sociology medical system, traditional midwifery is naturally a "low-technology/high-sociology" non-medical system.
Those who grew up on farms know the signs of impending birth in animals by the odd behaviors "nesting" activities. Those with pets will be familiar with the choice of a dark and hard to reach place for delivery. The work of the midwife is to baby the mother during labor so that she may be assisted in surrendering to the natural but non-the-less uncomfortable sensation of cervical dilatation and pushing and expulsion. The only choices in childbearing are surrender to the spontaneous forces of nature or to the artificial, forcible or mechanical methods of obstetrical medicine.
The verbs employed are verbs of compassion based on faith in God and trust in His handiwork (homo sapiens), as expressed by the mundane verbs of home and hearth and service to our innate biological needs. The tools of the trade are decidedly unglamorous, non-technological and non-medical -- absorbent linens are high on the list, disposable underpads, menstrual pads, diapers, soap and water, patience, TLC, plastic trash bags, and other containers for the wet work of childbearing.
Using sharp & penetrating instruments to surgically create unnatural opening into these same natural body cavities, whether by scalpel or protoscopy, urinary catheter of gastrostomy tube - these have been and remain the domain of medical science, not maternal instincts. It seems fair - mothers & midwives get the orifices and their normal functions and medical science gets the "insides" of the human body when it malfunctions.
It is proper to license and regulate the use of power tools and the exciting new techniques and technologies that make modern medicine the miracle that it is. On that we all agree. Whether it is useful to society or even possible to impose a regulatory scheme on the relationship between a childbearing mother and the experienced helper of her choice engaged in the mundane domestic remedies of non-medical childbearing is controversial.
*** To Unsnarl the Knot **
Normal birth, while it is obviously a "physical phenomenon", is not a pathological or dysfunctional condition and thus was never meant to be regulated by this legislative scheme which does not even mentions the words childbirth or midwifery. We can all agree that childbirth is a "physical condition". That pregnancy and childbirth are neither a sickness nor an affliction as defined by this statute was established by the Bowland decision. What is contested is whether or not the statute's use of the phrase "or other mental or physical conditions" subsumes the legislatively neutral of normal childbirth beneath the skirts of medical practice regulation and thus criminalizes non-medical domestic remedies when applied to the events of childbearing.
Medical practice legislation does not, in either intent nor content, criminalized the uncertified practice of midwifery.
In 1917 the board of examiners voluntarily added the category of certified midwife. The category of midwifery regulation was not mandated by the basic premise or principle of the medical practice act. The 1917 revision created a regulatory scheme designed to provide medically-supervised education for midwives for the limited goal of assuring that they knew when to call the doctor and understood what was off-limits to them as practitioners of normal childbearing. It did not aim to enfranchise them as medically-based practitioners.
In 1949, the medical board voluntarily surrendered its jurisdiction through the amendatory legislation that repealed the category of state-certified midwife and which divested its agency of the obligation it had taken on to regulate medically-certified non-medical midwives. This freed the agency from the onerous & oxymoronic task of regulating a non-medical category of caregiver.
It is unlikely that the medical board will reverse its position in the near future despite 6 different legislative efforts by domiciliary midwives to re-establish state certification, the most recent one in January 1992. Until there is a change either in the disposition of the medical board or a legislative enactment that addresses the issue, the non-medical, non-professional activity
commonly known as traditional or domiciliary midwifery is properly & lawfully subsumed under the exempt category of 'domestic remedies' and thus accorded legal neutrality.
Medical practice enactments stipulate that the provisions contained therein are not to be construed to prevent or prohibit the "domestic administration of family remedies". Families who have exercised their lawful right to decline medical care have chosen domiciliary self-care and have the right, under the premise of the medical enactment, to the use of domestic remedies. We assert that the historical tradition of midwifery is a 'domestic remedy' dealing with the events of childbearing.
The legal category of domestic remedies must continue to be an option to religiously-oriented families that do not routinely avail themselves of medical care and those who, for whatever ethical or economic reason do choose not to be hospitalization as well as the uninsured, unemployed, and underemployed who do not qualify for public assistance. To criminalized "domestic remedies" simultaneously with legal recognition of the parental right to refuse medical services coupled with the realities of unavailable services is oxymoronic - an idea that argues against itself.
Families making this legal choice for religious, economic or other ethical reason remain responsible for the wellbeing of both mother and baby and will be held accountable in a court of law if a medical emergency is not dealt with properly or in a timely fashion. While the right to decline medical care is unquestioned, it does not free the parents from responsibility for the events of childbearing. Responsible behavior as reflected in scientifically compiled statistics confirms what common-sense would suggest - the greatest danger to the mother and baby come from total lack of prenatal care and no effective plan for an experienced helper to be present during labor & birth. The mother-midwife diad is founded in the biological imperatives of childbearing and cannot be abridged without an equal or superior replacement.
For instance, statistics from the Arizona Department of Health reports a state-wide average for perinatal mortality for all classes and categories as approx. 11 neonatal deaths per thousand live births. For the category of "no-care, no attendant" it was 69 per 1000; for care from non-medical midwives (who are licensed in that state) it was 2.3 per 1000. Since no-care, no-attendant is many orders of magnitude of risk greater than a planned home birth with non-medical maternity care, compelling state interests require that we must continue to permit parents chosing an non-medical home birth access to traditional birth attendants in order to responsibly carry out their parental "duties and obligations'.
*** Benefits to State Interests ***
Even a cursory examination of the California constitution, and enactments of California legislature, and the protocols of the agency which administers the medical benefits , reveal that NO 'natural right' of state-funded maternity care exists. Merely being a California Resident does not authorize state-funded maternity care. MediCal authorizes public assistance only to those who qualify based on proof of a certain level & character of poverty. State-funded pregnancy care becomes a 'right' only in a life-threatening medical condition requiring emergency hospitalized. But normal, garden variety maternity care for normal childbirth is not a universal right of residency.
Likewise, these same provision do not compel physicians to accept MediCal payments in lieu of full fee, it does not compel physicians to service indigent families at reduced rates, not does it mandate that physicians be evenly distributed over the state based on the census of childbearing families.
The 1992 California budget drasticly reduces both quantity and quality of state-funded healthcare services, including money for maternity care to those who do qualify; further changes reduce the number of those who can qualify for these diminished services. Quite the opposite from the criminalization of these domestic remedies, the state has every reason to encourage families to be self-responsible, to depend on self-care unless a clear and present danger exists that compels medical treatments.
State interests are addressed directly when non-medical midwifery care eliminate the need to use public funds to pay for unnecessary and unwanted hospital-based obstetrical care. It benefits us indirectly when non-medical midwives provide a low-cost and effective care which reduces the number of premature births occurring to mothers who would otherwise have no maternity care.
And it benefits the state abstractly in that ultimately public assistance programs must either enfranchise all those without funds to pay for birth services or it must permit other low-cost options. To forbid all non-medical forms of care and simultaneously refuse economic assistance necessary to procuring the services of a fee-for-service medical care provider is to invite litigation by activists groups who will be quick to point out the legal impossibility of the situation.
Since the avoidance of socialized medicine is a high priority with the California Medical Association, physicians benefit by permitting an alternative to mandated medical care for the able-bodies.
*** No special immunity to midwives ***
While there are numerous benefits to the State, traditional midwives do not personally receive any advantage as a result of this legal neutrality except for the theoretical protection from charges of practicing midwifery with a certificate. No state-authorized standards of practice protects traditional midwives from either criminal prosecution for the illegal practice of medicine based on allegation of a parent, physician or healthcare worker nor are they protected from civil litigation.
Non-medical midwives will continue to be without even the slim protection that certification and the standardized protocols of a profession offer. As traditional birth attendants, they are accorded none of the employment privileges conferred by state certification - hospitals, clinics and government agencies can't hire them, MediCal and insurance companies won't compensate them. All midwives get is the dubious privilege of sleeping with the phone next to their pillow, being awaken in the middle of the night by other people so they can drive 50 miles in the pouring rain and miss Thanksgiving Dinner with their own family.
Accountability is already present in statutory law thru the 1915 birth registration statute which mandates that domiciliary midwives file birth certificates. The Department of Vital Statistics in California gathers the statistical data on every birth which includes the planned place of birth and all illnesses and treatments to the mother during pregnancy, all medical procedures during labor and birth and neonatal treatments and/or injuries associated with birth. Any birth registration that indicated a harmful outcome would automaticly result in an investigation. Any person, parent, physician or stander-by can, for good reason or no reason at all, allege that a domiciliary midwife has practiced medicine illegally or failed to use "due caution & circumspection" and she will be investigated by the district attorney and prosecuted if the charges appear to warrant it. State regulatory schemes can't get much better when it comes to the demand for accountability.
*** Place of birth ***
The controversies surrounding traditional midwifery are twin concerns about the role of non-medical caregivers and of equal importance, the place of birth.
As of 1983, more than 50% of all admission to an acute care hospital for both sexes under the age of 65 (incl children) was for maternity care. The next highest single category was a 20% rate for various back problems. It is only hospitalization insurance and MediCal payments that make it possible to utilize the high-rise, high-tech environment of an acute care institution, the equivalent of maternal intensive care unit, for the normal biological function of childbirth, which it is normal 70-95% of the time.
At the time midwifery was dropped from the books in 1949 the issue of home as a location of birth was not the same controversy that it is today. For instance, until World II the majority of babies were born in their parents home. The physician shortage of the war heavily influenced the movement of childbearing women into hospital labor wards staffed by obstetrical nurses as a more efficient use of the doctor's time. Health insurance was minimal, did not ordinarily include maternity benefits, nor did public assistance pay for normal maternity care. Physicians as a class have been historically opposed to midwifery but they are even more opposed to being forced against their will to serve the disadvantaged. While much they may have grumbled about "ignorant midwives", they didn't want to have to provide care to the indigent families that midwives usually served. In 1949, that was a lot of the rural, urban poor and migrant workers and third-world cultures.
Maternity patients who couldn't afford hospitalization, who lived in rural or remote locations in 1949 (still true in some places today) most frequently live in what we consider substandard conditions, without electricity, telephones or even running water. In urban areas, they lived in crowded and often filthy apartments with too many people and no privacy, no place for the doctor to sleep while the mother labored slowly thru the night. It is easy to see why hospitalization was seen as a mutual convenience - it was tantamount to renting a clean, well-equipped motel room with unlimited hot water, maids and room service and located a few blocks from the hospital or the physician's home. Doctors and patients who could afford hospitalization liked the convenience and added services.
If the 1949 legislative revision had criminalized traditional birth attendance it would have resulted in double jeopardy to physicians who would have been forced to serve families that required lengthy travel, greatly inconveniencing the doctor, and that required the doctor to work in their ill-equipped & impoverished homes without the accustomed nursing staff to carry out the mundane domestic "remedies" germane to normal childbearing -- and all this trouble and sacrifice for little (or no!) money. Neutrality to midwifery as the lesser of evils.
100% hospitalization is not possible without equal access to all childbearing families, whatever their personal financial resources. Universal hospitalization requires universal access. universal access decrees that the uninsured, unemployed & the underemployed becoming fiscal wards of the state. The many-side contract between medical careproviders, the hospital, the state regulatory agency and the partuient family is complex, expensive, litigious and ultimately becomes a burden on the taxpayer for those who can't pay. 100% coverage for able-bodied mothers and children is socialized medicine; socialized medicine is generally not an attractive choice to many special interest groups, such as physicians and taxpayers.
*** Conclusions, Conjecture & Interesting Ideas ***
When one puts the pieces of the maternity care puzzle together, what becomes evident is that some "other" operative must be assumed by statutory law to be present. Like the water that is invisible to the fish but makes it possible for fish to swim, we see the evidence of some invisible foundation, unnamed but indirectly operating.
This inferred "other" is a mechanism of self-sufficiency & self-reliance which does not dependency on state-funded medical services. By examining the progenitor medical practice enactments, the conclusion is that childbearing families who do not need or want or who can't afford hospital & obstetrician care, are expected to being self-responsible and self-directed at home supported by the domestic remedies of traditional midwifery.
Domestic remedies are a self-righting systems that confers no special privileges or immunities from criminal prosecution or civil litigation, and maintains accountability. Domestic remedies requires no change in the laws, no expansion of regulatory agencies, new categories of crime, no additional expenditure of public monies to implement. All it takes is the willingness to let well enough alone. Since California's statehood 150+ years ago, self-reliance, self-sufficiency have been a virtue. From that moment to this, the laws of California have never denied to its residents the dignity of self-reliance; in childbearing that must include the legality of that ancient remedy best described as an experienced helper. Let well enough alone. Let the historical neutrality to domiciliary midwifery stand as it is.
Domestic remedies and legal neutrality is a win/win solution. It prospers us as a people because it makes sense, because it is loyal to the human condition, it supports our dignity, it contracts our dependency on public funds and expands self-reliance. Domestic remedies are a self-right mechanism that is "good law".
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*** aside ***
oxymoron:/ (often appears in legislative language!)
have a law /
have a law against /
have a law against having a law /
have a law against having a law against having a law /
Now the question is, do you have a law or don't you?
I believe it is impossible to answer this question based on ordinary mental process or logic as we know it. All we know for sure is that we have laws that makes having laws very difficult. It is not necessary to stay confused forever. We can choose what works, what makes good sense, what is reasonable, what serves the compelling interests of the state as defined by the framers of our California constitution, our common sense and the our economic and social imperative of the 90s.