Lawsuit seeks to lift midwife restrictions in state

Violation of ‘bodily integrity’ is alleged

Five women want a judge to stop the state from enforcing a regulation barring licensed lay midwives from delivering babies for women who have not undergone a pair of assessments meant to determine whether they can safely give birth at home.

In a lawsuit filed Thursday in Pulaski County Circuit Court, the women also want Judge Chris Piazza to lift a restriction prohibiting midwives from delivering babies for women who have previously given birth by cesarean section.

The lawsuit contends that the Board of Health regulations interfere with women's right to hire the health care provider of their choice and violate their right to privacy and "bodily integrity" by forcing them to undergo medical treatment.

The suit also claims the board exceeded its authority in issuing the rules and failed to follow the state Administrative Procedure Act when it adopted revisions to the rules in January.

"Women like the Plaintiffs are the most important stakeholders in maternal health yet their input, questions, and feedback concerning the Rules was ignored and trivialized by the [state Department of Health]," attorney Kesha Chiappinelli of Bentonville wrote in the lawsuit.

The department "is not able to discuss ongoing litigation," spokesman Meg Mirivel said in an email Friday.

The board's rules require midwives' clients to receive one pregnancy risk assessment shortly after the midwife begins providing care and the other at or near the 36th week of pregnancy.

The assessments, meant to determine whether the mother has any medical conditions that would make a home birth dangerous or require consultation with a doctor, can be performed by a physician, certified nurse midwife or Health Department clinician.

In practice, midwives say, most of the assessments are performed at Health Department clinics because few other clinicians will perform them for women who plan to give birth at home.

In July, the Board of Health rejected rules proposed by Chiappinelli that would have prevented the Health Department from performing vaginal exams during the risk assessments and allowed midwives to deliver babies for women who have previously had cesarean sections.

In the lawsuit, Chiappinelli said the vaginal exams performed during the Health Department assessments "can be painful physically and psychologically and can be especially traumatic for women who have been sexually abused or raped."

Women who refuse the vaginal exam receive an incomplete assessment. The rule revisions, which took effect in June, allow midwives with extra training in emergency care to deliver babies for women who receive incomplete assessments.

William Greenfield, the medical director for the Health Department's family health services, has said it's not safe for women who have had cesarean sections to give birth at home because they have a higher risk of uterus ruptures during vaginal deliveries.

But Chiappinelli said in the lawsuit that the risk is only slightly higher for such women and is still low, occurring in fewer than 1 percent of births.

The restriction effectively forces the women to have another cesarean section because most hospitals will not allow the women to give birth vaginally, she said.

She said the regulations also bar midwives from caring for women who have a uterine scar, which interferes with a woman's right to hire the provider of her choice.

Belinda Baxley, one of the plaintiffs in the suit, has such a scar and is unable to hire a midwife, according to the lawsuit. She is due to give birth in December and must drive 30 miles from her home in Paragould for prenatal care, Chiappinelli wrote.

The lawsuit asks for a temporary order allowing Baxley to "find appropriate prenatal care that does not present a hardship to her and her family." The suit also asks for an order barring the Health Department and Board of Health from enforcing the rules.

Metro on 10/06/2018