Regulation of midwives considered by Nebraska Supreme Court

The Nebraska Supreme Court is weighing who can legally help an expectant mother with the birth of her child in Nebraska.

A pair of cases involving an unlicensed lay midwife triggered an appeal to the high court.

District Court judges in Douglas and Madison Counties threw out charges against Judy Jones, an unlicensed lay midwife after she assisted in the birth of two babies in a home birth.

The justices heard opposing points of view during oral arguments on Wednesday.

Appealing the District Court rulings, attorneys for the state argued Nebraska does have rules prohibiting lay midwives from offering birthing services to expectant mothers.

State Solicitor General Eric Johnson said delivering a baby is covered broadly under the Uniform Credentialing Act, which "prohibits unlicensed persons from 'holding themselves out to the public as being qualified in the treatment of any physical condition.'"

Johnson told the court, "that describes midwifery," and statutes include Certified Nurse Midwives within those regulations.

"There is no exception for lay midwives" within state statute, according to Johnson.

The brief filed with the Supreme Court by the Attorney General claims, "Much of Jones’s argument depends on her unsupported premise that there are “two categories” of midwives legal in Nebraska, lay midwives and certified nurse midwives."

The brief continues "Jones declares herself part of the category she created" outside of the one created by state's regulations.

Jones, the lay midwife charged with a crime, maintains she never intended to be a state-certified nurse midwife practicing medicine. Her attorney, Kirk Goettsch, maintains it's not clear what crosses the line into a crime when attending a birth.

During his oral arguments, he asked the justices if it was a crime "for me to hold a pregnant woman's head and give her encouraging words as she's pushing?"

"That's it, then every husband who's attending his child's birth with his wife is going to be guilty of violating the statute."

The Supreme Court must decide whether existing state law regulates Lay Midwives. The judges asked several questions trying to pin down how legislative statutes define the category.

"It doesn't do that," replied Goettsch.

"Both the district judges (in Douglas and Madison Counties) looked at the credentialing acts. It's not in there. The state says, 'Well, it's in there somewhere,' but it's not."

Should the judges decide in their opinion in the two Jones cases that Nebraska lacks clear regulations for lay midwives, the state legislature would have to agree they are needed and pass additional rules.

The Nebraska Medical Association filed a brief with the court in support of the Attorney General's view that anyone offering services as a midwife should meet the state's licensing requirements.

"The purpose of licensure is to protect the public from harm," the Association wrote in its brief. "Licensure is particularly important in health care, where practice by unqualified, unsupervised, and unregulated individuals can have catastrophic consequences."

The brief continues, "This is especially true when dealing with vulnerable patients in situations that can turn deadly within seconds, such as childbirth."

The justices will consider the arguments before issuing their opinion later.