California College of Midwives
Access to Affordable Maternity Care in California by Professionally-licensed Midwives
- What happens when the legacy practice of midwifery as a personalized form of care is reclassified as a medicalized, physician-dependent discipline?
- What happens when the traditionally non-medical skills of midwives are legally defined as ‘medical activities’ to be delegated and supervised by MDs?
Historical Background: Midwifery was an independent profession in California from its statehood in 1876 to 1981. Its practice was lawful but unregulated for the first 41 years. Then in 1917, the state-certified practice of midwifery as an independent profession was created by the California Legislature.
To qualify, students were required to complete a midwifery educational program approved the State Medical Board and pass a state-licensing exam. The 1917 law prohibited state-licensed midwives from practicing medicine or surgery, which meant they could not administer drugs, use forceps or other “artificial, forcible or mechanical means” during childbirth. The licensing law also required midwives to transfer any mother or baby who developed complications to the care of a physician.
However, laws governing the legacy practice of midwifery as a non-medical discipline never required medical supervision. This was noted in a Legislative Memo from Governor Earl Warren’s office dated July 8, 1949, which confirmed the independent nature of state-licensed direct-entry midwives:
“Some comment should be made … with regard to midwives and nurses, for the duties and powers of the two classes are quite different. Section 2725 of the B&P Code outlines the duties which may be performed by nurses. All these duties are to be performed under the supervision of a physician.
Such is not the case with regard to midwives, for according to Section 2140 of the same Code this type of practitioner operates independently and not under the supervision of a physician.”
Unfortunately the original 1917 provision did not permit the licensing of additional direct-entry midwives after 1949. The last legacy practitioner of midwifery retired her license in 1981. By this time, many states had replaced the traditional practice of midwifery with the new category of nurse-midwifery. These were registered nurses who successfully completed an additional year of hospital-based training in midwifery became certified nurse midwives (CNMs). California passed it’s own the Nurse-Midwifery Practice Act in 1974.
The Legislature’s Intent for the new profession was stated in the preamble to the nurse-midwife practice act. Accordingly, the legislative purpose was to make the midwifery model of care accessible in hospitals and out-of-hospital (OOH) settings by authorizing CNM to provide maternity services in underserved areas of the State and to low-income Medicaid-eligible women and families seeking alternatives to customary obstetrical services.
But unlike the legacy practice of midwifery, which was an independent profession in California for 105 years, the new law classified nurse-midwifery as a physician-dependent, medically-supervised discipline. The law stipulated supervision of CNMs by the medical profession as a prerequisite of lawful practice.
For the first time in California history, the ability to legally practice midwifery depended entirely on sympathetic physicians volunteering to provide supervision and agreeing to be vicariously liable for the nurse-midwife’s practice. This put the midwifery profession in the same physician-dependent category as the nursing profession. Governor Earl Warren’s 1949 memo commented on the status of nurses, saying:
“All these duties are to be performed under the supervision of a physician.”
This functionally defined the all the professional activities of midwifery practice — from taking a pregnant woman’s blood pressure to attending normal childbirth — as delegated medical activity, which in turn grants control over the midwifery profession to the medical profession. This produces a professional role for the midwife that the AMA and physicians describe as a ‘physician-extender’, which puts midwives in the same category as nurse practitioners, nurse anesthetists, and physical therapists.
Once midwifery is defined as a ‘delegated medical activity’, the authority to actually practice this profession does not derive from the state-issued midwifery license. While licensure is a necessary pre-condition, it is not an authorizing one. The authority to practice midwifery comes from, and ONLY from, the legally-identified physician supervisor of each specific midwife.
As described by organize medicine, each specific supervising MD is charged with the “ultimate authority, responsibility and liability” for the particular midwife under his control. This physician determines which of the midwifery-related ‘medical’ activities listed in the Nurse Midwifery Act of 1974 and the LMPA of 1993 will be delegated to the midwife under their supervision, and under what circumstances. At a practical level, the supervising physician is the origin of the midwife’ authority to provide prenatal care, listen to fetal heart tones during labor, or administer an anti-hemorrhagic drug to a postpartum mother who bleeds excessively.
While reclassifying midwifery as a medically-delegated activity controlled by the supervising physician, these very same laws do not require that any physician in California provide this legally mandated supervision. This allows the medical profession to decide if the midwifery model of care is or isn’t available in the state of California, and if so, under what MD-determined conditions. If 100% of the members of the medical profession decline to participate as a supervising physician, then 100% of the professionally-licensed midwives in California would be unauthorized to provide the delegates medical activity of midwifery, and 100% of childbearing women who reside in California would be unable to access midwifery care. Unfortunately the current laws grant members of the medical profession to override the intended implementation of the Legislature’s two midwifery practice.
According to the North American Free Trade Agreement of 1992, this constitutes a “disguised restriction of the provision of services”. NAFTA specifically prohibits:
“any licensing or certification statues, regulations or procedures which are not based on objective and transparent criteria, competence, and the ability to provide the services or which are more burdensome than necessary to assure quality of the services”.
In order to prevent “unnecessary barriers to trade”, NAFTA decrees that state licensing requirements: “… not constitute a disguised restriction of the provision of services ….. Requirements should be based on competence”.
Nonetheless, the California Medical Association and ACOG continue to define professional midwifery as a delegated medical activity that can only be practiced under the authority of the medical profession. But simultaneous with the provision in both midwifery practice acts mandating physician supervision, obstetrical and pediatric groups issued official policy statements denouncing all childbirth-related care in non-medical settings. These policies prohibit obstetricians from supervising midwives that provide care in OOH locations.
In addition, all three California malpractice insurance carriers also prohibited physicians from supervising midwives who provide OOH care. As a result, obstetricians were either unable or unwilling to provided the legally essential service of medical supervision.
Within 3 years it became clear that classifying nurse-midwifery as a physician-dominated discipline was a dismal failure. The inability of CNMs to carry out the published ‘Intent’ of the Legislature was due to “structural barriers” that classified the midwifery profession as physician-supervised discipline and mandated medical supervision.
The fatally-flawed nature of this provision was well-documented by a 1977 letter from Department of Consumer Affairs, September 09, 1977. During his first administration, Governor Brown was an active supporter of several legislative attempts to correct this problem. However 36 years later, the situation is unchanged and all of these same ‘structural barriers’ continue to apply to CNMs and LMs both:
“ …by limiting the practice of midwifery to only those situations under a doctor’s supervision … the practice of nurse midwifery has been effectively limited to large metropolitan hospitals where obstetrical services are most abundant.
… speaks to the potency of these structural barriers in limiting the practice of nurse-midwifery”. [position paper on the Midwifery Practice Act of 1978; Michael Krisman, DCA]
These ‘structural barriers’ prevented CNMs from practicing independently, which would have allowed them to work with women living in places without access to maternity services and in free-standing birth centers that provided care to families looking for an alternative to conventional obstetrical care.
Instead, this restrictive law forced the majority of CNMs in California to work in clinics and the offices of obstetricians as “physician extenders”. Many other CNMs took jobs as nurses in the labor & delivery department of hospitals. As a result, the new healthcare profession created in 1974 did nothing to alleviate the very problems the nurse-midwifery law was designed to address.
In 1993, the Licensed Midwives Practice Act once more created the state-regulated profession of traditional or direct-entry midwifery. The legislative intent of the LMPA expressed the same expectations outlined in the nurse-midwifery law — in this case, that the new profession of licensed midwives would make the Midwifery Model of care available in underserved parts of the state, to low-income Medicaid-eligible families and those wanted childbirth alternatives to conventional obstetrical practices.
Unfortunately, the political influence of organized medicine insisted that the legal relationship between direct-entry midwives and physicians mirror those in the nurse-midwifery licensing law. As a result, the LMPA simultaneously repealed the 1917 statue that had defined the legacy practice of midwifery as an independent profession, and re-classified the direct-entry midwifery to be a medicalized discipline that required physician-supervised, with the identical restrictions already placed on CNMs.
While the medical profession always insisted that physician supervision was a vital stepping-stone to timely medical services, it in fact has proven over the last 39 years to be a stumbling block of massive proportion. It creates ‘vicarious’ liability for physicians, it prohibits midwives from being able to consult and collaborate with doctors or and it often denies childbearing women access to non-emergent medical services such as ultrasounds and referrals to perinatal regional centers.
California College of Midwives