January 18, 1994
THE HISTORY OF CALIFORNIA
The following work is dedicated to my eldest daughter, Shawn Mathews, on the 30th anniversary of her spontaneous birth in the back seat of our family car in route to the hospital in my attempt to avoid unwanted and unnecessary medicalization. May she and her siblings have the childbearing options not available to me and other mothers of my generation.
This research was done to establish the constitutionality of non-medical, non-surgical midwifery as an independent and autonomous practice separate from both nurse AND medically-licensed midwifery. At issue is what i believe to be an unconstitutional California case-law interpretation (Bowland Decision) which, in theory, criminalizes non-medical midwifery based on an erroneous interpretation of the 1949 repeal of the midwifery certificate (which in fact de-regulated it) and a perverted misapplication of the 1973 US Supreme Court abortion ruling (Roe vs. Wade).
I assert, based on extensive & through research on the California medical practices act, case law and other sources of pertinent information, that the non-medical, non-surgical practice of midwifery was never intended by the people of California or the state legislature to be a crime, — not before the passage of the 1917 midwifery provision, not after it, not following the 1949 repeal of the midwifery certificate, not by the passage of the nurse-midwifery statutes, or the 1993 Licensed Midwifery Practice Act. The criminalization of uncredentialed midwifery only occurs in case law and only as a result of predator actions by the medical establishment, through the agency of the Medical Board, in prosecuting midwives for the “unauthorized and illegal practice of medicine”.
The practical purpose of this research project is three-fold:
1. To establish that childbearing parents have the constitutional right to have an experienced, non-medical helper of their choice present in their home during the normal spontaneous events of physiological childbearing.
2. To protect currently practicing non-medical, non-surgical domiciliary midwives; to exonerate those midwives who have been unconstitutionally prosecuted for the illegal practice of medicine and/or non-medical midwifery without a valid certificate, and to clear the name of Kate Bowland which has become synonymous with an infamous case law that is to midwifery what the 1840 Dread Scott decision was to slavery.
3. To gives midwives wishing to enjoy the benefits of medical licensure and parents wishing to enjoy the care of professional midwives in domiciliary and hospital settings the necessary leverage to require the realistic co-operation of the political power structures (Medical Board, ACOG and the CMA) by documenting incontrovertibly that non-medical, non-surgical midwifery IS already a legal option for both practitioners and parents. The cooperation generated by de-criminalizing non-medical midwifery is vital to the timely and satisfactory implementation of the newly passed Midwifery Practice Act of 1993, leading to the legal & autonomous practice of midwifery under medical licensure.
Home-birth parents and home-based practitioners must persistently and consistently challenge this unconstitutional monopoly of normal maternity care. The history of a 100 Years war against midwifery is most recently evidenced in exclusive supervisory language that continues to criminalize both traditional and nurse-midwifery practice without obstetrician supervision while legally permitting physicians to withhold this statutorily-mandated participation with immunity. Domiciliary maternity care depends upon establishing the constitutional right of us as childbearing families to utilize an experienced (non-medical) helper of our choice. It may be necessary to legally establish that prosecution of non-medical midwives is an unconstitutional restraint of trade and an unfair business practice.
Sources & Methodology
Major sources of documentation are California medical practice legislation from 1876 to 1993, microfilm copies of state legislature bill sets, daily newspapers, medical periodicals and the copious records provided by the Directories of Licentiates published yearly by the Medical Board. These directories detail every facet of regulatory activity by the Board, as well as listing the names, dates and criminal cases of every violator of the Medical Practices Act. Conspicuously absent are records of consumer complaints against non-medical midwives. Over the 73 years of non-medical midwifery practice of 217 certified midwives, only 3 disciplinary actions are recorded and those are for overstepping the identified non-surgical scope of practice. Midwives Marie Caron (FX-83/’18), Elena Rinetti (FX-97/’18) and Caterina Reorda, a graduate of the Royal University of Turin (F-58/’25) had their licenses revoked or suspended for “unprofessional conduct”. In all instances, “illegal operation” was cited as the cause of action.
Of the 217 certified midwives, 115 were formally-educated midwives from all over the world, representing graduates of 48 different midwifery schools. Approximately 70% of the sur names were Japanese, representing graduates from no less than 27 different Japanese schools of midwifery! Italy and the United States each had 7 schools. England, Russia, Rumania, Mexico and Switzerland each had one.
The California Medical Practice Act
– prelude to Midwifery Legislation
Since our incorporation as a United States territory up to this present time, childbirth has been and remains to this day statutorily neutral — NO LAWS constrain the manner, the place or the persons able to provide non-medical assistance to childbearing women.The Medical Practices Act does NOT identify normal childbirth as a medical, pathological, abnormal or risky condition, no statute mandates that childbirth be attended by medically-trained persons OR that attendance at childbirth by non-medical persons is a criminal offense. Neither the California Medical Practices Act, nor any of the more than 100 amendments to it, nor ANY OTHER valid statute forbids parents from choosing an experienced helper of their choice NOR does any statute restrict non-medical birth assistance to state certified medical careproviders.
It is my assertion, supported by this research, that the 1949 repeal of the midwifery certificate de-regulated rather than criminalized it, thus returning the traditional practice of midwifery to its pre-1917 status. This means that non-medical midwifery has always been and remains a legal occupation enjoying all the constitutional protections accorded the concept of a lawful livelihood.
Good Fences, Bad neighbors —
*** An analogy comparing the eviction of midwives from their independent and autonomous occupation, — the equivalent of landowners — to the status of tenant farmers, renter with no rights
In an effort to communicate the complexities of midwifery regulation/de-regulation in the most basic form, an analogy of property rights is helpful. I suggest that the reader equate the “right to practice” with land ownership.
In Anglo-American law, one of the inalienable rights of property owners is unlimited access — owners of adjoining property cannot build a fence completely around a parcel of land, blocking the landowner from free access to his/her property. Another of the rights of ownership is the right to rent or lease property to another person. However, the tenant, as a renter is called, DOES NOT have the same unlimited rights of access and occupancy. And the final element of our analogy is that of the public domain — land NOT deeded to an individual which often provides a buffer zone between parcels of privately owned land and, through the gridwork of public roadways, provides continuing access to the owners of that private property.
For the purposes of our story, picture a pastoral scene in the county, it is early spring of the year 1876. Most of the land is in the public domain — it is owned in common by the people of the territory, as yet undivided open range. In the top right hand corner of this scene, we see “traditional” midwives quietly tending the land as they have been doing for centuries on a modest-sized but unfenced pasture land. The farm has been in the family for so many generations that nobody can remember a time when they did not own it. While no deed is registered with the county seat, there is no controversy over their rights of ownership “in perpetuity”, based on this unbroken history of possession. In fact, the midwives’ family has owned the farm long before the modern convention of written property records was established. Everyone in the surrounding country knows and respects them as persons and values what they do.
In the bottom left corner we see a small group of relative newcomers who have recently moved into this rural community to set up shop. They too are quietly tending to business on a similarly sized parcel of unfenced land that, at that moment, is still in the public domain. The new folks whom we will call the “medical” family consist of six brothers – Allo(pathic) and his favorite younger brother Pharmaceutico (pharmaceuticals) and the older brothers Homeo(pathic), Osteo(pathic) Naturo(pathic) and, last but not least, – Eclecto (eclectic). This youngest brother seems to have an identity problem and has taken on some of the characteristics of each of his five older brothers. They have recently moved to the area to start a medical business. “Medical” is a Latin adjective meaning “to heal” and encompasses many different methods, including but not limited to the use of chemical compounds and strong herbs known as “medicinal preparations.
When it comes to ambition, these two families are very different in their goals and their methods. Unlike the medical family who are chaffing at the bit to conquer new frontiers, the midwives family are content to follow the traditions of thousands of years. It is a simple, non-technological way of life personally handed down by much-loved and revered elders. It focuses on a quietness of spirit, stability, a harmony with the natural world and centers on relationships between people rather than a product or profit. The pleasure of the work & the reward of helping people is often the only pay received by the midwives.
As for the newcomers, they represent the opposite end of the spectrum. The brothers are personally ambitious and dream that someday they will have a lucrative business on this site. They envision an elaborate medical-industrial complex with posh offices, “drug stores, special hotels called “hospitals” staffed by domestic servants who will care for the sick and the afflicted while doctors in white lab coats make their rounds, ordering treatments and snatching people with hopeless conditions back from the jaws of death by performing the latest surgical operations. Their imagination conjures up special machines with near magical properties that can see through human bodies to diagnose diseases, and other machines that will extend life by making up for the deficiencies of failing body organs.
However, in the mean time, they are occupied with more mundane matters. They are having a problem with poachers — people who are stealing business away from them. Not only do these poachers take money out of the mouths of honest physicians but, ego-centrically speaking, these poachers offend twice as they, according to the medical family, are quacks who don’t really know what they are doing. An outraged member of the medical family was quoted in the local paper as complaining that “an army of fakers delude the gullible, break the law, destroy health and not infrequently maim or kill. The gullibility of mankind is the most insoluble factor in the efforts to solve the problem. The fakers exist not because there are so many crooks in the world, but because there are so many credulous individuals”. [Directories of Licentiates]
In 1876, an era long before what we now call “modern” medicine, doctors or “medical men” as they preferred to be called, came in many different guises. Most of them had formal “medical” training and were therefore schooled in some methodology thought to be curative but frankly, many others had not. Many less than honest people who called themselves “medical men” and used the title Dr. before their name were actually entrepreneurs who crisscrossed the country with traveling medicine shows. These men made a living by going from town to town and selling therapeutically-worthless concoctions called tonics or elixirs, usually high in alcohol and sometimes containing cocaine or other addictive substances. They hawked these products to the public by claiming them to cure every aliment known to man & womankind — baldness, bad breath, “bad” blood, tuberculosis, lumbago, the monthly “curse” of women, sexual impotence, etc, etc, ad nauseam. As far as medical men were concerned, they were losing a lot of money as a result of these quacks and charlatans.
But perhaps what nettled the medical men even more than the dubious pharmaceutical benefit of elixirs was that these uneducated healers profited from something that could not be bottled and sold, nor could it be legislated and restricted to any single category of caregiver — that was the power of suggestion — the most potent healing ingredient of them all. As healers through out the world can attest, hope is an elemental aspects of healing. The person who suggests to us that it is not hopeless, that it is reasonable for us to have faith, that a good outcome can be expected — that is the power of suggestion. Most of the ills and ailments of the human condition are in actuality, self-limiting, and healing will happen of its own, whether or not scientifically-proven efficacious treatment is undertaken. The person who helps us believe that we will recover, who make us psychologically comfortable in the interim, or who sets us on a spiritual path towards recovery — that person is a healer whether or not he or she is formally considered a healthcare provider. This potent force of suggestion is valuable to us as a society. Physicians are frustrated that they are unable to have an exclusive franchise.
The power of suggestion aside, there was great public debate about the different philosophies of healing during the 19th century. The proponents of faith healing, homeopathy, the curative power of electromagnetism, and the “Peoples’ Health Movement” — a popular reaction to the excesses of “heroic allopathic medicine” — were all vocal contenders in the fray. It was the equivalent of a rainbow coalition for healthcare. However, as the various prestigious medical schools of Europe began to emphasis the “scientific method” as the only “true” basis for all curative treatments, physician graduates of colleges and universities began to organize themselves into trade unions also called “guilds” or “medical societies” to promote these “superior” methods.
Eventually two major classification of “doctoring” arose. The largest category were those who were formally affiliated with institutions of higher learning and subsequently joined private membership corporations whose purpose was to protect (i.e.. to jealously guard!) the professional interests of the group. For instance, the American Medical Association was incorporated 1846. A second and much smaller group of “irregular” practitioners was comprised of self-styled, self-made, eclectic healers, mavericks and entrepreneurs of traveling medicine shows who were, for the most part, economically disadvantaged. The first group was comprised of graduates of allopathic medical schools (later to be known as the “regulars”) and the many formal schools of “drugless” practitioners — homeopaths, naturopaths, osteopaths. This division based on formal education represented class as well as philosophical differences. The “upper” class could afford to send their sons to universities and colleges of medicine and the less-economically favored group had less funds to support “regular” attendance at formal and often lengthy educational programs. Organized groups of University graduates were the prototype of the more modern “old boys network” of today.
1876 / Original Medical Practice Act /
Returning to our story, we find that even though the medical family officially occupies the land on which are doing business, they do not have exclusive title (a deed) to it as it is still in the public domain. Without the right of landowners they cannot legally exclude other, less worthy practitioners. As a result of poachers, business is suffering and so the medical elders create a holding company. Duly appointed representatives of the allo-, homeo-, osteo-, an naturopathic as well as the “eclectic” branch of the medical family are authorized to embark on a joint venture. These emissaries are sent to Sacramento to take advantage of the homestead laws and on April 3rd, 1876 they are successful in registering a deed with the appropriate agency of government. Together, the newly formed Six-in-One Medical Holding Company now has ownership rights and no one may “trespass” on their private property.
In non-analogy terms, the progenitor medical practice act has been passed, establishing that the practice of medicine is exclusively restricted to those who hold a medical license. Medical practice is legally defined as holding one’s self out to be a “doctor” and/or performing the acts of doctoring statutorily enumerated as the prescribing and/or administering medicinal preparations (now know as prescription drugs), the penetration and/or severing of human tissue beyond the umbilical cord and the diagnosing between pathological states. Childbirth is NOT listed as a medical condition by the medical practice act nor are doctors granted any exclusive privileges over its management. Immediate licensure is granted to physicians who are currently practicing and future licensure is restricted to those who can prove competency. Competency is informally defined as being knowledgeable in the biological sciences, skillful in the therapeutic domain and of good moral character. Proof of competency is statutorily established to require graduation from a legally-chartered school of medicine (allopathic, homeopathic, osteopathic, naturopathic or eclectic) AND passage of a state board exam.
Moving along with our story, the physician group was now authorized to have poachers arrested for trespassing — an authority it exercises with a vengeance!. In the doctoring business, to heal without studying has become an official state crime. In addition to these valuable property rights, a few of the elders who were emissaries to Sacramento took on one of the most important medical specialties — that of medical politics. That successful trip to the State Capital taught them allot about how to manipulate the system to the advantage of their professional group. This political sophistication would serve them well over the years.
Business was good and as the years pass the Six-In-One Medical Company acquires more and more property by progressively displacing indigenous healers of all kinds — both men and women herbalists, native shamans, practitioners of traditional Chinese medicine, acupuncturists and other non-allopathic and hands-on “healers”. The “new” medical specialty of medical politics was busy organizing an effective campaign against their “competitors” by using two simple techniques. First was developing its influence with the newspaper industry by buying advertising space, contributing to political campaigns and otherwise attempting to make itself indispensable. In return the syndicated newspaper empires gave the concerns of “organized medicine” lots of favorable press. After all, the “marvels of modern medicine” made good copy — wonder drugs, daring new surgeries, the miraculous healing properties of hospital care — and, conversely, the newspapers liked those juicy stories about the danger of allowing oneself or loved ones to be treated by unschooled, unwashed charlatans, quacks, “imposters” and the unqualified. By the astute combination of two potent techniques — slandering the reputation of all “alternatives” to organized medical care and using the media to tout the wonder of medical science, it was easy to “buy up” more and more land from the public domain and place it under the tight control of the medical elders.[cite: Joesphson, MD Your life Is Their Toy; 1941)
From time to time the elders would utilize these same smear tactics against the midwives but, since midwifing and doctoring were so fundamentally different — the midwives being non-medical practitioners concerned with ‘boring’ simple childbirth and the doctors being called when things were abnormal, complicated and interesting, the decision was, at least temporarily, to tolerate midwives. God forbid, if doctors actually succeeded in getting rid of midwives, the doctors themselves would have to do all that boring bedside care of healthy but “economically-disadvantaged” (in an era before federal subsidies of indigent medical care) mothers experiencing normal pregnancies and would have to attend all those uninteresting cases of simple childbirth. This did not appeal to formally-educated, sophisticated and “highly-skilled” medical men. After all, we all know that REAL medical men don’t eat quiche and they don’t attend to laboring women, especially not poor ones. But the relentless march of modern medicine, remarkable for its insatiable appetite for more and more and MORE power and prestige was systematically reducing the open spaces separating the docs from the domiciliary midwives. Still the two groups were cordial to one another and basically respectful of one another’s property rights.
1910 – Flexner Report
— recommends closure of all “non-regular” medical schools and phasing out of “other” caregivers such as “drugless practitioners”
However, in 1913, this balanced power shifted drastically, tipping the scales toward the Medical Company. The Flexner Report, published in 1910, was a country wide study of medical schools financed by the Rockefellers, undertaken by the Carnage Foundation and authored by two allopathic physicians — brothers — who are known to history as Doctors Flexner. It severely criticized all the various forms of non-allopathic health care and recommended that these schools be bought out or closed down by the “powers that be”. Armed with such good ammunition, Allo(path) and Pharmaceutico — the two brothers whose interests were most intertwined — achieved a real “coup”.
With the backing of the American Medical Association and the Flexner Report, they carefully orchestrated a hostile take-over of the voting rights of its homeopathic, osteopathic and naturopathic brothers. Having done so, they could and did “lock-out” these “drugless practitioners” from membership in the medical holding company (resulting in the loss of voting rights). The drugless practitioners had been equal partners, now they were given notice that they will be merely renters, able to have access to their former property ONLY with the express permission of the “alpha bulls”. The all allopathic post-Flexner report medical board appointed itself gate-keepers for all “healing arts” and declared the practice of “medicine” itself to be allopathic. Henceforth, anyone who was not an MD was merely a tenant. MD were the (land)lords.
In the years just prior to this 1913 take-over by the allopaths, the relationship between midwives and medical men was beginning to suffer seriously as a result of the relentless campaigning by physicians to eliminate the economic competition of all other caregivers. The docs were increasing negative about the midwives, shouting insults and taunts across the small strip of public domain that remained between the two. The business of the Medical Company was so good that they welded quite a lot of cultural power and were easily able to get articles critical of the midwives published in the paper.
The medical elders freely cast aspersions on the character of midwives, claiming them to be illiterate immigrants with dirty fingernails who harmed innocent mothers and babies by not calling upon the superior skills of medical doctors in a “timely” fashion. One physician’s characterization was as “old, gin-fingering, guzzling midwife with her pockets full of forcing drops (oxytocins), her mouth full of snuff, her fingers full of dirt and her brains full of arrogance and superstition” [Gewin, 1906]
Public health records of the day did not support these acquisitions and in fact, not only refute them but document that mothers were statistically SAFER in the care of midwives. [J. Levy, Van Ingen, Baker] While doctors claimed the babies delivered by midwives were going blind from neonatal ophthalmia, a preventable disease caused by maternal gonorrhea, health department records of 116 cases of this disease reported that only 2 of the mothers had been cared by midwives — 114 had been attended by doctors. Unfortunately, the skill of these women in safely carrying out their duties as midwives did not matter. In the most important skill of all — power-brokerage — they were woefully lacking.
In addition to complaints about disrespect by the midwives for the doctoring business, a few of the younger, “uppity” midwives had the nerve to occasionally to use medicinal preparations (drugs for pain) instruments (suturing) or perform to podalic version and extract the baby by the feet. It was a traditional technique known to and used by midwives in extreme situations to save the baby. When doctors were involved, they were more likely to use forceps and many mothers and midwives honestly believed the podalic version was safer. Statistics supported this conclusion. However, the docs didn’t share that opinion. They agreed unanimously that this un-midwifely behavior was an outrageous violation of the physicians’ exclusive state-granted medical privileges. In what was the equivalent of a verbal drive by shooting, a select number of midwives were bumped off. Rumor has it that one of the uppity women (a great-grandmother of Gloria Steinem!) retaliated by lobbing a stink bomb against the office building that housed the medical holding company and generally making the physicians mad as hell. But since women did not have the right to vote and the men did, the medical elder knew they would get the last laugh. There is more than one way to skin an uppity woman!
AB1365 / March 26, 1917 / 11th Amendment / Medical Practice Act
In light of this unpleasant situation, the midwives were not too surprised when they woke up on the morning of March 26th 1917 to discovered that, in the dark of night and without advance notice, the docs had quietly built a large fence running the entire length of the property line which now abutted directly on the medical company’s property. It was 41 years almost to the day since the medical holding company had first achieved independent property rights. Until now, the two professional groups had been legally equal and autonomous, the midwives representing the older, tradition ways and the physicians representing the “new age”. No more.
It is rare in the workings of government for one autonomous profession to be given the authority to eliminate or severely restrict another autonomous profession, especially without the permission or participation of the group so effected. Article 24 was clearly NOT a midwifery practice act. The text focused on citing the “crime” of midwifery which had nothing to do with licensure status but rather was defined as the use of medical preparation (drugs) or surgical techniques (forceps, episiotomies) and establishes the mechanism of citing this “unprofessional conduct” — revocation of the certificate to practice and other “penalties”. If midwives had been male, if women had the right to vote in 1917, if our society had been respectful of the rights of women and children, perhaps the midwives would not have let the Medical Company get away with a punitive and one-sided piece of midwifery legislation that was written by doctors, for doctors. If midwives and the families who depended on them had stood up for their property rights in 1917, perhaps we midwives and the families who depend on us would not still be the victim of the unconstitutional criminalization of home-based maternity care. If…, perhaps…
The official explanation for this unilateral legislation was that “good fences make for good neighbors”. This was an idea midwives could understand and agree with, even though they did not agree with much else that the verbally abusive and overbearing physicians did. Originally the fence clearly established that the girls were not allowed to play with the boys’ toys — no drugs, no surgery, no “artificial, forcible or mechanical means” were permitted to be used by midwives. It specifically forbid removal of an adherent placenta and the use of podalic version. Fine, experienced midwives normally eschewed such interventions anyway. State certification didn’t entitle midwives to anything not already owned by them and did not extend any additional privileges. The provision, known as Article 24, only “authorized” them to practice midwifery which, of course they already did. It defined the scope of practice to be restricted to assisting women during normal childbirth and in particular, reiterated again and again and AGAIN that a “certificate to practice midwifery does not authorize the holder to practice medicine or surgery”. Such statements of the obvious were perhaps annoying but otherwise, midwives did not seem to object to what was a sensible solution to the “range war” between their two groups.
While the idea of a midwifery provision was not of their doing, the midwives still hoped that perhaps it would help them with what was becoming more and more of a problem — “poaching” by the docs. Historically, the verbs of midwifing were concerned with assisting women during the spontaneous events of physiological childbearing. Conversely, the verbs of “doctoring” were obviously VERY different and centered on the use of drugs and surgery to treat a complicated childbirth. Therefore, the “scope of practice” of the two autonomous and independent professions were correspondingly very different — midwives cared for cases of normal childbirth and doctors cared for “complicated cases”.
However, more and more, the doctors were moving into the “uncomplicated” birth business by convincing childbearing families that it was just “better” to have a doctor. This was particularly galling to midwives because the 1876 medical practice act and its 10 amendments had never granted any authority to doctors over normal childbearing. The California Medical Practice Act did NOT identify normal childbirth as a pathological, abnormal or risky condition. It did not consider normal childbirth to be a medical condition at all. In fact, it did not even contain the words “childbirth” or “midwife”. As far as midwives were concerned, it was medical men who were out of bounds. But despite this lack of statutory authority for the meddling of medical men into the professional field of midwifery, nothing was done legally to prevent them from raiding the midwives’ territory and running off with normal birth. It certainly was not a fair system and so it was hoped that the statutory recognition of the legal domain of normal birth as being that of midwives would help rectify this injustice.
Six months later, the injustice of this lop-sided state of affairs was still no better. Doctors continued to legally violate the midwife’s domain with impunity while midwives were threatened with the suspension or revocation of their certificate if they so much as took a stitch in a lacerated perineum late at night when the doctor was unavailable. The medical men were quick to point out that the midwifery provision did not mandate special training in the management of normal birth nor prevent any others persons — ambulance drivers, husbands, even friends, neighbors and random strangers from assisting at normal birth. They insisted that Article 24 contained no provision that would prevent DOCTORS from attending normal births (even thought they were not certified midwives) since everyone and anyone, including the unskilled next door neighbor, could legally deliver a baby. Statutorily, they were right, By not granting exclusive entitlement to the profession midwifery for attendance at normal childbirth, the medical men did not have to worry about being cut out of the picture. Actually, they were in a very good position to make even greater inroads into what formally was the historical domain of midwives.
In addition to this frustration, a tiny dark cloud on the far horizon began to grow bigger, causing concern. It seemed that the fence build by the docs didn’t JUST erect an easily identifiable line of demarcation between the two groups marking the boys toys from the girls. It actually ran the entire perimeter of the midwives farm land, with only a small easement permitting egress to and from the “farm”. This was called the (Medical) “Board-Approved Midwifery Training School Toll Road”. Article 24 mandated that aspiring midwives complete, in addition to classes in anatomy, physiology, hygiene and sanitation, a 165 hours course in medical obstetrics (the same course that doctors and drugless practitioners were required to take) and then, ironically, Article 24 forbid the newly licensed midwives from utilizing the medical or surgical techniques taught in these mandated classes.
But the main problem with this new legislative fence was that the medical holding company never approved any toll roads. However, many of the younger midwives were from distant lands where they had already graduated from such programs and so qualified for entrance. Other midwifery aspirants went back to Japan or Italy for board-approved midwifery training or attended midwifery schools in New York, Wisconsin, Illinois or Louisiana to learn the secret code word to get past the medical company’s deputy sheriff. In reality, some midwives, unable to travel to foreign jurisdiction for formal training, quietly returned to unofficial apprenticeships and uncertified practice. The Medical Company security guards seemed to only be interested in patrolling that part of the fence that keep midwives from medical practice — non-medical midwifery itself was of little concern to them.
(1922 Chiropractic Initiative Passed by Voters of California. Created the autonomous and independent practice of chiropractic and incorporating naturopathic and other “drugless practitioners”)
The midwives settled in and tried to learn to live with the oppression of the Medical Company elders. However, the drugless practitioners were unaccustomed to this subservient position and at the same time, they were experienced in the politics and mechanics of running a state-wide organization. It helped that they were men, it helped that they could vote and were skilled in conducting business in the public domain — something the midwives from the farm rarely did. And organize they did! In 1922, a coalition of naturopaths, eclectics physicians and chiropractors were successful in getting a ballet initiative passed that returned them to full rights of ownership on a brand new piece of land some distance from their former brothers and out of the shadow of their domination. And of course, like the allopathics, nothing in the law prevented chiropractors from attending normal births!
Life went on. Unfortunately, the passage of time not only wore away spaces in the fence, it also wore away the midwives themselves. These barriers to practice — complete absence of any California midwifery training schools, vitriolic outbursts by doctors who were ranting and raving about how “backward” midwives were, the relentless campaign by the Medical Company against any form of independent (non-nurse) midwifery care, and the increasing number of childbearing women attended by doctors in hospital, competition from chiropractors who practiced as drugless OB doctors — all these things were taking their toll. The ancient and honorable tradition was frayed around the edges and beginning to unraveling in various places. It became obvious to the elder midwives that the fence was much more of a barrier than they first realized, but by now these older midwives were looking forward to retirement. Besides, the midwives didn’t have any kind of effective organization to deal with the problem and just didn’t know what to do.
World War II / Japanese-Americans
relocated to interment camps
Then events that had nothing to do with the midwives or the farm they lived on reach out to change the course of midwifery history. The icy hands of a far-off war reached across the continents to finger those among them of Japanese heritage — a goodly number were graduates of no less than 28 Japanese schools of midwifery. Of the 181 midwives listed in the Directories of Licentiates, 122 had Asian names. Those of Asian extraction were rounded up and dragged off. It was sad indeed to see these good women and their entire families turned out of their home with nothing more than they could carry in a few suitcases. Midwives of Italian and German heritage also lived on the midwifery farm. We were at war with those countries too. In fact Germany had start the war but for some inexplicable reason, ONLY Japanese midwives were fingered for relocation. Great numbers of Asian-American citizens were put on trains and shipped off to internment camps in Arizona, Arkansas, Montana and Canada. It was fortunate for these forcibly relocated families that they still had access to the same midwives that had always provided care to them. They tried to be cheerful and tolerate the indignities with patience and good humor. They prayed that the war would be over with soon and life would return to normal again.
1946 / World War II ends
For the Japanese-American families detained in relocation camps the end of the war did finally come and they were released to try and pick up the pieces of their life and go on.. For midwives however, the end of the war brought no relief from the constant encroachment on their profession. While Japanese Americans were interned in other states, the midwife-attended deliveries of that era were no longer registered in California. The number of midwife-registered births was never exactly a landslide. After so many years of “creative” repression AND the deletion of birth among the Asian population, the remaining midwife-registered births was very small — 456 in 1946 or a mere .2 percent.
SB 966 / 91st amendment / MPA /
Repeal of midwifery certificate
The elders of the medical Holding Company had been patiently waiting for an opportunity for yet another coup. Cleverly combining popular racial prejudice against the Japanese and Italians who were considered morally “responsible” for the Second World War with the natural repression of women, the low numbers of midwife-attend births and the even lower number of applicants for licensure, they were able to convince Senator Fred Kraft that midwifery was “almost a dead class” and that there was no longer any interest in becoming a midwife. He authored a bill to repeal the midwifery application statute and the classification of “midwife certificate”. Senator Kraft assured the legislature and the Governor that there had been NO applications for several years. This claim latter turned out to be untrue. The numbers were small but not non-existent. With no California-approved training schools and the Asian-American population shipped out of state, this wasn’t hard to explain. A tiny trickle of midwives trained elsewhere continued to make application for licensure by reciprocity. In 1945, the last two midwives were admitted to the farm, one by reciprocity from Palermo Italy, the other a graduate of the Queen of the Angeles School of Midwifery in Louisiana. Three more applied for reciprocity but were denied licensure.
The 46 remaining midwives awoke on July 14th, 1949 to find that again the medical holding company had been quietly at work under the cover of darkness, just as they had done 32 years before. This time the midwives discovered to their dismay that they had been completely fenced in and simultaneously, all others fenced out. The small remaining passage way had been cordoned off and a padlock was affixed to the newly installed heavy metal gate. The midwives that happened to be home at that time were given a special key that would let them and only them pass. It was a sad day but these midwives had been fighting the good fight for a long time. Besides women, especially Japanese-American women in the immediate post WWII era were thoroughly socialized against making “trouble” (/i.e.. to be politically effective!). It would have to wait for future generations of midwifery aspirants to reassert ownership rights of the family land, which by now was smack in the middle of a medical industrial complex. In the meantime, the midwives held on tightly to their special, irreplaceable keys and went on with life as usual.
COMMENTARY ON SB 966:
The specific issue here is the lack of honesty. Legislative intent contained the letter to then-Governor Earl Warren urging him to sign SB966 — the repeal of Article 9 (the midwife’s application) and the abolition of the category of “midwife” from the list of certificates — are remarkable for two, seemingly paradoxical aspects.
First, they do not contain single solitary word of criticism for the profession of midwifery and in fact bend over backward in repeated statements of protection for already licensed and practicing midwives. In contemporary times, California midwives have a sort of innate inferiority complex, feeling as we do the brunt of political helplessness. However, it is clear from these documents that the medical community DID NOT want to engage in a head-on confrontation in 1917, nor again in 1949. It should be noted that to this very day, neither the CMA nor ACOG has ever even attempted to introduce legislation that would directly & unambiguously criminalize non-medical midwifery practice. As parents and practitioners, We are more influential than we recognize.
Secondly, the official documents of legislative intent state, erroneously, that midwifery has “..become obsolete” and is “almost a dead class”. For a midwife like myself who was handcuffed, arrested, jailed, held on $50,000 bond, and prosecuted for 21 months, it reads like a bad movie script. Especially repugnant to the 50 or so midwives who at an approximate cost of public and privates fund of 5 million dollars, was the comment that “..the problem created by the elimination of future licensing of midwives by this bill does not appear to be of great significance“!
Other comments in the official letters of legislative intent were:
“We understand that their have been no applications for licenses as midwives for several years and that the bill protects the existing licenses.”
“This is almost a dead class, there having been only two applications in the last several years. As a practical matter, the people who do this work are generally nurses, and in recent years not many persons have gone into this particular practice exclusively.”
“SB 966 proposes to eliminate future licensing of midwives. Since section 2140 (the midwifery provision) is not involved, it would appear that those now practicing may continue to do so. In 1946 only 456 of the 218,484 (California) resident births were attend by midwives, a figure equivalent to .2% of all birth. Since the problem (of midwifery licensure) therefore, does not appear to be of great significance, I can see no particular reason for this legislation; on the other hand, I have no particular objections to it.”
Examination of the Directories of Licentiates belie these and other statements on many grounds. As mentioned earlier, the true “low point” in midwifery certification was during the late 1930s and early 40s. In the ten years between 1933 and 1942, only 9 applications were submitted and 2 certificate issued. Since 80% of all midwifery applicants were either from Japan or Italy, one is not surprised that the years surrounding World War II produced a low number of applicants. But 8 applications were received in the 6 years between 1943 and 1948, although not all were granted licensure. The statement that no applications were received is false as is the one inferring that it is a “dead class”.
The next issue is the lack of “opposition” to the bill as stated in the many letters from agencies and organizations supporting the repeal of the midwifery certificate. For instance, we read that the Public Health League, the Department of Professional and Vocational Standards and the Department of Public Health are officially recorded as “no opposition”. What we don’t read however, is the more interesting half of the story. The comments of not a single solitary consumer or midwifery organization, nor a single individual midwife or childbearing woman appear in the record. To say that their is “no opposition” to the proposed repeal of midwifery while not eliciting the participation and comments of a single person from the hung groups of practitioners and childbearing families is criminal. At the time SB966 was proposed, 46 California midwives held certificates in good standing. The largest number of certificates in good standing was 122 in 1926, meaning that roughly a 1/3 were still in practice in 1949. Again, as in the 1917 legislative/press coverage, not a single word was printed in the newspaper until after the bill was signed into law. No problems with political opposition that way.
By now we are not surprised to read under the title of “Other Reports / In Support: Executive Secretary of Public Health League of California States that the bill has the approval of the medical profession and the Board of Medical Examiners”
“..Board of Medical Examiners has no objections to the Bill…purpose of the bill was to delete from the Medical Practice Act the provision relative to the licensing of midwives: since the Board has had only two applications for the midwife certificate in the last several years, and that as a practical matter, people who engage in this work are generally nurses.”
This reference to nurses is very crucial to understanding the nature of medicine as a business. It is most succinctly described in a footnote of the final document to Gov. Warren by his legislative secretary. It reveal astonishing understanding of a very important but subtle, easy-to-miss distinction:
“Some comment should be made on the recommendation of Mr. Arnerich 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 outline the duties which may be performed by nurses. All these duties are to be performed (only) under the 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. This section of the Code is not affected by this bill and all that is changed is an elimination of the provision for the issuing of the new licenses. Accordingly the present practitioners will be protected.”
As seen from this last paragraph written in 1949 to Gov. Earl Warren, the medical board was clearly aware that nursing was a classification directly controlled by physicians where as non-medical midwives were not. Repeal of the legal category of non-nurse, non-physician-controlled midwife was achieved by relocating midwifery practice to a dependent status under nursing statutes. The statement that “those doing this work were generally nurses” implied that nurses were acceptable to the medical community as nurses worked for doctors. Nurses-acting-as-midwives were in fact acting as agents for doctors who were called to the home at the last minute to manage the “delivery” while the nurse assisted him and later resumed her care of the mother and new baby postpartum. Professional nursing is seen by the medical profession as a source of physician surrogates or, if you will, physician extenders — not unlike adding texturized soy protein to hamburger. The “nurse/midwife” who assisted the physician by saving him/her time and yet permitting the doctor to be in charge of the birth event and the recipient of the birth fee was desirable and considered to be the only acceptable form of midwifery.
Under the category of “Opposition”, the letter to Gov. Warren stated : “None”. Under the last entry, called “Comment”, it stated that: “Approval recommended on the basis of the favorable departmental reports”. History records that the vote to repeal midwifery certification was unanimous in Both houses!
By 1969 only 5 certified midwives remained, a mere remnant of a once vital force. The only people who seemed to care about midwifery at all were a small number of “uppity women” (that is how you spell “lay” midwife!) who had started the Santa Cruz Women’s’ Health Collective and were committed to self-help health care. During the early 1970s they tried several times to get someone to let them back into the farm. They shook the gate making quite a racket in an attempt to gain entrance to their inheritance. The elderly remnant of 3 lonely midwives were asleep in the very back of the old house and didn’t hear the noise. It probably wouldn’t have helped even if they had. They certainly didn’t have any personal clout or political expertise which would have made the critical difference.
After a while the “lay” midwives gave up trying to get in through the front gate and going around to the side, they found an unguarded place in the fence and took up residence on the property of their forebearers as domiciliary midwives, committed to maintaining the fine and honorable traditional of their ancestors. Young women and some not-so-young women sought out home-based maternity care from them and for a while, all was peaceful. One day an undercover agent employed by the Medical Holding Company, a woman called by the pseudonym of Terry Johnson showed up asking the midwives to attend her during a planned home birth. They said agreed as that is what midwives do. Then Agent Johnson asked the midwives to help her get rid of an annoying itch — you know, down THERE. They suggested live culture yogurt placed well — you know, down THERE. Things went on like this for many months. Only when it was too late did the midwives become aware that the “medical men” considered the vaginal application of yogurt to be an illegal practice of gynecological medicine. How far we have come from the original intent of the medical practices act which was to regulate the use of “dangerous” i.e.. prescription – drugs!
1974 / Lay Midwives arrested in Santa Cruz undercover operation
Very late one night the phone rang. The midwife answered it as that’s what midwives do. It was Terry’s husband. Though Terry was only 7 months pregnant, her husband was calling to report that she was in labor. The midwife said they should go to the hospital, as the baby was too small to be born safely at home. That is what experienced midwives routinely tell mothers who are having premature labor. However, Mr. “Johnson” was insistent, asking the midwife to PLEASE come to their house and to be sure to bring all their equipment. However, the two midwives did not follow this instruction as they went to the Johnson home planning to escort them to the hospital.
Well, the rest is history. Lots of police officers were hiding in the closets at Terry’s “home”, and they promptly handcuffed and arrested the midwives and told them in no uncertain terms that they were poachers on the private property of the Medical Holding Company and trespassing would not be tolerated! After they roughed them up for a while and scared them real good, they let the very scared midwives go with instructions to tell all the midwife family that a fluke in the property laws, known only to the medical holding company, permitted the doctors to foreclose on the midwifery farm. They had taken legal possession and the midwives were permanently evicted.
Not unexpectedly there was great consternation among these uppity women (i.e.. lay midwives). They talked to many people about the situation. It didn’t seem fair, it was their ancestral lands that they were being locked out of. They hired lawyers. They went to court. They fought the good fight. However, when it was all over, they lost. The Arch Elder of the California Supreme Court said, “sorry Charlie, you lose”. Why you girls are only tenant farmers and renters have no rights. The Medical Company now owns that land and can evict you if they choose. However, the judges said that the situation could be rectified if the midwives were willing to go to the State Capitol and ask for a special dispensation. Maybe they could even buy back the farm or at least, negotiate a favorable long-term lease.
COMMENTARY / BOWLAND DECISION
In the Bowland Decision, the California Supreme Court utilized the fetal viability argument to make a false & repugnant connection between childbirth and abortion. The Court concurred with a pregnant woman’s “inalienable” right to terminate her pregnancy up to the stage of viability BUT decreed, in regard to childbirth, that when a woman chose NOT to abort the pregnancy (or was unsuccessful in procuring a first trimester abortion) her right to chose the “manner and circumstances” of her childbirth, including the choice of caregivers to assist her during normal childbearing terminated at the age of fetal liability. The state’s interest (i.e.. its duty to protect the viable fetus), was interpreted to subsume the mother’s rights in regard to childbirth. The Bowland court predicated its decision on the concept that since “not even a physician is permitted to terminate a pregnancy after the age of viability” then “obviously” uncertified midwives (whom the court erroneously assumed were offering a dangerously substandard form of care) could be barred from providing assistance to women during normal childbirth. These dubious conclusions were unsubstantiated by any statistical analysis of the relative risk of medicalized vs. non-medicalized childbearing.
Simultaneously with this denial of the mother’s right to be assisted by an experienced helper of her choosing (i.e. traditional midwife), it UPHELD her “right” to have a completely UNATTENDED birth OR to be assisted only by her unskilled husband, friend or relative. According to the California Supreme Court, out of all the categories of human beings in the world, ONLY experienced midwives are forbidden to assist women during the spontaneous events of physiological childbearing — friends, neighbors, paramedics, cabdrivers, emergency room nurses, dermatologists, psychiatrists, plastic surgeons, dog catchers — all other persons are deemed legally acceptable caregivers for either a planned or an emergency childbirth.
1975 / Nurse-Midwifery statute was passed, authorizing the medicalized
practice of specially-trained nurses under the supervision of physicians
After repulsing 11 attempts by nurse-midwives to pass legislation that would authorize their practice, the medical holding company finally decided in 1975 that it would be convenient to have a few medically-educated and medically-controlled midwives available to them when it suited their purposes. So the Medical Company rented the midwifery farm to the nurse-midwives. Of course, they charged a lot of money for this “privilege” (several years of irrelevant nursing education) and forced the CNMs to sign a stringent tenant-landlord agreement in which they must to agree to ONLY practice under the SUPER-vision of the landlords. And of course, the lords get all the bennies and the renters got a month-to-month lease that can be terminated at any time without warning and without cause. They told those nurse midwives how LUCKY they were to be permitted back on the midwifery farm at all! Why, the Medical Company owed all the land, as far as the eye could see — all protected with the latest up-to-date, state of the art electronic fences to keep out poachers and those disgusting domiciliary midwives with the dirty finger nails. You know, in the old days those uppity women used to kill babies and bury them at night by the light of the full moon! What a privilege not to be living in those bad old days.!
Uppity Women Unite!
Can you believe, some of those uppity LAY midwives refused to LAY down and be quite. They failed to do the reasonable thing (go to nursing school) and continued to be general malcontents. So the midwives took the Arch Elder Judges’ advise and went to Sacramento to play the legislative game. They did it again and again. 1978, 1979, 1982, 1986, 1990, 1992. The answer was always NO. In the mean time, no less than 50 of their numbers had been taken hostage by the security guards hired by the Medical Company to keep the poachers away. All of the prosecuted midwives went into debt to pay large sums of money to lawyers, some went to prison, others escaped to foreign jurisdictions like Oregon, most never practiced midwifery again.
SB350 ~ MPA ~ Non-medical Article 24 repealed and replaced by
medicalized midwifery licensure under the authority of obstetrical supervision
Finally, on October 11th, 1993, the midwives got what they had been seeking — another chance to legally occupy the family farm. It was a hollow victory. Like the nurse-midwives 20 years before them, the midwives were unsuccessful in securing ownership rights. They were to remain renters, with occupancy and access tightly controlled by the landlords, vulnerable to all the abuses of power inherent in the tenant-landlord relationship. The new fence/law contains the same stringent tenant-landlord agreement in which they, just like the CNMs, must to agree to ONLY practice under the SUPER-vision of the landlords. And of course, the lords get all the bennies and we renters get a month-to-month lease that can be terminated at any time without warning and without cause. They keep telling us midwives how LUCKY we are to be permitted back on the old midwives farm at all! Why, the Medical Company owes all the land, as far as the eye can see — all protected with the latest up-to-date, state of the art electronic fences to keep out poachers and those disgusting domiciliary midwives with the dirty finger nails. You know, in the old days those uppity women used to kill babies and bury them at night by the light of the full moon! What a privilege not to be living in those bad old days.!
I guess we would have to end our story — one so important to midwives but actually only a minor footnote in history — with the comment that perhaps good fences are not the key to good relationships with the neighbors after all. At least, not if one’s neighbors are the medical-industrial complex. It seems that good fences just assist Allo(path) and his brother Pharmaceutico to lock the midwives out when they want and to lock them in when it is financially advantages to the Medical Company.
Personally, i was hoping for a happier ending.