The Bowland Decision and Abortion --

An Aside...

by Faith Gibson, LM
Community Midwife



Historically the practice of traditional or non-medical midwifery in California has always been legal -- that is, no law passed by the State Legislature ever prohibited midwifery directly nor established any criminal penalties for the non-medical practice of midwifery. In 1917 the Medical Practice Act was amended to create a state certificate of non-medical midwifery practice leading to the immediate certification of 102 California midwives, with 114 additional midwives becoming certified over the next 3 decades (total of 217).

However, this statute required that new applicates be graduates of a school of midwifery which had been "approved" by the medical board but no midwifery training programs were ever approved by the board. The only midwives to receive California midwifery certificates were graduates of foreign training programs, primarily in Japan and Italy. The Second World War resulted in the out-of-state internment of all California citizens of Japanese desent and cut off further immigration from those countires. Thus, the number of applications for new certificates was very low (2-3 per year). Since 80% of certified midwives were Japanese, and virtually 100% of the Japanese population had been shipped out of state, there were also very few births registered in California as "midwife- attended" during WWII and the immediate post-war period.

This combination of factors permitted the medical board to ask for the repeal of the certificate classification in 1949, which it described as "obsolete", citing as the reason a disinterest in midwifery certification, and the exceedingly low number of new applications and midwife-registed births. Howver, a total of 46 state-certified midwives were practicing at this time - fully a quarter of all midwives ever certified over a 32 year period of time. The supposed "lack of interest" (low number of new applicates) was the direct result of a lack of "Board approved schools". The passage of this amendment in 1949 simply removed the classification of "Midwife Certificate" from those issued by the medical board. It did not criminalize the practice of midwifery and in fact, could best be described as de-regulating the practice of midwifery and returning it to statutory neutrality.

In regard to midwifery, history is silent about the next 24 years. There are no criminal records of any arrests or criminal prosecution of "uncertified" midwives during this time. Then in 1973, an elaborate undercover sting operation by the medical board resulted in the arrest of several midwives and generated a criminal case that went to the California Supreme Court in 1976 in a case known as the Bowland Decision. It is particularly interesting that this case never went to trial so the Bowland Decision is not based on a jury verdict, but rather an "adjudication" or ruling by a panel of judges. This occured in response to midwife-friendly decision in a lower court which was appealed by State Attorney General's office all the way to California's high court. It was this prosecution of non-medical midwives that created a case law precedent defining midwifery to be an illegal practice of medicine. In the intervening twenty years since this case which never went to trial authorized the medical board to prosecute midwives, more than 50 midwives in our state have been arrested and criminally prosecuted at an estimated $5 million in public and privately-funded legal expenses.

This drastic turn of event did not engage the normal legislative mechanism of lawmaking "in the sunshine". Without facts or scientific documentation, a judicial panel declared the practice of midwifery to be "ipso facto" (on the face of it) a potential danger to unborn babies. This illogical conclusion was based the "state interest" in the viable fetus as established by the 1973 US Supreme Court Roe v. Wade abortion decision. The California court's decision outlined a swap of sorts -- in return for the right to terminate a pregnancy before viability, a woman loses her right of self-determination after the period of viability is reached. The duty of the state to protect its "interests" in the unborn viable fetus is said to prevail over and above the woman's sincerely-held beliefs. This assumes that the mother does not have the well-being of the baby foremost and that the state is better able to know what is best for them both.

Thus the right to abort was used by the California Supreme Court as a foundation to declare the that childbearing women did not have the right to give birth under circumstances of her choosing (her own home) or chose a midwife not licensed by the state to assist her. Curiously, the Bowland decision does permit the mother to have a medically-unattended birth assisted by family members, friends, or any other untrained citizens of her choice. This statement by the Court did not explain how medical practice legislation dedicated to "protecting the public" could now be used to force parents into the "legal" choice of unattended childbearing which is clearly established to be dangerous. According to this legal precedent, the only type of person in the whole state not authorized to assist a woman during normal childbirth is someone trained or skilled in midwifery but not currently licensed by the state.

The Story of the Bowland Decision

In 1973, one year prior to the arrest of Kate Bowland and the other Santa Cruz midwives, the US Supreme Court's Roe v. Wade decision held the individual's right of privacy to include abortion services for non-medical reasons. On the face of it, it seemed that this same right of privacy would protect choices of much less magnitude (i.e. not involving planned death of a normal fetus). Most of us reasoned that if a women could prevent or abort a pregnancy, surely her rights of privacy should and would extend to the positive circumstances surrounding childbirth -- the choice of caregiver and the location of normal labor & spontaneous birth. Personal responsibility for the events of normal childbearing is not incompatible with our ethical responsibility to seek out medical care under circumstances of abnormality or emergency.

However, in the 1976 Bowland decision, the California Supreme Court ruled the uncertified practice of midwifery to be an illegal practice of medicine. This decision was, in part, predicated on the erroneous assumption that the phrase "other mental or physician conditions", as contained in the 1913 Medical Practice Act, was specifically intended to prohibit normal childbirth services by non-physicians. It is important to note that this key phrase ("other mental or physical conditions") was originally written into the medical statutes five years (1913) before the first midwifery legislation, a time when traditional midwifery was clearly recognized to be a lawful occupation. During the 41 years between passage of the original 1876 medical practice act and the 1917 midwifery provision, the medical statutes do not even contain the words "childbirth" or "midwife" nor do they define normal childbirth to be an abnormal, risky or pathological condition OR identify it to be the practice of medicine. The 1913 phrase was never intended by its authors to limit or criminalize the traditional practice of midwifery; in fact it did not refer to childbirth at all.

While direct jurisdiction over midwifery was lacking in California state law, the constitutionality of this unusual ruling was inferred by the Bowland Court via the state's "interest" (as interpreted by Roe v. Wade) in the viable fetus. Under this doctrine, a woman's right of privacy was acknowledged to permit her to be sexually-active and subsequently to prevent pregnancy through the use of contraceptives, to become pregnant if and when she so chooses, or once pregnant to terminate an unwelcome pregnancy up to the point of viability -- approx. 24 months -- all without interference from state or federal governments. However, after the pregnancy reaches the age of viability, the state's "duty" to protect the viable fetus was ruled to supersede any obligation to the civil liberties of the mother, except in instance in which the mother's life was in danger or the fetus was established to be defective.

Childbirth and Abortion Confused

More to the point, the Bowland Court applied the Roe v. Wade abortion decision out-of-context to childbirth by equating the state's authority to prevent the planned death of a third-trimester fetus (via abortion) with a supposed "constitutional duty" to "protect" a viable fetus from the planned attendance of "lay" midwives at normal childbirth. This is a very subtle way to reiterate the old medical prejudice that "midwives kill babies". The Bowland Court declared that the constitutional authority to regulate & prohibit medical practices surrounding third-trimester abortions as established by Roe v. Wade, could and should be extended by it to regulate maternity careproviders and prohibit childbirth services by anyone other than licensed physicians or their designates. It was this theory that permitted "lay" or unlicensed midwives to be criminally prosecuted.

Thus it equated the acts of abortion (planned death) with those of midwives (planned live birth). This decision was predicated on that portion of the abortion ruling that permitted the state to limit the performance of abortions to ONLY licensed physicians and further permitted the State to prohibit even a physician from terminating a pregnancy after the period of viability. Without any scientific evidence, the Court assumed an identifiable association between the care provided by lay midwives and increased risk of neonatal death. In fact, unattended birth is 6 to 60 times higher infant mortality than those attended by a skilled midwife. Midwife-attended birth for low to moderate risk mothers is statistically equal or superior to hospital-based, obstetrician attended birth. [1980-A, Bennett, et al, 1995-A, Goer]

The Court completely failed to reconcile the dramatic differences between abortion and childbirth. In abortion, a woman is seeking the active participation of a government-regulated medical service for the purposes of terminating the life of a viable fetus through surgical means requiring anesthesia and sterile hospital/clinic facilities. In short, third trimester abortion requests the cooperation of the institutions of society in killing a viable infant before birth under sterile or "medical" circumstances. It is the aggregate decision of "society" (via the US Supreme Court decision) to refuse official assistance under such circumstances unless the life of the mother is in jeopardy. In this regard, midwives heartily support the delimiters imposed by Roe v. Wade.

However the situation is dramatically different in regard to midwife-attended spontaneous childbirth as opposed to abortion on demand. The childbearing mother is asking society to assist her in safe-guarding the health and well-being of herself and her baby by protecting her right to the traditional maternity care. This is diametrically-opposed to a request for abortion services. Under California state law, normal childbirth is not deemed by the medical practice act or any other statute to be a medical or pathological condition, thus a childbearing woman has the legal right to decline all forms of ante and intrapartal care (medical or otherwise). The mother's choice to respond to pregnancy non-medically and her choice to be assisted by a lay person in her own home under non-medical and non-surgical circumstances are lawful choices in and of themselves. Seeking the assistance of a skilled vocational midwife is evidence that the mother has chosen to exercise a higher level of personal responsibly than required by law.

Midwifery Illegal For the First Time

The Bowland Court criminalized traditional midwifery for the first time in California history by collapsing the common-sense distinction between the "abnormal" circumstances of medical abortions (death) and the "normal" circumstance of non-medical childbirth (live birth). This occurred without the vote of the California legislature or permission of the citizens of California. The deleterious consequences of this illogical and morally-offensive ruling remains in force to this day, unmitigated by passage of SB350 (Licensed Midwives Act of 1993)

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Urgent need for political cooperation

In order for both nurse and non-nurse midwifery to function in the state of California, it is essential that childbearing families and midwives legally separate the issue of third-trimester abortion and the rules of law generated by the Roe v. Wade abortion decision from that of normal, spontaneous childbirth services by a midwife. Our failure to do so permits the medical community to exercise "in-loco parentis" or the equivalent of ownership rights over viable fetuses and newborns and thus perpetuates the myth that physicians have an exclusive franchise over normal childbirth services. They do not. The arrest of two CNMs in southern California in 1993 demonstrates the consequences of the Bowland Decision as applied to California midwives of all educational backgrounds. And the Bowland Decision continues to be cited by states all across North America as a rational for criminalizing midwives. This should not be.

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