The
1976 Bowland Decision -- The Historical
Connection Decriminalization
of Abortion
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 |
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California Legislative Information |
by faith gibson, Community Midwife |
The
1976 Bowland Decision -- The Historical
Connection Decriminalization
of Abortion
|
|
|
California Legislative Information |
by faith gibson, Community Midwife |
Synopsis (read first) -- Original 1 page article
For the last 21 years, the prosecution of California midwives has been framed in the most of negative terms -- illegal practice of medicine -- based on the 1976 Bowland Decision. This decision has always legally flawed and constitutionally-suspect. However, in the intervening years, a new midwifery law has been passed and one could argue equally well that the state legislature had officially recognized and regulated midwifery (the 1993 Licensed Midwifery Practice Act), thus nullifying the Bowland Decision and putting the activities midwives under the authority of midwifery statutes.
Synopsis
1. The 1976 criminalization of traditional (or non-nurse) midwifery in California did not stem from any legislative action. Historically, midwifery was statutorily neutral until the passage of the LMPA in 1993.
The arrest and criminal prosecution of more than 50 California midwives was the result of a California Supreme Court decision subsequent to a Medical Board raid on the Santa Cruz Women’s Health Collective in 1974. This stare decisis precedent-setting case was predicated on the US Supreme Court Roe v. Wade abortion decision. {p#1}
Under California state law, normal childbirth is not defined 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 pregnancy and birth 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 circumstances are lawful choices in and of themselves. Seeking the assistance of a skilled midwife is evidence that the mother has voluntarily chosen to exercise a higher level of personal responsibly than required by California law. {p#2}
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 theoretical duty to "protect" a viable fetus from the planned assistance of traditional (or ‘lay’) midwives to a woman during normal childbirth. This equates the acts of abortion (planned death) with those of midwives (planned live birth). Midwives do not kill babies -- either before or after birth. {p#3}
The Bowland Decision enshrined the duty of the state to protect its "interests" in the unborn but viable fetus by protecting it from the care of traditional midwives in such a way that the mother loses her right of self-determination after the period of viability is reached. This ‘compelling state interest’ prevails over and above the woman’s sincerely-held beliefs and assumes the state is better able to act in the interest of the baby than the mother herself.
The issue in regard to midwifery care is not the aborting of an unborn baby at term but rather the right of a competent and fully-informed mother to make maternity care choices that are lawful around the world, in most other states and which do not have as their goal the purposeful termination of human life. {p#4}
While the Bowland Court declared that the mother did not have the right to give birth under circumstances of her own choosing with the assistance of a traditional midwife, it did validate the mother’s "right" to have an unattended, out-of-hospital birth assisted only by unskilled family members, friends, passing strangers or any other untrained citizen of her choice. Unfortunately, unattended childbirth results in a 6 to 60 times higher infant mortality than when a skilled midwife is present. In California, the only person a mother-to-be cannot choose is an unlicensed practitioner who is knowledgeable and skilled in midwifery care -- i.e. a traditional midwife. It was this dilemma that Senator Killea’s bill was to rectify but which is being sabotaged by the mandated physician supervision clause. {5}
Exploration of
the California Supreme Court Bowland Decision --
criminalization of midwifery by the in 1976
based on Roe V. Wade Abortion
While direct jurisdiction over midwifery was lacking in California state law, the constitutionality of the Bowland decision was inferred 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, 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 while enjoying a constitutional protection from interference by state or federal governments.
However, after the pregnancy reaches the age of viability, the state’s "duty" to protect the viable fetus from abortion on demand 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 defective. On the face of it, this seems reasonable as few people (myself included) support the aborting of healthy babies on demand during the 2nd & 3rd trimester.
However, the Bowland decision outlined a deal with the Devil. In return for the right to terminate a pregnancy before viability, this definition means that the mother loses her right of self-determination after the period of viability is reached. The issue in regard to midwifery care is not the aborting of an unborn baby at term but rather the right of a competent and fully-informed mother to make maternity care choices that are lawful around the world, in many other states and which do not have as their goal the purposeful termination of human life.
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 theoretical duty to "protect" a viable fetus by preventing the planned assistance of traditional (or lay) midwives to a woman during normal childbirth. This is a very subtle way to reiterate the old medical prejudice that "midwives kill babies" and equates the act of abortion (planned death) with those of midwives (planned live birth). Midwives do not kill babies -- either before or after birth. One would think that not a single scientific study or statistical analysis had been published in the 20th century documenting the efficacy of the midwifery model of care.
The situation is dramatically different in regard to a midwife-attended natural childbirth than the unnatural acts which accompany abortion. 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 common-law right to traditional maternity care. This is diametrically- opposed to the request for abortion services. None the less, the Bowland Decision enshrined the duty of the state to protect its "interests" in the unborn viable fetus by to include protecting it from the care of traditional midwives. This compelling state interest prevails over and above the woman’s sincerely-held beliefs and assumes the state is better able to act in the best interest of the baby than the mother herself. (This is the same state that denies prenatal care to immigrants). Without any scientific evidence, (and mountains of statistical information to the contrary) the Court assumed an identifiable association between the care provided by traditional midwives and increased risk of preventable neonatal death.
The fact that midwife-attended birth for low to moderate risk mothers is statistically equal or superior to hospital-based, physician attended birth did not enter into the Court’s deliberations. The California Bowland Decision does not just effect the residents of California -- it is now being cited by courts in New York state and in Illinois for the same purpose -- to criminalize independent midwifery practice in the name of protecting unborn babies from the supposedly unsafe services of traditional midwives (where are their studies!).
While the Bowland Court declared that the mother did not have the right to give birth under circumstances of her own choosing (at home) or choose a traditional midwife to assist her, it did validate the mother’s "right" to have an unattended, out of hospital birth assisted only by unskilled family members, friends, passing strangers or any other untrained citizen of her choice. Unfortunately, unattended childbirth results in a 6 to 60 times higher infant mortality than when a skilled midwife is present. In California, the only person a mother-to-be cannot choose is an unlicensed caregiver who is knowledgeable and skilled in midwifery care -- i.e. a traditional midwife. (where are their studies?)
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