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Excerpted From: Elizabeth Kukura, Seeking Safety While Giving Birth During the Pandemic, 14 Saint Louis University Journal of Health Law & Policy 279 (2021) (218 Footnotes) (Full Document)


Pregnant people are bombarded with advice about how to prepare for labor, delivery, and the transition to parenthood. But for millions of people who were pregnant in March 2020, or who became pregnant in the subsequent months--as the United States began to grapple with the fast-spreading COVID-19 virus--there was nowhere to turn for time-tested advice about how to navigate childbirth during a global pandemic. The uncertainties surrounding COVID-19's impact on pregnancy and childbirth not only created anxiety and stress for prospective parents but also left health care providers to adjust their policies regarding prenatal, intrapartum, and postpartum care without evidence about best practices to protect the health and safety of pregnant people and their babies. When pregnant people sought alternatives to hospital birth in order to minimize the risk of COVID-19 exposure and increase their feelings of safety, many found they lacked access to community birth supported by midwives, whether at home or at a freestanding birth center. Some people discovered their local midwifery practices were operating at or over capacity; others learned they lived in a community-birth desert with no local midwives, whether due to burdensome legal restrictions, hostility from area medical providers, or both. Existing limitations on choice of birth setting and birth attendant became even more compelling as a growing number of pregnant people felt unsafe going to the hospital.

This Article examines the experience of childbearing people who sought to avoid COVID-19 exposure in hospital settings during the pandemic, paying particular attention to how the paucity of options for community birth harms Black women, along with other vulnerable and marginalized populations. Racial and ethnic minorities have higher rates of COVID-19 infection than White people, and research suggests that the disproportionate burden of adverse health outcomes borne by people of color in this pandemic extends to pregnancy and childbirth. Part I reviews the evidence regarding COVID-19's impact on pregnancy and fetal development, noting the dearth of pregnancy-specific information early in the pandemic. Although the public health and patient-care challenges created by incomplete information about how the virus spreads and its short- and long-term physical consequences are by no means unique to pregnant people, the potential for anxiety and stress to impact fetal development negatively and lead to health complications makes the evidence gaps particularly salient in the childbirth context. In addition, early findings suggest that lockdowns prompted by COVID-19 may impact health outcomes differently depending on socioeconomic status--with wealthier people experiencing health benefits from telecommuting and otherwise staying home, while low-income people face increased risk of adverse maternal and infant health outcomes related to COVID-19 because they cannot isolate due to employment as essential workers, crowded housing, reliance on public transportation, or family care-taking demands.

Part II describes the increased demand for alternatives to hospital-based birth during the pandemic to reduce risk and ensure safe and healthy birth experiences. As COVID-19 took hold across the United States, midwives reported an increase in pregnant people seeking their services for community birth. The desire to avoid hospitals amidst a health pandemic is an understandable reaction. Some people sought to avoid the hospital in order to minimize their chances of contracting COVID-19, while others did not want to be subjected to newly implemented risk-reduction policies that would restrict the presence of support people or require separation of newborns from their parents in the event of a positive or suspected COVID-19 test result. Certain risk-reduction strategies employed by obstetrics practices and hospitals disproportionately burden vulnerable populations and may heighten the risk of adverse health outcomes during or after pregnancy.

Part III explains why the turn to midwife-attended community birth is a reasonable and unsurprising choice, given midwifery's positive health and safety record, the individualized attention associated with the midwives model of care, the low-volume practices midwives maintain (relative to obstetrics), and the physical separation of community birth settings from hospitals caring for sick COVID-19 patients, which not only reduces risk of hospital-acquired COVID-19 infection but may also lessen anxiety and associated stress-related health complications for birthing people. Especially for Black women and other pregnant people of color, who are more likely to experience coercion and other forms of mistreatment by their health care providers in hospital settings, the ability to choose community birth during the pandemic is an important exercise of autonomy, as well as a health-protective act. Unfortunately, however, not everyone who wants to deliver outside the hospital with a midwife has access to this model of care.

Part IV identifies how regulatory restrictions on the practice of midwifery and the operation of freestanding birth centers limit opportunities for pregnant people to seek out-of-hospital maternity care. Onerous restrictions on midwives in many jurisdictions, including lack of licensure for Certified Professional Midwives in fourteen states, have resulted in a limited number of community-based midwives available to care for pregnant people. In non-pandemic times, these restrictions limit consumer choice, interfere with the health-promoting benefits of midwifery, and exacerbate existing health disparities by keeping midwifery care out of reach for many people whose insurance will not cover out-of-hospital birth and who lack the resources to pay out-of-pocket. As COVID-19 has prompted more pregnant people to seek community birth, legal restrictions on midwifery make the lack of access to such care even more acute and the health consequences of that lack of choice even more troubling.

Finally, Part V concludes with several recommendations regarding how to learn from the COVID-19 pandemic to protect the health and safety of all pregnant people in future health crises and continue the necessary work of reforming the U.S. maternity care system by expanding access to midwives and community birth.

[. . .]

During the pandemic, many pregnant people pursued transfer to an out-of-hospital midwifery practice. Not only did they wish to minimize risk of COVID-19 exposure, but many pregnant people were also motivated to avoid the restrictive COVID-19 policies many hospitals implemented, including limiting support people and separating newborns from their parents in the event of a suspected or confirmed positive COVID-19 test result. These burdensome policies were the result of hospital administrators and health care providers doing their best under emergency circumstances to protect the health and safety of staff and patients with limited information about the impact of COVID-19 on pregnancy and about the disease itself. However, as clinicians, ethicists, and public health experts study the United States' COVID-19 response, they should consider carefully the inequities caused or exacerbated by prevention measures when planning for future health crises--especially for people of color who are at greater risk of experiencing mistreatment during childbirth and of suffering adverse health outcomes, making the support of partners and doulas, as well as immediate bonding and breastfeeding time, all the more important.

Although such hospital policies were designed to be temporary, health experts predict that many COVID-19-inspired changes to the practice of medicine will persist after the pandemic wanes. In the maternity care context, this may include continued growth in community birth, as more pregnant people seek care under the midwifery model, especially people of color whose experiences with racism and bias in medical settings make out-of-hospital midwife-attended birth particularly appealing. As COVID-19 took hold, many pregnant people discovered that they could not find an available midwife because area practices were full to capacity or there simply were no midwives practicing locally. In this way, the pandemic highlighted the serious gaps in access to midwifery care across the U.S., even in non-pandemic times. Policymakers should act promptly to remedy the flaws in pregnancy and childbirth-related data collection, license all credentialed midwives and reform restrictive regulations on midwifery practice and freestanding birth centers in order to expand access to community birth, and develop creative ways to cultivate interprofessional cooperation and collaboration between midwives and physicians.

A central tenet of the reproductive justice framework calls for “center[ing] the most marginalized” in order to achieve reproductive justice more broadly because “[o]ur society will not be free until the most vulnerable people are able to access the resources and full human rights to live self-determined lives.” Centering the needs of Black women and other pregnant people of color in the push for structural change to the maternity care system during the pandemic and beyond will result in the reduction of racial health disparities that harm so many birthing people and their families, and achieve safer and healthier birth for all.

Assistant Professor of Law, Drexel University Thomas R. Kline School of Law. LLM, Temple Law School; J.D., NYU School of Law; MSc, London School of Economics; B.A. Yale University.

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