Via a tip from a friend of the National Advocates for Pregnant Women, we learned that Kaplan review materials (created to help law students preparing to take state bar exams) suggest that a state ban on home birth would be constitutional because “the facts indicate that the regulation was enacted because of public health concerns, [therefore] it does further a compelling state interest.”
The hypothetical scenario provided for the practice question on constitutional law describes a state law requiring all births to take place in hospitals and be attended by physicians, except in emergencies, based on the rationale that infant mortality could be demonstrated (in a hypothetical study) to be higher for home births. In the scenario, a woman has filed suit to challenge the constitutionality of this provision, and wants to have a home birth with a midwife.
The study guide gives the correct answer as “constitutional, if despite the fact that the regulation has a substantial impact on a fundamental right, it furthers a compelling state interest.” The rationale provided is that if the facts “indicate that the regulation was enacted because of public health concerns” then a compelling state interest is furthered by the law and it is therefore constitutional.
We’ll just bypass for now that the name of the hypothetical state is “Aquarius” in the question. You know, because all those women interested in home birth are crazy throwback hippie folks.
I find the suggestion that a state ban on non-hospital births or births not attended by physicians would be found constitutional and allowed to stand quite chilling, and it disturbs me to find the “correct answer” presented in so straightforward a manner with little debate (although that is the nature of study guides). Aside from the problem of the lack of choice for pregnant women in the scenario (which is a huge issue), would the interpretation of constitutionality be correct in such a scenario? Could a state criminalize women for giving birth at home or choosing non-physician providers? For lack of a better description, the whole thing gives me the creeps.
The Kaplan scenario also completely ignores the fact that non-MD professionals (hello, midwives) often attend hospital births – it seems to assume that the only choices in birth are hospital/physician or home/whoever, leaving out the hospital/midwife possibility and framing the central issue as place of birth alone, ignoring the separate issue of choice of care provider and the various options for care providers available to pregnant women.
Do we have any constitutional law scholars in the audience who’d like to weigh in? If you have thoughts for Kaplan, their contact information is available on this page.