The Monopoly

In Kentucky, birth options are extremely limited, with zero birth centers and almost no options for midwifery care outside of the hospital. One woman has been trying to open a birth center for years—spending a quarter of a million dollars of her own money—but local hospitals have succeeded in stalling out her effort.

The state has one of the highest Cesarean section rates in the country, and boasted several hospitals with rates of over 50% in 2012. In my own community, Lexington, I hear the same stories you hear in other areas of the country where birth isn’t done so well: starving women in labor, mandatory stirrups for pushing, mandatory Cesareans where vaginal birth after Cesarean isn’t “allowed” or supported, and bait & switch by providers who promise support for unmedicated birth and then don’t deliver it.

The Misrepresentations Protecting the Monopoly

Now, a coalition of Kentucky families has secured bipartisan support (over a third of the senators are co-sponsors) for SB85, a bill to license Certified Professional Midwives (the category of midwives trained in out-of-hospital birth per a national credential). This bill is compliant with U.S. MERA agreements and creates an option for Kentucky families to choose out-of-hospital birth with someone who is trained, certified, and licensed by the state.

It’s a big deal that the Kentucky Home Birth Coalition has gotten this far, and they should be proud of themselves. One legislator told a coalition leader they have never seen this much grassroots support for any bill.

This week, however, coalition members got some bad news in two forms:

1. The Kentucky Hospital Association and Kentucky Medical Association (neither of which has engaged in talks with the coalition) have distributed materials opposing the bill, completely misrepresenting the facts about the bill and about CPMs. What they describe in their materials is factually inaccurate about these midwives and the bill itself.  Among various other inaccurate, uninformed, and misleading statements, they misrepresent the CPM credential–repeatedly calling CPMs “lay midwives” (which is a derogatory term for traditional midwives who have not gone through formal education)–and claim that CPMs are “not required to meet education or qualification standards”!

Again, the purpose of the bill is to create training and educational standards for Certified Professional Midwives in Kentucky.  Based on the statements made by these associations, you have to assume they have never seen the bill and have no idea what a Certified Professional Midwife is.

The document from the medical association is here: bit.ly/KMAmisinformationSB85

The rebuttal document from the Kentucky Home Birth Coalition is here: bit.ly/truthSB85

The document from the hospital association is here: bit.ly/KHAmisinformationSB85

2. Numerous state and national nurse-midwifery organizations are in support of the bill–including the American College of Nurse Midwives and the Kentucky Coalition for Nurse Practitioners and Nurse Midwives. BUT last night we heard that various individual nurses and nurse midwives have opposed the bill, including someone claiming to represent Frontier Nursing University–the #1 school for nurse midwifery in the country (based in Kentucky!). Yesterday, a letter from Frontier’s president said they supported the bill, but only if it were rewritten in a way that makes all of Kentucky’s current CPMs ineligible to practice–a proposition that falls outside of U.S. MERA agreements. A bill that will license zero midwives is not a viable option for Kentucky families.

The cumulative effect of all of this, just over this past weekend, has been for the bill to be kicked back to committee just when everyone thought it was moving forward.

It’s disappointing but not surprising that the medical groups would oppose this bill and even use underhanded tactics to do so.  But the second piece of news is heartbreaking, confirmed by a coalition leader who told me, “Senate leadership told us, ‘You have midwives against you.  That’s the main reason we’re sending this bill back.’”

If that happens, CPMs will still not be able to practice in Kentucky and families having home births will still have to traffic in an underground market—hoping and praying there is no need to transfer to a hospital.

What Can You Do?

Kentucky and non-Kentucky residents can help!

> You can tweet the hospital and medical associations to “Tell the truth! Support the USMERA agreement and support SB85”.  Please be respectful and professional–it is always best to take the high road.

Kentucky Medical Association: @kymedassoc
Kentucky Hospital Association: @kyhospitals
American Hospital Association (national organization overseeing the Kentucky Hospital Association): @ahahospitals

> You can also tweet the Senate leadership to tell them to “support SB85 as written and let it be heard in Licensing ASAP”!  Please be respectful and professional–it is always best to take the high road.

Senate President Robert Stivers: @kysenatepres
President Pro Tem David Givens: @kydavidgivens
Majority leader Damon Thayer: @damon_thayer
Majority Whip Jimmy Higdon: @SenatorJimmy

> Kentucky residents can also CALL our leadership to say the same (see graphic below). Kentucky residents can also write letters to the editors of your local papers (see my example at bottom).

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> Kentucky residents can EMAIL your legislators to let them know this information from the KMA and KHA is inaccurate, and urge them to know the facts about the bill.  You can find that contact info here.  As an example, here is the message I sent my representative:

Dear Sen. ___,

I wrote you a few weeks ago by regular mail about SB85, to license Certified Professional Midwives in Kentucky, and I thank you for your gracious response.

It has just come to my attention that the Kentucky Hospital Association and Kentucky Medical Association are blatantly misrepresenting the bill to their members and, I assume, to our legislators. Most concerning, they claim the bill licenses “lay” midwives (in fact, it licenses only Certified Professional Midwives) and that it has no educational or training component, when, as you know, the entire purpose of the bill is to establish those standards.

You can see some of the statements they have made here: 
Kentucky Medical Association: http://bit.ly/KMAmisinformationSB85 [the coalition’s rebuttal is here]
Kentucky Hospital Association: http://bit.ly/KHAmisinformationSB85

These organizations, of course, profit financially from opposing this bill. Meanwhile, Kentucky families support SB85 because the well-being of our mothers and babies is our first and only concern.

I would very much appreciate it if you would forward this message directly to your colleagues or otherwise notify them that the claims being made by these organizations are inaccurate.  Thank you from the bottom of my heart for helping protect family interests against corporate interests!

Respectfully,

____

My letter submitted for publication to the Editor at the Lexington Herald Leader

Dear Editor,

As Kentucky families desperately seek safer, more cost effective maternity care options, the Kentucky Hospital Association and Kentucky Medical Association seek to block our options.

SB85, a bill to license Certified Professional Midwives, allows nationally credentialed and trained midwives to be licensed by the state to serve healthy, low-risk women in out-of-hospital settings.

As the bill winds through the legislative process with wide bipartisan support, these organizations representing for-profit institutions blatantly misrepresent the bill’s content and intent. In publications to their members and our legislators, they smear professional midwives by calling them “untrained” and uneducated, and they insult the hundreds of families supporting this bill by claiming that we need more regulation from the government around private family healthcare decisions.

In fact, the entire purpose of the bill is to establish training and credentialing requirements for Kentucky midwives, making birth safer, healthier, and less expensive for those families who choose this option.

These organizations are clinging to a monopoly on maternity care that has produced one of the nation’s worst C-section rates, widespread mandatory surgery policies for women who have had C-sections, and C-section rates in individual hospitals of over 50%!

Families, rather than for-profit institutions, should decide what is safest and best for them. I urge our legislators and the public to get the facts on SB85—and see through the tactics of organizations that stand to lose their corner on the market.

Cristen Pascucci, Lexington
Vice President, Improving Birth (the nation’s largest consumer-based maternity care advocacy organization)

Support the Kentucky Home Birth Coalition

This coalition of working families raised money for three years to hire a lobbyist so they could seriously pursue this bill.  Please help keep the effort alive by contributing to Kentucky families’ efforts!  Click here to give.

I have joked that sometimes when I’m feeling down or discouraged, I sit back and reread committee opinions from the Committee on Ethics for the American College of Obstetricians and Gynecologists (ACOG).  But, it’s not entirely a joke; even as alarming reports roll in daily on how people giving birth in the U.S. are treated, it’s uplifting to know that some good eggs at ACOG took the time to articulate their own obligations to support the rights and humanity of the folks in their care.

In addition to perusing these statements recreationally, I often incorporate language from these opinions into my talks and workshops relating to patients’ rights. It is also useful information for anyone looking for insight on the quality of care they themselves or their clients received—or looking to provide their feedback about that care (including making complaints).

Here are four critical opinions for anyone working with pregnant people.

Committee Opinion #439, “Informed Consent”

ACOG Committee on Ethics (2009, reaffirmed 2015)

Link to the opinion

Informed consent is arguably one of the biggest issues in maternity care today. As national health, medical, and advocacy groups express concern about too-high rates of risky procedures like induction and Cesarean, many women are simultaneously telling us that they were not given information or a choice before they had these procedures.   True informed consent could make the difference between overuse and judicious use of these interventions; presumably, the person giving birth has the purest motives in the room when it comes to consent or refusal of major medical procedures.

There is so much “good” in this statement on informed consent, it’s impossible to select just one or two quotes. Take a few minutes to read the opinion yourself. Here are a few juicy tidbits:

• “Informed consent should be looked on as a process rather than a signature on a form.”

• “Seeking informed consent expresses respect for the patient as a person; it particularly respects a patient’s moral right to bodily integrity, to self-determination regarding sexuality and reproductive capacities, and to support of the patient’s freedom to make decisions within caring relationships.”

• “Informed consent not only ensures the protection of the patient against unwanted medical treatment, but it also makes possible the patient’s active involvement in her medical planning and care.”

• “The existing imbalance of power in this relationship, however, is a reminder to physicians of their greater obligation to ensure and facilitate the informed consent or refusal of each patient.”

Committee Opinion #390, “Ethical Decision Making in Obstetrics and Gynecology”

ACOG Committee on Ethics (2007, reaffirmed 2013)

Link to the opinion

This opinion is a little more complex in that it considers different frameworks for ethical decision making, some of which are not so clear-cut. Ethics can be murky! But it contains one of my favorite passages, one that I’ve quoted to people all across the country:

“Often, informed consent is confused with the consent form. In fact, informed consent is ‘the willing acceptance of a medical intervention by a patient after adequate disclosure by the physician of the nature of the intervention with its risks and benefits and of the alternatives with their risks and benefits’ (27). The consent form only documents the process and the patient decision.”

Conflation of “informed consent” and the “consent form” is extremely common—not just among patients, but among health professionals. I don’t know how many nurses I’ve spoken to who have expressed frustration that in their workplaces, “consenting” patients means getting a signature on a piece of paper. That is a long way from informed consent.

Committee Opinion #498, “Adult Manifestations of Childhood Sexual Abuse”

ACOG Committee on Health Care for Underserved Women (2011, reaffirmed 2015)

Link to the opinion

What we call “trauma-informed care” is such a crucial part of advancing maternity care. Sadly, a big chunk of people giving birth have experienced abuse or sexual trauma, including rape, in their childhoods or as adults. These people are even more vulnerable to the impacts of disrespectful and aggressive maternity care—impacts that reach far into the postpartum period, the ability to parent, and the relationships with babies, partners, and families.

As awareness about trauma-informed care grows, I love seeing this topic addressed head-on by ACOG. This is from the Abstract:

“Many obstetrician-gynecologists knowingly or unknowingly provide care to abuse survivors … Survivors may be less likely to have regular Pap tests and may seek little or no prenatal care. Obstetrician-gynecologists can offer support to abuse survivors by giving them empowering messages, counseling referrals, and empathic care during sensitive examinations.”

One sure-fire solution? Treat all patients as if they are trauma survivors. It costs nothing, it risks nothing, and it benefits all parties when providers incorporate patient empowerment and empathy into care.

Committee Opinion #321, “Maternal Decision Making, Ethics and the Law”

ACOG Committee on Ethics (2005)

Link to the opinion

Warning: I saved this for last because it is so nerd-a-licious. Don’t feel guilty about skimming this part or skipping to the end.

This jam-packed statement focuses on the loaded issue of so-called Maternal-Fetal Conflict, which the committee questions right off the bat, pointing out that “the interests of the pregnant woman and fetus actually converge” the vast majority of the time—contrary to the view of the mother-baby dyad as “paradigmatically adversarial.”

But wait, there’s more: “Beyond its impact on maternal and child health, failure to recognize the interconnectedness of the pregnant woman and fetus has important ethical and legal implications.” The authors go on to note that interventions on fetuses “must be performed through the body of a pregnant woman,” and recognize the pregnant individual as “patient, person, and rights-bearer.” Rights-bearer!

They also quote George Annas, the distinguished Boston University professor, lawyer, and bioethicist, from his editorial originally published in the New England Journal of Medicine: “Before birth, we can obtain access to the fetus only through its mother, and in the absence of her informed consent, can do so only by treating her as a fetal container, a nonperson without rights to bodily integrity.”[i]

It’s a little amusing that “reject[ing] medical recommendations” is listed as a risky behavior on par with the use of illegal drugs (three of the four cases cited involve alcohol or drugs, while the other case concerns a woman who declined a Cesarean for “big baby”—and then had an uncomplicated vaginal birth), but the authors come down on the right side about it.

Check out Item #2 under the heading “Against Coercive and Punitive Legal Approaches to the Maternal–Fetal Relationship,” which includes not one, but several, of my all-time favorite paragraphs relating to informed consent. And I’ll stop after this, because it really is a mic drop:

“Justice requires that a pregnant woman, like any other individual, retain the basic right to refuse medical intervention, even if the intervention is in the best interest of her fetus.”

In truth, the woman carrying the baby is the last person who will refuse an intervention if it’s in her own baby’s best interest. But, considering how insecure the right is to refuse any intervention (best interest or not) in pregnancy and birth, it’s good to see such an unequivocal statement about this most basic principle.

The Reality of These Ideals

These opinions feel like a warm bath compared to hard-hitting reality, where we hear daily from women who were not treated as respected, rights-bearing, autonomous individuals in their maternity care. As I wrote in the Statement of Interest for the legal brief submitted on behalf of New York mother Rinat Dray (and primarily authored by human rights lawyer Hermine Hayes-Klein), these alarming issues are systemic and widespread in maternity care. (Read the brief in full here.) When an on-call doctor expressed a preference for surgical birth contrary to the decision by Ms. Dray and her own doctor to plan a vaginal birth (her doctor was, unfortunately, not present), Ms. Dray was tied down and forced to endure a repeat Cesarean. Multiple advocacy and consumer groups support her today not because her case is so extreme, but because it is so common.

May we all find some encouragement in the ideals espoused by our national obstetricians’ group. And may all of our nation’s obstetricians find their way to practicing more in accordance with the ideals ACOG expresses.

A former communications strategist at a top public affairs firm in Baltimore, Maryland, Cristen Pascucci is the founder of Birth Monopoly, co-creator of the Exposing the Silence Project, and, since 2012, vice president of the national consumer advocacy organization Improving Birth.  In that time, she has run an emergency hotline for women facing threats to their legal rights in childbirth, created a viral consumer campaign to “Break the Silence” on trauma and abuse in childbirth, and helped put the maternity care crisis in national media.  Today, she is a leading voice for women giving birth, speaking around the country and consulting privately for consumers and professionals on issues related to birth rights and options. 

Consult with Cristen | Resources + more Articles

Free handouts + monthly-ish updates from Birth Monopoly: click here

[i] Annas, GJ. N Engl J Med. 1987 May 7;316(19):1213-4.

Two years ago, when I went around the U.S. talking about women’s rights in childbirth, I asked groups of doulas between Los Angeles and Manhattan what they wish they could tell their clients, but can’t.  Over and over, the answer was: “I wish I could tell them they will probably be assaulted in childbirth.”  These doulas were distraught and traumatized.  They felt helpless.

Imagine how their clients felt.

So what does a doula do when her client is being violated right in front of her?  I’ve been piecing together the answer to that question for some time now, and Amy Gilliland’s new article “Birthrape And The Doula” is her own “piecing-together” from many years of observation, firsthand experiences, and research.  It’s a must-read article, and below is our conversation about the topic and her article.

Some relevant links for you:

Amy’s article: “Birthrape and the Doula“

Her blog: DoulaingtheDoula.com

Her workshops & resources: AmyGilliland.com

Her trainings: DoulaWorkshop.com

Mastering Respectful Confrontation, by Joe Weston: Amazon

And coming soon: as I mention towards the end of the video, next up, I’m publishing here at Birth Monopoly a letter I wrote to a doctor about forcing a vaginal procedure on her patient.

P.S. Sorry we lost the picture partway through.  I’m not a technical genius.

A new ethics opinion from the U.S. obstetrician’s organization makes it clear that a woman’s right to say “no” in her medical treatment is paramount, and takes precedence over concerns about fetal well-being.  The committee urges doctors to respect “fundamental values, such as the pregnant woman’s autonomy and control over her body,” and discourages them “in the strongest possible terms” from the use of coercion and court-ordered threats or interventions.

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This is critical at a time when doctors, hospitals, and judges regularly co-opt women’s decision-making in pregnancy and birth, as documented by multiple court cases around the country (Turbin vs. Abbazzi, et al. in California, Dray vs. Staten Island Hospital, et al. in New York, Switzer vs. Retzvina, et al. in New Jersey, Malatesta vs. Brookwood Medical Center, et al. in Alabama [Ms. Malatesta’s own story is here]–all of which are in progress now, except for Switzer, which was resolved in late 2015) and by widespread reports from women themselves, such as were compiled in firsthand accounts here (see Exhibit B in the embedded PDF about halfway down the page), here, here, and here.  In September 2015, consumer advocates wrote a letter to ACOG asking them to address the issue of disrespect and abuse in maternity care.

From deposition of Dr. Natalia Rezvina, Switzer vs. Retzvina et al.

Indeed, the safety of the baby is very often cited when women are harmed with forced interventions, including in the court cases listed above.  In Ms. Switzer’s case, the doctor said in deposition that she had “two patients” and asserted that she (the doctor) must speak for the “desire of the fetus” (see page 91 in file titled “Natalia Rezvina’s Deposition: ‘I do not agree with your American, whatever, ACOG,’” here).  Ms. Switzer and her lawyers maintained that there was never an emergency and her written consent for Cesarean was given under duress and threat of involvement by “legal people” and social services. Lawyers for Staten Island Hospital in the Dray case went so far to claim that women do not have due process rights in childbirth in the case of an “emergency”; however, that defense team called it an “emergency” that Ms. Dray wanted to have a vaginal birth after Cesarean, as she and her doctor had planned all along.  In Ms. Malatesta’s case, her attending doctor (not named in the lawsuit, and not present during the alleged physical battery she experienced) stated that he believed the physician, not the mother, had the “ultimate choice” in childbirth–even when there was no emergency.

From deposition of Dr. William Huggins, Malatesta vs. Brookwood, et al.

Below are some highlights from the Committee on Ethics’ Committee Opinion Number 664, “Refusal of Medically Recommended Treatment During Pregnancy” (June 2016), which replaces Committee Opinion Number 321, “Maternal Decision Making, Ethics and the Law” from 2005.  (See Birth Monopoly’s #ACOGethics for other ethics committee guidelines that apply to pregnant and birthing people.)  Please note that, although committee opinions such as these may be used as evidence in court cases, committee opinions do not carry the weight of law.

In the opening section, “Complexities of Refusal of Medically Recommended Treatment,” the committee talks about the relationship between pregnant women and fetuses, stating that their interests typically converge, and pregnant women usually decide for the “best interest of their fetuses.”  They also note that any treatment of the fetus occurs “through the body” of the woman (emphasis added).  The committee notes that conceptualizing the woman and fetus as separate entities can cause the interests and rights of the woman to become secondary, and may even lead to the woman “being seen as a ‘fetal container’ rather than an autonomous agent.”

The committee then addresses “Directive Counseling vs. Coercion,” instructing OBs to participate in the former only–calling coercion (the use of force or threats to compel someone to do something) “ethically impermissible but also medically inadvisable” and “never acceptable” for obstetrician/gynecologists.  It also acknowledges limitations on the certainty of medical outcomes and knowledge.

The committee discusses “Arguments Against Court-Ordered Interventions” as abuses of power and encroachments upon the pregnant woman’s rights, autonomy, and bodily integrity that often disproportionately affect women of color or of low socioeconomic status.  It notes 1987 and 2013 papers showing that most cases where court orders were sought involved women in these two groups; the 1987 paper also showed the medical judgment had been in error in almost one-third of the cases.

So what does a doctor do when a pregnant woman refuses his or recommendation for a medical treatment?  The committee advises them to carefully note the woman’s refusal in her medical records, including documenting the informed consent discussion (risks, potential benefits, alternatives) and the refusal of consent and reasons for the refusal.  Under the heading “Process for Addressing Refusal of Medically Recommended Treatment During Pregnancy,” the committee lists a number of steps to guide physicians through understanding and engaging with their patients throughout the informed consent process.  Box 1 outlines the “RESPECT Communication Model,” one tool that can help physicians engage in meaningful communication with their patients, even when time is short.

Last, the committee acknowledges the need for “Supporting the Patient and the Health Care Team When Adverse Outcomes Occur,” as all parties may experience distress, regret, or grief at that time.  It stresses “honest communication and compassionate support” for all involved and recommends that counseling and debriefing resources are made available to medical professionals.  In communicating with the patient, physicians are advised that her grief comes first, as “judgmental or punishing behaviors . . . can be harmful.”

This opinion is an excellent resource, but consumers, advocates, and physician champions must continue to address the disconnect between the ideals it expresses and actual maternity care practice.  What can we do to further awareness and education among medical professionals, as well as providing protections for women who do experience coercion and forceful interventions?

A former communications strategist at a top public affairs firm in Baltimore, Maryland, Cristen Pascucci is the founder of Birth Monopoly, co-creator of the Exposing the Silence Project, and, since 2012, vice president of the national consumer advocacy organization Improving Birth.  In that time, she has run an emergency hotline for women facing threats to their legal rights in childbirth, created a viral consumer campaign to “Break the Silence” on trauma and abuse in childbirth, and helped put the maternity care crisis in national media.  Today, she is a leading voice for women giving birth, speaking around the country and consulting privately for consumers and professionals on issues related to birth rights and options. 

Consult with Cristen | Resources + more Articles

Free handouts + monthly-ish updates from Birth Monopoly: click here

The performance of medical procedures without consent on a competent adult is unethical, unprofessional, and possibly illegal.  More specifically, when a medical or midwifery professional administers a procedure without the consent of the pregnant or laboring person–including a vaginal exam, stripping of the membranes, breaking of the water, or episiotomy–it is obstetric violence.  Procedures involving the genitals may also be perceived as sexually traumatic by the person on the receiving end.

Several months ago, I wrote a letter to send to a Virginia obstetrician after one of her patients contacted me to discuss filing a complaint for a forced cervical check; other women had contacted me with similar complaints before and after that.  So, I decided to publish my letter here with my permission to the public to use it as inspiration for your own letters.  You are welcome to use any of the language below.  You may also download a template of this letter directly to your computer here, and it can be altered to be sent from third parties like doulas and partners.  You may send your letter(s) directly to the person who administered the procedure or to others, like hospital legal departments, physician insurance companies, and state medical or nursing boards.  (For more on filing complaints, go here.  For one-on-one assistance writing or maximizing the impact of your letter, contact me for a consultation.)

By sending these letters, we are making steps to bring transparency and accountability to these brutal, widespread practices.  You are welcome to comment below if you’ve ever had this experience–often, the first step in healing is simply speaking the trauma out loud, when you are ready to do so.

[Date]

Dear Dr. _____,

I am a consumer advocate who holds executive and advisory positions at national and international organizations working to advance maternity care.  I have great respect and compassion for your training and profession.  I understand that there are many pressures and many barriers to providing the most respectful and compassionate care.  I know obstetricians are overworked and overtired and have crushing liability concerns, as well as various administrative pressures.

With that understanding, I need to tell you that I was recently contacted by —–, a patient of yours who gave birth in —–. Ms. —– conveyed to me that immediately prior to the birth of her baby, she declined a cervical check from you, but you proceeded with the cervical check in spite of her explicit refusal and as she attempted to physically move away from you on the bed while crying, screaming, and begging for you to stop.

Ms. —– has expressed that she was traumatized that this procedure was administered and continued without her consent.  I understand that she gave fully informed consent for the other procedures administered during her labor and she has no complaints about the rest of her care; she made it clear to me that the non-consented cervical exam is the source of her trauma.

I was not there and I’m sure there are many more details to this story that only you and Ms. —– know.  I understand that you cannot discuss any of those details with a third party.  However, I did want to let you know some facts about the scenario as Ms. —– described it:

–       Battery: It may be considered battery to perform a vaginal exam or other procedure on a patient against her will.  Medical professionals do not have the right to touch, penetrate, or treat patients against their will, even in the course of childbirth.  In California, a doctor recently surrendered his medical license after a patient sued him for assault & battery following a forced episiotomy (see “Woman Forced into Episiotomy Fights Back with Lawsuit,” by Beth Greenfield, published June 4, 2015 on Yahoo.com).

–       Informed Consent & Refusal: All patients have the right to informed consent and refusal.  These are both constitutionally based rights of patients and fundamental ethical tenets for physicians.  The American College of Obstetricians and Gynecologists (ACOG) is unequivocal about these obligations in at least three Committee on Ethics opinions, including the latest from June 2016, #664 “Refusal of Medically Recommended Treatment During Pregnancy,” which states:

Pregnancy is not an exception to the principle that a decisionally capable patient has the right to refuse treatment, even treatment needed to maintain life. Therefore, a decisionally capable pregnant woman’s decision to refuse recommended medical or surgical interventions should be respected.

See also opinions #439 “Informed Consent” (2009, reaffirmed 2015) and #390 “Ethical Decision Making in Obstetrics and Gynecology (2007, reaffirmed 2013).

–       Trauma:  Being penetrated without consent—including during the event of childbirth—can be psychologically traumatic for women, whether or not they express it at the time it happens.  Manifestations of trauma may include flashbacks, nightmares, inability to sleep, inability to bond with the baby, fear of returning to a medical setting, etc. Non-consented procedures, particularly involving vaginal penetration, can be particularly traumatizing for women who have experienced childhood sexual abuse.  ACOG states that an estimated one in five women has survived childhood sexual abuse in its committee opinion “Adult Manifestations of Childhood Sexual Abuse” (#498, 2011, reaffirmed 2015).

–       Postpartum PTSD: In one U.S. study, 9% of women screened positive after childbirth for all of the criteria for Post Traumatic Stress Disorder per the DSM-IV.  (See “Posttraumatic stress disorder in new mothers: Results from a two-stage U.S. national survey” in Birth, 38(3), 216-227, by Cheryl Tatano Beck et al., 2011.) There is a growing body of research connecting aggressive, non-consented, and disrespectful care during childbirth with postpartum PTSD.

To sum up, patients have the right to say “no” to procedures like cervical exams, and failure to respect that right is a violation of the law and of professional ethical standards.  Coerced and forced treatments are often very traumatic for women—especially women who are predisposed due to their histories—and can have major, long-lasting mental health impacts, up to and including PTSD.

Please be assured that this letter is not meant as an intention of legal or other action.  I write solely to convey some facts that I hope will inform your practice going forward.  I truly believe that the vast majority of healthcare providers want to do right by their patients.

There is no need to respond, but you are welcome to if you like.  Again, I have deep respect for your profession and my intention is to provide you with information that may benefit your practice in future.

All the best,

Cristen Pascucci
Founder, Birth Monopoly
Partner, Human Rights in Childbirth
Vice President, Improving Birth (2012-2016)

cc: —–

A former communications strategist at a top public affairs firm in Baltimore, Maryland, Cristen Pascucci is the founder of Birth Monopoly, co-creator of the Exposing the Silence Project, and, since 2012, vice president of the national consumer advocacy organization Improving Birth.  In that time, she has run an emergency hotline for women facing threats to their legal rights in childbirth, created a viral consumer campaign to “Break the Silence” on trauma and abuse in childbirth, and helped put obstetric violence and the maternity care crisis in national media.  Today, she is a leading voice for women giving birth, speaking around the country and consulting privately for consumers and professionals on issues related to birth rights and options. 

Consult with Cristen | Resources + more Articles

Free handouts + monthly-ish updates from Birth Monopoly: click here

I was struck by this thought-provoking comment on home birth safety by Professor of Philosophy and Medical Ethics Elselijn Kingma. This very short video is an excerpt from a panel discussion, “Perinatal Mortality in the Netherlands: Facts, Myths and Policy,” which took place at the 2012 Human Rights in Childbirth conference in the Hague, Netherlands.

The video is less than two minutes long, but for those of you who prefer to read (like me), the transcript is below that.

Elselijn Kingma: “Science can tell us something about mortality rates, or it can tell us something about morbidity rates. But [only] once we figure out how we value those mortality rates and morbidity rates can we implement the policy.

“One thing that I always notice and that I find worrying in that respect is when the focus is only and ever on perinatal mortality—and much of the focus in the debates these last two days have been about that. And we can fight over and over about whether there is an 0.1 increase or a 0.4 increase or no increase or even a reduction in perinatal mortality rates in home birth. But what is very rarely mentioned is the overwhelming evidence that home births are safer for mothers. Not a little bit safer but massively so.

“Now, that tells us something about the values in our society. Those facts are there, but how we interpret those facts tells us something about how we value saving, very occasionally, one life of a child versus inflicting lots of harms on other people: namely, the mothers of those children.

“It is one thing for mothers to routinely make that choice, to put themselves at risk fro their children, and that is always and ever an act of extreme altruism. But from a policy level a society has a duty to value all its citizens and all its humans equally. And from that point of view it is not at all obvious that we should always be so focused on perinatal mortality.

“So that’s the interpretation point.”

A former communications strategist at a top public affairs firm in Baltimore, Maryland, Cristen Pascucci is the founder of Birth Monopoly, co-creator of the Exposing the Silence Project, and, since 2012, vice president of the national consumer advocacy organization Improving Birth.  In that time, she has run an emergency hotline for women facing threats to their legal rights in childbirth, created a viral consumer campaign to “Break the Silence” on trauma and abuse in childbirth, and helped put obstetric violence and the maternity care crisis in national media.  Today, she is a leading voice for women giving birth, speaking around the country and consulting privately for consumers and professionals on issues related to birth rights and options. 

Kentucky has one of the highest C-section rates and highest repeat C-section rates in the country. Even as most Kentucky hospitals ban or discourage women from having vaginal births after Cesarean (VBAC) in their facilities, they also want to restrict women from having VBACs in their own homes.

This short Birth Monopoly video looks at the reality families face in a state where, in many ways, hospitals have more control over birth than women do.

* Several folks have reached out to Birth Monopoly about having a similar video produced for their state.  If you’d like more info about that, please contact us here.

Several generations back, Alabama virtually eliminated out-of-hospital midwifery by regulating out of business the Grand Midwives–Black women and descendants of slaves trained traditionally, by apprenticeship–who shepherded generations of slave, free, Black, and white babies into the world with their hands without medical equipment or medical backup.  As organized medicine did its best to systematically stomp out midwifery all over the country, these midwives were criminalized and birth moved to hospitals that at first refused to treat Black families, and later, continued to abuse and harm them because of racist policies and attitudes.

Families and midwives in Alabama have been attempting to “free the midwives” via the law for almost 15 years, begging for better options in a state with some of the worst health outcomes in the country, disappearing rural care, and disturbing reports of human rights abuses in maternity care facilities.

Every time, organized medicine has crushed their efforts, clinging to its monopoly on maternity care services.  This usually looks like an elected white man expressing “concern” for the “safety” of Alabama women and babies, on behalf of medical organizations with deep pockets.  The attached document disseminated this year by the anti-birth-choice lobby includes statements from multiple physician and medical organizations, like the Alabama Academy of Family Physicians, Alabama Hospital Association, and the Medical Association of the State of Alabama.

Senator Vivian Davis Figures (D) Mobile County

One of the hospitals that issued a “Call to Action” to doctors and nurses to act against the bill was Birmingham’s Brookwood Medical Center, which was at the losing end of a $16 million, 2016 verdict that highlighted the abusive treatment women endure in even the most posh hospitals.

This year, on the very last day of the session as families were looking at another likely defeat by the medical lobby, Senator Vivian Davis Figures stepped up to the microphone to say everything that needed to be said.  Here is the video, and below that, a transcript of what she said.  It’s amazing.  She quotes The Color Purple, y’all.

The bill passed.

Video transcript

Yes, I have a couple of questions for you, Senator Blackwell.  What I’d like to know is, Who are you working for?  Who has you in here at this mike, trying to kill this bill?  Let’s just get to the bottom line.  This is a bill about a woman’s choice.  Women have babies every day.  In fact, back in the day, your ancestors.  Did your ancestors own slaves?

Well, I’m not… 

If they did, if they did, let’s go there.   

I’m part Native American… 

Who do you think birthed your ancestors. Uneducated slaves, ok?  They were midwives.  They were midwives.  I am staying germaine, Mr. President, I’m talking about midwives and education.  You can’t get any more germaine than that.  Since you say that you’re concerned, Senator.  It is a woman’s choice as to where she wants to have her baby, after you men impregnate us. It is our choice.  We give birth to all of you, the males and the females.  I’m just, I’m just cutting to the chase.  Because I’m tired of this.  Every time it comes up a bill about a woman making a choice about how she wants to do something with her body, then you all get all concerned and want to be so doggone controlling about it.  People can choose where and how they want to have their children. 

I agree with you.

Now I chose to have my children at the hospital because I wanted as many drugs as they could give me, with my epidural, because I didn’t want to feel any pain.  But there are people who don’t want to do that.  There are people who don’t want to be in a hospital. And it’s their choice. And I keep asking for the statistics about where there are so many babies that are being killed, or mothers being killed, from having babies from a midwife. They’re already trained. They have their training. But it’s nothing we’re going to be able to say to you that’s going to satisfy you, because you don’t wish to be satisfied with that, Senator.  You’re trying to kill this bill.  That’s what you’re trying to do.  You soiree in here at the right time, when you want to kill something.  So, you know, I’ve just had it up to here.  This is the 30^th day, this bill has been around here. They’ve answered every question; all of the concerns have been worked out. All of them have been worked out. Even the amendment that Senator Or put on, with the regulation board going into place.  That is going to take every consideration, every concern into consideration. 

Not exactly.

But yet, you want to kill this bill. 

Not … you’re the one who does not want to talk and try to figure out a solution.

You’re not trying to find a solution.  You’re just trying to kill this bill because everything has already been made.  So Senator have at it; do what you want to do; but let me tell you.  Just like Ms. Celie from The Color Purple told Mister: Until you do right, nothing good is going to come to you.

(Mic drop)

Even in 2017, women’s consent rights in childbirth are disturbingly unclear to the professionals and institutions delivering their medical care.  One aspect is the idea of “implied consent”–a concept mischaracterized by hospitals to a number of women who have contacted me, and sometimes used to justify violations of their dignity and rights.

Specifically, when these women have complained to their hospitals about receiving one or more non-consented or forced procedures in birth, they were told that their explicit consent was not necessary because they had a) agreed to be admitted to the hospital or b) signed blanket consent forms giving the medical staff permission to treat them.  Sometimes these hospitals refer to this, erroneously, as “implied consent.”  The idea is that once the women were admitted or signed those forms, they should no longer have had the expectation that the care team must obtain consent for each procedure during treatment–including medication, surgical cuts, and procedures performed on and through the vagina–but, rather, expect that the care team had the authority to administer whatever treatment they chose for the duration of that patient’s labor or hospital stay.  Put another way, from the perspective of the hospital, these women had forfeited their rights to informed consent and refusal in order to give birth in their facilities.

This belief by hospitals is wrong, legally and ethically.

First, let’s take a rational look at this idea by pulling it back to all medical care–not just Labor & Delivery.  We can make this comparison because patients are patients, whether they are in the emergency department or in Labor & Delivery.  Patients in Labor & Delivery do not have different, or fewer, legal rights than other patients.  Pregnant or not, you retain your basic legal rights.  (Caveat: there are certain states where fetal personhood laws conflict with this idea and make things a little more tricky, but there is no broad, statutory law that conveys a different set of rights or restricts the rights of pregnant people in the United States.)

Neither is there any law that endows obstetricians or L&D departments with special legal authority over the medical care of their patients who are pregnant.  Obstetricians and hospitals certainly have tried to claim this right in court–for example, in testimony for Malatesta vs. Brookwood Medical Center; or when lawyers defending the hospital in Dray vs. Staten Island University Hospital, et al. argued that doctors do not need to wait for a court order to “override” a woman’s refusal of surgery in labor (that is, that they do not need to respect her right to due process); or when the implicated doctor in Switzer vs. Rezvina argued she doesn’t need to respect pregnant women’s decisions (discussed here).  Despite these claims, there is no general basis for a hospital to argue that implied consentapplies in any way differently on their L&D unit or to their pregnant patients than it would to the rest of the hospital or non-pregnant patients.

With that in mind, consider the effect of the idea that admission to a hospital is “implied consent” for treatment: No patient would ever have the right to information about their medical care or the right to say “no” to it.  Informed consent–the basic legal right to receive information and give or refuse permission in our medical care–cannot co-exist with this flawed definition of implied consent.  The concepts contradict each other.

In fact, “implied consent” in medical care is something that is generally understood to apply to emergency situations when the person is both unconscious and incapable of consent (i.e., a person presents at an E.R. with a gunshot wound and then passes out before he can agree to a certain course of treatment).  It is a concept with very limited scope that applies to a limited range of situations–none of which are the very broad scope of pregnancy.

Moreover, says, attorney Farah Diaz-Tello, formerly of National Advocates for Pregnant Women and a specialist in birth law, “Implied consent never overrides non-consent.  So if someone walked in a hospital with a baby hanging out of her vagina, she has implicitly consented to them treating her by seeking help. But the second she says ‘no, stop that,’ they have to stop. She hasn’t consented to every possible thing ever. You might consent by seeking help, but consent is always revokable.”

The idea that consent is always revocable brings us to our next point: the confusion around consent forms and the power they do or do not have.  I have heard pregnant women and medical professionals state that executing consent forms means “signing away your rights.”  In one case of a woman receiving a non-consented membrane stripping during a consented vaginal exam, she was told by a hospital representative, “When you sign the consent for care, that goes from the beginning all the way through until discharge”; in context, the hospital representative was saying that once the patient had signed a consent form at admission, they did not need her ongoing permission to administer medical procedures.  (You can hear the recording of this exchange on Birth Allowed Radio Episode 8 – Woman Records Confrontation with Hospital re: Consent, Experts Refute Hospital Defense.)

This belief is also wrong, legally and ethically.

The American College of Obstetricians and Gynecologists (ACOG), says plainly:

Often, informed consent is confused with the consent form. In fact, informed consent is ‘the willing acceptance of a medical intervention by a patient after adequate disclosure by the physician of the nature of the intervention with its risks and benefits and of the alternatives with their risks and benefits’ (27). The consent form only documents the process and the patient decision.  

(From Committee on Ethics Committee Opinion #390, “Ethical Decision Making in Obstetrics and Gynecology,” 2013.  Opinion here and more on obstetrician ethics here.)

ACOG is clear that the documentation of informed consent is fundamentally different from the actual process of informed consent–a process based on a constitutionally based idea that human beings own their own bodies, enshrined in a right that extends to their medical care.  We should also remember that consent forms and informed consent are primarily meant to protect the patient.  Something has gone terribly awry when hospitals use these protections against patients, rather than in defense of them.

Indeed, based on my extensive interactions with unhappy maternity care customers, hospitals seem to routinely respond to complaints about violations of informed consent with something along the lines of, “We’re sorry for the communication problem, but your treatment was medically appropriate”–and then claim the patient didn’t have the right to say no to the treatment in the first place.  I can think of several women off the top of my head who had vaginal exams without their consent, or who consented to the vaginal exam but then had had an additional procedure forced on them in the course of the exam.  For example, in the previously mentioned story documented in Episode 8 of Birth Allowed Radio, the hospital representatives claimed repeatedly to the woman that a membrane sweep (meant to induce labor) is part of a vaginal exam (meant to assess dilation), so she did not have a right to refuse it once she had consented to the vaginal exam.  (This claim, by the way, that an assessment of cervical dilation includes a manual induction of labor, is false. These are two stand-alone procedures with separate functions.)  One representative said to her: “So [the physicians] feel like, you know, their fingers are up in your vagina and you’ve consented to that, so…”

Essentially, this hospital, like other hospitals, justified a physician’s actions by pinpointing the moment they claim the patient no longer has consent rights–the moment the medical professional assumes control of the patient’s body… ostensibly at the request of the patient.

That is wrong from any angle and easily fits a definition of obstetric violence as “appropriation” of the patient’s body.  There is no moment when a patient forfeits the rights of informed consent and refusal, short of a serious medical emergency where the patient is unable to consent.  It is especially alarming when, as in another situation with a non-consented membrane sweep, that hospital defended its physician with an “implied consent” argument even when the woman loudly, explicitly refused the procedure after it started happening.  The hospital used her own prior consent to justify the physician inflicting that humiliation and trauma on her even as she was crying, “No!”  This is simply unjustifiable.

These are foundational legal and patients rights issues, and yet the front line of communications in many hospitals doesn’t seem to have, or isn’t willing to admit they have, a basic grasp of them.  In fact, in both of the specific situations I’ve mentioned in this article, each hospital conducted an internal physician review of the patient’s complaint before responding.  So, it seems that neither administrations nor the physicians at these facilities have a working understanding of the legal and ethical obligations owed to patients for informed consent and refusal.

One hospital representative also said she’d contacted other local hospitals about their consent processes, and they agreed they did not have a consent process for stripping women’s membranes in the course of a vaginal exam.  It’s fair to say, then, that this hospital representative’s major errors about the ideas of implied consent, informed consent, and consent forms are not unique to her or the facility where she works.

All hospitals that provide maternity services should note that women are bringing lawsuits about informed consent violations in childbirth–most recently, the California case where a woman sued her doctor for medical battery following a forced, explicitly refused episiotomy.  Several cases revolving around informed consent and refusal in childbirth have also been resolved in and out of court over the last year or so in Washington, Alabama, and New Jersey.

Informed consent and consent forms protect patients, but they also protect healthcare professionals.  A medical professional should not be held liable for adverse outcomes resulting from a patient’s informed decision about their own medical care, and documentation of a patients’ refusal of treatment is a liability protection for the care providers involved.  If that principle rings hollow to lawsuit-shy practitioners, there are lawyers and experts in the birth rights movement willing to testify to it.

Instead of blaming patients who have been harmed by institutional failures to respect informed consent and refusal, hospitals must look critically at what is happening in their facilities.  They should have written policies and in-house educational requirements based on current, accurate interpretations of care providers’ legal duties to patients, with meaningful feedback loops for patient complaints.  Sometimes, this will mean hospitals need to admit they have been doing it wrong for a long time.  That moment of truth is a small and necessary price for earning women’s trust in future.

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For the complete story on one woman’s experience with the “Implied Consent” argument after a non-consented procedure in labor, listen to Birth Allowed Radio Episode 8 – Woman Records Confrontation with Hospital re: Consent, Experts Refute Hospital Defense.