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From the colonial period to the Great Depression, lay midwives attended a large proportion of deliveries that occurred in the United States. As late as 1900, midwife-attended home births accounted for approximately one-half of all births in the United States. By 1950, however, physicians attended more than eighty percent of all deliveries in the hospital setting. Historians have analyzed and interpreted birth statistics, medical textbooks, medical school curricula, minutes of medical society meetings, public health reports, articles in medical journals and popular magazines, letters from laboring mothers, diaries of midwives, legislative committee reports, and state legislation to identify issues of class, race, gender, and professional and economic competition that may have played a role in physicians' opposition to midwives and the transition from lay midwife-assisted home births to physician-assisted hospital births in the United States.

This article analyzes and interprets an additional resource: the texts of historical and recent court opinions that interpret state regulation of lay midwifery practices. Why did courts consistently defer to legislative findings that high infant and maternal mortality rates justified stringent regulation of midwives? Why do courts continue to uphold statutory requirements for physician supervision of midwives and statutes that restrict the practice of lay midwifery? To answer these questions, this article analyzes the history of the regulation of lay midwifery, as well as judicial opinions interpreting such regulation, in Alabama, Massachusetts, and California. This article concludes that a confluence of forces likely has resulted in the judiciaries' continued deference to state legislative preferences for physician-controlled childbirth and stringent regulation of midwives.

Publication Citation

11 Cardozo Women's L.J. 61 (2004).