The Patient Protection and Affordable Care Act and Choice in Childbirth: How the ACA's Nondiscrimination Provisions May Change the Legal Landscape of Childbirth

INTRODUCTIONThe vast majority of births in the United States take place in a hospital setting.1 Trends over the past decade suggest, however, that the number of hospital births has been declining. Between 2004 and 2013, there was a 56 percent increase in non-hospital births in the United States.2 Most of these non-hospital births took place at home or in a birthing center3 and were attended by a midwife.4 There are many factors that may be influencing this upswing in non-hospital births-these include grassroots advocacy by groups promoting home birth, efforts to expand access to midwifery through state legislatures,5 and growing awareness of the high number of medical interventions that often occur in hospital births.6 Women desire meaningful options concerning care and medical intervention during childbirth, and this interest is not confined to whether the birth will occur in the hospital. Women also often want to have the final say over other decisions regarding their pregnancy and labor-for example, the decisions to take medication, to agree to certain invasive tests, or to give birth vaginally or through cesarean section.Yet there are various legal obstacles to the exercise of such choices, both at home and in the hospital. These include state licensure laws that restrict the practice of midwifery; the failure of courts to recognize constitutional protections for midwives, their clients, and pregnant women who experience unwanted medical interventions during childbirth; and the narrow scope of malpractice remedies for individuals, compared with hospitals' interest in limiting possible malpractice liability.Recent developments in the U.S. health care system have created new legal protections that may increase women's access to choice in birth. Two provisions of the Patient Protection and Affordable Care Act of 2010 (ACA) prohibit discrimination against providers and patients, respectively.7 Section 2706(a) of Title XXVII of the ACA [hereinafter "Section 2706(a)"], which went into effect in January 2014, prohibits health insurance issuers from discriminating against "any health care provider who is acting within the scope of that provider's license or certification under applicable state law."8 This prohibits insurance companies that participate in the healthcare marketplace from refusing coverage of midwifery services in states where midwives are licensed providers. Section 1557 of Title XLII [hereinafter "Section 1557"] of the ACA prohibits discrimination by health care providers against certain patients.9 This law is the first civil rights provision to protect women from sex-based discrimination in healthcare; it also prohibits discrimination on the basis of race, color, national origin, age, or disabilities.10This paper explores how the ACA's nondiscrimination provisions may increase women's ability to make crucial choices about pregnancy and childbirth, ranging from choosing where to give birth, choosing whether to use the services of a midwife, and deciding which medical interventions are desired-and when they are necessary. Part I offers a background of choice in birth, explaining trends in childbirth historically, in the United States today, and in other developed countries. It also clarifies the difference between midwives and physicians, explains the arguments for and against home births, and explains several issues women sometimes face in hospital births. Part II discusses the legal obstacles to home birth, including state licensure laws and the failure of courts to recognize constitutional, antitrust, and other legal arguments as protecting unlicensed midwives and their clients; it then describes how the nondiscrimination provisions of the ACA may increase access to home birth, birth at a birth center, and midwifery services. Part III explains the legal obstacles women face when they experience emotional trauma or injury at the hands of an obstetrician or other medical staff during childbirth and argues that the recently passed civil rights law may be more effective than tort law at systematically addressing forced detainment and medical treatment of pregnant women by medical personnel, as well as holes in informed consent with pregnant patients. …