Non-nurse Midwives in Nebraska
Many states license non-nurse midwives, who go by a variety of titles. Although a few non-nurse midwives do attend home births within Nebraska's borders, most do not do so in an open manner as Nebraska does not license this category of midwife.
The research done by NFOM has discovered no statute specifically barring the practice of these non-nurse midwives. Despite this apparent lack of explicit statutory legal prohibition, there have been instances in Nebraska in which individual midwives have found themselves subject to cease and desist orders or charged with practicing medicine without a license. Many will assert that midwifery is not the practice of medicine or of nursing at all, but its own separate profession. The North American Registry of Midwives takes this position, which also has been explained by Suzanne Hope Suarez in her article Midwifery is Not the Practice of Medicine, published in the Yale Journal of Law and Feminism. (This article is not available for free online reading.)
How can it happen, then, that non-nurse midwives are served these administrative orders and criminally charged? States give authority to medical boards or commissions to act to create rules for their own professions and to take action to investigate allegations of, and remedy confirmed offenses.
This explanation is not intended to take a side in the much-discussed argument that a midwife who receives such an order is or is not practicing medicine without a license, but simply to inform that this is the authority under which such an order is issued. (Read about the position that midwifery is not medicine here, here, and here.) However, reading the administrative law portions of From Calling to Courtroom can offer some general, practical information on this situation.
An Opinion issued in 1993 by then Attorney General Don Stenberg and Assistant Attorney General Jan E Rempe explains their joint interpretation of how to apply Nebraska statutes when considering cases of both father-attended home birth, and non-nurse midwife attended home birth. Stenberg and Rempe agreed with a previous Attorney General Opinion issued in 1984 stating that a father could participate legally in the home birth of his own child in emergency situations only. They also stated in the opinion that "The practice of lay midwifery--that is, assisting at childbirth--by persons not certified as nurse midwives under sections 71-1738 to 71-1765, not licensed to practice medicine in Nebraska, and not excepted by section 71-1,103 constitutes the unauthorized practice of medicine, punishable under section 71-167."
Information about the Nebraska Board of Nursing can be found here.
Information about the Nebraska Board of Medicine and Surgery can be found here.
There was an attempt to explicitly criminalize the work of non-nurse midwives in 1993, but it was unsuccessful. Excerpts from the above Opinion were quoted in a Lincoln Journal article* (May 19, 1993) including the concern that "...the Nebraska Legislature's failure to specifically mention midwifery in section 71-1, 102 (dealing with the practice of medicine) or to define it, could cause section 71-1, 102 to be challenged as being unconstitutionally vague should a lay midwife be prosecuted for the unauthorized practice of medicine under this statute."
The same Journal article reported other relevant legal considerations regarding the legality of lay midwifery. According to University of Nebraska-Lincoln law professor Kevin Ruser, the history of the licensing law and previous midwifery cases heard in Nebraska courts have demonstrated acknowledgment of midwifery as a separate profession from the practice of medicine, the recognition of which has not been explicitly withdrawn.
Nebraskans who are credentialed and become aware of persons practicing within the scope of a credentialed profession to report the activity by Nebraska Statues 38-1,124 (2):
"The department shall enforce the Uniform Credentialing Act and for that purpose shall make necessary investigations. Every credential holder and every member of a board shall furnish the department such evidence as he or she may have relative to any alleged violation which is being investigated.
Every credential holder shall report to the department the name of every person without a credential that he or she has reason to believe is engaged in practicing any profession or operating any business for which a credential is required by the Uniform Credentialing Act. The department may, along with the Attorney General and other law enforcement agencies, investigate such reports or other complaints of unauthorized practice. The appropriate board may issue an order to cease and desist the unauthorized practice of such profession or the unauthorized operation of such business as a measure to obtain compliance with the applicable credentialing requirements by the person prior to referral of the matter to the Attorney General for action. Practice of such profession or operation of such business without a credential after receiving a cease and desist order is a Class III felony."
While organizations like The Big Push for Midwives work to achieve licensing for non-nurse midwives (specifically, Certified Professional Midwives who are credentialed by the North American Registry of Midwives, or NARM) throughout the US, there are midwives and midwifery supporters who disagree about the importance of licensing non-nurse midwives who attend home birth. Click here to read a lengthy (and messy) discussion/argument of the issue. Proponents of licensing often cite potential benefits such as safety, minimum education and training standards, legal/financial recourse for injured parties, recognition for the profession/credential. Proponents of legal recognition without requiring licensing often cite potential benefits such as avoiding excessive regulation, allowing for a variety of approaches, allowing parents to research and employ any care provider they prefer without fear. Carla Hartley is well-known as a midwife who advocates this position.
Although it has not happened in Nebraska as far as NFOM is aware, for some there is at least a theoretical concern that parents choosing to birth at home without a licensed provider could be viewed by the state as endangering or medically neglecting their child as occurred in this Illinois case in 2010.
Women in Nebraska who avail themselves of non-licensed midwifery care today generally find it through word-of-mouth or within their own communities.
*Lincoln Journal, May 19, 1993 Section: LegislatureArticle: Stenberg: Lay midwifery still illegal Opinion issued after judge dismisses charges against Omaha woman Written by Fred Knapp
Please remember that everything found on this site is for educational and informational purposes only. Nothing contained in this pages should be considered legal or medical advice; please direct such questions to appropriate professionals.
The research done by NFOM has discovered no statute specifically barring the practice of these non-nurse midwives. Despite this apparent lack of explicit statutory legal prohibition, there have been instances in Nebraska in which individual midwives have found themselves subject to cease and desist orders or charged with practicing medicine without a license. Many will assert that midwifery is not the practice of medicine or of nursing at all, but its own separate profession. The North American Registry of Midwives takes this position, which also has been explained by Suzanne Hope Suarez in her article Midwifery is Not the Practice of Medicine, published in the Yale Journal of Law and Feminism. (This article is not available for free online reading.)
How can it happen, then, that non-nurse midwives are served these administrative orders and criminally charged? States give authority to medical boards or commissions to act to create rules for their own professions and to take action to investigate allegations of, and remedy confirmed offenses.
This explanation is not intended to take a side in the much-discussed argument that a midwife who receives such an order is or is not practicing medicine without a license, but simply to inform that this is the authority under which such an order is issued. (Read about the position that midwifery is not medicine here, here, and here.) However, reading the administrative law portions of From Calling to Courtroom can offer some general, practical information on this situation.
An Opinion issued in 1993 by then Attorney General Don Stenberg and Assistant Attorney General Jan E Rempe explains their joint interpretation of how to apply Nebraska statutes when considering cases of both father-attended home birth, and non-nurse midwife attended home birth. Stenberg and Rempe agreed with a previous Attorney General Opinion issued in 1984 stating that a father could participate legally in the home birth of his own child in emergency situations only. They also stated in the opinion that "The practice of lay midwifery--that is, assisting at childbirth--by persons not certified as nurse midwives under sections 71-1738 to 71-1765, not licensed to practice medicine in Nebraska, and not excepted by section 71-1,103 constitutes the unauthorized practice of medicine, punishable under section 71-167."
Information about the Nebraska Board of Nursing can be found here.
Information about the Nebraska Board of Medicine and Surgery can be found here.
There was an attempt to explicitly criminalize the work of non-nurse midwives in 1993, but it was unsuccessful. Excerpts from the above Opinion were quoted in a Lincoln Journal article* (May 19, 1993) including the concern that "...the Nebraska Legislature's failure to specifically mention midwifery in section 71-1, 102 (dealing with the practice of medicine) or to define it, could cause section 71-1, 102 to be challenged as being unconstitutionally vague should a lay midwife be prosecuted for the unauthorized practice of medicine under this statute."
The same Journal article reported other relevant legal considerations regarding the legality of lay midwifery. According to University of Nebraska-Lincoln law professor Kevin Ruser, the history of the licensing law and previous midwifery cases heard in Nebraska courts have demonstrated acknowledgment of midwifery as a separate profession from the practice of medicine, the recognition of which has not been explicitly withdrawn.
Nebraskans who are credentialed and become aware of persons practicing within the scope of a credentialed profession to report the activity by Nebraska Statues 38-1,124 (2):
"The department shall enforce the Uniform Credentialing Act and for that purpose shall make necessary investigations. Every credential holder and every member of a board shall furnish the department such evidence as he or she may have relative to any alleged violation which is being investigated.
Every credential holder shall report to the department the name of every person without a credential that he or she has reason to believe is engaged in practicing any profession or operating any business for which a credential is required by the Uniform Credentialing Act. The department may, along with the Attorney General and other law enforcement agencies, investigate such reports or other complaints of unauthorized practice. The appropriate board may issue an order to cease and desist the unauthorized practice of such profession or the unauthorized operation of such business as a measure to obtain compliance with the applicable credentialing requirements by the person prior to referral of the matter to the Attorney General for action. Practice of such profession or operation of such business without a credential after receiving a cease and desist order is a Class III felony."
While organizations like The Big Push for Midwives work to achieve licensing for non-nurse midwives (specifically, Certified Professional Midwives who are credentialed by the North American Registry of Midwives, or NARM) throughout the US, there are midwives and midwifery supporters who disagree about the importance of licensing non-nurse midwives who attend home birth. Click here to read a lengthy (and messy) discussion/argument of the issue. Proponents of licensing often cite potential benefits such as safety, minimum education and training standards, legal/financial recourse for injured parties, recognition for the profession/credential. Proponents of legal recognition without requiring licensing often cite potential benefits such as avoiding excessive regulation, allowing for a variety of approaches, allowing parents to research and employ any care provider they prefer without fear. Carla Hartley is well-known as a midwife who advocates this position.
Although it has not happened in Nebraska as far as NFOM is aware, for some there is at least a theoretical concern that parents choosing to birth at home without a licensed provider could be viewed by the state as endangering or medically neglecting their child as occurred in this Illinois case in 2010.
Women in Nebraska who avail themselves of non-licensed midwifery care today generally find it through word-of-mouth or within their own communities.
*Lincoln Journal, May 19, 1993 Section: LegislatureArticle: Stenberg: Lay midwifery still illegal Opinion issued after judge dismisses charges against Omaha woman Written by Fred Knapp
Please remember that everything found on this site is for educational and informational purposes only. Nothing contained in this pages should be considered legal or medical advice; please direct such questions to appropriate professionals.
