Montgomery judge allows lawsuit over Alabama birth center regulations to move forward

A Montgomery judge will allow a lawsuit against the Alabama Department of Public Health (ADPH) over birth center regulations to move forward.

Montgomery Circuit Court Judge Greg Griffin denied a motion Thursday from ADPH to dismiss the lawsuit, which alleges that ADPH has effectively made birth centers – facilities that provide an in-between option for individuals who do not feel comfortable with a home birth but prefer an out-of-hospital birth – illegal by forcing them to apply for hospital licenses. Birth centers do not meet the criteria of hospitals under law.

The lawsuit also alleges direct action against some providers. According to the suit, ADPH threatened Dr. Heather Skanes, an OB-GYN who opened the Oasis Family Birth Center in Birmingham, with criminal and civil penalties.

“The department only has the authority to require licenses for health centers that meet the definition of hospital under Alabama law, and to be a hospital under Alabama law, the health center must provide obstetrical care and it must offer those services to the general public,” Whitney White, a staff attorney with the ACLU Reproductive Freedom Project, said in court on Thursday.

White argued that birth centers provide midwifery care by licensed midwives, not obstetrical care. White also said that birth centers, unlike hospitals, are not generally open to the public.

“Instead, the plaintiffs only take on patients that meet rigorous risk-based eligibility criteria, and they routinely decline to take on patients who do not meet that criteria,” White said.

Assistant Attorney General Laura E. Howell, counsel for ADPH, said there is no difference between obstetrics and obstetrical care. She said obstetrics is a branch of medicine, which midwives do not practice, but they do practice obstetrical care, which she said concerns management of the prenatal, childbirth and postpartum stages of pregnancy.

“So it left off that practice of medicine,” she said.

Griffin oversaw a 7-hour hearing Thursday on whether to issue a preliminary injunction against new ADPH regulations on birth centers. 

Dr. Skanes said in testimony Thursday that ADPH worked with her when the birth center first opened to help register births, but didn’t say anything about whether the birth center was lawful or not. But this March, Skanes testified, she got a call from Dr. Amber Clark-Brown, the medical director for ADPH’s Bureau of Health Provider Standards, who told her that “the department considered Oasis to be operating as a hospital without a license and that they wanted us to cease operations.”

Howell suggested during cross-examination  that the department allowed Skanes to offer pre- and post-natal care. Skanes said limiting the center to those services would not be practical. 

“If a patient comes to a birthing center, they’re coming with the expectation that they can give birth in said center,” Skanes said. “It did not make financial sense or common sense to continue to give people that expectation if the department had asked us to cease doing our services.”

While the center has not shut down, it is currently unable to provide any care after losing midwives because it’s not practical to provide only prenatal and postpartum care, according to the lawsuit.

Skanes said that the department refused her requests to apply for the license or to take action to address the situation. She also said the department also did not provide claims that there have been any complaints about the safety or quality of the center’s care.

ACLU sues Alabama Department of Public Health over birth center regulations

Skanes also cited maternal mortality statistics that specifically affect Black mothers, especially in Alabama.

“Personally, as a woman of color, and who sees primarily women of color, when you look at the statistics as far as birth outcomes, it provides a level of anxiety that is difficult to comprehend for people who are not in this category,” she said.

Black mothers and newborn babies have some of the highest mortality rates in the country. In the South, and particularly Alabama, the situation is particularly grim: among white Alabamians, infant mortality was 5.8 per 1,000 live births in 2021. Among Black Alabamians, it was 12.1 per 1,000.

In other testimony, Dr. Zsakeba Henderson, senior health advisor for the National Institute for Children’s Health Quality and a former medical officer for Centers for Disease Control and Prevention (CDC) and the March of Dimes, outlined how birth centers could improve maternal health outcomes in the state. Henderson said there is extensive research that shows that a wide array of birthing options improves pregnancy outcomes.

“We know that there are maternity care deserts and there are not enough hospitals for everyone. There aren’t enough obstetricians for everyone, even. There are whole swaths of this country where there is no hospital with an obstetric unit. There are no birth centers, no doctors that take care of pregnant people and no nurse midwives,” Henderson said.

Skanes said that birth centers are also places of training and said being able to increase the number of Black midwives in Alabama, where midwives are mostly white, is “personally meaningful” to her.

“Having that option for women who are not seeing the benefit of hospital level care is critical to the community that I serve and that I’m a part of, and it’s harmful and just hurtful that the department continues to ignore women like me,” Skanes testified, her voice cracking.

The hearing for a preliminary injunction will continue Friday.