Montgomery judge blocks Alabama birth center regulations from taking effect

Montgomery Circuit Court Judge Greg Griffin Saturday blocked the Alabama Department of Public Health (ADPH) from enforcing hospital licensing rules on birth centers that at least two centers said had prevented them from operating.

The three-page order prevents ADPH from “refusing to timely license (including but not limited to refusing to timely issue temporary or interim licenses to) freestanding birth centers operating in the midwifery model of care . . . that can demonstrate substantial compliance with the standards set out by the American Association of Birth Centers and can satisfy the remaining statutory requirements.”

The ruling came after attorneys representing birth centers and the Alabama Department of Public Health (ADPH) clashed in a tense six-hour hearing Friday over new ADPH regulations that birth center personnel say are impossible to operate under.

In a statement Saturday morning, Whitney White, an attorney with the ACLU Reproductive Freedom Project, which represented birth centers in the case, said they were pleased with the ruling.

“We are pleased that the court put an end to the Alabama Department of Public Health’s unlawful and dangerous de facto ban on birth centers, allowing the dedicated providers in this case to offer pregnant Alabamians the essential health care they need in birth centers throughout the state,” she wrote in a statement.

It was not immediately clear Saturday morning if the state would appeal Griffin’s ruling. A message seeking comment was left with ADPH. The regulations were due to take effect on Oct. 15.

New rules

ADPH approved the new rules earlier this year. The regulations require 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 – to submit to oversight by a physician or medical director. It would also require them to be within 30 minutes of a hospital with OB-GYN services, and to apply for hospital licenses. Birth centers do not meet the criteria of hospitals under law.

Birth center officials say their facilities fill a critical need in a state with poor maternal health outcomes and argue the regulation is meant to shut them down. Requiring a birth center to be near a hospital with OB-GYN services, they argue, could make it difficult to provide midwifery services for low-risk pregnancies across the state, especially in rural areas.

The hearing on whether to enjoin the new regulations saw several clashes between attorneys for ADPH and plaintiffs. During cross-examination, Assistant Attorney General Benjamin Albritton repeatedly interrupted Dr. Yashica Robinson, an OB-GYN based in Huntsville, who testified about her attempt to open a birth center and her experiences with home birth.

Albritton claimed that Robinson was not answering his questions. She said his question was not clear.

“Just answer my questions, and it’ll be clear,” he said.

At one point, he asked Robinson if she “knew everything” but the answer to one of his questions. He then apologized.

“I’m sorry, that was snarky,” he said.

Witnesses who testified for the birth centers said the COVID-19 pandemic led them to explore alternate birthing options. Several said they received incomplete information from ADPH before opening, or got assurances from ADPH staff that they did not regulate birth centers.

Sheila Lopez, a certified nurse-midwife and president of the Alabama affiliate of the American College of Nurse-Midwives (ACNM), said that her private practice looked into the possibility of opening a birth center early in the COVID pandemic.

Because the private practice in which Lopez works, Simon-Williamson Clinic, was setting up alternative maternity units in response to COVID-19, they applied as an ‘alternative care site’ to the Alabama Department of Public Health.

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

After an inquiry, Lopez testified, she received an email from ADPH in April 2020. 

“In following up on that application, we were told that ADPH doesn’t regulate physician practice in their office setting in the Alabama Department of Public Health did not regulate birth centers,” Lopez said.

Attorneys for ADPH did not challenge the validity of the email but tried to discredit Lopez in cross-examination.Albritton argued that her organization had not suffered harm from the new regulations.

“Why do you need to be here?” he asked.

Lopez said that she was there to represent members of ACNM who have faced harm due to the uncertainty of the regulations.

“Your organization has not suffered any harm,” he said.

Different approaches

Midwifery grows in Alabama amid maternal health challenges

Robinson testified that research indicates everyone’s bodies are different and that some people just take longer to give birth. Robinson argued hospitals can rush through care for pregnant people, who may benefit from slower and more personalized approaches.

“Some people actually just need a little bit longer, and so allowing patients additional time can decrease interventions, including cesarean section,” she said.

Robinson said she did not attend a home birth until the COVID-19 pandemic, when a patient of hers who did not feel comfortable giving birth in a hospital “seriously contemplated” unassisted home birth.

Robinson, who learned more about home births through collaborating with local midwives in case their patients needed to transfer care, said that after speaking to her insurance carrier and her partners in her practice, she decided to attend her patient’s home birth. She reached out to certified professional midwives to put together a team, including a doula, for the birth.

“It was one of the most beautiful birth experiences that I’ve ever been a part of,” Robinson said.

The last witness to testify was Dr. Karen Landers, chief medical officer from ADPH, who was called by both plaintiff and defendant counsel.

In her testimony, she maintained that ADPH are “experienced regulators when it comes to promotion and protection of citizens.” She said the purpose of these regulations are to ensure safety, quality and that meet the public’s expectations.

“If those types of standards are not met, then there is danger not only to the patient, but a violation of the public’s trust in us as persons who promote and protect the health of our citizens,” she said.

The hearing ended after several hours of witness testimony and final arguments, and Montgomery Circuit Court Judge Greg Griffin, who praised both sides for giving him a lot to think about, said he expected to make a decision in the coming days.

“As thin as the pancake is, there’s two sides to every story, but I do want to read the cases and digest this,” Judge Griffin said.

White said after the hearing ended that the evidence indicates freestanding birth centers are safe and they can improve pregnancy outcomes.

“They present an incredibly important tool to help expand access during a really severe maternal and infant health crisis that we hope that came through clearly to the judge, and we hope that we’ll be hearing in the coming days of an injunction that would allow the birth centers to resume providing this critical care as soon as possible,” White said.