Nebraska mothers to appeal ruling upholding state restrictions on midwife-assisted home births

LINCOLN — A pair of Nebraska mothers appealed a ruling Friday denying their request for a preliminary injunction on a state law banning nurse midwives from assisting in home births.

Emily Tvrdy and Amanda Musilek filed a lawsuit in U.S. District Court in June challenged the ban, alleging the law violates both their religious rights and their freedom to choose how and where to give birth. Nebraska is the only state with such a ban.

“Emily and Amanda are asking to follow their religious convictions and choose a qualified medical professional to assist with their births,” said Joshua Polk, Pacific Legal Foundation attorney representing Tvrdy and Musilek. “Nebraska prohibits certified nurse midwives from attending home births while allowing women to give birth at home with no medical professional present. We believe that distinction cannot survive strict scrutiny.”

U.S. District Court Judge Robert Rossiter denied the preliminary injunction in a ruling Friday, saying the defendants — which include Nebraska Attorney General Mike Hilgers — showed enough evidence that the state’s restriction on midwives is a health and safety protection.

“The Court concludes, at least at this preliminary stage, that the defendants have demonstrated the government has a compelling interest in protecting the health and safety of the plaintiffs and their children,” Rossiter wrote.

Rossiter also sided with defendants’ argument that the ban was neutral and applied regardless of a mother’s religious belief, and therefore did not violate Tvrdy or Musilek’s right to freely exercise religion under the U.S. Constitution.

“The plaintiffs’ sincerely held beliefs only get them so far,” Rossiter wrote. “A “valid and neutral law of general applicability” does not violate a person’s right of free exercise merely because it “proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

Polk argued that midwives are some of the most qualified health providers for home births in comparison to other health professionals the state allows to assist, and he noted that Nebraska currently allows unassisted home births. He also pushed back against Rossiter’s ruling against Tvrdy and Musilek’s religious rights argument.

“The court agreed that Nebraska’s ban substantially burdens our clients’ religious exercise, then upheld it anyway,” Polk said.

With the appeal, the case now heads to the 8th Circuit U.S. Court of Appeals.