Three Nebraska mothers challenge state’s restrictions on midwife-assisted home births

LINCOLN — Nebraska is the only state in the U.S. where it is illegal for nurse midwives to assist in home births, and a group of mothers is challenging that restriction in federal court.

49 states allow nurse midwives to deliver your baby inside your home. Not Nebraska.

Three Nebraska mothers filed federal lawsuits challenging the ban. Emily Tvrdy and Amanda Musilek allege that the law violates both their religious rights and their freedom to choose how and where to give birth. In a separate case, Kate Ternus alleged the ban violates her Fourteenth Amendment right to make intimate decisions about childbirth free from government interference.

“Nebraska is denying mothers a fundamental freedom the Constitution protects,” said Joshua Polk, an attorney with Pacific Legal Foundation who’s working on both cases. “The government cannot override deeply personal decisions about childbirth without a compelling reason. These women deserve the freedom to choose safe, lawful care without unconstitutional burdens.”

Ternus gave birth to her first child while living in South Dakota, and was assisted by certified nurse midwives (CNM), which she described as a positive experience, according to a Pacific Legal Foundation press release. After moving to Nebraska, she planned to do the same with her second child, but after learning about the ban, she instead drove 90 minutes back to South Dakota to give birth in a CNM’s home.

Tvrdy is a labor-and-delivery nurse in rural Nebraska, and has given birth to four children both in hospitals and at home. The varying experiences told her that Nebraska mothers should have the option for midwife-assisted home births. Now, expecting her fifth child, she chose to challenge the ban along with other expectant mother Musilek.

State senator sought to change the law

The lawsuits came as no surprise to outgoing State Sen. Ben Hansen of Blair, who made multiple attempts to expand the state’s restrictions in his final two years in the Nebraska Legislature. The most controversial of these was Legislative Bill 374, which sought to establish licensure for certified professional midwives (CPM), allowing them to assist with home births.

The difference between CNMs and CPMs primarily comes down to education levels. CNMs require a registered nurse degree and a graduate-level degree in midwifery, while CPMs complete an apprenticeship or graduate education from an accredited midwifery school.

It was because of this that the Nebraska Medical Association and several other medical groups opposed LB 374. In an email, an NMA spokesperson said CPMs are not adequately trained to identify and respond to complications that may require immediate medical intervention during home births.

Though Nebraska is the only state to outright ban midwife-assisted home births, the NMA noted that other states’ regulations of the practice are largely more robust than what Hansen proposed in LB 374.

Hansen said the medical groups’ opposition was the main reason LB 374 failed to advance. He suggested the opposition may be rooted in a “turf war,” as he said is common when lawmakers look to expand scope of practice regulations.

“Maybe the hospitals and the Nebraska Medical Association and the OBGYNs wanted to keep childbirth in Nebraska to themselves,” Hansen said.

The NMA denied this claim, saying its concern with LB 374 was the lack of training CPMs receive to assist with home births.

Hansen said the NMA was open to allowing CNMs to assist with home births. NMA officials corroborated, noting the organization supported an amended version of a different Hansen bill, LB 676, which sought to ease restrictions on CNMs assisting in out-of-hospital births.

However, Hansen argued that CNMs don’t want to do home births, and would rather work in hospitals or birthing centers.

NMA officials disagreed with this claim. NMA President Robert Wergin said the organization is currently working on a proposal with CNMs to authorize them to assist in out-of-hospital births for low-risk pregnancies.

“The evidence is clear that hospital birth is the safest,” Wergin said. “However, recognizing that there are families in Nebraska with strong feelings about this issue, the NMA has been working closely with the Nebraska Certified Nurse Midwives for more than a year on a proposal to expand birth options in a responsible way.”

The NMA declined to comment on the recent lawsuits, saying they can’t comment on pending litigation.