History of Midwifery Laws in Colorado

The latest bill in Colorado’s midwifery history was introduced last week, and the dynamics were much as they have been for 100 years - since doctors began the campaign to eliminate midwifery. Here’s a great video on the “culture war between doctors and midwives,” though I think that is a generous way of putting it. I also recommend, Judith Pence Rooks, Midwifery and Childbirth in America, (Temple University Press 1997) and Judy Barrett Litoff, The American Midwife Debate: A Sourcebook on its Modern Origins, 5-7 Greenwood Press (1986).

Here is a short video I made about the history of midwifery laws in Colorado specifically. This blog post provides the details behind that video. In Colorado, the campaign to eliminate midwifery didn’t seem to culminate until 1941 when Senate Bill 640 proposed a revision to the Medical Practice Act that would end midwifery licenses with the goal of eliminating midwifery completely. Patricia G. Tjaden, “Midwifery in Colorado: A Case Study of the Politics of Professionalization,” 10 Qualitative Sociology, 33 (1987). The law was passed with a grandmothering provision that allowed already licensed midwives to practice but no new midwives to take their place.

In the 1940s most births were taking place at home, but by 1955 ninety-nine percent were in the hospital. Marian McDorman et. al., Trends and Characteristics of Home and Other Out-of-Hospital Births in the United States, 1990-2006, 58 National Vital Statistics Report 11 (2010).

In 1976 the Colorado legislature erased the history of midwifery from the Medical Practice Act, deleting the section on midwifery licensure and all references to it. H.B. 1032, 50th Gen. Assemb.. 2nd Sess. (Co. 1976). But midwifery had not disappeared in Colorado, it just moved underground, and along with it, homebirth.

My brother was born at home in Longmont, Colorado, 1977; his birth is one of my earliest memories and 1977 is the same year that Certified Nurse Midwives were licensed here. H.B. 1526, 51st Gen. Assemb, Reg. Sess. (Co 1977) . That law amended the Medical Practice Act and created a licensing scheme for advance practice nurses trained in midwifery, under the Board of Nursing.

In 1982, the same year my youngest sister was born at home in Boulder County, Karen Cheney a Boulder County midwife and founding member of the Colorado Midwives Association, was charged with the crime of practicing medicine without a license.

In response, House Bill 1528 “Concerning Midwifery,” carried by a state representative from Boulder was introduced in 1983. The bill proposed an Advisory Board under the Colorado Department of Health to regulate midwifery, defined midwifery as not the the practice of medicine, and included a provision stating that parents have the right to decide how they give birth. H.B. 1528, 57th Gen. Assemb, Reg. Sess. (Co 1983). The House Health, Environment, Welfare and Institutions Committee held a hearing on March 23, 1983 that 150 people attended. Medical professionals including nurses, doctors and nurse midwives spoke in opposition to the bill, as they do.

The next attempt in 1984 included a requirement of moral turpitude, to keep those "unsavory" midwives away. But as Patricia Tjaden reports, after a seven hour debate in the House State Affairs Committee on January 16, 1984 the bill failed, much to the shock of the representative who carried it and even failed to win the support of members of her own party on the committee. The bill in 1985 was different in that it proposed licensure and educational requirements under the Board of Nursing, but that bill was also defeated.

In 1990 two other midwives who were criminally charged. Jean Rosburg and Barbara Parker, appealed their cases to the Supreme Court. People v. Rosburg, 805 P.2d 432 (1991). It wasn't a particularly well reasoned decision, problematically conflating abortion and childbirth among other things, but it follows other poorly reasoned decisions of the day like the California case Bowland v. Municipal Court, 556 P.2d 1081 (1976).

In the two years following People v. Rosburg two bills were considered by the House one another licensure program and the other a “registry.” The Colorado Department of Regulatory Agencies released their first report on direct entry midwives following a request to be regulated by the Colorado Midwives Association. Colorado Department of Regulatory Agencies, "Sunrise Review of Direct Entry Midwives" June, 1992. The report defined midwifery, summarized contemporary perspectives on it and maternity care in general (with particular attention to rural maternity care), surveyed other state midwifery laws, provided a short history of previous requests for regulation, analyzed the proposed regulation and identified problems. The report recommended that the state “not sanction the practice of direct entry midwifery in Colorado.”

The 1992 bill “Concerning the Practice of Midwifery” was hotly contested but got further than any before. It passed the house but died in the Senate. The bill initially sought to exclude the “unlicensed” practice of midwifery from the medical practice act (decriminalizing what midwives had been prosecuted for) and requiring midwives to register (or face criminal penalties), and disclose their professional information and affiliations to consumers. H.B. 1010, 58th Gen Assemb., 2nd Sess. (Co. 1992).

In 1993 the bill that would finally legalize midwifery again in Colorado was introduced. House Bill 1051 was introduced in much the same form that it had after the House amended it in 1992 but with even more provisions that would isolate and minimize the practice of midwifery, while framing it within a medical risk model and attaching heightened punishments. H.B. 1051, 59th Gen. Assemb., Reg. Sess. (Co. 1993). The bill was amended extensively in the House and Senate but passed on May 12, 1993.

Looking at the language of the bill that finally passed, and comparing it to the 1992 version and other laws, it becomes clear that the struggle was over professional turf and liability more than the health and welfare of women and families. Just as the boundaries of maternity care over the last century has been about professional turf and liability more than the health and welfare of women and families. For example, the bill amended an article of the law regulating insurance in Colorado to state, “no medical malpractice insurer shall be required to provide liability coverage for unlicensed midwives who are registered and providing services. . . nor shall any medical malpractice insurer be required to include in any rate setting or classification both licensed physicians or certified nurse midwives and unlicensed midwives.”

An amendment to the Health Care Availability Act in H.B. 1051 made sure that the term “health care professional” excluded “a registrant conducting unlicensed midwifery.” This essentially meant that midwives, who make far less per birth than doctors, have a much lower annual salary, and no professional liability insurance, would be penalized. Where doctors could enjoy a million dollar cap on damages in the case of a baby born with brain damage for example, midwives could not.

The law goes on to say that “nothing in this article shall be construed to indicate or imply that a registrant. . . is a licensed health care provider for the purposes of reimbursement by any health insurer, third party payer, or governmental health care program.” So that not only would midwives be excluded from the professional liability framework, but consumers would be excluded from health insurance reimbursement. Colo. Rev. Stat. §12-37-109(2) (2010). Many of these egregious efforts to isolate and exclude midwifery have since been eliminated from the law thanks to community organizing efforts. But many other vestiges of this fraught history remain.

In the end, the midwives who had been organizing for over a decade won the basic protections they were seeking. In the process, not only did some of the ideals initially sought go by the wayside, but the social and political conflict that had been brewing for most of the century was written into the law. Susan Erikson, a medical anthropologist and Amy Colo, a Colorado midwife describe what happened with legalization: midwifery was “forced to appear to be something much less than it is in order to be palatable to the legislators.” Susan Erikson with Amy Colo, Risks, Costs, and Effects of Homebirth Midwifery Legislation in Colorado, Mainstreaming Midwives: The Politics of Change, 298 (Robbie Davis Floyd, Christine Barber Johnson Eds., Routledge 2006).

This has remained true throughout the history of the “Direct-Entry Midwifery Practice Act” and remains true today. Changing perspectives about midwifery in general and this law specifically are reflected in the Colorado Department of Regulatory Agencies Sunset Reviews from 1995, 2000, 2010, 2015 and 2020. They all underscore the fact that not much has changed and that we have a long way to go still to truly integrate midwifery and make the most of what midwifery has to offer the health and wellbeing of families.