Mothers Have the Right to Choose Where They Give Birth

Birth centers are nonhospital settings where women can receive prenatal care, deliver babies and convalesce postpartum. Women and families choose them as an alternative to hospitals because birth centers offer greater control over the birthing experience. Patients may want more family members in the delivery room than hospitals typically allow. Some prefer not to have hospital staff roaming around.

Though birth centers are technically legal in all 50 states, some state regulations can amount to an outright ban. In Iowa, where nurse midwives Caitlin Hainley and Emily Zambrano-Andrews are suing the state to secure their right to open a birth center, would-be entrepreneurs may not open a center unless state bureaucrats decide that current delivery options for pregnant women are insufficient. Entrepreneur Katie Chubb is suing Georgia after being denied permission to operate last year. Certificate-of-need law allows existing hospitals effectively to veto the construction of birth centers. In both states, regulation has worked to ensure a dearth of birth centers: Iowa has none and Georgia has only three.

Anti-competitive regulation deprives prospective parents of safe and affordable birthing options. Georgia has one of the highest maternal mortality rates in the nation. Yet state law prevents Ms. Chubb from offering a safe alternative. Birth centers are usually staffed by licensed nurse-midwives and overseen by physicians. Because they cater to low-risk pregnancies, birth centers transfer less than 1% of women experiencing labor to hospitals for emergency reasons.

The three women suing argue that restrictions on birth centers violate what amounts to a mother’s fundamental right to give birth where and how she wants. Anticompetitive regulations put hospitals’ financial interests ahead of mothers’ wishes and the well-being of their children. But what constitutes a fundamental right?

The answer lies in the Dobbs ruling. The Court held that a right is fundamental if it meets one of two conditions: It is expressly set forth in the Bill of Rights or it is “deeply rooted in the Nation’s history” and “essential” to “the Nation’s concept of ordered liberty.” While the right to control the place and manner of birth isn’t listed in the Constitution, it might meet the “deeply rooted” standard.

This is a high-stakes debate. Fundamental rights enjoy what’s called “strict” judicial scrutiny—the government must offer a compelling reason to restrict such rights and courts will look closely at whether the law actually achieves the government’s asserted end. Non-fundamental rights are subject to mere “rational basis” scrutiny, wherein judges will uphold the restrictive law unless the plaintiff can negate every conceivable rationale for the regulation.

The judiciary created the grounds for this debate. The Ninth Amendment suggests all restrictions on individual liberty should enjoy meaningful protection, regardless of whether a right is explicitly listed in the Constitution or whether a court considers it fundamental. Yet, for nearly 100 years, courts have distinguished between favored and disfavored rights, and under Dobbs they will continue to do so. This distinction means civil-rights plaintiffs will have to use the judiciary’s test if they want their rights to be considered fundamental.

The right to control the place and manner of giving birth should be considered fundamental. It involves one of the most intimate decisions a woman can make with regard to child-rearing, and Americans have long enjoyed the right to give birth with the help of midwives outside hospitals. It’s also consistent with prior Supreme Court decisions invalidating governmental attempts to regulate wholly private decisions, such as conduct within the bedroom or access to contraception. The real debate is whether this fundamental right can muster five votes.