Midwife rips Nebraska’s home birth regulations

OMAHA, Neb. (CN) — Does a nurse midwife have the standing to sue on behalf of her patients? That was the question posed to a three-judge panel of the Eighth Circuit Court of Appeals on Thursday.

Certified midwives in Nebraska are governed under a 1984 law, the Certified Nurse Midwifery Practice Act, which requires them to enter a supervision agreement with a local medical doctor. They must deliver babies in a medical facility.

But Heather Swanson of Long Pine, Nebraska, a nurse midwife with a doctoral degree in nursing practice and an associate professor of nursing, sued in April 2024, claiming Nebraska statute violated the due process, equal protection and privileges or immunities clauses of the 14th Amendment.

Swanson, in her complaint, pointed to a shortage of doctors in rural areas of Nebraska and their unwillingness to enter agreements with people they consider competitors. She said she was able to provide safe childbirth services to women wishing to give birth at home and wished to vindicate not only her rights but “the rights of the mothers she wishes to serve.”

The state sought dismissal, arguing Swanson didn’t have standing and that the state had a rational basis to regulate births — the health of the mother and child. A U.S. District Court judge agreed, dismissing her case last year.

Swanson appealed. Thursday’s hearing took place in the Roman L. Hruska Federal Courthouse in downtown Omaha, in the Eighth Circuit’s courtroom, a modern courtroom of beige wooden walls and benches. Swanson sat in the gallery, watching as the attorneys made their arguments.

One of her attorneys, Haley Dutch of the Pacific Legal Foundation, a pro-individual-rights advocacy group, argued that Supreme Court precedent meant that Swanson didn’t have to go to jail to get standing.

“Most of those women go on to face the dangers of homebirth without medical assistance,” Dutch told the judges. “Dr. Swanson has had to turn away real women who have wanted her services.”

These women can’t easily sue since pregnancy is a temporary condition. Had a pregnant woman sued when Swanson originally filed her case in May 2024, she would have already given birth.

At least two members of the panel — all three are George W. Bush appointees — seemed sympathetic. Chief Judge Steven M. Colloton asked her if not letting Swanson file suit would violate the rights of pregnant women.

“Yes, your honor,” Dutch said. “Exactly.”

But Lincoln Korell, assistant solicitor general for Nebraska, said pregnant women could still sue — granted, a ruling may come too late to help a plaintiff, but it would still give her the opportunity to argue on behalf of other women. And a woman in such a situation would have options, he said.

“This case was decided by the District Court in five months,” Korell told the judges. “A preliminary injunction is a tool as well.”

Judge Lavenski R. Smith questioned him on the rational basis issue, and Swanson’s contention that mothers were giving birth without medical help at all.

“How is she better off, then, without having the benefit of a licensed midwife?” Smith asked. “That seems not entirely rational.”

Korrell said that matter was not at issue in this case.

“That involves certain privacy conditions,” he said. “The question really only is whether the state’s interest is conceivably related.”

The state has also argued that the matter should be handled by the state’s unicameral legislature. Colloton asked Korell if there was any action in the legislature on the matter. He said there was — LB 676 — and it has already passed first-round voting this year.

He predicted it would go to a final vote. Bills in Nebraska’s unique unicameral legislature must be voted on three times to go to the governor for signature.

“You will alert the court if there is any new legislation?” Colloton asked.

“Yes, your honor.”

“Thank you.”

Long Pine is a city of about 300 in Brown County in north-central Nebraska, about nine miles from the Brown County Hospital in Ainsworth. But the Sandhills region it is a part of has some of Nebraska’s most sparsely populated locales, including some of the least-populated counties in the United States.

In her complaint, Swanson stressed the importance of her work, arguing that Nebraska had more counties than the national average without accessible care, describing them as “maternity deserts.”

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