Three decades ago, a group of Black women in Chicago attending a pro-choice conference coined the term reproductive justice, defining it as “the complete physical, mental, spiritual, political, social, and economic well-being of women and girls, based on the full achievement and protection of women’s human rights.” This episode of Justice Above All highlights the centrality of birthing centers, which provide historically informed and culturally competent care to Black birthing people, to the realization of reproductive justice. We will discuss a wave of new state-level regulations that are severely impacting the ability of midwives and other birthing center staff to provide their services. We will also explore how these attacks on birthing centers relate to historic efforts to unwind progress towards reproductive justice.
Director, Thurgood Marshall Institute
Linda D. & Timothy J. O’Neill Professor of Constitutional Law and Global Health Policy, Georgetown University Law Center and Co-Faculty Director, O’Neill Institute for National and Global Health Law
Founder and President, Commonsense Childbirth Inc., and midwife
Staff Attorney, Reproductive Freedom Project, ACLU
Digital Archives Manager, Thurgood Marshall Institute
Midwifery was a common form of prenatal care in the 19th and 20th centuries in the United States. Some midwives received academic training and obtained licensure while others were lay midwives, meaning that they were non-medical professionals who received midwifery training through informal education, e.g., an apprenticeship, and may not have licenses. Conservative estimates believe that at the beginning of the 20th century, at least 50% of all births in the United States were attended by midwives. By 1930, it was estimated that midwives attended only 15% of births.
In the early 1900s, midwifery was under attack. Progressive reformers collected birth and death statistics, in an effort to create new health reform ideas. At the same time, some physicians publicly campaigned against midwives. For example, the American Journal of Obstetrics and Diseases in Women and Children published Dr. Thomas Darlington’s article in 1911 where he wrote that a midwife was “dirty, ignorant and totally unfit to discharge the duties which she assumes.”
In 1921, Congress passed The Promotion of the Welfare and Hygiene of Maternity and Infancy Act, also known as the Sheppard-Towner Act, which provided federal funding to states in order to establish national midwife training licensure requirements. However, this widespread regulation of midwives targeted the U.S. South, where the largest percentage of midwives practiced.
In Buck v. Bell, the U.S. Supreme Court upheld the constitutionality of Virginia’s forced sterilization statute. This legitimized existing forced sterilization programs and paved the way for additional laws upholding sterilization. From 1907-1932, more than thirty states passed eugenicist laws legalizing forced sterilization.
Sterilization is just one type of reproductive trauma inflicted upon Black and other marginalized people, and it continues to present-day. In 1973, two Black sisters, Mary Alice and Minnie Lee Relf, were just twelve and fourteen years old, respectively, when they were removed from their home and sterilized against their will. The sisters filed a lawsuit, Relf v. Weinberger, in 1974 and took issue with sterilization abuse efforts that were funded by the federal government.
LDF began to focus more intently on health discrimination after the passage of the Civil Rights Act of 1964. The Civil Rights Act made it illegal for institutions who received money from the federal government to discriminate based on race and other factors.
Between 1964 and 1965, LDF filed over 125 health discrimination complaints in courts. By 1966, over twenty-five of those cases were being actively litigated. LDF also began to form a coalition around health discrimination which included the Department of Health, Welfare and Education, the Medical Committee for Human Rights, the NAACP, and the National Medical Association.
LDF also implemented a six-month intensive litigation program focused on the U.S. South. Three part-time field workers worked in eleven Southern states. They provided legal assistance in interpreting the law and processing complaints that would accelerate the compiling and filing of complaints about the Civil Rights Act, and processed complaints to accelerate the compilation of complaints. They were able to generate data about hospital discrimination that had not been seen before.
The American Association of Birth Centers (AABC) states, “Birth centers are an integrated part of the health care system and are guided by principles of prevention, sensitivity, safety, appropriate medical intervention and cost-effectiveness…The birth center respects and facilitates a birthing person’s right to make informed choices about their healthcare and their baby’s healthcare based on their values and beliefs. The person’s family, as they define it, is welcome to participate in the pregnancy, birth, and the postpartum period.”
Certificate of Need (CON) laws are state-level regulations for approving health care facilities. Thirty-five states and Washington, D.C. have CON programs. The AABC argues that CON laws “act as a significant barrier to the establishment of freestanding birth centers, effectively stunting the growth of a proven, high-value care model.”
Care at birth centers is consistently associated with lower cesarean rates, fewer medical interventions, higher rates of breastfeeding, and greater satisfaction with care.
In 2023, a group of doctors and midwives at Oasis Family Birthing Center and Alabama Birth Center, both in Alabama, filed Oasis Family Birthing Center et. al. v. Alabama Department of Public Health. Oasis was filed after the Alabama Department of Health closed a birth center with a perfect safety record and passed onerous regulations that would require birth centers to meet hospital-like standards. Birth centers are not hospitals, so they are not able to meet the same standards as hospitals. As a result, the plaintiffs believe that the Department placed a de facto ban on freestanding birth centers across Alabama. As stated in their lawsuit:
On May 1, 2025, an Alabama trial court issued a ruling that permanently blocked the Alabama Department of Health from imposing these onerous regulations on freestanding birthing centers in Alabama. This ruling ensures that birthing centers can continue providing midwifery care. You can find the ACLU’s full press release on the ruling here.
Across recent discussions of reproductive justice in the United States, the focus on abortion has often overshadowed the importance of birthing justice. We must find space in our work to care about abortion and other facets of reproductive justice including maternal mortality.
A 2022 National Public Radio (NPR) report found that states with the toughest abortion laws also have the weakest maternal support. More specifically, states with abortion bans tend to have a higher share of people living in maternity care deserts, or places where there is a lack of maternity care.
Note: Maternity care deserts are counties in which access to maternity health care services is limited or absent, either through lack of services or barriers to a woman’s ability to access that care.
LDF Recollections
