ACLU sues Alabama Department of Public Health over birth center regulations

The American Civil Liberties Union Tuesday filed a lawsuit against the Alabama Department of Public Health (ADPH), alleging that its policies make it impossible for birth centers to operate in the state.

The 46-page lawsuit alleges that ADPH has effectively forced birth centers – facilities that provide an in-between option for individuals who do not feel comfortable with a home birth but prefer an out-of-hospital birth – to apply for hospital licenses, even though birth centers do not meet the criteria of hospitals under law. The lawsuit also claims that ADPH does not have authority over the birth centers.

“In the midst of one of the most severe maternal and infant health crises in the entire country, [ADPH] and Scott Harris, state health officer, are prohibiting plaintiffs from offering critically needed, high-quality prenatal, birthing, and postpartum care that is proven to offer substantial benefits to the health of pregnant people and their babies,” the lawsuit said.

The lawsuit, filed in Montgomery County Circuit Court on behalf of three birth centers and the Alabama affiliate of the American College of Nurse-Midwives, asked the court to declare that a birth center is not a hospital under Alabama law and that ADPH does not have authority to require these centers to obtain a license.

“This is unlawful and it’s unconstitutional,” said Whitney White, a staff attorney with the ACLU Reproductive Freedom Project, at a press conference on Tuesday. “The care these centers provide does not meet the legal definition of a hospital under Alabama law. The department cannot impose a de facto ban on birth centers by making it impossible for them to obtain the license.”

ADPH declined comment on the lawsuit Tuesday, citing policies about speaking on ongoing litigation.

The plaintiffs also asked for a preliminary injunction to prevent ADPH from requiring a hospital license and from taking adverse action against birth centers.

Proposed rules

ADPH recently proposed rules to govern birth centers. There are three birth centers in the state, but they can currently only offer limited services.

The public comment period for the proposed rules ended on Aug. 4, and the timeline to finalize these rules is unclear.

The proposed rules would require birth centers to have oversight by a physician or medical director. It would also require them to be within 30 minutes of a hospital with OB-GYN services.

Midwifery advocates say that could make it harder to open and operate birth centers, since requiring a birth center to be near a hospital with OB-GYN services could make it difficult to provide midwifery services for low-risk pregnancies across the state, especially in rural areas.

Allison Mollman, senior staff attorney at ACLU of Alabama, said that while hospitals have a role to play in reproductive health care, more needs to be done to expand health care in rural areas, particularly as Alabama consistently has some of the highest infant and maternal mortality rates in the nation.

“We have health professionals that are willing to do that work and they just need the regulations that allow them to do so,” Mollman said.

Mollman said that with the maternal and infant mortality crisis in the state, they made the decision that the plaintiffs couldn’t wait anymore. She said that the lawsuit is a last resort, but the plaintiffs have been “stonewalled.”

“But this could have been avoided had our clients had an opportunity to use their expertise to develop these regulations,” Mollman said.

Alleged threats

The lawsuit also alleged direct action against some providers. The suit alleges that ADPH threatened plaintiff Dr. Heather Skanes, who opened the Oasis Family Birth Center (OFBC) in Birmingham, with criminal and civil penalties for operating without a license.

“Because of ADPH’s threats and refusal to provide a path to licensure, and despite OFBC’s compliance with the national standards for birth centers and perfect record of patient safety, OFBC has been forced to cease providing birthing care to patients in the Birmingham area entirely,” the lawsuit stated.

The lawsuit also said that “because it is not practical for OFBC to continue providing only prenatal and postpartum care, OFBC has lost midwifery personnel and been forced to stop providing any care through the birth center.”

Skanes said that her birth center was the only birth center operating in Alabama at the time, and every birth that happened at the center was successful prior to the threat, with no complications. During the nine months that OFBC performed births — from September 2022 to June of this year — it delivered almost 25 babies, according to Skanes’ spokesperson.

While the center has not shut down, it is currently unable to provide any care after losing midwives because it’s not practical to provide only prenatal and postpartum care, according to the lawsuit.

“I opened my center because there’s a maternal and infant health crisis in Alabama, which is disproportionately affecting Black women and infants,” Skanes said in the press conference. “Our hospital labor and delivery services are overrun, and many people are not getting access to adequate prenatal care. I know this firsthand.”

Skanes said that the department refused her requests to apply for the license or to take action to address the situation. She also said the department also did not provide claims that there have been any complaints about the safety or quality of the center’s care.

“I was shocked that we will be forced to stop providing the midwife-led care that was working well for our patients in our community,” Skanes said. “Having to turn patients away has been devastating.”

Struggles with maternal care

JaTaune Bosby, executive director for ACLU Alabama, said that Alabama’s maternal and infant death rate is high because state leaders have not made reproductive health care in Alabama a priority.

“Lawmakers have stood idly by as hospitals have closed and doctors have moved away,” Bosby said. “They have looked the other way as patients travel long distances across counties and even state lines to receive basic health care services, because they live in an area where adequate care does not exist.”

Black mothers and newborn babies have some of the highest mortality rates in the country. In the South, and particularly Alabama, the situation is particularly grim: among white Alabamians, infant mortality was 5.8 per 1,000 live births in 2021. Among Black Alabamians, it was 12.1 per 1,000.

This is the second lawsuit brought by the ACLU relating to maternal health care in the state. The ACLU sued Alabama Attorney General Steve Marshall last week on behalf of health care providers for threats he made to prosecute individuals and organizations that provide abortion aid.

Alabama in 2017 lifted a ban on midwifery first imposed in 1976. Stephanie Mitchell, a nurse-midwife and owner of a birth center in Gainesville, said that 40 years of criminalizing midwifery care has led to unfamiliarity and misunderstanding from the medical community.

Mitchell said that pregnancy care is done primarily by providers in a hospital setting. She said that the unfamiliarity is the reason the midwives “descended upon Montgomery,” to ask the ADPH to, “please allow [midwives] to tell you about midwifery.”

“Allow us to show you what the evidence says and what we can do and how we can provide care,” Mitchell said. “To not hear anything in response has been disheartening. To not be invited to the table to be able to impart this super important education has been incredibly painful. It has been incredibly frustrating.”