Kaplan Study Guide Suggests Banning Home Birth is Constitutional

By Rachel Walden — January 7, 2009

Via a tip from a friend of the National Advocates for Pregnant Women, we learned that Kaplan review materials (created to help law students preparing to take state bar exams) suggest that a state ban on home birth would be constitutional because “the facts indicate that the regulation was enacted because of public health concerns, [therefore] it does further a compelling state interest.”

The hypothetical scenario provided for the practice question on constitutional law describes a state law requiring all births to take place in hospitals and be attended by physicians, except in emergencies, based on the rationale that infant mortality could be demonstrated (in a hypothetical study) to be higher for home births. In the scenario, a woman has filed suit to challenge the constitutionality of this provision, and wants to have a home birth with a midwife.

The study guide gives the correct answer as “constitutional, if despite the fact that the regulation has a substantial impact on a fundamental right, it furthers a compelling state interest.” The rationale provided is that if the facts “indicate that the regulation was enacted because of public health concerns” then a compelling state interest is furthered by the law and it is therefore constitutional.

We’ll just bypass for now that the name of the hypothetical state is “Aquarius” in the question. You know, because all those women interested in home birth are crazy throwback hippie folks.

I find the suggestion that a state ban on non-hospital births or births not attended by physicians would be found constitutional and allowed to stand quite chilling, and it disturbs me to find the “correct answer” presented in so straightforward a manner with little debate (although that is the nature of study guides). Aside from the problem of the lack of choice for pregnant women in the scenario (which is a huge issue), would the interpretation of constitutionality be correct in such a scenario? Could a state criminalize women for giving birth at home or choosing non-physician providers? For lack of a better description, the whole thing gives me the creeps.

The Kaplan scenario also completely ignores the fact that non-MD professionals (hello, midwives) often attend hospital births – it seems to assume that the only choices in birth are hospital/physician or home/whoever, leaving out the hospital/midwife possibility and framing the central issue as place of birth alone, ignoring the separate issue of choice of care provider and the various options for care providers available to pregnant women.

7 responses to “Kaplan Study Guide Suggests Banning Home Birth is Constitutional”

  1. Found a link to this via another website. Just want to say–please don’t worry about this. I am a lawyer and a two-time home-birther, and I assure you, there are much better ways to spend your energy. This is a very typical study question. Law students reads hundreds of these per semester and to study for the bar. The scenario is in no way expected to be taken seriously–and the silly names and over-simplified scenario are quite typical. Nobody is going to be subtly swayed against home birth due to this study question.

    The point of law school is to train you to argue both sides of any argument, and in Constitutional law, to know how to argue using principals of Constitutional law. Often, students have to argue why it would be constitutional to ban or allow something they find totally disagreeable. Kaplan’s is just a study guide. Nobody looks at this after law school. They aren’t teaching law. They are teaching students how to take law school exams/the bar. And law school exams, as any lawyer can attest to, have nothing to do with practicing law.

  2. Hannah, thanks for your comment. I think it struck many of us as odd, and knowing that it’s not exactly a guide to practice, I for one still wondered if the rationale presented in the study question would hold up in real life.

  3. The thing about real life law versus law school is that facts count, and as we know, the facts about homebirth outcomes are quite different than the made-up facts in this scenario.

  4. This was interesting. I hadn’t read this before. I share your concern that it could somehow be used in real life (maybe not to ban it, but as “evidence” against legislation or something).


  5. I have the same problem with this as I do with problems (usually examples of bias or examples of what I see as unethical but probably legal standards of care) I see in lectures in medical school and in medical textbooks. Maybe it’s not necessarily fact, maybe we do sit through hundreds and thousands of hours of lecture, but these comments and scenarios do have the ability to influence the students, and they do reflect ignorance and bias in lecturers (in our case, they are often physicians).

    The fact that this case completely ignores midwives legally delivering in free standing birth centers and in hospitals is a reflection and a reinforcement of the bias against midwives.

    Birth is something that people have strong feelings about, and the vast majority of the people reading that example will be involved either as the birther or the partner of a birther.

    I still remember a question from a standardized exam from middle or high school about swimming helping sleep. Why? Because I like to swim and I am an insomniac. If someone is in law school and is really interested in having a baby (I am in medical school, which is populated by students of the same age as law school. Clocks are ticking, loudly) it is highly likely that an example like this will be filed away somewhere in their mind, influencing their opinions on the safety of out of hospital birth, and the appropriateness of non physicians attending births.

  6. You know it’s interesting. It seems to me that this same logic would drive the government to mandate 4 $/gal gas. This action would 1) save more lives in one year from reduced traffic accidents than decades of home birth complications, 2) conserve natural resources and 3) reduce greenhouse gases and combat global climate change.

    I don’t hear anybody in government advocating for that (and I’m not advocating for it either).


  7. What I found chilling about this when i learned of it was the explanation for the correct answer that’s given in the Kaplan materials. The actual question itself, while erroneously implying that home births are more dangerous than hospital ones, doesn’t actually require the student to determine whether those factual assumptions are correct. Rather, as these test questions often do, it simply requires the student to make an assumption (the question is phrased in conditional terms: “if … [the statute] furthers a compelling state interest” — ie, if there’s a serious risk to home births). But the explanation for the “correct” answer ignores the conditional framing of the question and actually seems to require the student to decide whether the state has a compelling interest (ie, whether home births are dangerous). Thus, the explanation is problematic on two counts: First, rather than merely implying (or assuming) that home births are more dangerous than hospital births (as the question does), the explanation actually seems to reach a conclusion on that issue – and to require the student to do the same. And second, it does a disservice to students by teaching them the wrong law – ie, by suggesting that the mere invocation of public health interests is enough to make a state interest “compelling,” regardless of the actual facts.

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