Originally Posted by Plummeting
But what I'm saying is that the term is irrelevant. She's saying that if the law doesn't specifically allow midwifery, it's illegal. I'm saying that if the law doesn't mention it at all, that is going to be determined by a jury, IF it's ever prosecuted, and it might not be. So then where are we? You're saying it's illegal in places where women get prosecuted, but what about when they're found innocent? Was it not illegal? Do you believe the jury was just too stupid to understand the law? What are you saying?
For instance, since you're a lawyer, you know that in many states, the "practice of medicine" includes doing anything for the treatment of disease/illness/injury. Pregnancy isn't a disease, illness, or injury. If a midwife isn't giving medications she's not authorized to give, she's got a good case for herself, if she's attending a normal, low-risk birth, which is, by definition, none of those things described above. So if she's prosecuted for practicing medicine without a license, sure, they can DO that, but did she really practice medicine without a license, if all she did was catch a baby? Not by the state's own definitions she didn't. That would mean that what she's doing is not illegal. Something isn't illegal just because someone finds some way to contort the law around to make it so.
The term is not at all irrelevant. Many midwives continue to use it in the sincere belief that they really are "alegal" and safe from prosecution if they don't do anything that they consider to be "practicing medicine." I have had this debate many, many times with midwives who believe that "practicing medicine" is limited to giving drugs, suturing, and starting IVs. What I am saying is this (although I think I have said it before): In states where midwives are not licensed and regulated, nor specifically exempt from the medical/nurse practice acts, they are subject to prosecution for practicing medicine/nursing without a license. In other words, ILLEGAL. Or, to put it another way -- if a midwife does the same things a doctor or nurse does, but is not a licensed doctor or nurse (or working in a state where statute explicitly states that she doesn't have to be licensed to do these things), she is practicing illegally, and takes the risk of arrested, prosecuted, and convicted of practicing medicine or nursing without a license. Having said that, it should be noted that some states prosecute midwives and some do not. Some states simply don't have the money or the inclination to chase down midwives; some states may ignore midwives for years and then -- under a new administration or some other impetus -- decide to begin investigating them. As Buzzbuzz pointed out in a previous post, the reluctance of a state to prosecute midwives should not be interpreted as an endorsement of the legal status of those midwives!
I agree with you that the first place to look for the definition of medical practice is statute, but your pronouncement that "pregnancy isn't a disease, illness, or injury" doesn't help us much. First of all, if the state is prosecuting a midwife for practicing medicine without a license, it is using *its own definitions* to do so. You state that "by definition" catching a baby is not the practice of medicine. Perhaps by your definition, or the definition of midwives, but in prosecuting a criminal case, the state doesn't take a poll to see which definition is preferred by the defendant.
Second, even if we accept that pregnancy is "not a disease, illness, or injury" but rather "normal" and "low risk," what sorts of things does a midwife do during the pregnancy to make sure that the pregnancy is normal? Urine dipstick testing? Fundal height? BP? Let's say she does a fingerstick to check for hemoglobin. Perhaps it is a little low, and because she is a good midwife, she suggests to the client ways in which she can increase iron levels to increase her blood count. In this case, hasn't she just diagnosed and treated a medical condition?
Finally, in your post you refer only to practicing medicine without a license. Please bear in mind that midwives in increasing numbers are being ordered to cease and desist the unlicensed practice of NURSING or NURSE-MIDWIFERY. The overlap there is even greater.
Valerie RN, JD