Conservative group backs midwives in challenging Iowa’s certificate-of-need law

A conservative organization is suing the state over a requirement that birthing centers demonstrate the necessity of such a facility before they’re allowed to open.

Since 1977, Iowa has required state approval for any newly created or substantially changed institutional health service. The Iowa Legislature enacted the law, which requires prospective or expanding health care providers to first obtain a certificate of need from the five-member Iowa Health Facilities Council. The intent of the law is to discourage the costly and unnecessary duplication of health care services.

The Kirkwood Institute, a self-described “conservative public-interest law firm” that operates as a tax-exempt public charity, is alleging that requiring birthing centers to obtain a certificate of need – just as hospitals, medical centers and nursing homes must do – violates the U.S. Constitution.

On behalf of Iowa midwives Caitlin Hainley and Emily Zambrano-Andrews, former Muscatine County Attorney Alan Ostergren, who now runs the Kirkwood Institute, is suing the Iowa Health Facilities Council and its five members. Ostergren argues that Iowa mothers have a constitutional right to “give birth in safe, comfortable circumstances of their choice,” and that his two clients have a constitutional right to “pursue their chosen occupation and provide that setting and care.”

The lawsuit says Hainley and Zambrano-Andrews want to “advance their passion” of helping women give birth by opening a freestanding birthing center in central Iowa.

“Their efforts are increasingly valuable due to reports of crowded hospitals, poor birth outcomes in Iowa, and the wishes of hundreds of Iowan mothers to give birth with the help of trained midwives outside of a hospital setting,” the lawsuit claims. “But Ms. Hainley and Mrs. Zambrano-Andrews have been prevented from opening a birth center due to a state law that places the economic interests of existing hospitals over the constitutional rights of midwives and mothers.”

The lawsuit notes that home birth is legal in Iowa, as are freestanding birthing centers, but opening such a facility requires the prospective operators to go through a “complex, lengthy, and expensive certificate-of-need process.” That process, the lawsuit claims, effectively conditions the opening of a new birth center on the acquiescence of direct competitors, such as nearby hospitals.

The process amounts to what Ostergren calls state-sanctioned economic protectionism in the form of a “competitor’s veto.”

The lawsuit seeks a declaratory judgment that the law is invalid, unenforceable and void.

“Ms. Hainley and Mrs. Zambrano-Andrews are fully licensed and certified nurse midwives, and their birth center will comply with all health and safety regulations,” the lawsuit alleges. “The only thing standing in the way of expanding their existing home-birth business into a freestanding birth center is Iowa’s certificate-of-need requirement.”

The Iowa Health Facilities Council has yet to respond to the lawsuit.

Iowa’s certificate-of-need law has survived previous court challenges. In 2020, the U.S. Court of Appeals for the Eighth Circuit found that the law doesn’t violate the 14th Amendment’s due process, equal protection or privileges and immunities clauses. The law, the court ruled, is grounded in Iowa’s legitimate goal of protecting the viability of full-service hospitals in the state.

Iowa is one of 35 states to have such a law.

Iowa has no freestanding birthing centers

According to the lawsuit, Zambrano-Andrews obtained her masters of science in nursing and nurse midwifery in 2016, and her doctorate of nursing practice in 2018. Hainley obtained her masters of science in nursing and nurse midwifery in 2016, and her doctorate in nursing practice in 2017. The lawsuit indicates the two women met in 2014 while obtaining their midwifery education at Frontier University, a Kentucky-based school that offers online education.

The two women formed the Midwife Collective, which currently operates a women’s health clinic in Des Moines and offers services for births that occur either at a client’s home or at another location such as a hotel room or a short-term rental. The Midwife Collective claims to be the only home-birth service within 240 miles of Des Moines that is insured and accepts insurance, including Medicaid.

The plaintiffs argue that freestanding birth centers “alleviate the financial burden of childbirth on the overall healthcare system” and that “the lower number of unnecessary medical interventions can make childbirth safer and more affordable.”

In Iowa, a medical facility’s certificate of need requires the approval of the Iowa Health Facilities Council. The process of applying for such a certificate requires payment of a fee that’s equal to three-tenths of 1% of the anticipated cost of the project, up to a maximum of $21,000.

Applications are evaluated by the council according to 18 criteria. As part of the process, the council holds a public hearing at which any affected persons or institutions can present testimony in favor or against the project. After the hearing, the council issues a written decision approving or denying the application.

“No freestanding birth center certificate of need has been granted in Iowa in many years,” the lawsuit alleges. “The only freestanding birth center in the state recently transitioned out of managing labor and birth, meaning the state currently is without a single freestanding birth center.”

In his petition, Ostergren argues that “during the colonial period, and at the time of the enactment of the Bill of Rights in 1791, the vast majority of American births occurred outside of a hospital with the assistance of midwives. When the Iowa Constitution was enacted in 1857, and when the 14th Amendment was enacted in 1868, midwifery was universally legal and women maintained extensive choices among a variety of birth assistants.”

Over the past two years, the Kirkwood Institute has initiated lawsuits over  mask mandates in Iowa schools; sued the City of Cedar Rapids for “discriminating” against white people in appointments to a citizens’ police-review board; represented Gov. Kim Reynolds in litigation in the fight to impose new restrictions on abortion; sued the state over licensing board requirements; sued the state auditor, a Democrat, for access to office emails; sued the state over a gender quota used in the selection process to fill vacancies on the State Judicial Nominating Commission; and sued Orange City over its mandatory inspection of rental properties.

State records indicate that two of the Kirkwood Institute’s four board members help run Iowans for Tax Relief, a conservative Muscatine-based organization that reported $532,000 in income in 2020.

Other board members include Marion County Attorney Ed Bull, and Matthew Schwarz, a former Muscatine police officer who now heads Schwarz Forensics in Ankeny. At one time, Ostergren was the director of operations at Schwarz Forensics.