When Katie Chubb announced in 2021 she was planning to open a freestanding birth center in Augusta, Georgia, it seemed like everybody in town was excited about it.

She met with local physicians and nurses who said they would welcome her Augusta Birth Center as a provider of midwifery services for low-risk pregnancies. Hundreds of people signed the interest form on her website. She met with the head of obstetrics at University Hospital (now Piedmont Augusta), located less than a mile from the proposed birth center location, who responded positively, she said.

But when Chubb submitted her 800-page application to the state health department for a so-called Certificate of Need — a requirement to open a licensed birth center in Georgia — she discovered that not everybody in town was enthusiastic about the Augusta Birth Center.

Two local hospitals, including the one she’d met with, filed letters of opposition with the state. They cited several concerns, including a belief that the center hadn’t demonstrated its services were needed in the community. Those hospitals, plus a third in the area, refused to sign a written agreement with Chubb saying they would accept emergency transfers from the birth center. As a result, the state?denied?Chubb’s application.

The property in downtown Augusta that she’d planned to purchase for the birth center remains vacant and filled with weeds, since the sale was contingent upon her receiving state permission to open. With the future of the business uncertain, her main funder backed away.

The South has long had poorer birth outcomes than the rest of the country. Most of the highest maternal and infant mortality rates in the nation are in Southern states, which tend to have higher rates of poverty and the types of health conditions — such as high blood pressure — that make pregnancy more dangerous. Access to care is thinning out: More than half of rural hospital closures over the past two decades have been in Southern states.

Supporters say birth centers can help improve that record. Nationwide, birth alternatives such as freestanding centers and midwifery care have surged in popularity, particularly since the COVID-19 pandemic prompted increased interest in out-of-hospital birth options. The number of birth centers nationwide has doubled over the past decade, while midwife-attended births now account for about 12% of all births.

But the South lags the rest of the nation in offering birth alternatives, in part because of regulatory roadblocks, such as the transfer agreements with area hospitals that thwarted Chubb.

Hospital and physicians’ groups in the South say such rules are necessary to protect the health and safety of women and babies. Critics counter that doctors and hospitals are more interested in preserving their monopoly on maternal care.

In Chubb’s case, the state regulatory board denied her application despite concluding that there was a need for her birth center’s services and that the center would offer “a low cost, high quality alternative” for maternal health in the area.

“A week before the deadline, [the hospitals] went quiet,” said Chubb, who works as a personal trainer focused on prenatal and postnatal exercise and who is currently a nursing student. “We’ve tried to contact the hospitals multiple times, even since they switched management. And yet we still can’t open because the hospitals want to block us.”

Piedmont Augusta did not answer requests for comment. Augusta University Health did not respond in time for publication.

Chubb has sued the state, challenging the constitutionality of the state’s Certificate of Need law. The case is ongoing.

“If we’re not going to do it, nobody’s going to do it,” she said. “You’ve got to have someone who’s tenacious and has the resources to go after this.”

A ‘de facto ban’

A similar situation is unfolding In Alabama, where three women who want to run birth centers sued the state health department this month, claiming it has created a “de facto ban” on birth centers. Mississippi and Kentucky, like Georgia, also have requirements that effectively let hospitals veto birth centers from opening by refusing to sign transfer agreements.

Dr. Heather Skanes opened Alabama’s first freestanding birth center last fall in Birmingham. She hoped the birth center would represent a leap forward in improving access to maternal health care in a state that’s long had among the nation’s highest rates of maternal and infant mortality.

“I opened my center because there is a maternal and infant health crisis in Alabama which is disproportionately affecting Black women and infants,” said Skanes, who is Black and who opened her center in a majority-Black area of her native Birmingham.

About six months after the center’s first delivery — a 6-lb., 12-oz. baby girl who became Alabama’s first baby born in a freestanding birth center — the state health department came calling.

Skanes said a department representative informed her that by holding deliveries at the birth center she was operating an “unlicensed hospital.” Alabama does not have state regulations for birth centers; the health department has been working on a proposed set of regulations for the past year.

Skanes said she was told to stop accepting new patients and to arrange for her existing patients to give birth elsewhere. A representative from the Alabama Department of Public Health declined to comment on the birth center regulatory process aside from a memo issued earlier this year.

“At no point did the department say there had been any complaints about the safety or quality of the center’s care,” Skanes said. Her center had hosted more than a dozen births before she had to shut the doors, and, she said, it had a perfect safety record. “I was shocked that we would be forced to stop providing the midwife-led care that was working well for our patients and our community. Having to turn patients away has been devastating.”

Earlier this week, Skanes joined with two other women who are also attempting to open birth centers in Alabama — Dr. Yashica Robinson, an OBGYN in North Alabama, and Stephanie Mitchell, a licensed midwife in Alabama’s rural and economically disadvantaged Black Belt region — to sue the Alabama Department of Public Health over what they see is a de facto ban on birth centers.

“The department is refusing to allow birth centers to operate in Alabama without having a hospital license, but at the same time the department is making it impossible for any birth center to even apply for such a license,” said Whitney White, staff attorney with the American Civil Liberties Union (ACLU), which is representing the birth center owners and their co-plaintiff, the Alabama affiliate of the American College of Nurse-Midwives.

A representative of the Alabama Department of Public Health said the department had not yet had time to review the lawsuit fully and would not otherwise comment on active litigation.

Department leadership, dominated by the state’s private physicians’ association, has a long history of opposing the expansion of midwifery practice in Alabama.

The Alabama Department of Public Health is governed by the State Board of Health, which is by law composed of all 7,000 members of the state’s largest private professional association of physicians, the Medical Association of the State of Alabama. The state law granting that authority is a Reconstruction-era mandate that places the state agency squarely under the control of a private organization.

The medical association has historically lobbied against legislation that would expand consumer access to midwives in Alabama. Members of the medical association also comprise the majority of seats on the 16-member State Committee of Public Health, which oversees and regulates public health matters in Alabama, including hospital licensing.

Mitchell, the midwife working to open a birth center in Alabama’s Black Belt region, said some of the women she sees travel 75 to 100 miles roundtrip to receive prenatal care because of the lack of hospitals and obstetric providers in the area. The region is federally designated as medically underserved, which means it has too few primary care doctors and high rates of poverty and infant mortality.

“Expanding access to midwifery and birth centers in places like Sumter County is a life-or-death situation for many families,” she said.

Hospitals defend requirements

At least 34 states operate Certificate of Need (CON) programs, which vary by state but are designed to control the number of health care resources in an area by requiring a hospital or health system to prove the community needs a certain service before the provider builds or expands it.

In their letters of opposition to Chubb’s Augusta Birth Center, two Augusta-area hospitals cited several reasons, including the center’s lack of written transfer agreements, which the hospitals refused to sign.

The Augusta University Medical Center, in its opposition letter, noted the birth center “has garnered opposition from two of the hospitals precisely because it will not function well as part of the established system of perinatal care” and recommended the birth center “work much more closely with the local hospitals and physicians.”

“Instead,” the letter said, “it is proposing a project that will only take from the existing hospitals.”

Chubb proposed charging about $5,000 for an uncomplicated birth, far below the $15,000 at Augusta University Medical Center or the $7,300 at University Hospital, according to the health department’s decision letter. Both hospitals questioned the financial feasibility of the birth center’s proposed charges in their letters of opposition.

Chubb, in her lawsuit against the Georgia Department of Community Health, is being represented by the Pacific Legal Foundation, a national public interest law firm that often champions conservative or libertarian causes.

“We’re opposed to Certificate of Need laws of any variety, but we believe the ones in Georgia for birth centers are worse because they give an absolute veto to competitors who simply don’t want the competition,” said Joshua Polk, an attorney at Pacific Legal who is working on Chubb’s case.

Kentucky’s CON law is the primary reason that state has no freestanding birth centers, said state Sen. Shelley Funke Frommeyer, a Republican who filed one of the bills during Kentucky’s 2023 legislative session that would have exempted freestanding birth centers from CON requirements.

“We want to promote and inspire people to take responsibility for their health, but the hospitals aren’t giving us the freedom to do that,” said Funke Frommeyer. “The hospital association and our hospitals are battling to restrict this offering.”

Hospital officials from around Kentucky testified against removing the CON requirement for birth centers and the Kentucky bills ultimately failed.

Jim Musser, senior vice president for policy and government relations at the Kentucky Hospital Association, pointed out that three certificates of need have been granted for freestanding birth centers over the past 20 years, though those centers were ultimately never built.

The hospital association’s position is that freestanding birth centers should be overseen by obstetricians, staffed by certified nurse-midwives and “closely aligned with a hospital” via a written transportation agreement or being operated by the hospital, he said.

“Kentucky has some of the worst infant and maternal mortality rates in the country and we want to make sure we’re doing things to improve that and not jeopardize the lives of mothers and children,” Musser said.

Earlier this year, South Carolina passed a law that eliminated its CON requirements for nearly all health care facilities, including birth centers. And West Virginia amended its CON law to exempt hospitals and birth centers.

Roadblocks

Months before filing the lawsuit in Alabama, Skanes and the other birth center owners had joined with midwives, nurses and birth advocates to protest the state health department’s proposed birth center regulations as being out of step with nationally recognized standards for birth centers and so restrictive that they essentially required birth centers to be “mini labor and delivery departments,” Skanes said.

Among the department’s proposed regulations was a requirement that birth centers have a written transfer agreement with a nearby hospital. It’s not part of a CON program, but just like in Georgia, the requirement would give hospitals veto power over whether birth centers can open and operate in their service areas.

Mississippi also requires birth centers to obtain written transfer agreements. Getty Israel, founder of Sisters in Birth Inc., a women’s health clinic in Jackson, is trying to open the state’s first birth center.

Her main roadblock has been funding, she said. She has a partnership with a local hospital, thanks to connections and relationships she’s built, she said, but called the written transfer requirement an “unnecessary burden” for birth centers.

“It needs to be removed, but it’s probably going to take a lawsuit to do it,” she said. “You can’t be docile when you’re trying to change the infrastructure. There are interests that don’t want to see midwives win.”

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