A pair of central Iowa midwives fighting for the right to build a stand-alone birthing center can continue their lawsuit against the state, a federal court ruled Wednesday.

Caitlin Hainley and Emily Zambrano-Andrews, who together make up the Des Moines Midwife Collective, are challenging a state law requiring any new medical facility obtain a “certificate of need” from regulators. That involves, among other expensive and time-consuming steps, giving any potential competitor notice of the proposal and the opportunity to argue why the new facility is not truly needed.

Hainley and Zambrano-Andrews, who currently provide home birth services throughout the Des Moines metro, want to open a birth center with tubs and other equipment so patients can give birth in a home-like setting. Their attorneys say that midwife service, whether at home or a birth center, is fundamentally different than that provided by hospital maternity wards. Their lawsuit, filed in February 2023, argues it is unconstitutional for the state to grant what amounts to a “competitor’s veto” to established businesses.

The state filed to dismiss the lawsuit. Wednesday’s ruling, by Chief District Judge Stephanie Rose, largely denies that motion. But Rose did rule the certificate of need law does not infringe on any “fundamental right” under the U.S. Constitution, meaning it will be easier for the state to prove its law is constitutional.

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The Iowa Attorney General’s Office did not respond to a message seeking comment. Wilson Freeman, an attorney with the libertarian-leaning Pacific Legal Foundation who is representing the midwives, said in an email they believe they will prevail even if the court does not agree the law infringes on their fundamental rights.

Strict scrutiny or rational basis?

Any law that burdens what courts consider to be a fundamental right — such as freedom of speech, the right to marry and have children, and more — must survive what is known as strict scrutiny, meaning it must be found to be “narrowly tailored” to serve a “compelling” government interest.

If a law does not implicate a fundamental right, courts instead apply what is known as rational basis review, meaning the law must only be “rationally related” to a “legitimate” government interest.

In this case, the midwives argued the certificate of need law violated multiple fundamental rights, including the right of mothers to choose their place and manner of giving birth and the right of the plaintiffs to earn their living. But the judge rejected those claims, finding other courts have declined to make birth setting a fundamental right and noting the U.S. Supreme Court’s “unmistakable resistance” to recognizing additional rights as fundamental.

Case can continue, judge rules

Attorneys for the state had asked for the case to be dismissed entirely, but Rose refused, finding the plaintiffs have “plausibly” argued the certificate of need law might fail even under rational basis review.

Among other arguments, Rose noted that the midwives raise the question of why they are allowed to provide home births without a certificate of need, but do need a certificate to provide the same service in a centralized location. Such a distinction does not improve the cost, availability or quality of maternal care, the women argue. Rose wrote the women have asserted a “plausible claim for relief” that the law lacks a rational basis, and agreed the lawsuit should continue.

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Freeman, representing the midwives, told the Register they’re prepared to fight that fight.

“There is no rational reason for the state to require a certificate of need for midwives who want to help women give birth in a dedicated facility, while allowing midwives to attend births literally anywhere else without such a certificate, Freeman said. “While we continue to believe a fundamental right is implicated by the regulation, the law is unconstitutional under either standard.”

And although rational basis review is favorable to the state, similar laws have failed that test before, Freeman said. A Kentucky law requiring a certificate of need for moving companies was struck down under rational basis in 2014.

The case currently is scheduled for a bench trial before Rose in January 2025.

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166.