This Wednesday, Florida’s Agency for Health Care Administration is expected to permanently ban Vaginal Birth after Cesarean (VBAC) in the state’s birth centers. In response, BirthGirlz, a national nonprofit based in Florida, is mounting a legal challenge, arguing that the ban is beyond the scope of the state health agency’s role.

The ban aims to close the loop on what is already a stringent policy on VBACs in Florida. To have a non-surgical birth after a C-section, women are compelled to go to hospitals that permit it (which are not accessible throughout the state), or, if a physician signs off on the procedure, they can have one at home with the guidance of a licensed midwife. VBACs currently don’t occur in Florida birthing centers because of what is being a called a “de facto ban” due to outdated language in the state regulations. The language, which will be updated this week, will turn the ban from de facto to explicit—making VBACs illegal in all of Florida licensed birthing facilities.

Miriam Pearson-Martinez, a licensed midwife who serves on the Pushing for VBAC committee of BirthGirlz, said that the organization has hired an attorney and will file a legal challenge to the ban when the AHCA moves to amend its regulatory language.

“We believe that the role of our law, and the agency’s duty, is to provide access to birth centers, not limit access, and that this ban is outside the scope of its role,” Pearson-Martinez said.

She noted that licensed Florida midwives are legally permitted to oversee VBACs, so long as a physician signs off on it, and that not all birth centers are owned by midwives—marking the ban as a move that conflicts with legal activities.

The AHCA contends that this week’s adjustment is merely cleaning up its language, rather than an attempt to make any new restrictions on VBACs, birthing centers, or midwives, according to Pearson-Martinez.

“I might be able to believe that, but at the same time (that they are making this ban explicit), they are (in a separate act) eliminating the ability for people who have had multiple births to go to a birth center,” Pearson-Martinez said, noting that the AHCA intends to reduce the maximum number of births a woman can have before she is allowed to use a birth center. While before a woman who had seven births can have her eighth child at a birth center, she now will not be able to do so if she’s had more than five births.

While BirthGirlz will file its challenge this Wednesday, Pearson-Martinez believes that the AHCA will pass the new regulatory language anyway. The process then moves on to the state’s Joint Administrative Procedures Committee, which is tasked with ensuring that all new state regulations meet legal requirements. At this state, Pearson-Martinez is hopeful that her organization’s lawsuit will make its case and change the trajectory of the ban. If that doesn’t succeed, the organization intends to take the case to appellate court

Mary Ann Gibson, co-owner of the Birth Center of Gainesville, said that the ban is troubling, especially given recent statistics that reveal a 12% chance of something going wrong with a VBAC in a hospital setting, compared to a 4% chance in a birth center.

“There’s not a single statistic that justifies this (ban),” Gibson said.

Gibson, who also sits on the board of the International Cesarean Awareness Network, said that she is concerned that by restricting women’s ability to give birth where she chooses, the Florida policy will lead to dangerous consequences—including women having unassisted births at home or the prosecution of licensed midwives.

“Throughout history, the traditional medical field has frowned upon midwives, and this (ban) seems to be taking another step to maintain the power of their industry,” said Gibson. “It seems like a ploy for doctors to say this is one more thing midwives can’t do, one more thing to have control over.”

Nationally, VBAC rates have declined since 1996, while the delivery rates for cesareans are increasing. According to the Center for Disease Control and Prevention, U.S. births resulting from cesarean deliveries in 2005 are at the fourth highest rate of the world’s developed nations, behind Italy, Mexico, and Korea. This rate is exacerbated by the American College of Obstetricians and Gynecologists 2004 recommendation that women not attempt a normal birth after a C-section if a hospital does not have round-the-clock obstetrics and anesthesia backup. Likewise, medical practitioners’ fear of being sued if something goes wrong with the procedure has also discouraged VBACs.

A 2009 survey by ICAN in 2009 revealed that about 45% of hospitals in the United States formally ban VBACs either explicitly or through unsupportive policies and procedures.  

While cesarean sections can save the lives of both mother and baby, the “Evidence-based Maternity Care” report from Childbirth Connection indicates that the rate of C-sections has been increasing out of proportion to their need. In 1965, when the C-section rate of delivery was first measured, it weighed in at 4.5 percent; in 1996, the rate was 20.7 percent, and the provisional 2006 rate was 31.1 percent of all births – representing a 50 percent increase over fifty years. Meanwhile, VBACs have declined by 72 percent in less than a decade – 28 percent in 1996 to eight percent in 2005.

The World Health Organization recommends that the optimal cesarean rates of delivery should be between five and ten percent of all births, and explicitly notes that rates above 15 percent are likely to do more harm than good.

Earlier this month, the National Institutes of Health hosted its first conference to discuss how VBACs fit into the high numbers of surgical births in the United States; 500 attendees gathered for three days of data-sharing, panels, and testimony. A diverse team of experts indicated that VBACs are actually safe for most women—and more practitioners should encourage them, according the conference’s draft statement. While the deadliest risks of VBAC, including uterine rupture, are possible, the risk is limited—impacting less than one percent of patients. Seventy-four percent of VBACs are successful, according to the NIH panel, which affirmed that the procedure is a unique medical decision that should be made between doctor and patient.

“The final statement from the NIH concludes that a VBAC is a reasonable option for most women. Over 75% of women who attempt VBAC will be successful,” said Desirre Andrews, ICAN President, in a press release. “Currently less than 10% of women who have had previous cesareans deliver vaginally in subsequent pregnancies, leading to significant and preventable illness and death.”

Moreover, the NIH panel urged ACOG to reassess its guidelines on VBACs, noting that large swaths of the nation don’t have the resources for hospitals with obstetrics and anesthetics back-up teams.

Jane Peterson, a certified professional midwife in Wisconsin and a member of the Big Push for Midwives, said that while there are health risks in VBACs, as there is in any birthing experience, it has been shown that the risk increases with more labor interventions, such as induction.

“Births in birth centers under the midwifery model of care don’t have interventions, and so they have a greater opportunity for success,” Peterson said.

She added that birth centers screen very carefully for VBACs, ensuring that candidates are healthy. They also make plans to move to traditional facilities if anything occurs that is not reassuring.

Peterson said she advocates for “complete informed consent” from mothers about the risks and benefits of VBACs—a conversation that is most likely to happen outside a hectic hospital setting.

“The fix (for poor maternity care in the United States) is to increase access to midwives, not decrease them,” Peterson said. “That’s not the only fix, but its one of them.

“We should be focused on solving problems, not restricting choices,” she said.

Public protest to Florida explicitly banning VBACS from the state’s birth centers has emerged through a petition to the regulating health agency that asks it to change the policy language so that it will ensure competent care from licensed practitioners even as it “respects the right of the patient to make an informed decision. We ask the State of Florida to remain a regulatory body and not take on the role of medical surrogate.”

Women voice overwhelming support for VBAC, despite sometimes receiving pressure from their physicians to avoid them, according to the national Listening to Mothers studies commissioned by Childbirth Connection in 2002 and 2006. From the most recent report:

Among only those women who had had a cesarean in the past, 11 percent had a vaginal birth after cesarean for the most recent birth, while 89% had a repeat cesarean. We asked women with a previous cesarean about their decision-making relating to a VBAC and found that 45 percent were interested in the option of a VBAC. We also asked if mothers were given the option of a VBAC, and a clear majority (57 percent) of mothers who had a previous cesarean and were interested in a VBAC were denied that option. We then asked what reason was given for the denial of a VBAC, and the leading responses were unwillingness of their caregiver (45 percent) or the hospital (23 percent), followed by a medical reason unrelated to the prior cesarean in 20 percent of the cases.

Carole McGranahan is a mother in Boulder who had a VBAC. After having her first child by an unplanned C-section, she said she realized that she didn’t know much about birth or her body. She said she went into the birthing experience fearfully, simply hoping it wouldn’t hurt and to have a healthy child at the end of it, rather than being open to “the amazing process of birth.

Her C-section came after she experienced contractions throughout her first 24 hours in the hospital, without the baby moving doing the birth canal. While there was no danger to her or her child, the hospital decided it was time for an unplanned and, McGranahan said, unnecessary C-section.

“Once you check in to the hospital, the clock starts. There’s something called ‘failure to progress,’ which basically means checking into a hospital too soon, which again women usually do out of fear when labor begins,” McGranahan said.

For her second pregnancy three years later, she heard both the “once a C-section, always a C-section,” message and the notion that if she had an unplanned cesarean, she was an excellent candidate for a VBAC. She chose to have a natural VBAC birth, assisted by OB/GYNs and a doula in a hospital—revealing that there is room for overlap and collaboration among birth practitioners and facilities.

McGranahan contends that the medicalization of birth – and of life – is pervasive.

“A C-section is something that can be scheduled and managed. Natural birth isn’t, it’s much less predictable,” she said. “When you put it in context of the health industry, its not as easily controlled.”