Thursday, September 8, 2011

In Which My Law Professor Sets a Question To Rest

Since I've had one session of my Public Health Law class, I now know everything about the law. In particular, the professor (unwittingly - this was not his particular topic) set up some tenets that relate to the periodic internetz question of the supposed 'alegal' status of midwives in states without laws about midwives, as follows:

1. In the United States, everything is legal unless it's illegal.

2. "Can [someone] be sued for [something]?" is never a meaningful question, because the answer is always yes, yes s/he can. (You can try it: Can I be sued for picking my nose? Yes I can.)

Rather, the meaningful question is "Can [someone] be successfully sued for [something]?" (Can I be successfully sued for picking my nose? No, probably not.)

3. QED, dudettes.

PS. I am being sassy. But I am also rather sure - 92%, say - that my conclusions here are correct. Please tell me I'm wrong if you know better.


  1. I'm a little late to the game, just subscribed to your blog via Unnecesarean! I did my public health degree long before I became interested in midwifery, and my law degree during and as that interest was developing. I love your thoughts and I adore the BU public health law faculty. I would love to hear about how your thoughts on this develop/have developed as your course continues.

    Here are two elaborations on the questions/conclusions you list above:

    1. Yes, to an extent everything is legal unless it is illegal- but it is important to keep in mind the relevant legal issue-- which is a person's conduct, not their label. As it pertains to midwifery, while "midwifery" may not be mentioned in law in some places, the conduct in which a person who calls herself a midwife engages can and has been prosecuted as the unlicensed practice of nurse midwifery, nursing, and/or medicine. It is within the police power of the state (the primary public health power as you know of course) to regulate health professions and to exclude unregulated practitioners from engaging in conduct that could be dangerous to the public's health.

    2. As it pertains to midwifery, neither is the relevant legal question whether a person can be sued for engaging in the conduct. The question is whether the person can be criminally prosecuted, and the answer is usually yes, and usually, successfully. As for the sued part (where the consequences are money damages and not jail time)- a person practicing midwifery legally or illegally can also be civilly sued by a client, most likely on a negligence claim. We don't have a lot of evidence about whether such civil suits are likely to be successful against unlicensed/illegal midwives because they usually don't have any money so people don't bother.

    Rebecca S, JD, MPH

  2. That was super instructive - thanks RS! I think I would have gotten most of the way there in the 5 or 6 weeks more of class since I wrote the post.

    Do you happen to have a good suggestion for a basic read - either book or article length - on the modern legal status(es) of midwives in the US, these debates, etc (ie not just a list of current laws)? I've gotten pieces here and there but would like something longer/more comprehensive to look forward to when I've finished this class. Or actually, if there are any judicial opinions that give a good overview, I'm totally up for that too.

    Thanks so much for commenting!!