May 17, 1994
Steve Keller, Esq.
465 Main Street
Placerville ** 95667
Dear Mr. Keller,
I was informed, via a mutual friend, that you would be interested in the legal information i had amassed in regard to midwifery and specifically, the case against me which was dismissed April 29th, 1993. During the 21 months of the prosecution i did a great deal of legal research. I believe that ultimately it was the fruit of this research that convinced the DA of the unwise and unworthy nature of his case.
As you will recall, i am a religious practitioner under section 2063. The prosecution against me for the illegal practice of medicine came about after a concerted effort on the part of the medical board to create a "crime". There was no "bad outcome" and no complaint by a consumer or medical professional. The case was triggered by a specious complaint from an alcoholic former landlady who had lost a civil suit against me and sought retaliation by claiming that i was running an illegal birth center out of the home we had leased from her. There was no truth to this allegation and it was quickly dismissed by the medical board investigator. However, i received 5 phone calls by undercover agents of the medical board over the space of 90 days trying to make appointments with me and no less than two (confirmed, perhaps more) undercover agents, wired for sound. I was arrested in the presence of my youngest daughter, handcuffed and held under a $50,000 bond for 12 hours before a benefactor could come up with the $5,000 cash and the deed to their home to bail me out.
Originally i was charged with practicing medicine, nursing, midwifery and nurse-midwifery without a license. The practicing midwifery charge utilized an occupational business statute and i was charged with two additional counts of advertising without a license. Since no state, county or local licensing mechanism existed for the non-medical practice of midwifery, NOR did any statute exist that identified non-medical midwifery to be a crime, my defense attorney filed a demurrer claiming the prosecution to be unconstitutional. The motion was denied in superior court and on appeal. However, in conversation with the district attorney and the two defense lawyers January, 1993, three months before the case was dismissed, i detailed my research on the medical practices act, most especially the information that NO STATUTES ever, in the history of California legislature, had criminalized the non-medical practice of midwifery. The overall context for our conversation was the pending midwifery legislation which had that morning been the subject of a very favorable editorial in the San Francisco Chronicle urging passage of midwifery licensure bill. All three attorneys present (including the district attorney!) voiced the hope that its passage would bring the case against me to a timely and graceful close.
The DA's official position was that he was only prosecuting me because it was his job to go after unlicensed and illegal practitioners and that he wished "they" would pass the bill so that he would not have to go after "nice ladies" like me. He recounted to the three of us a recent conversation between himself and "those guys" at the medical board in which he informed them that there was no law against the practice of non-medical midwifery. He said: "I told those guys that if they wanted me to keep prosecute midwives, they were going to have to get some new legislation passed". He was quite smug about this.
At the next court appearance, (March 4th) without any legal action on our part, 3 of the 5 counts -- all those pertaining to the "illegal practice" of midwifery, nurse-midwifery and nursing -- were mysteriously dropped. On April 29th, 1993, the two remaining counts of "advertising without a license" (ie. being listed in the phone book!) were dismissed ( again without any additional legal action by us) and the case dismissed.
The DA was interviewed on the courthouse steps by a journalist from the San Jose Mercury. In the newspaper account of the dismissal, the DA was reported to have said that since it was not illegal in California for any lay person to assist a woman during normal birth, it made little sense to prosecute midwives for attending a normal birth. On May 5th, an editorial in the Mercury favorable to the midwifery legislation, this information was reiterated saying "Because it's not illegal for lay people to assist in childbirth, Faith Gibson won her battle with the state..."
Transcribed records of the court proceedings that day stated that the medical board agreed to the dismissal of the charges against me because I had removed the listing from the phone book. Please note that my status as a religious practitioners, while acknowledged in the court proceedings to be a lawful status, WAS NOT the reason the case was dismissed. Two months earlier, the DA had already dropped all the practicing medicine/ nursing/ midwifery without a license, acknowledging his legal inability to prosecute non-medical midwives ("Because it's not illegal for lay people to assist in childbirth.."). This action by the DA may even have been an arm-twisting tactic on his part to force the CMA to drop their opposition to midwifery legislation, we will probably never know.
As most California midwives will recall, the CAM-sponsored legislature was not successful in committee that day in January 1993, despite the glowing editorial in the Chronicle. One month later, on 2/19, the bill was resurrected again and began the journey that eventually lead to the passage of the CMA's "hostile amendment" version. On May 7th I gave testimony before the California Medical Board urging them not to continue their policy of entrapment. In that testimony, i stated that i practiced under the Article 24 (original 1917 provision) which was still valid law. Two weeks later, (approximately May 18th), the CMA approached Senator Killea with their infamous deal -- ie. a neutral position in return for gutting the midwife-authored bill and replacing it with language identical to nurse-midwifery and, incidentally, repealing the original article 24. I note that only two weeks before i had informed the Medical Board (with CMA rep present) that i was practicing under its guidelines.
Clearly something drastically changed the official 20-year opposition by the CMA to non-nurse midwifery legislation. While we only have our suppositions, it appears to me to be strongly associated with the official position taken by the Santa Clara County DA that in effect legally established what midwives had themselves been saying for many years -- that no statutes defined the non-medical assistance of a woman during childbirth to be a criminal act. The DA's call to the medical board, "complaining" that he could not prosecute midwives without the passage of new legislation, followed by the dropping of the charges and eventually dismissal of the case was a destabilizer. It was really going to be hard to continue to convince midwives that their non-medical practices were illegal after he spilled the official beans. I feel that this was pivotal in the course of these legislative events, successfully convincing the CMA that simply killing our bills was no long sufficient. Going on the offensive made more sense as it gave them control of the language and a way to maintain the upper hand. Since the hostile CMA version of midwifery licensing creates unnatual and unnecessary vicarious liability, it remains to be seen if midwives can function under its catch-22 provision.
Thank you for your interest. I hope the information i enclosed is helpful. Please contact me if i may be of further assistance.
faith Gibson, community midwife
Certified Professional Midwife#96050001
North American Registry of Midwives