VBAC bans and other nonsense

Well, look at that, here I am again. I should probably be sewing Hallowe'en costumes...gonna be a busy couple of weeks I think. Anyway, I'm going to ramble this time about VBAC (that's vaginal birth after cesarean if you don't know, and if you are google searching blogs for that particular term ;-) and how much harder it is to have one now.


There's a lot of research on VBAC out there. For the most part it can be pretty easily summed up as follows:


The one complication that's relatively unique to VBAC is uterine rupture. Uterine rupture can be catastrophic, so it isn't something to ignore but catastrophic ruptures are also rare unless you do some stupid things. The rate of uterine rupture in labors that are spontaneous (that means no induction) and in the hospital is roughly 0.5% (1 in 200), but not all of those are catastrophic. Other than uterine rupture, there's no difference between a VBAC labor and any other labor. If you use things like pitocin or prostaglandins, you will increase the rupture rate. If you've had more than one cesarean, the rupture rate will be higher but its looking like it isn't really much higher (in one recent and very large study, it wasn't higher at all). If successful, VBAC is much better for the mother (obviously -- surgery really isn't "good" for anyone, it can be necessary but not good) and probably better for the baby too. It certainly isn't worse for the baby. The rupture rate is higher with incisions in the upper part of the uterus but we really don't know what the rates are -- all the numbers are quite old and women with these sorts of incisions are rarely "allowed" to have VBACs, so we don't know what the uterine rupture rates would be in this population. Things that do not increase the uterine rupture rate include being past your due date, having a "big" baby, having twins, being old, being young, being fat, being skinny or being short. Unless of course you are being induced because of any of those things.

Back in the 90's, the medical community "supported" VBAC. I'm too cynical to believe that this support was because of some noble desire to see women avoid the knife -- well, ok, maybe that was part of it....but really, it was about managed health care and cost cutting. And that's not a good reason...the good reason would be because its better care for mothers and babies to encourage VBAC (which it is) not because it makes the profit margin look better to the share holders. The reason I say this is because the OBs just couldn't keep their hands off ... birth of any sort goes better if you just leave it alone...and they couldn't. So they started doing stupid things like inducing women willy nilly and getting very casual about the whole thing...and so, because bad behavior begets bad behavior, there were some spectacular lawsuits. Though, I've been told that this has been somewhat overblown by the obstetrical community....I don't doubt it but I can't confirm it either. Anyway, ACOG (American College of Obstetrics and Gynecology, functionally the trade union for OBGYNs) came out with a practice bulletin that made "suggestions" about how to manage a VBAC and basically VBAC became an endangered species...ACOG claims that the practice bulletins are just "suggestions" but realistically, if an OB does something counter to the bulletin, they have little to stand on if they are sued. Which leads to VBAC bans.

ICAN is in the process of updating our list but as of a few years ago, there were over 300 hospitals in the U.S. that officially banned VBAC - in other words, you can't have one at that hospital, even if you've had one or more already. At least, that's what they'd like you to believe. Many more hospitals have de facto bans in place because there aren't any attending physicians who'll accept a patient who wants one or the restrictions on having one are so outlandish that it just never happens. I don't know about you but I find it really offensive that anyone, much less a hospital administrator or Board of Directors can tell a women how she's allowed to have her baby. Plus, I'm pretty sure its illegal. Why, you ask?

I'm still figuring this out but I think there are two different laws/regulations that actually make it illegal for a hospital to refuse to allow VBACs. The first is EMTALA (Emergency Medical Treatment and Active Labor Act) which says that if a woman shows up at a hospital in active labor, that hospital may not turn her away, no matter what. The hospital is required by law to admit her and stabilize her (defined as both the baby and the placenta out) OR if they are not able to provide care, transfer her to a facility that can (if they can transfer her before the baby and placenta are delivered. A physician friend explained to me that if the baby and placenta are delivered in transport, the hospital that shipped the woman gets in big trouble because obviously, they could have handled it). What EMTALA does is get the woman in the door. THEN there are the Medicare Conditions of Participation (CoP)- these are the rules any hospital that accepts Medicare dollars (most of them) must follow. The CoP has some very specific things to say about a patient's right to refuse treatment in the section on patient's rights:

"The patient or his or her representative (as allowed under State law) has the right to make informed decisions regarding his or her care. The patient's rights include being informed of his or her health status, being involved in care planning and treatment, and being able to request or refuse treatment. This right must not be construed as a mechanism to demand the provision of treatment or services deemed medically unnecessary or inappropriate."

Now...the one thing that I see a potential problem with is that last sentence -- "medically unnecessary or inappropriate." If someone did request a judgment on whether or not VBAC bans were illegal under this clause, I have to wonder if the argument would be made that VBAC is under some circumstances "medically unnecessary or inappropriate". The notion that VBAC is a "treatment" or "service" makes me crazy -- might as well say pooping is a treatment or service, it would make as much sense but that's not how it is framed much of the time -- I see VBAC referred to as a "procedure" rather frequently, even though the best way to have a VBAC is to not do anything at all (that's an odd sort of procedure). I wonder if the powers that be in the CoP world would look to ACOG for an "expert" opinion -- calling ACOG an expert in VBAC is like calling the oil companies experts in alternative fuel sources so needless to say, I have no faith that they'd give an unbiased opinion when asked. Its an interesting dilemma...should we push for a ruling on this? Or would it possibly backfire badly. To me it seems SO obvious that it is against everything we say is important in this country with regard to individual rights to bodily integrity, etc...but we are talking about pregnant women (who in some states are not allowed to draft advance directives or living wills because they are considered incompetent by virtue of being pregnant), particularly their uteri and we all know uteri aren't all that important (50% of all women will die without theirs -- hysterectomy is the second most common surgical procedure after cesarean. Can't help but wonder if things would be different if babies came out of prostates or something...) So here I sit wondering....should we push this? Where oh where is a lawyer familiar with Heath and Human Services law when you need one?

If you know of a hospital in your area that does outright ban VBAC, keep an eye out for the online survey that will be on the ICAN website soon. I'd love to have your information.

Gretchen