Reproductive choices have remained at the top of news sites and political campaigns for decades, but the role of certificate of need (CON) laws in delivery location options has stayed out of the headlines of larger news organizations. Despite many women wanting to give birth in places other than hospitals, their inability to access birthing centers does not get much attention. People at odds in other aspects of reproductive issues might find agreement on this topic and be willing to unite in action, so this matter provides a unique opportunity to enact change.
To begin that process, collaborators need to become educated about CON laws. Despite their enforcement for 60 years, they remain quite obscure. Furthermore, the people who benefit from them obfuscate their real function, making them sound like patient-friendly regulations.
What CON Is, And What It Is Not
CON legislation does not deal with standard of care, despite the tendency of supporters to insist the laws are designed to improve “quality” and to achieve “better hospital care.” The legislation is not a safety regulation. It is not a licensing procedure.
In short, CON does not address safety and quality. Other existing healthcare laws cover all such issues.
CON laws simply force new healthcare providers to plead for permission to operate, based not on their ability to provide high-caliber care, but to convince a bureaucratic committee that their services are economically needed in the community. They often must also convince large and powerful existing hospitals, their potential competitors, to agree. Of course, other hospitals do not want new competition, which might explain why hospital associations overwhelmingly tend to support CON legislation.
It might also explain why the vague claims of “quality” and “better hospital care” above come directly from large hospital associations and their legal teams.
Birthing Center CON Shutout
More than 98% of births in the U.S. occur in hospitals. Each one of those births, not including extra services for any complications, costs an average of $12,156 before insurance. (By comparison, birthing centers on average cost a mere $7,240 per birth.) And in 2022, U.S. births totaled 3,667,758.
To put it bluntly, babies are big business for big hospitals.
Unsurprisingly, hospitals often testify to CON committees that a new facility for childbirth is “not needed” in their area. When Katie Chubb tried to open a Georgia birthing center in 2021, hundreds of community members signed up on her website to indicate their interest. Encouraged, Chubb submitted the necessary 821-page application for a certificate of need to the health department.
However, two local hospitals expressed concern about the potential new facility. One cause of their supposed concern? They believed a birthing center was not needed in their community. They were, according to them, perfectly capable of handling all of the birthing business in their area.
The health department denied the CON application, and the hundreds of eager community members discovered they had little real say in their childbirth decisions. This incident in Georgia is far from an outlier. Across the country, CON laws are preventing freestanding birth centers from operating.
It is difficult to imagine a more condescending and controlling act than to tell patients that they do not need healthcare options when they have so clearly expressed a desire for them. Between 2011 and 2021, the number of birthing centers in the U.S. increased by 65%, despite the birth rate declining by 7%. Women have expressed no doubt they want these facilities. They want the decreased cost, increased control, and tailored personal experience. And they have every right to access them.
The Real Safety Issue
Again, it is vital to realize that the controversy here does not involve safety. A health department can approve or deny a facility’s right to legally operate for safety reasons, but this does not affect a certificate of need.
Furthermore, birth centers serve women in low-risk pregnancies who can reasonably expect a smooth delivery. They also foster working relationships with nearby doctors and hospitals to prepare for any possible complications.
One real safety problem that has increased, however, is the ability of women to reach any proper facility whatsoever when preparing to give birth. The 35 states with CON laws have an average of 30% fewer hospitals, and 30% fewer rural hospitals, per capita, than states without CON legislation. Patients there have longer travel times, a problem that particularly affects a woman in labor.
The same hospitals that deny their regions need more birthing centers predictably deny they need more competing facilities of any kind. CON supporters are outright preventing women from accessing childbirth facilities.
Freedom Of Choice
Childbirth is a natural experience. It is also one fraught with anxiety and unexpected complications. The option of birthing centers, which offer a balance of modern technology and traditional intimacy, has been a boon to both women and their new babies.
CON laws restricting these centers unnecessarily prevent women from benefiting from this innovative idea. Contrary to the fictional ideal sold by proponents, CON legislation makes childbirth more dangerous, unpleasant, and expensive. The only winners in CON are healthcare behemoths who continue to retain control over patients.