Numerous Kentucky women cross the border into neighboring states to give birth, driven largely by a lack of local choices in birthing experience and location. State Sen. Shelley Funke Frommeyer knows certificate of need (CON) laws have created much of this phenomenon, and she uses innovative methods to combat them. Like many of the 35 states regulated by CON, Kentucky regularly holds legislative votes challenging them, and she is preparing for the votes scheduled in 2025. 

Childbirth, CON, And Kentucky

As the name indicates, CON laws require the government to certify the local community needs a medical facility before one can legally open. The petitions by the prospective business can require years and staggering court costs, and prospective competitors are often permitted to testify in the case. Naturally, they are prone to testify new facilities are unnecessary. 

Despite their specious original justification of increasing healthcare affordability and access, CON laws demonstratively decrease both. Instead, current facilities use their influence to prevent new ones from opening. And in many states, including Kentucky, this “competitor’s veto” applies to birth centers

Unsurprisingly, the state does not offer a single freestanding birth center. It has not had one since the 1980s, the decade after Kentucky began its CON program. 

The Field Trip Approach

Senator Funke Frommeyer has repeatedly attempted to eliminate the restrictions, and she has statistics, economic theory, and childbearing women in her corner. But despite the fact CON laws are not safety regulations, lobbyists have managed to conflate the two and create the impression rescinding CON will endanger patients. And because freestanding birth centers are unfamiliar to many people, opponents can easily cast particular suspicion on them.

Instead of just debating this fallacy ad nauseam, Funke Frommeyer regularly addresses the safety question. No matter how misleading, a claim of patient endangerment rightly makes people nervous, and she takes steps to reassure them. 

Her most recent tactic involved a particularly innovative and active move: a Kentucky legislature class trip. Several of her colleagues, both senators and representatives, accompanied Funke Frommeyer to the Tree of Life Birth Center in neighboring Indiana to see for themselves whether the fear spread by lobbyists has any basis in reality.

In 2023,120 Kentucky residents women went to Tree of Life to give birth, making up 61% of the facility’s delivery clientele. When interviewed, patients expressed their appreciation for the increased birth style options and comforting atmosphere (which is a common theme in birth center patients). 

The facility has just four rooms and only serves women in low-risk pregnancies, but it nevertheless has three partnering physicians and is located across the street from a hospital. Not only do the women giving birth there have a low chance of facing an emergency, due to their confirmed healthy pregnancy status and the legitimate medical care they receive at the birth center, but they would immediately be transported to the hospital across the street in the event one did occur. One of the midwives at Tree of Life practiced as a nurse for two decades, and she spoke emphatically of the safety protocols both at her facility and other similar centers.

Thinking Outside The Box

Legislators face an uphill battle on this issue, because the hospital associations and incumbent physicians keeping birth centers closed have time and money to support their cause. Around the country, CON opponents have to use creativity to advocate for their side. Funke Frommeyer showed resourcefulness in her decision to offer a group trek, and other people likewise need to use inventiveness to circumvent the competitor’s veto on freestanding birth centers.