The judge issued a preliminary ruling today, focusing not on whether the court has jurisdiction over Gina, but instead questioning the merits of the case. Interestingly, he said that I would probably win the case if Gina had sued me for copyright violation, since the image probably meets the fair use exception and Gina may have also given me an implied license to use it. But, he questioned whether I am entitled to sue Gina for DMCA abuse and tortious interference with Bluehost over one DMCA notice.

It is unclear why the judge made no mention of the DMCA notices sent to my second host or the fact that Gina was soliciting others to file DMCA notices with the express purposes of pushing my site off the web. We will be reminding the judge of this in our response and expect that it will then be clear that I am entitled to sue Gina for what she did.

You can read the ruling here:

https://dl.dropboxusercontent.com/u/27713670/Tuteur%20judges%20order%204-10-13.pdf

It doesn’t matter how hideous, it doesn’t matter how preventable, and it doesn’t matter whether the midwife broke the law. In the wake of every homebirth death, homebirth advocates console themselves with a variety of illogical claims. The recent arrest of self-proclaimed “midwife” Rowan Bailey in connection with a homebirth death is a case in point. Homebirth advocates are twisting themselves into pretzels to justify their support of yet another “midwife” who has presided over yet another death.

Let’s look at the various types of illogical argument constructed to justify homebirth deaths. They are all efforts to forestall the conclusion that homebirth increases the risk of perinatal death. To make this exercise easier to understand, lets substitute a claim of the same form that is obviously true, so we will not get sidestepped by issues of truth or falsity and can focus only on whether an argument is logical or illogical. This is important because illogical arguments are automatically invalid arguments. We’ll use the claim “there are more black cars in the US than lime green cars.”

I say: There are more black cars in the US than lime green cars. (The death rate at homebirth is higher than the death rate for comparable risk women in the hospital.)

Don’t say:

I saw a lime green car. (“Babies die in the hospital, too.”) – Can you understand how the fact that you personally saw a lime green car tells us nothing about the relative number of black cars and lime green cars in the US? That you saw a lime green car is perfectly consistent with black cars outstripping lime green cars 100 to 1, or even 1,00,000 to 1? Similarly, the fact that babies die in the hospital tells us nothing about whether the death rate is greater at homebirth.

I know ten people and not one of them has a black car. (I had two fabulous homebirths and my babies didn’t die.) – This is an illogical claim based on an unstated assumption. The assumption is that the small slice you observe accurately represents the whole. However, tiny samples are often unrepresentative. Knowing 10 people who own black cars is perfectly consistent with the number of black cars exceeding lime green cars, BUT it is also perfectly consistent with lime green cars exceeding black cars, so it can’t be used to support a specific claim. Similarly, the fact that you know ten women who had homebirths and not a single baby died tells us nothing about whether the homebirth neonatal death rate exceeds the low risk hospital death rate.

Lime green cars are prettier than black cars. (Homebirth is empowering.) – I hope it is obvious why value judgments about lime green cars tell us nothing about whether there are more or less black cars than lime green cars. Therefore, it should be obvious that claiming that women are more satisfied with homebirth tell us nothing about homebirth death rates.

You say that because you sell black cars. (You say that because you are a doctor.) – Whether or not I sell black cars is immaterial; it has absolutely no effect on the number of black cars or lime green cars. This is essentially an accusation that I am lying and offering as “proof” the fact that I have a reason to lie, but a reason to lie is not proof of lying. So don’t tell me that the fact that I am an obstetrician means that I am lying about neonatal death rates.

The people who make black cars have oppressed the people who make lime green cars. (Doctors have always oppressed midwives.) – Maybe yes, maybe no, but in either case, it does not affect how many black and lime green cars are on the road. Similarly, whether doctors have oppressed midwives has no bearing on whether the neonatal death rate at midwife attended homebirths is higher than hospital births.

There is a conspiracy against lime green cars. (Doctors are afraid of losing business to homebirth midwives.) – We are supposed to believe that the number of lime green cars would equal black cars except for a public relations campaign designed to make lime green cars less desirable. It is theoretically possible that there is a conspiracy against lime green cars, but it is far more likely that other factors account for the difference in numbers. And in any case, it doesn’t tell us anything about the relative numbers of black and lime green cars. So when confronted with the fact that homebirth death rates exceed hospital rates, it is illogical to counter with a claim that a conspiracy against homebirth exists.

There would be more lime green cars if the makers of black cars helped out. (There wouldn’t be so many deaths at homebirth if doctors backed up homebirth midwives.) – That might be true, or it might not. In either case, it tells us nothing about the truth of the claim that black cars exceed lime green cars. And while it might be true that the death rate from midwife attended homebirth would be lower if doctors were more supportive of midwives, it doesn’t change the reality of the current situation.

The Association of Lime Green Car Makers say that there are more green cars than black cars. (The Midwives Alliance of North America says that homebirth is safe.) – Cherry picking certain claims and ignoring all others is likely to lead people to the wrong conclusion. A lobbying group that disagrees with almost everyone else is not a reliable source of information. Similarly, professional NCB advocates and organizations are not reliable sources of information when they disagree with the bulk of the scientific evidence and the existing statistics.

The color of cars is influenced by culture. (Our culture promotes a technocratic model of birth.) – That is a non sequitur. It does not oppose the claim; it simply attempts to pin responsibility somewhere else and it is irrelevant. That’s why the claim that hospital birth is culturally favored is irrelevant to any argument about homebirth death rates.

There are more important things about cars than the color. (There’s more to birth than whether the baby lives or dies.) – That is what is known as “reframing the debate“. It is a tacit acknowledgment that there are more black cars than lime green cars and a barely concealed effort to divert everyone’s attention. That’s why when someone announces that there are more important things than whether babies live or die, I know they have accepted the fact that homebirth has an increased risk of perinatal death, and are trying to get everyone else to accept it, too.

Adapted from a post that appeared in February 2011.

This is not satire.

I have written before about the outrageous practice of hatting. I thought that homebirth midwives could not exceed that demonstration of idiocy, but I was wrong. Now there’s the picture above.

From the Facebook page of Ancient Art Midwifery Institute run by Carla Hartley of Trust Birth whose motto is:

There is one simple, yet profound, birthtruth: Birth is Safe; Interference is Risky!

How can something as simple as putting a hat on a baby precipitate a maternal hemorrhage or affect a baby’s health for the rest of his life? Let me save you the $40 and tell you. It can’t.

Thanks to Carla for demonstrating yet again that homebirth midwifery is a toxic mixture of  startling ignorance and unreflective defiance.

And now I have a question for homebirth advocates. Are you really so gullible that you would believe this nonsense? And if you recognize this for the nonsense it is, why would you believe anything that comes out of the mouths of these fools? Most important, why would you hire one of these clowns to attend your birth?

Here’s what I’ve learned about lawsuits so far: they take a really, really long time.

We’re still in the preliminary phase, discussing procedural issues. We have not gotten to the actual case. You may recall the Gina filed a motion to dismiss the case in Massachusetts, where I live, arguing that it can’t be brought there because she lives in Illinois.

We filed an Opposition to Gina’s motion. You can find the brief here:
https://dl.dropbox.com/u/27713670/Tuteur-20130405_Opp_to_MTD_with_Exhibits.pdf

The issues in it are technical so I won’t bore you with the details. I’ll share the part that I understood, which is a footnote:

Defendant’s vitriol has not stopped; it has only expanded into this forum. Throughout Crosley-Corcoran’s Memorandum of Law filed in support of her Motion to Dismiss, Defendant calls Dr. Tuteur “mean,” and a “bully.” Of course, others call Dr. Tuteur a life-saver. Those who understand the risks of homebirth, including many mothers who have lost their babies unnecessarily, recognize that she is committed to protecting innocent infants from grave danger – and unsuspecting parents from a lifetime of grief. They understand that Dr. Tuteur’s use of real life examples of publicly reported preventable homebirths deaths is a powerful tool toward averting future homebirth tragedies. It is nothing short of ironic that Defendant’s Memorandum focuses on Dr. Tuteur’s “bullying” tactics when, in fact, Crosley- Corcoran’s conduct was replete with threats, intimidation, and aggression. Although Crosley-Corcoran attempts to create a sympathetic image of herself as an unsophisticated “student and mother of three young children” attacked by the “bully” Dr. Tuteur, the facts paint a very different picture.

As further set forth in Dr. Tuteur’s Motion to Strike and Memorandum filed in support thereof (Dkt. #s 15, 16), the Defendant’s self-serving rhetoric and ad hominem attacks against Dr. Tuteur are
designed to distract this Court from the underlying legal issue in this dispute: The Defendant’s unlawful use of provisions of the DMCA as a sword to suppress Dr. Tuteur’s legitimate right to publish content on the Internet.

Dear North Carolina Senators,

I could offer you many excellent reasons why you should vote against Senate Bill 107 decriminalizing the practice of lay midwifery.

I could explain to you that homebirth midwives, even those who have the CPM (certified professional midwife) credential, are not real midwives and would not be eligible for licensure in the Netherlands, the UK, Australia, Canada or ANY first world country.

I could offer evidence of the many preventable neonatal deaths at the hands of North Carolina homebirth midwives, leading to a homebirth death rate that is more than 10 times higher than birth in the hospital (and that’s only the deaths that I personally know about).

I could show you that the Midwives Alliance of North America (MANA), the organization that represents American homebirth midwives, refuses to release the death rates of the 27,000 planned homebirths in their database and that they have NO standards for practice, declaring that each midwife can devise her own standards.

But I’ll take a shortcut and offer the example of Rowan Bailey, the lay midwife who is currently in jail for her involvement in one of the many NC homebirth deaths.

Read the following descriptions and ask yourself: should you really decriminalize the ability of any women to call herself a midwife and spout nonsense such as this?

Bailey describes herself as as Community Midwife, Placenta Alchemist, Co-founder Asheville Holistic Birth Collective, Birth Activist. In other words, Bailey has absolutely no formal training in midwifery.

So why does she call herself a midwife? She awarded the designation to herself after studying at The Matrona.

According to The Black Mountain News:

In a nondescript home on a quiet West Asheville street, Tina “Rowan” Bailey learned that to act as midwife, she was responsible for the birthing process — but not the outcome.

The belief that managing and monitoring a woman’s labor strips her of her power is a guiding principle at The Matrona, a nonprofit that trains about 20 women a year in unaccredited midwifery and doula programs.

In other words, the guiding principle at The Matrona is that anyone can call herself a midwife, but there’s no need to take responsibility if a baby dies as a result.

The Matrona school was founded in 2001 by Diane Bartlett, who goes by the name “Whapio” in the midwifery community…

The school teaches “quantum midwifery” and methods of “undisturbed birth,” designed for “self-directed families planning an unassisted birth,” according to the school’s website.

Bailey graduated in 2006 from the school’s “midwifery immersion program,” a four-month training that teaches “Returning Birth to the Family.”

In other words, The Matrona instructs self proclaimed “midwives” in how to think nonsense about birth, but not how identify, manage or prevent childbirth complications.

But wait! She also completed The Matrona’s Sacred Birth Mentor Program!

The Sacred Birth Mentor Program, according to the program’s Facebook page, is “a 2-year, three-level mystery school for birth professionals that focuses on consciousness, spiritual practice, physical, spiritual and financial wellness and much more.”

And that’s not all. Bailey also attended Birth Heaven Now! As Bailey herself explains:

The first time I read the words ‘Excellent Self-Care’ and ‘Birth Professionals’ in the same sentence something shifted deep in my core. When I first began working with Stephanie Dawn 1 year ago I was completely depleted spiritually and personally, rarely worked as a birth professional and cleaned houses full time to pay the bills. I no longer believed I would ever BE a midwife. Wow, how far I have come! Stephanie facilitated me in defining my ideal client and I now have a full practice of clients I love, have a soul-level connection with and who value my work. I am fulfilled now in ways I did not imagine possible before. My spiritual practice, which I used only in times of desperation in the past, is now part of my daily life. This part has been huge in creating harmony in my home, my practice and when I have challenging experiences they no longer seem so devastating. I have learned to receive as well as give. I cannot express how amazing this feels. I am looking forward to even more expansion over the next year.

What’s most disturbing about Bailey’s self-designation of “midwife” in not the fact that she has no education and training in midwifery. What I find most disturbing is that someone who clearly has no education and training in midwifery is fully embraced by the homebirth midwifery community. As far as I can determine, the homebirth midwifery community has made no effort to determine whether Bailey was responsible for the death of baby Avery. Indeed, a supporter succinctly explained:

The story behind the birth does not matter.

Rowan Bailey is a walking, talking argument for vetoing a bill that decriminalizes such behavior. These self proclaimed “midwives” are honest in declaring that they have no concern for the outcome of the births they attend. The organization that represents them is honest in declaring that they have no standards for homebirth midwifery, and, therefore, no accountability, regardless of the deaths and disabilities that ensue. At the moment, the existing North Carolina laws are the ONLY protection that babies and mothers have against untrained, self-proclaimed “midwives.” Please think very carefully before you take it away.

I wrote Thursday that nothing demonstrates contempt for babies, mothers and truth like the picture of Dr. Robert Biter speaking at the appallingly misnamed Human Rights in Childbirth Conference. But the picture above is a close second.

The picture appeared on Twitter with the caption “persecuted midwives panel.” Imagine, these women are being “persecuted” just because a bunch of babies died. How important could that be, right? I’ve reviewed everything I could get my hands on from the Conference including the web announcement of the conference, blog posts and tweets, and I couldn’t find a single mention of the dead babies.

Marcene Rebeck, Sister Morningstar (Sandra Mountjoy, 5th from the left), Jessica Weed were charged in connection with homebirth deaths.

Diane Goslin, and Ireena Keeslar were arrested and charged with practicing without a license.

As what is the “persecution”? They’re being held accountable for their actions and if there is one thing that homebirth midwives are absolutely, positively sure about, it is they should never be held accountable regardless of which laws they break and regardless of the carnage that results.

Which gets back to the question I asked a few months ago. Human rights in childbirth: does the baby have any?

The baby? You remember the baby, the other individual whose life is at stake during the process of birth? What about the baby?

I’m not talking about legal rights. Children have virtually no legal rights before birth. I’m talking about moral rights. When a mother makes the decision to take a pregnancy to term, does the baby have a moral right to receive appropriate and life-saving medical care? …

Simply put, an unborn term baby has a moral right to receive potentially life-saving medical care, and that moral right is not trumped by something as trivial as the mother’s desire for a specific birth “experience.” This is analogous to a right of a child already born to receive life-saving medical care. That is a legal as well as a moral right. The parents’ desire to avoid medical care, to substitute prayer, or to simply ignore the child’s distress pales into insignificance next to the child’s legal right to life-saving care.

And the birth junkie midwife’s “right” to entertain herself by attending births and getting paid for it doesn’t even exist.

The Conference was not about human rights in childbirth. It was about birth junkies’ “rights” to pretend to be midwives, to break the law and to preside over preventable homebirth deaths. The organizers may have picked a title for the conference that is a successful public relations gambit, but this picture is a public relations disaster and these women are apparently so clueless that they don’t even realize it.

At first glance, obstetrician Robert Biter and unlicensed “midwife” Rowan Bailey appear to have a lot in common. Both presided over homebirth deaths and both face serious consequences as a result. It seems to me, though, that the differences between the two cases are far more instructive than the similarities. Moreover, those differences tells us a great deal about the professionalism of doctors, and the utter lack of professionalism of homebirth midwives.

Consider:

1. Rowan Bailey broke the law and Dr. Biter did not.

This is a critical distinction that seems to have escaped most homebirth advocates. The Medical Board of California found that Dr. Biter demonstrated gross negligence in his care of patients and was both dishonest and unprofessional. However, Dr. Biter was practicing under a valid medical license. At no point did he ever represent himself as something he was not. In contrast, Bailey was practicing midwifery illegally and was allegedly misrepresenting her credentials to parents.

Had Dr. Biter presided over the death of a baby while unlicensed, he almost certainly would have been arrested as well.

2. Dr. Biter carried malpractice insurance and Rowan Bailey did not.

In keeping with the legal requirements for practicing medicine in California, Dr. Biter carried malpractice insurance. The patients that he has injured may be able to collect compensation. In contrast, Bailey offered no such protection for her patients.

3. Dr. Biter was disciplined by his own profession.

The medical system did not close ranks to protect Dr. Biter. First he lost his hospital privileges, then he was placed on probation by the Medical Board of California, and currently he is facing revocation of his license. In contrast, no midwifery board or organization took any disciplinary action against Bailey. Indeed, they didn’t even bother to investigate.

4. No doctors rallied around Biter when he lost his hospital privileges.

They understood that the loss of privileges represented a very serious accusation against Biter and withheld judgment until more of the facts were known. Indeed, the only people who rallied on Dr. Biter’s behalf were homebirth advocates, including Ricki Lake, who made no effort to determine the facts of the situation and blithely accepted Biter’s claim that he was being “persecuted.”

5. No doctors or medical organizations raised money to support Dr. Biter.

Why? Because the medical profession does not feel threatened when bad doctors are disciplined. In contrast, homebirth midwives feel threatened when incompetent midwives are investigated, charged, tried and punished. They do not want to be held responsible for their actions or any carnage that follows in the wake of their actions. They want to be able to entertain themselves by attending births and getting paid for it. They apparently feel no responsibility to make sure that their actions are safe.

These differences make a mockery of the claims of homebirth advocates that there is a double standard for obstetricians and for midwives. Preside over a death while practicing without a license and you may go to jail regardless of whether you are a doctor or a midwife. Commit malpractice as a physician and you will not be protected by your medical colleagues; they will not support you; will not rally for you and will not raise money on your behalf. They will discipline you and even drum you out of the profession. There are very real and very serious consequences for physicians who fail to care for patients appropriately and no one is arguing that penalties for malpractice are unjustified.

You have to give homebirth advocates credit for one thing, though. They are ideologically consistent. Commit negligent acts, commit malpractice or preside over a perinatal death at homebirth, and homebirth advocates will insist you are being “persecuted” whether you are a doctor or a midwife. Homebirth advocates are consistent in their morally bankrupt behavior.

A big shout out to my friends at the Human Rights in Childbirth Conference (HRiC). Why are they my friends? Because they demonstrate better than I ever could that homebirth advocacy is morally grotesque, ethically bankrupt and has an appalling contempt for both the truth and for the babies and women injured by homebirth providers.

I’ve written before about the morally grotesque campaign for human rights in childbirth. You or I might think that human rights in childbirth refers to making sure that all women have access to competent medical care, without regard for ability to pay, that incarcerated women not be forced to labor in chains, and that women have access to birth control. Don’t be foolish. Who cares about those women? The HRiC is about the “rights” of white, Western, relatively well off midwives, doulas and childbirth educators to do and say whatever they want and be paid for it.

But nothing says “fuck you” to babies, mothers and the truth like the above photo, taken at the HRiC Conference.

What does the picture show? According to the tweet that accompanied it:

Dr. Biter talks about how he was stripped of his OB privileges for supporting physiologic birth

You remember Dr. Robert Biter, don’t you? He’s the doctor who makes recently arrested “midwife” Rowan Bailey look like Mother Theresa by contrast.

Dr. Biter did NOT lose his privileges (at a hospital known for supporting physiologic birth) because he was supporting physiologic birth. He lost them because he was named in multiple malpractice suits. His license to practice medicine was severely restricted because of 7 separate instances that the Medical Board of California described as:

“gross negligence in his care and treatment” of a patient
“repeated negligent acts” performed on 6 additional patients
“prescribing without an appropriate prior examination”
“acts of dishonesty with respect to the care and treatment of patients”
“failure to maintain adequate and accurate medical records”
“general unprofessional conduct”

As a result of his conduct, Dr. Biter was suspended from the practice of medicine for 60 days, followed by 7 years of strict probation. However, AFTER Dr. Biter signed documents acknowledging the findings of the Board and the prescribed disciplinary action, but before the official start of the suspension, Dr. Biter presided over a homebirth death. He now faces the possibility of permanent revocation of his license.

In other words, there is absolutely no evidence that the multiple disciplinary measures faced by Dr. Biter have anything to do with physiologic birth. He has been disciplined for 8 separate instances of malpractice including the death of a baby at homebirth. He has been found grossly negligent, dishonest and unprofessional.

So why was he a featured speaker at the HRiC Conference?

Because when homebirth advocates talk about human rights in childbirth, they aren’t talking about mothers or babies, they’re talking about homebirth providers and their “right” to do whatever they want, whenever they want, without oversight of any kind, regardless of who is injured or dies in the process.

What about the human rights of the women and babies injured and killed by incompetent homebirth practitioners? They apparently have no rights at all.

So thanks again to my friends at the HRiC. I and others are working tireless to prevent the licensing of incompetent and deadly homebirth practitioners and you are working tireless to demonstrate why that is absolutely necessary.

Honestly, I couldn’t succeed without you.

Sara Snyder, Bambi Chapman and I discuss the tragedy of preventable homebirth deaths on HuffPo live.

One of the greatest of the many ironies of homebirth advocacy is the way that homebirth advocates have become exactly what they claim to despise.

The same people who tout The Business of Being Born apparently don’t notice the business of being born at home, involving a small army of service providers who charge hundreds or thousands of dollars (placenta encapsulation specialist, anyone?). The same people who write books about putting childbirth ahead of the corporate bottom line, charge money for those books, money that is being used to improve the bottom line of the corporation that published the book and the author who wrote it.

But perhaps the biggest irony of all is the way that homebirth advocates use fear to manipulate women. I’ve written before about the central role that promoting fear of doctors plays in natural childbirth and homebirth advocacy.

The message, integral to natural childbirth advocacy is clear: Obstetricians can’t help women because their technology is useless (except in the rarest of circumstances). Obstetricians don’t want to help women; they want to make money, show off, and get to their golf games as quickly as possible. In fact, obstetricians actually want to HURT women by imposing their fancy technologies to ruin otherwise perfect labors simply so that they can apply even more technology. And (this is the big finish), the only way you can prevent obstetricians from victimizing you, hurting you and profiting from you is … to buy our NCB products!

The ultimate expression of fear mongering is the way that natural childbirth and homebirth advocates play the autistic baby card.

That’s right; the same people who wail and gnash their teeth over obstetricians “playing the dead baby card” copy them faithfully with only one exception. Despite the derision of natural childbirth and homebirth advocates, a dead baby is real possibility in every pregnancy. In contrast, autism due to vaccination, ultrasound, pitocin, etc. is merely a figment of their imaginations.

Google the phrase “dead baby card” and you get more than 25,000 results, almost all of which are natural childbirth and homebirth websites. And what is the “dead baby card”? It’s the NCB and homebirth advocates’ sneering dismissal of interventions that reduce the risk of perinatal death. When an obstetrician tells a woman that breech increases the risk of death during vaginal delivery, advocates insist that the doctor is playing the “dead baby card” and proceed to offer anecdotes of women whose babies were fine after being delivered vaginally from the breech position. When obstetricians warn women about the risk of neonatal death from Group B strep sepsis, advocates offer advice to skip the test,  stick garlic into your vagina, and, of course, anecdotes about women who tested positive for GBS and whose babies didn’t die of sepsis. And when obstetricians point out that prolonged labor is a risk factor for poor outcomes, advocates whip out stories about women who pushed for 9 hours and whose baby survived the experience.

Yet these same advocates have absolutely no problem expounding the most fanciful theories about interventions in childbirth. Australian midwife Hannah Dahlen is currently flogging the absurd claim that C-sections alter infant DNA. Killer “midwife” Gloria Lemay routinely ejaculates claims that pitocin causes autism. Wootastic journalist Jennifer Margulis is currently peddling her hope claim that prenatal ultrasound causes autism. A post on a chiropractic website hits all the high points, insinuating an autism connection with ultrasound, mercury in pregnancy, Rhogam, flu shots, dental fillings, induction, epidural, restricted maternal position, forceps, vacuum, C-sections, and umbilical cord clamping.

Is there any evidence for these claims? No, there’s none, zip, zero, nada, but that doesn’t stop natural childbirth and homebirth advocates from wielding the “autistic baby card.”

The ultimate irony is that natural childbirth and homebirth advocates have become everything they claim to despise. They make millions of dollars peddling “natural” goods and services (Hyno-babies, anyone?). They create and fund lobbying groups whose only purpose is to increase the income potential of homebirth midwives. They engage in fear mongering of the worst kind promoting fears of doctors, hospital, and childbirth interventions (except those that can be done by homebirth midwives).Perhaps most despicable of all, they routinely play the completely fabricated “autistic baby card” and utterly fail to see the irony.