Via a tip from a friend of the National Advocates for Pregnant Women, we learned that Kaplan review materials (created to help law students preparing to take state bar exams) suggest that a state ban on home birth would be constitutional because “the facts indicate that the regulation was enacted because of public health concerns, [therefore] it does further a compelling state interest.”
The hypothetical scenario provided for the practice question on constitutional law describes a state law requiring all births to take place in hospitals and be attended by physicians, except in emergencies, based on the rationale that infant mortality could be demonstrated (in a hypothetical study) to be higher for home births. In the scenario, a woman has filed suit to challenge the constitutionality of this provision, and wants to have a home birth with a midwife.