"In ascertaining the purpose and intent of constitutional provision or statute, courts may look to history of times, existing order of things, state of law when instrument was adopted, and conditions necessitating its adoption."
How later courts described this case
- "In ascertaining the purpose and intent of constitutional provision or statute, courts may look to history of times, existing order of things, state of law when instrument was adopted, and conditions necessitating its adoption."
- "Where cross-motions for a summary judgment are filed in the trial court, the party whose motion was not granted is entitled to have that motion reviewed on an appeal from the grant of the opponent's motion ...."
- holding that a natural gas company was not a public utility because it offered its product only to certain businesses with whom it entered into private contracts and not to the general public
- holding that " '[t]he regulation of the operation of a defined health care facility ... is the regulation of what takes place there ....' " (quoting and adopting trial court's order)
Written by the judges who cited it.
The opinion
Rel: January 9, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2025-2026
_________________________
CL-2025-0419
_________________________
Dr. Scott Harris, in his official capacity
as the State Health Officer
v.
Oasis Family Birthing Center, LLC, Dr. Heather Skanes,
Alabama Birth Center, Dr. Yashica Robinson, Alabama Affiliate
of the American College of Nurse-Midwives, Jo Crawford,
and Tracie Stone
Appeal from Montgomery Circuit Court
(CV-23-901109)
MOORE, Presiding Judge.
This appeal involves the question whether the authority of the
Alabama Department of Public Health to license and regulate hospitals
CL-2025-0419
applies to freestanding birth centers that operate in the midwifery model
of care. As fully explained in the following opinion, we hold that it does.
Statutory and Regulatory Background
In 1949, the legislature enacted a law granting the State Board of
Health authority over the licensing and regulation of hospitals ("the
Hospital Act"). See Ala. Acts 1949, Act No. 530. Section 1 of the Hospital
Act defined "hospitals" as follows:
"As used in th[e Hospital] Act the term 'hospitals' shall mean
sanitoria, rest homes, nursing homes and other related
institutions when such institution is primarily engaged in
offering to the public generally facilities for the diagnosis and
treatment of injury, deformity, disease or obstetrical care. The
word 'person' includes individuals, partnerships, corporations
and associations."
Section 7 of the Hospital Act authorized the State Board of Health to
"issue licenses for the operation of hospitals which are found to comply
with the provisions of th[e Hospital] Act and any regulations lawfully
promulgated by the said State Board of Health." Section 8 of the Hospital
Act provided, in pertinent part: "[T]he State Board of Health ... shall
have the power to make and enforce, and may modify, amend and rescind,
reasonable rules and regulations governing the operation and conduct of
hospitals as defined in th[e Hospital] Act."
2
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The Hospital Act, as amended over the years, is now codified at Ala.
Code 1975, § 22-21-20 et seq. Section 22-21-20(1), Ala. Code 1975,
currently defines "hospitals" as:
"General and specialized hospitals, including ancillary
services; independent clinical laboratories; rehabilitation
centers; ambulatory surgical treatment facilities for patients
not requiring hospitalization; end stage renal disease
treatment and transplant centers, including free-standing
hemodialysis units; abortion or reproductive health centers;
hospices; health maintenance organizations; and other
related health care institutions when such institution is
primarily engaged in offering to the public generally, facilities
and services for the diagnosis and/or treatment of injury,
deformity, disease, surgical or obstetrical care. Also included
within the term are long term care facilities such as, but not
limited to, skilled nursing facilities, intermediate care
facilities, assisted living facilities, and specialty care assisted
living facilities rising to the level of intermediate care. The
term 'hospitals' relates to health care institutions and shall
not include the private offices of physicians or dentists,
whether in individual, group, professional corporation or
professional association practice. This section shall not apply
to county or district health departments."
(Emphasis added.) Section 22-21-25(a), Ala. Code 1975, provides: "The
State Board of Health may grant licenses for the operation of hospitals
which are found to comply with the provisions of [the Hospital Act, as
amended,] and any regulations lawfully promulgated by the State Board
of Health." Section 22-21-28(a), Ala. Code 1975, provides, in pertinent
part:
3
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"In the manner provided in this section, the State Board of
Health ... shall have the power to make and enforce, and may
modify, amend, and rescind, reasonable rules and regulations
governing the operation and conduct of hospitals as defined in
[Ala. Code 1975, §] 22-21-20." 1
In 1987, the State Board of Health, expressly relying on the
Hospital Act, as amended, promulgated rules governing the operation of
birthing centers. Under the 1987 regulations, "birthing center" was
defined as
"a publicly or privately owned facility, place or institution
constructed, renovated, leased or otherwise established where
nonemergency births are planned to occur away from the
mother's usual residence following a documented period of
prenatal care for a normal uncomplicated pregnancy which
has been determined to be low risk through a formal risk
scoring examination."
Former Ala. Admin. Code (State Bd. of Health), r. 420-5-13-.01(1)(d).
"Freestanding birthing center" was defined as "a separate and distinct
1Before October 1, 2024, the State Board of Health and the Alabama
Committee of Public Health were treated synonymously for the purposes
of Title 22 of the Alabama Code of 1975. See former Ala. Code 1975, §
22-1-1. Effective October 1, 2024, the legislature abolished the State
Board of Health and provided that all references in the Alabama Code to
the State Board of Health and the Alabama Department of Public Health
should be construed to mean the State Committee of Public Health. See
Ala. Acts 2024, Act No. 24-247, § 1 (codified at Ala. Code 1975, § 22-1-1,
§ 22-2-1, and § 22-2-5). For the purposes of this opinion, we refer to the
Alabama Department of Public Health and the former State Board of
Health interchangeably.
4
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facility or center or a separate and distinct organized unit of a hospital ...
for the purpose of performing the service of a 'birthing center.' " Former
Ala. Admin. Code (State Bd. of Health), r. 420-5-13-.01(1)(n). The
regulations governed the administration of birthing centers, as well as
the personnel, services, facilities, supplies, and equipment used by
birthing centers. See former Ala. Admin. Code (State Bd. of Health), rr.
420-5-13-.01 through 420-5-13-.19. However, in 2010, at a time when no
birthing centers were operating in Alabama, the State Board of Health
repealed the 1987 birthing-center regulations.
In 2022, Oasis Family Birthing Center, LLC ("Oasis"), began
operating a freestanding birthing center in Birmingham, and Alabama
Birth Center ("ABC") was developing a freestanding birthing center in
Huntsville. Dr. Scott Harris, the State Health Officer, acting as the
executive and chief regulatory officer of the State Board of Health, see
Hard v. State ex rel. Baker, 228 Ala. 517, 520, 154 So. 77, 80 (1934),
requested a legal opinion from Attorney General Steve Marshall as to
whether freestanding birthing centers could be regulated as "hospitals"
under the Hospital Act, as amended. The attorney general opined that
"[a] freestanding birth center that is primarily engaged in offering
5
CL-2025-0419
obstetrical care to the public is a 'hospital,' as defined by section 22-21-
20(1) of the Code of Alabama and must be licensed by the Alabama State
Board of Health." Att'y Gen. Op. No. 2023-012 (Dec. 15, 2022). The
attorney general continued:
"Obstetrics is '[t]he branch of medicine that concerns
management of women during pregnancy, childbirth, and the
puerperium.' Obstetrics, Taber's Cyclopedic Medical
Dictionary (18 ed. 1997). The puerperium is '[t]he period of
42 days following childbirth....' Puerperium, Taber's
Cyclopedic Medical Dictionary (18 ed. 1997). Thus, a
freestanding birth center is engaged in offering obstetrical
care if it concerns the management of women during
pregnancy, childbirth, and the puerperium. Whether a
freestanding birth center is primarily engaged in offering
obstetrical care requires a factual determination that must be
made by the [State Board of Health] as this Office only makes
determinations of law. Ala. Code [1975,] § 36-15-1(1)(a) & (b)
(2013). If the [State Board of Health] determines that a
freestanding birth center is primarily engaged in offering
obstetrical care, then the freestanding birth center is a
'hospital' as defined by section 22-21-20(1) of the Code and
must be licensed by the [Alabama State Board of Health]."
Id.
In 2022 and 2023, the State Board of Health developed new
regulations governing freestanding birthing centers and notified the
public that it intended to adopt those regulations. See Ala. Code 1975, §
41-22-5 (governing adoption of administrative rules). After receiving and
responding to public comments, in August 2023 the State Board of Health
6
CL-2025-0419
formally adopted the new regulations governing freestanding birthing
centers ("the 2023 regulations"), which became effective October 15,
2023. See Ala. Admin. Code (State Bd. of Health), rr. 420-5-13-.01
through -.19.
The 2023 regulations define "birthing center" as
"a publicly or privately owned health care facility, place, or
institution, constructed, renovated, leased, or otherwise
established, where nonemergency births are planned to occur
away from the mother's usual residence following a
documented period of prenatal care for a low risk patient, as
defined herein. Such facility, place, or institution must be a
freestanding unit, not part of a hospital or other facility
licensed for other purposes by the State Board of Health, and
hold itself out to the public as a birthing center by advertising
by some public means, such as a newspaper, directory, a
website, the Internet, etc."
Ala. Admin. Code (State Bd. of Health), r. 420-5-13-.01(2)(b).
"Freestanding" is defined as "a separate and distinct health care facility,
place, or institution, constructed, renovated, leased, or otherwise
established, for purposes of these rules, to provide the services of a
birthing center." Ala. Admin. Code (State Bd. of Health), r. 420-5-13-
.01(2)(j). Like the 1987 regulations, the 2023 regulations cover the
administration, staffing, record keeping, services, patient care, rights,
responsibilities, quality assurance, reporting, and physical environment
7
CL-2025-0419
of freestanding birthing centers. Ala. Admin. Code (State Bd. of Health),
rr. 420-5-13-.01 through -.19.
Procedural Background
On August 8, 2023, Oasis; Dr. Heather Skanes, the founder and
executive director of Oasis; ABC; Dr. Yashica Robinson, the founder and
medical director of ABC; the Alabama Affiliate of the American College
of Nurse-Midwives; 2 and others ("the plaintiffs") commenced a civil action
in the Montgomery Circuit Court ("the circuit court") against the
Alabama Department of Public Health ("the ADPH") and Dr. Harris, in
his official capacity as the State Health Officer. In the complaint, the
plaintiffs alleged, among other things, that the ADPH and Dr. Harris
were interfering with the ability of Oasis and ABC to operate their
freestanding birthing centers by proposing onerous regulations beyond
the ADPH and Dr. Harris's statutory authority.
On January 19, 2024, after the ADPH adopted the 2023
regulations, the plaintiffs filed an amended complaint adding two new
2The American College of Nurse-Midwives is the nationwide
professional association of certified nurse-midwives and sets the national
standards for nurse-midwifery education and practice in the United
States. The Alabama affiliate is the primary organization representing
certified nurse-midwives in this state.
8
CL-2025-0419
plaintiffs -- Jo Crawford, a certified professional midwife working for
Oasis, and Tracie Stone, a certified professional midwife who ultimately
became the clinical director for ABC. In count one of the amended
complaint ("Count One"), the plaintiffs collectively alleged:
"194. Under Alabama law, a 'hospital,' for purposes of
[the] ADPH's regulatory and licensing authority, includes,
inter alia, 'institution[s] primarily engaged in offering to the
public generally ... obstetrical care.' Ala. Code [1975,] § 22-21-
20(1).
"195. The ADPH's determination that any and all
freestanding birth centers are 'hospitals' for purposes of its
regulatory and licensing authority under section 22-21-20(1),
including but not limited to ... adopting regulations for
freestanding birth centers, Ala. Admin. Code [r]r. 420-5-13-
.01 to -.19, constitutes a rule under the [Alabama
Administrative Procedure Act, [Ala. Code 1975, § 41-22-1 et
seq.,] because it is a 'standard[] or statement of general
applicability that implements, interprets, or prescribes law or
policy.' Ala. Code. [1975,] § 41-22-3(9) ....
"196. Because a freestanding birth center operating
under the midwifery model of care is not engaged in offering
obstetrical care to the public generally, it does not fall within
[the] ADPH's hospital regulatory and licensing authority.
"197. Therefore, [the] ADPH's adoption of the rule that
any and all freestanding birth centers operating under the
midwifery model of care are 'hospitals' for purposes of its
regulatory and licensing authority, including through the
adoption of regulations for freestanding birth centers and its
application of that rule to Plaintiffs [Oasis], ABC, and any
other similarly situated birth centers that may be owned,
operated, or staffed by the individual Plaintiffs or Plaintiff
9
CL-2025-0419
[Alabama Affiliate of the American College of Nurse-
Midwives'] members, exceeds [the] ADPH's statutory
authority in violation of Alabama Code [1975,] § 41-22-10."
The plaintiffs requested that the circuit court enter a judgment
declaring that freestanding birthing centers operating in the midwifery
model of care are not "hospitals" under § 22-21-20(1) and, therefore, that
the ADPH and Dr. Harris had no authority to require such freestanding
birthing centers to obtain a hospital license or to otherwise regulate such
freestanding birthing centers and that any such attempts to do so
exceeded their statutory authority. The plaintiffs further requested that
the circuit court permanently enjoin the ADPH and Dr. Harris from
requiring freestanding birthing centers operating in the midwifery model
of care to obtain a hospital license and from taking any adverse action
against such freestanding birthing centers for operating without a
hospital license.
On January 14, 2025, the parties entered into a joint stipulation of
facts for the purpose of resolving Count One. The parties stipulated to,
among other things:
"13. A [freestanding birthing center] provides
pregnancy, birthing, postpartum, and limited newborn care in
a home-like environment to low-risk patients who have been
clinically screened and receive continuous risk assessment to
10
CL-2025-0419
proactively identify risk factors or complications that could
arise during pregnancy or birth and affect the patients' ability
to be safely cared for in [a freestanding birthing center].
"14. [Freestanding birthing centers] are independent,
autonomous health care centers and are not attached to or
organized as part of a general or specialized hospital or other
acute care facility.
"....
"19. Plaintiffs [Oasis] and ABC operate ... [freestanding
birthing centers] through [certified nurse midwives] and
[certified professional midwives], utilizing a midwifery model
of care.
"20. Midwifery care is a patient-centered health care
model for pregnancy-related care with a focus on shared
decision-making, patient education, and physiological birth
with minimal technological interventions to initiate or
augment labor.
"21. Midwifery is practiced by trained midwives with a
different skill set, education, and training background than
obstetricians, who are licensed and regulated by the Alabama
State Board of Medical Examiners. Ala. Code [1975,] § 34-24-
330, et seq.
"22. Two kinds of midwives are licensed to practice in
Alabama: [certified nurse midwives] and [certified
professional midwives]. Both kinds of midwives provide care
in the midwifery model but fulfill different educational and
training requirements.
"23. [Certified nurse midwives] are advanced practice
registered nurses licensed and regulated by the Alabama
Board of Nursing to engage in practice as a nurse midwife.
[Certified nurse midwives] must complete a nursing program
11
CL-2025-0419
qualifying them as a registered nurse, in addition to
specialized training and certification in nurse midwifery. Ala.
Code [1975,] §§ 34-21-81(1), (2)(b).
"24. In Alabama, [certified nurse midwives] are required
to maintain [collaborative practice agreements] with licensed
physicians as a condition of their advanced practice. Ala. Code
[1975,] §§ 34-21-81(1), (5), 34-21-83, -84, -85, -90.
"25. A [certified nurse midwife]'s scope of practice
includes care during pregnancy, childbirth, and the
postpartum period, and care for the healthy newborn during
the first weeks of life. [Certified nurse midwives] may conduct
patient examinations; prescribe and administer certain
medications; make decisions about patient admission,
management, and discharge; and order and interpret
laboratory testing.
"26. [Certified professional midwives] are licensed and
regulated by the Alabama State Board of Midwifery. Ala.
Code [1975,] §§ 34-19-12(a), -14, -15. [Certified professional
midwives] must be credentialed through an education
program or pathway accredited by the Midwifery Educational
Accreditation Council or by another accrediting agency
recognized by the United States Department of Education.
Ala. Code [1975,] § 34-19-15(a)(3).
"27. A [certified professional midwife]'s scope of practice
encompasses the provision of care, counseling, and education
throughout pregnancy, birth, and the postpartum period;
making diagnoses; recognizing conditions requiring
consultation or referral to other healthcare providers;
administering medications; ordering and interpreting lab and
diagnostic tests; providing continuous, hands-on care during
labor and delivery; and providing maternal and well-baby
care through 6-8 weeks postpartum.
12
CL-2025-0419
"28. Surgical and vaginal operative deliveries are not
available in [the birthing centers operated by Oasis] and ABC,
and these procedures are outside the scope of practice of the
licensed midwives who work at [the birthing centers operated
by Oasis] and ABC.
"29. [Oasis] and ABC pre-screen patients who might
otherwise be eligible to deliver in [a freestanding birthing
center] to ensure that they agree to forgo medicated pain
management during labor and agree to complete education
components to ensure that they are prepared for unmedicated
labor and early home discharge, among other conditions.
"....
"32. [Oasis] provides midwifery services for pregnancy-
related care, including births, and neonatal care through six
weeks after birth, utilizing the midwifery model of care.
[Oasis] also provides patient education and counseling,
including education on breastfeeding, preparing for
childbirth, and newborn care.
"33. At [the birthing centers operated by Oasis],
[certified professional midwives] or a dually licensed [certified
professional midwife/certified nurse midwife] conduct all
prenatal and postpartum visits and attend births in the
birthing center, with assistance from registered nurses ...,
birth assistants, and/or student midwives, some of whom are
also trained as doulas and lactation consultants. Every birth
is attended by staff with training in basic life support and
neonatal resuscitation.
"34. All patients at [the birthing centers operated by
Oasis] are pre-screened and receive continuous risk
assessment to ensure that they remain eligible for birthing
care in the birth center. Patients who develop risk factors are
referred for consultation with Dr. Skanes through her private
practice and, where appropriate, transferred to an
13
CL-2025-0419
[obstetrician/gynecologist] for births at a general or
specialized hospital.
"....
"36. ABC provides midwifery services for pregnancy-
related care, including births, and neonatal care through six
weeks after birth, utilizing the midwifery model of care. ABC
also provides extensive patient education and counseling,
including education on breastfeeding, preparing for
childbirth, and newborn care.
"37. At [the birthing centers operated by] ABC, [certified
professional midwives] or [certified nurse midwives] conduct
all prenatal and postpartum visits and will attend births in
the birthing center, with assistance from [registered nurses]
and/or student midwives, who also serve as birth assistants.
ABC also employs doulas and lactation consultants. Every
birth is attended by staff with training in basic life support
and neonatal resuscitation.
"38. All patients at [the birthing centers operated by]
ABC are pre-screened and receive continuous risk assessment
to ensure that they remain eligible for birthing care in the
birth center. Patients who develop risk factors are referred for
consultation with Dr. Robinson through her private practice
and, where appropriate, transferred to her care for births at a
general or specialized hospital."
On January 15, 2025, the ADPH and Dr. Harris moved for a partial
summary judgment on Count One. On February 5, 2025, the plaintiffs
filed a motion for a partial summary judgment on Count One. The parties
agreed that the cross-motions for a partial summary judgment presented
a question of law as to whether, based on the undisputed material facts,
14
CL-2025-0419
freestanding birthing centers operating in the midwifery model of care,
like the birthing centers operated by Oasis and ABC, are "hospitals"
within the definition of § 22-21-20(1), i.e., are health-care institutions
"primarily engaged in offering to the public generally ... obstetrical care."
If so, the 2023 regulations would be valid and enforceable against Oasis,
ABC, and other similar freestanding birthing centers; if not, the 2023
regulations would be invalid and unenforceable against Oasis, ABC, and
other operators of similar freestanding birthing centers.
On May 1, 2025, the circuit court entered an order granting the
plaintiffs' motion for a partial summary judgment on Count One. In the
order, which was amended on May 7, 2025, the circuit court determined
that freestanding birthing centers operating in the midwifery model of
care are not "hospitals" within the definition of § 22-21-20(1) because, it
said, they do not offer "obstetrical care" to "the public generally." The
order further provided:
"The Court hereby DECLARES pursuant to the Alabama
Declaratory Judgment Act, Ala. Code [1975,] § 6-6-222, and
the Alabama Administrative Procedure Act, [Ala. Code 1975,]
§ 41-22-10, that freestanding birth centers operating in the
midwifery model of care are not 'hospitals' under section 22-
21-20(1) of the Alabama Code [1975,] and, therefore, [the]
ADPH and [Dr.] Scott Harris, in his official capacity as the
State Health Officer for [the] ADPH, have no authority to
15
CL-2025-0419
require such freestanding birth centers to obtain a license
under [§] 22-21-22 of the Alabama Code [1975] or to otherwise
regulate such freestanding birth centers, and that any such
attempts to do so exceed [the ADPH's and Dr. Harris]'s
statutory authority ...; and FURTHER PERMANENTLY
ENJOINS [the ADPH and Dr. Harris] from requiring
freestanding birth centers operating in the midwifery model
of care to seek and obtain a 'hospital' license under section 22-
21-22 of the Alabama Code [1975], and further from taking
any adverse action against such entities, their owners,
founders, or staff (including Plaintiffs and their members) for
failing to seek or obtain such a license, including but not
limited to threatening or seeking criminal or civil penalties
under section 22-21-33 of the Alabama Code [1975]."
(Capitalization in original.) On May 26, 2025, the circuit court certified
the order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The
ADPH and Dr. Harris timely appealed. 3 This court heard oral arguments
on November 18, 2025.
Issue
In this appeal, Dr. Harris argues that the circuit court erred in
entering the partial summary judgment in favor of Oasis, ABC, and the
3Upon a stipulation of the parties, this court dismissed the ADPH
as an appellant because all orders and judgments entered against the
ADPH, which is a state agency that is immune from suit pursuant to §
14 of the Alabama Constitution of 2022, are void, and a void judgment
will not support an appeal. See Alabama Dep't of Pub. Health v. TSTL
Holdings, LLC, [Ms. CL-2024-0604, Apr. 25, 2025] ___ So. 3d ___, ___
(Ala. Civ. App. 2025).
16
CL-2025-0419
other plaintiffs and that it erred in denying him a summary judgment.
See Mountain Lakes Dist. v. Oak Grove Methodist Church ex rel. Green,
126 So. 3d 172, 180 (Ala. Civ. App. 2013) ("Where cross-motions for a
summary judgment are filed in the trial court, the party whose motion
was not granted is entitled to have that motion reviewed on an appeal
from the grant of the opponent's motion ...."). Dr. Harris maintains that
the statutory definition of "hospitals" contained in § 22-21-20(1), when
applied to the undisputed facts, shows that the ADPH has the statutory
authority to regulate freestanding birthing centers operating in the
midwifery model of care. Dr. Harris also maintains that the circuit court
erred in enjoining him in his official capacity as the State Health Officer
from enforcing the Hospital Act, as amended, and the 2023 regulations
against freestanding birthing centers operating in the midwifery model
of care.
Standard of Review
We review de novo the grant or denial of a motion for a summary
judgment in an action commenced pursuant to Ala. Code 1975, § 41-22-
10, which is a part of the Alabama Administrative Procedure Act ("the
17
CL-2025-0419
AAPA"), Ala. Code 1975, § 41-22-1 et seq. See Keith v. LeFleur, 400 So.
3d 608, 614 (Ala. Civ. App. 2023).
"[I]t is well settled that a motion for a summary judgment may
be granted only where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. Rule 56, Ala. R. Civ. P.; Wilbanks v. United
Refractories, Inc., 112 So. 3d 472 (Ala. 2012). Where all the
basic facts are undisputed and the matter is one of
interpretation or of reaching a conclusion of law by the court,
a summary judgment may be appropriate. Bible Baptist
Church v. Stone, 55 Ala. App. 411, 316 So. 2d 340 (1975).
Statutory interpretation -- particularly interpretation of the
effect of a statute where the facts are undisputed -- is
primarily a legal question amenable to summary judgment.
Continental Nat'l Indem. Co. v. Fields, 926 So. 2d 1033 (Ala.
2005). When the facts are undisputed, this Court reviews de
novo the trial court's interpretation of statutory language."
Ex parte Chesnut, 208 So. 3d 624, 636 (Ala. 2016).
Analysis
Section 41-22-10 provides, in pertinent part:
"The validity or applicability of a rule may be
determined in an action for a declaratory judgment or its
enforcement stayed by injunctive relief in the circuit court of
Montgomery County, unless otherwise specifically provided
by statute, if the court finds that the rule, or its threatened
application, interferes with or impairs, or threatens to
interfere with or impair, the legal rights or privileges of the
plaintiff. ... In passing on such rules the court shall declare
the rule invalid only if it finds that it violates constitutional
provisions or exceeds the statutory authority of the agency or
was adopted without substantial compliance with rulemaking
procedures provided for in [the AAPA]."
18
CL-2025-0419
The plaintiffs alleged in Count One, and the circuit court determined,
that the 2023 regulations were invalid because the ADPH had exceeded
its statutory authority by treating freestanding birthing centers
operating in the midwifery model of care as "hospitals" within the
meaning of § 22-21-20(1). Whether the ADPH exceeded its statutory
authority in adopting the 2023 regulations depends primarily on the
meaning of the term "hospitals."
Notably, the legislature included a special definition of "hospitals"
within § 22-21-20(1). "It is well recognized that when the Legislature
defines the language it uses, its definition is binding upon the courts,
even though this definition does not coincide with the ordinary meaning
of the words used." McWhorter v. State Bd. of Registration for Prof'l
Eng'rs & Land Surveyors ex rel. Baxley, 359 So. 2d 769, 773 (Ala. 1978).
Ordinarily, freestanding birthing centers are not considered to be
hospitals. See Birth Center, Taber's Cyclopedic Medical Dictionary (18th
ed. 1997) (defining "birth center" as "[a]n alternative nonhospital facility
that provides family-oriented maternity care for women judged to be at
low risk of experiencing obstetrical complications" (emphasis added)).
However, the term "hospitals" is broadly defined in § 22-21-20(1) to
19
CL-2025-0419
include not only traditional hospitals, but also "health care institutions
when such institution is primarily engaged in offering to the public
generally, facilities and services for the diagnosis and/or treatment of
injury, deformity, disease, surgical or obstetrical care." Thus, a
freestanding birthing center may qualify as a "hospital" if it satisfies the
legislative criteria established in § 22-21-20(1). The parties do not
dispute that freestanding birthing centers operating in the midwifery
model of care are health-care institutions, but they disagree as to
whether those centers offer facilities and services for "obstetrical care"
"to the public generally."
"Obstetrical Care"
The term "obstetrical care" is not defined in the Hospital Act, as
amended. When the legislature leaves a term undefined, the courts will
apply the common meaning of that term.
"Words used in a statute must be given their natural, plain,
ordinary, and commonly understood meaning, and where
plain language is used a court is bound to interpret that
language to mean exactly what it says. If the language of the
statute is unambiguous, then there is no room for judicial
construction and the clearly expressed intent of the
legislature must be given effect."
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IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992). "[T]his Court regularly looks to dictionary definitions to ascertain
the plain meaning of words used in a statute." State v. City of
Birmingham, 299 So. 3d 220, 226 (Ala. 2019).
The current version of Merriam-Webster's Collegiate Dictionary
defines the word "obstetrical" to mean "of, relating to, or associated with
childbirth or obstetrics." Merriam-Webster's Collegiate Dictionary 857
(11th ed. 2020) (emphasis added). Under that definition, "obstetrical
care" refers most broadly to care relating to or associated with
"childbirth," which, synonymous with "parturition," means "the action or
process of giving birth to offspring," id. at 904, but it also can refer more
specifically to care relating to or associated with "obstetrics," "a branch
of medical science that deals with birth and with its antecedents and
sequels." 4 Id. at 857. The legislature did not clarify which of the two
alternative meanings it intended, but a review of the history and purpose
4Citing Attorney General Opinion No. 2023-012 (Dec. 15, 2022), the
parties stipulated that "obstetrics" means " '[t]he branch of medicine that
concerns management of women during pregnancy, childbirth, and the
puerperium,' Obstetrics, Taber's Cyclopedic Medical Dictionary (18th ed.
1997)." This court finds that this definition does not conflict with the
general dictionary definition of the word.
21
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of the Hospital Act, as amended, suggests that it did not intend the more
limited meaning of "obstetrical care." See Standard Oil Co. v. State, 55
Ala. App. 103, 110, 313 So. 2d 532, 537 (Civ. App. 1975) ("In ascertaining
the purpose and intent of constitutional provision or statute, courts may
look to history of times, existing order of things, state of law when
instrument was adopted, and conditions necessitating its adoption.").
Historically, childbirth care was provided exclusively by midwives,
but, eventually, medical doctors predominantly assumed the care of
women during pregnancy and childbirth through the branch of medicine
known as obstetrics. See Stacey A. Tovino, American Midwifery
Litigation and State Legislative Preferences for Physician-Controlled
Childbirth, 11 Cardozo Women's L.J. 61 (2004). The word "obstetrics"
was derived from the Latin word "obstetrix," which, literally translated,
meant "a midwife." See Obstetrics, Stedmans Medical Dictionary 1250
(27th ed. 2000). At one time, "[b]oth medical and popular lexicographers
define[d] midwife as a female obstetrician, and midwifery as the practice
of obstetrics." Commonwealth v. Porn, 196 Mass. 326, 327, 82 N.E. 31, 31
(1907). By the early 20th century, however, the medical practice of
obstetrics had become more specialized, especially in treating
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complicated pregnancies, and midwives were not allowed to practice
obstetrics. Id. Midwifery, as a form of obstetrical care, was limited to
"ordinary assistance in the normal cases of childbirth." Id.
In 1919, the Alabama Legislature enacted a law authorizing the
State Board of Health to regulate midwifery. Ala. Acts 1919, Act No. 658,
§ 13. The 1919 act made it unlawful for any person to practice as a
midwife, defined as a nonphysician who attends a woman at childbirth,
without obtaining a certificate of approval from the county board of
health. Id. To obtain a certificate of approval, an applicant had to
present to the county board of health "satisfactory evidence of having or
possessing sufficient knowledge and skill in the art of midwifery." Id.
The legislature directed the State Board of Health to develop an
application to examine the knowledge and skill of prospective midwives,
and, if, upon examination, the applicant was deemed sufficiently
qualified, the county board of health would issue the certificate of
approval, and the applicant would become a registered midwife. Id. The
1919 act allowed registered midwives to continue to practice traditional
obstetrical care by assisting with normal childbirths, but it did not allow
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midwives to practice obstetrical care in the relatively new branch of
medicine -- obstetrics -- like a licensed physician.
Between 1919 and 1949, across the country, most women obtained
childbirth care from medical doctors who were trained in obstetrics, but,
in Alabama, registered midwives continued to provide a significant
percentage of childbirth care. Tovino, supra. Thus, when the legislature
adopted the Hospital Act in 1949, it was understood that both licensed
physicians practicing obstetrics and midwives practicing the art of
midwifery were providing obstetrical, or childbirth, care. Against this
backdrop, the legislature elected to grant to the State Board of Health,
the same agency overseeing the regulation of midwives, the power to
license and to regulate institutions offering "obstetrical care" without
distinguishing between the care provided by physicians and the care
provided by midwives.
In construing a statute, this court's duty is to "ascertain and
effectuate the legislative intent expressed in the statute, which may be
gleaned from the language used, the reason and necessity for the act, and
the purpose sought to be obtained." Bama Budweiser of Montgomery,
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Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238, 248 (Ala. 1992). The stated
purpose of the Hospital Act, as amended, is
"to promote the public health, safety and welfare by providing
for the development, establishment and enforcement of
standards for the treatment and care of individuals in
institutions within the purview of [the Hospital Act, as
amended,] and the establishment, construction, maintenance
and operation of such institutions which will promote safe and
adequate treatment and care of individuals in such
institutions."
Ala. Code 1975, § 22-21-21. The legislature obviously intended that
"hospitals" providing "obstetrical care," the care carried out in 1949 by
licensed physicians and by registered midwives, should be regulated to
ensure the safety and well-being of the pregnant women admitted in
those hospitals. We do not believe that the legislature intended that only
institutions utilizing obstetrics to treat pregnant women should be
treated as "hospitals" and be regulated by the ADPH while institutions
providing alternative midwifery care, which implicates identical health
and safety concerns, should not be considered "hospitals" and should not
be regulated by the ADPH. In determining whether an institution is
"within the purview" of the Hospital Act, as amended, the inquiry focuses
on the nature of the services provided in the institution, not on the
identity and qualifications of the person providing those services. See
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Tucker v. State Dep't of Pub. Health, 650 So. 2d 910, 914 (Ala. Civ. App
1994) (holding that " '[t]he regulation of the operation of a defined health
care facility ... is the regulation of what takes place there ....' " (quoting
and adopting trial court's order)).
The legislature has amended the Hospital Act several times since
1949, see Ala. Acts 1975, Act No. 75-140, § 1; Ala. Acts 1979, Act No. 79-
798; Ala. Acts 1991, Act. No. 91-548, § 1; Ala. Acts 2001, Act No. 2001-
1058, § 1, but it has always maintained that "hospitals" include health-
care institutions offering facilities and services for "obstetrical care." As
noted earlier, in 1987, the State Board of Health interpreted § 22-21-20
to authorize it to regulate freestanding birthing centers. Although the
regulations adopted by the State Board of Health were later repealed in
2010, it was not because the legislature changed the law to prohibit the
ADPH from enforcing those regulations. The legislature has never
excluded freestanding birthing centers from the definition of "hospitals"
in § 22-21-20(1). "[W]hen the statute has been reenacted or amended a
number of times since the promulgation of the administrative
interpretation, such may be considered legislative approval of the
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administrative construction." Pilgrim v. Gregory, 594 So. 2d 114, 119
(Ala. Civ. App. 1991).
The legislature has also amended the laws governing the practice
of midwifery several times. In 1976, the legislature temporarily outlawed
the practice of midwifery except by certified nurse midwives. See Ala.
Acts 1976, Act. No. 76-499. In 1995, the legislature defined the scope of
the practice of certified nurse midwives to include only "performance of
nursing skills ... relative to the management of women's health care
focusing on pregnancy, childbirth, the post-partum period, care of the
newborn, family planning and gynecological needs of women ...." Ala.
Acts 1995, Act No. 95-263, § 2(4)b., codified at Ala. Code 1975, § 34-21-
81(2)b. In 2017, the legislature revived lay midwifery by permitting
persons other than registered nurses to become licensed, or certified
professional, midwives. See Ala. Acts 2017, Act No. 17-383, codified at
Ala. Code 1975, § 34-19-11 et seq. However, those changes have not
altered the basic concept of midwifery as involving childbirth care
without the practice of medicine. Under current statutory law,
"midwifery" means "the provision of primary maternity care during the
antepartum, intrapartum, and postpartum periods," Ala. Code 1975, §
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34-19-11(3), and midwives are barred from practicing medicine. See Ala.
Code 1975, § 34-19-18(b). Presently, midwives perform the same type of
"obstetrical care," assisting with normal childbirth cases without
practicing obstetrics, as they did when the Hospital Act was first passed.
The Alabama Board of Nursing and the Alabama Board of Medical
Examiners now regulate the practice of certified nurse midwifery, see
Ala. Admin. Code (Bd. of Nursing), r. 610-x-5-.14 et seq., and Ala. Admin.
Code (State Bd. of Med. Exam'rs), r. 540-x-8-.17 et seq., and the Alabama
Board of Midwifery regulates the practice of licensed midwifery, see Ala.
Admin. Code (Bd. of Midwifery), r. 582-x-1-.01 et seq. However, none of
those state agencies have been granted the authority to regulate
freestanding birthing centers, even those operating in the midwifery
model of care, and none of those state agencies has attempted to regulate
freestanding birthing centers. If freestanding birthing centers are not
"hospitals" within the meaning of § 22-21-20(1), they would not be subject
to regulation by any state agency. We do not believe the legislature
intended that a health-care institution providing childbirth care to a
multitude of pregnant women should be out of the reach of the regulatory
authority of the state agency responsible for protecting public health and
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safety when the law can be easily construed to prevent that outcome. In
seeking to ascertain legislative intent, a court may consider the
consequences resulting from one meaning rather than another and may
adopt the construction that avoids an illogical, unreasonable, or unfair
result. See Studdard v. South Cent. Bell Tel. Co., 356 So. 2d 139, 142
(Ala. 1978); State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225,
233, 66 So. 2d 726, 731 (1953).
Of course, obstetricians, gynecologists, family practitioners, and
other licensed physicians also practice "obstetrical care." Section 22-6-
40, Ala. Code 1975, the only other Alabama statute using the term
"obstetrical care," recognizes that fact. However, that statute, which
solely addresses Medicaid financing and adjustment of insurance
premiums for obstetricians, pediatricians, and family practitioners, does
not provide that only medical practitioners can provide "obstetrical care,"
and it does not in any way exclude midwifery as a form of "obstetrical
care." Although licensed physicians provide a different, more specialized
form of "obstetrical care," that does not mean that midwives do not also
provide "obstetrical care." Our legislature has impliedly recognized this
fact by prohibiting midwives from administering or performing certain
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"obstetric procedures which are outside of the scope of the licensed
practice of midwifery," Ala. Code 1975, § 34-19-14(c), without prohibiting
them from engaging in other types of "obstetrical care."
In his opinion, the attorney general defined "obstetrical care" as
"the management of women during pregnancy, childbirth, and the
puerperium." Att'y Gen. Op. No. 2023-012 (Dec. 15, 2022). We are
persuaded by that opinion, see HealthSouth Corp. v. Jefferson Cnty. Tax
Assessor, 978 So. 2d 737, 741 (Ala. Civ. App. 2006), aff'd, 978 So. 2d 745
(Ala. 2007), which, we conclude, encompasses the long-standing
definition of midwifery as well as the medical practice of obstetrics. Thus,
if a freestanding birthing center offers either facilities or services related
to or associated with midwifery or facilities or services related to or
associated with the practice of obstetrics, or both, the freestanding
birthing center is providing "obstetrical care."
It is undisputed that Oasis's and ABC's freestanding birthing
centers operating in the midwifery model of care utilize certified
professional midwives and certified nurse midwives to provide childbirth-
related care to their patients during antepartum, intrapartum, and
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postpartum periods. Therefore, as a matter of law, they are providing
"obstetrical care" within the meaning of § 22-21-20(1).
"The Public Generally"
We now address the remaining disputed question of law -- whether
Oasis and ABC were primarily engaged in offering obstetrical care "to the
public generally" within the meaning of § 22-21-20(1). When used in the
context of a business providing a product or services, the phrase "to the
public generally" commonly means that the business solicits its
customers from the public at large, or from a considerable segment of the
public, as opposed to limiting its customer base to select individuals
through private contracts. See Coastal States Gas Transmission Co. v.
Alabama Pub. Serv. Comm'n, 524 So. 2d 357 (Ala. 1988) (holding that a
natural gas company was not a public utility because it offered its product
only to certain businesses with whom it entered into private contracts
and not to the general public). When a business invites the public, or a
subset of the public, to apply for the use of its facilities or services, it
serves "the public generally" even if it screens those applicants to ensure
that they meet the requirements for using the facilities or services. See
State ex rel. Washington Univ. v. Richardson, 396 S.W.3d 387, 396 (Mo.
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Ct. App. 2013) (holding that public university that invited the public to
apply to a Master of Fine Arts program was a business "offering ... to the
general public" its facilities and services and that it was, in fact, open to
the public even though it admitted only those applicants meeting its
eligibility criteria).
In addition to the stipulations above, the plaintiffs presented
uncontradicted affidavits of several witnesses in support of their motion
for a partial summary judgment. The undisputed evidence from those
affidavits establishes that Oasis's and ABC's birthing centers were
opened to provide greater access to pregnancy-related care for the benefit
of the Birmingham and Huntsville communities, particularly low-income
and marginalized populations who, historically, have suffered
inequitable disparities in receiving obstetrical care. Oasis and ABC offer
the midwifery model of care to low-risk patients who do not have
preexisting or pregnancy-related conditions that increase the risk of
pregnancy complications. Oasis and ABC screen their patients at intake
and throughout the childbirth process to ensure that they remain eligible
for midwifery care, and, if a high risk of complication is identified, the
patient is transferred to an appropriate health-care provider. Before
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admitting a patient, Oasis and ABC also obtain informed consent to their
policies, which are consistent with the midwifery model of care. If a
patient meets all eligibility requirements and consents to midwifery care,
Oasis and ABC offer their facilities and services to them. The patients
at Oasis and ABC are predominantly, but not exclusively, women of color.
The screening process is not unique to Oasis and ABC. By law,
licensed midwives may provide midwifery care relating to only normal
pregnancies and childbirth. See Ala. Admin. Code (Bd. of Midwives), r.
582-X-3-.03(1). Midwives are required to obtain informed consent from
the patient regarding the midwifery care she will receive. See Ala.
Admin. Code (Bd. of Midwives), r. 582-X-3-.03(3)(h) and r. 582-X-3-.04(d).
Midwives must also perform risk assessments at all stages of the
childbirth process. See Ala. Admin. Code (Bd. of Midwives), r. 582-X-3-
.08. If a risk of complication is identified, a midwife is required to consult
with a physician, see Ala. Admin. Code (Bd. of Midwives), r. 582-X-3-.05,
and, if necessary, transfer the care of the patient to an appropriate
physician. See Ala. Admin. Code (Bd. of Midwives), r. 582-X-3-.06. By
screening patients to ensure that they do not require medical care, Oasis
and ABC are only complying with the legal midwifery standards.
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As a matter of law, Oasis and ABC offer their facilities and
midwifery services to the public generally because they invite the
population of pregnant women in their communities to apply to use those
facilities and services. The fact that Oasis and ABC screen the applicants
to ensure that they meet the eligibility standards to receive midwifery
care does not alter that conclusion. Likewise, freestanding birthing
centers like those operated by Oasis and ABC are not required to provide
the use of their facilities or midwifery services to any woman who
presents in labor, like an emergency department of a traditional hospital,
see 42 U.S.C. § 1395dd(b) & (e), but that does not mean that they do not
offer those facilities and services to the public generally.
Summary Judgment
Summary judgment shall be rendered if "there is no genuine issue
as to any material fact and ... the moving party is entitled to a judgment
as a matter of law." Rule 56(c)(3), Ala. R. Civ. P. Based on our de novo
review, we conclude that there is no genuine issue of material fact and
that Dr. Harris is entitled to a judgment as a matter of law on Count One.
Freestanding birthing centers operating in the midwifery model of care,
like those operated by Oasis and ABC, are "hospitals" within the
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definition of § 22-21-20(1) because they are health-care institutions
"primarily engaged in offering to the public generally, facilities and
services for ... obstetrical care." As such, the ADPH and Dr. Harris had
the authority to regulate those institutions pursuant to § 22-21-28(a), and
the 2023 regulations adopted by the ADPH are valid. We, therefore,
reverse the judgment declaring the 2023 regulations invalid and render
a judgment declaring that the ADPH did not exceed its statutory
authority under § 22-21-28(a) in adopting the 2023 regulations.5
The Injunction
We also reverse the judgment insofar as it granted a permanent
injunction in favor of the plaintiffs. To obtain a permanent injunction, a
movant must, among other things, demonstrate success on the merits.
Sycamore Mgmt. Grp., LLC v. Coosa Cable Co., 42 So. 3d 90, 93 (Ala.
2010). The injunction was based on the circuit court's determination that
the ADPH and Dr. Harris lacked licensing authority over freestanding
birthing centers operating in the midwifery model of care. As we have
concluded, the birthing centers operated by Oasis and ABC are
5We do not express any opinion as to whether the 2023 regulations
are invalid or inapplicable for any other reason.
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"hospitals" as defined in § 22-21-20(1). Therefore, they are required to
obtain a hospital license from the ADPH to operate. See Ala. Code 1975,
§ 22-21-22 and § 22-21-25(a). The plaintiffs have not succeeded on the
merits of their claim in Count One, so the circuit court committed
reversible error in granting the permanent injunction. Therefore, we
reverse the judgment insofar as it granted injunctive relief, and we
render a judgment for Dr. Harris denying that relief.
REVERSED AND JUDGMENT RENDERED.
Edwards, Hanson, Fridy, and Bowden, JJ., concur.
36