The Nebraska Legislature's 2025 legislative session is called to order at the Nebraska State Capitol on Wednesday, Jan. 8, 2025.
Judy Jones says she's on a mission from God to help mothers deliver babies in their own homes.
The 77-year-old South Dakota midwife says she's attended to more than 1,200 home births, including in Nebraska. That's despite not holding a Nebraska license as a nurse midwife, and despite a state law that bars even licensed midwives from delivering babies in homes.
Jones' 25-year history of defying state health authorities currently has her facing felony charges in both Omaha and Norfolk.
But now Jones is claiming that a new Nebraska law protecting religious freedom passed by the Legislature last year means the state can no longer prosecute her. Her Omaha-based attorneys have filed motions seeking to have the charges against her tossed out based on Nebraska's "First Freedom Act."
Her case could represent the first test of the religious freedom law that was largely motivated by opposition to the impact state and local health restrictions had on church services during the COVID-19 pandemic.
Nebraska's bar on Jones participating in home births "infringes on the religious liberty rights of Jones, who sincerely and genuinely feels God called her to assist the needs of women in childbirth," reads a court filing by her attorney, Stu Dornan of Omaha.
Nebraska Attorney General John Hilgers, however, argues that Jones' religious interest does not override the state's interest in protecting the health and lives of mothers and babies -- the justification for the state's laws requiring nursing training for midwives.
"Childbirth carries risks for both the expectant mother and the baby," reads the state's reply to Jones' motion.
In fact, the Douglas County prosecution against Jones involves a 2022 case in which a baby died due to a birth complication.
Nebraska Supreme Court could weigh in
The language of the First Freedom Act could prove meaningful in Jones' case, says a University of Nebraska-Lincoln law professor who specializes in the First Amendment.
The law essentially creates an elevated protection for religious freedom that even stands above the protections offered by the First Amendment of the U.S. Constitution or the Nebraska constitution's guarantee, said Daniel Gutman.
That raises the legal bar the state must clear to impinge on religious freedom, the government's actions given "strict scrutiny" by courts, Gutman said.
"When you burden someone's religion in any way, the burden shifts to the government to give a compelling justification for it," he said.
The novel efforts to dismiss the charges against Jones are currently pending before district court judges in Douglas County and Madison County.
But the question seems bound to end up before the Nebraska Supreme Court. The state's high court just last fall ruled on another legal issue involving the prosecution of Jones.
Coincidentally, the case comes as the Legislature this year has been debating the standards for midwives and home births in Nebraska -- a state that has some of the nation's most restrictive laws governing them.
In Nebraska, a midwife assisting a woman giving birth must be a certified nurse midwife, with a required level of nursing training. Even if licensed, the birth must take place in a hospital or health care facility, not at home.
Nebraska is the only state in the nation that does not allow a nurse midwife to deliver a baby at home. (In an unrelated lawsuit filed a year ago, a certified nurse midwife in the Sandhills is suing the state in federal court seeking to overturn those practice restrictions.)
Some 37 states -- including all of those surrounding Nebraska -- also allow practice by certified professional midwives, trained and credentialed to support mothers and attend to births, but without the nursing training Nebraska requires.
During debate last month, state lawmakers signaled they were willing to allow certified nurse midwives to assist in home births. However, they rejected loosening the current nursing training requirement and authorizing certified professional midwives.
Sen. Ben Hansen of Blair, sponsor of Legislative Bill 676, said with about half of Nebraska's rural counties lacking maternal care facilities, and more closing all the time, there's a need to enhance birthing options for families.
He said he thinks he will ultimately get the votes needed to authorize both certified professional midwives and home births, though he said the bill will likely need to wait until next year.
A religious calling
Judy K. Jones, from Irene, South Dakota, does have the certified professional midwife credential that Hansen sought to authorize to practice midwifery in Nebraska, her attorney says. She has used that certification to gain a midwifery license in Iowa.
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But she has never claimed to have the required training she'd need to become a certified nurse midwife in Nebraska. Nor has she ever let Nebraska's credential requirements or restrictions on home births stop her.
Her attorney argues Jones does not consider her work as a midwife an occupation but a religious calling based in her Christian faith. She wrote about that in a book she published two decades ago.
"Every Christian has a ministry through which he is called to serve the Lord," she wrote then. "He assured me that mine was to be working with women as they labor and give birth. So my only response needed to be obedience. He would have to handle the rest of it."
Despite Nebraska's laws regarding home births, a number of Nebraskans have gone around them by discretely hiring unlicensed midwives like Jones, whether for religious reasons, personal skepticism of medical interventions, cost or a desire for a more "natural" birth.
"Regardless of their motivations, some women desire to bring their children into this world at home and Jones has an honest, sincere, and religiously motivated belief that God has called her to assist them in this endeavor," Dornan wrote.
Jones' attorneys dispute any notion that she's some kind of midwife renegade. Dornan's petition says Jones "has great respect for secular authorities and laws," but views her assistance of mothers "as emanating from a higher authority."
Jones' history of defying state authorities goes back decades.
Jones was ordered to stop practicing midwifery without a license in her home state of South Dakota in 1993, and in Nebraska in 1999. In 2003, she was sentenced to serve 30 days in jail by a Sioux Falls judge.
She has been ordered by Nebraska at least three separate times to stop. But she nonetheless has persisted in covertly assisting in home deliveries -- cases that often come to light only when problems arise.
In 2015, Custer County prosecutors charged Jones with manslaughter over a failed home delivery in which a baby died. However, prosecutors dropped that case before it went to trial.
Unlawfully practicing as a nurse midwife
She currently faces charges in a pair of 2022 cases in Nebraska.
She was first charged in Madison County, accused of providing prenatal care and being present at a home birth. In the Douglas County case, a baby died in March 2022 after being born with an umbilical cord wrapped around her neck.
Sheriff's deputies were called to the suburban home of an Omaha couple after Jones and others could not free the baby from the umbilical cord.
Jones is charged with unlawfully practicing as a nurse midwife after receiving a cease and desist order, a felony punishable by up to four years in prison and a $25,000 fine.
Jones and her attorneys earlier convinced judges in the two cases to throw out the charges after alleging she was not required to hold a license because the state's credentialing act is unconstitutionally vague. But the Nebraska Supreme Court last fall reversed those decisions, which reinstated the charges against Jones.
Now she and her attorneys are taking another run at the charges based on the First Freedom Act.
The law holds that a state action shall not substantially burden a person's right to the exercise of religion unless the state can demonstrate its actions are essential to furthering a compelling government interest and are the least restrictive way of furthering that interest. The law broadly defines the exercise of religion to include any action "motivated" by a sincerely held religious belief.
The law and others like it in other states have been pushed by conservatives who were opposed to the impact COVID-19 restrictions had on religious gatherings.
Then-Sen. Tom Brewer of Gordon, sponsor of the bill passed in 2024, said the pandemic restrictions closed churches at higher rates than other businesses. Much of the public testimony on the bill centered on opposition to those COVID restrictions.
Dornan's brief contends that Nebraska's requirement that Jones obtain a certified nurse midwife license burdens her religious beliefs. Dornan also argues that if Jones were to seek such a license, she would be "agreeing to forgo" her home birth mission since Nebraska law does not allow certified nurse midwives to perform home births.
He also said even if the state has a compelling reason to limit her freedom, the state can't say it is restricting that freedom in the least restrictive way possible, especially given the large number of states that do allow midwives without certified nursing training and also allow home births.
The attorneys in the office of Nebraska Attorney General Hilgers argue the state indeed has a compelling interest for its laws, which are there to protect the health and safety of women and children. To not require its credential for midwives would allow "undertrained and underqualified persons to provide midwifery services," reads the state brief.
The state offered testimony in Douglas County in March in which a nurse midwife described the years of education and clinical training they must complete and the tools of their trade. Childbirth can be dangerous for both mothers and babies, the state says, with a number of potential complications.
"For that reason, it is vital that persons providing midwife services are properly trained to recognize complications when they arise, to respond quickly and appropriately to the situation at hand, and to recognize when there is a complication beyond the scope of their training," the state brief says.
That state's brief also notes that Jones under Nebraska law is allowed "to practice her ministry, so long as she has the requisite credential."
Hansen, the state senator seeking to change current midwife laws, said it's interesting that another bill passed by the Legislature last year could impact Jones and her midwife practices.
"It's my understanding the way Judy Jones approaches midwifery comes from a very religious aspect," he said. "This is up for the courts to decide now to figure out how (the First Freedom Act) can be applied to something like this."