Two Nebraska mothers who sued the state over its ban on certified nurse midwives attending home births are taking their fight to a federal appeals court, after a judge ruled the restriction burdens their religious exercise but can stand anyway. Emily Tvrdy and Amanda Musilek filed the lawsuit in June 2026, arguing Nebraska's law violates both their religious rights and their freedom to choose how and where to give birth. Nebraska remains the only state in the country with such a ban.
U.S. District Court Judge Robert Rossiter denied the women's request for a preliminary injunction, according to the Nebraska Examiner. Rossiter found that the state, represented in the case by Nebraska Attorney General Mike Hilgers as a defendant, had demonstrated a compelling government interest in protecting the health and safety of the plaintiffs and their children, and ruled that the ban applies neutrally regardless of a mother's religious belief. He concluded the restriction does not violate Tvrdy or Musilek's right to freely exercise religion under the U.S. Constitution. Notably, per Pacific Legal Foundation, Rossiter's own September ruling determined the ban substantially burdens the plaintiffs' religious exercise under Nebraska's First Freedom Act, which requires strict judicial scrutiny of state regulations that burden sincere religious practice — yet he upheld the law after finding it served that compelling safety interest through the least restrictive means.
Attorney Says State's Own Witnesses Undercut Its Case
Joshua Polk, who represents Tvrdy and Musilek, said the two women are simply asking to follow their religious convictions and choose a qualified medical professional to assist with their births. He argued that midwives are among the most qualified health providers for home births compared with other health professionals the state allows to assist, and said Nebraska's ban substantially burdens his clients' religious exercise even though the court upheld it anyway, the Nebraska Examiner reported.
In some instances, a certified nurse midwife's attendance at a home birth can be classified as a felony. Nebraska law does still allow women to give birth at home with no medical professional present at all. The case will now proceed to the 8th U.S. Circuit Court of Appeals.
A Ban Rooted in 1984 Legislation
Nebraska's prohibition traces back to the Certified Nurse Midwifery Practice Act of 1984, which added the home-birth restriction at the request of the Nebraska Medical Association, per Nebraska Public Media. Before that law, certified nurse midwives were not explicitly banned from attending home births in the state. Today, Nebraska is the only state with an explicit statutory ban of this kind, and one of only two states that require certified nurse midwives to maintain formal physician supervision agreements — a stark outlier compared to the 49 other states that permit midwives to assist with out-of-hospital deliveries.
Efforts to change the law have stalled repeatedly in the unicameral legislature. Legislative Bill 676, introduced by State Senator Ben Hansen, passed first-round voting in 2025. Tvrdy and Musilek's case is not the only legal challenge to the law; Pacific Legal Foundation has also pursued a parallel Fourteenth Amendment lawsuit on behalf of Dr. Heather Swanson, a nurse midwife with a doctorate, challenging the ban on due process and privacy grounds. The 8th Circuit heard oral arguments in Swanson's case in 2025, as reported by Courthouse News Service.
Rural Access Gaps Fuel the Legal Fight
The stakes extend beyond the courtroom for many rural Nebraska families. More than half of the state's 93 counties are classified as maternity care deserts lacking hospital obstetric units or practicing obstetricians, according to Pacific Legal Foundation, leaving rural mothers with few local options for delivery. In one recent case, a pregnant Hastings woman reached a settlement with state officials in April 2026 that granted her individual permission to have a certified nurse midwife attend her planned home birth, even as the broader systemic lawsuits remained pending, per the Lincoln Journal Star.
Co-plaintiff Emily Tvrdy is a rural Nebraska labor-and-delivery nurse who has given birth to four children in both hospital and home settings, experiences that led her to challenge the ban ahead of delivering her fifth child, according to Pacific Legal Foundation. As Hoodline has previously reported, because certified nurse midwives cannot legally attend home births in Nebraska, some mothers instead choose unassisted “free births” — a practice that turned fatal in September 2025 when a Nebraska woman, Stacey Warnecke, bled to death from a postpartum hemorrhage.
