HONOLULU — A state Circuit Court has ruled in favor of plaintiffs challenging a Hawai‘i law that prevented traditional midwives from assisting in pregnancies and births without state-issued licenses.
In a July 23 ruling, Judge Shirley M. Kawamura temporarily blocked enforcement of part of that law. Practitioners of Native Hawaiian midwifery may resume their practices in the state without threat of prison time and fines — for now.
Kirsha Durante, litigation director of the Native Hawaiian Legal Corp., considers it a win.
“The court’s decision reaffirms the state’s constitutional duties to protect Native Hawaiian traditional and cultural practices and to ensure that such practices are not regulated out of existence,” said Durante in a news release. “For now, cultural practitioners may continue serving the pregnant and birthing members of their community without fear of criminalization or civil fines and the transmission of this specialized ike (knowledge) of birthing practices can resume before more ike kupuna (ancestral knowledge) is lost.”
The state Legislature passed Hawai‘i’s “midwifery restriction law” in 2019, with licensing requirements going into effect in July 2023. The intent was to protect the health, safety and welfare of mothers and their newborns.
The punishment for practicing midwifery without a license includes imprisonment and civil fines of up to $1,000 per offense, plus the risk of denial of future licensure.
Under the state constitution, however, the law was not to “limit, alter, or otherwise adversely impact the practice of traditional Native Hawaiian healing.”
And it was not to prohibit “traditional Hawaiian healers engaged in traditional healing practices of prenatal, maternal, and child care as recognized by any council of kupuna convened by Papa Ola Lokahi.”
On Feb. 27 the Center for Reproductive Rights, a global nonprofit, the Native Hawaiian Legal Corp. and Perkins Coi LLC of Los Angeles filed suit against the state in 1st Circuit Court on behalf of nine plaintiffs, saying it was a violation of the state constitution and seeking a preliminary injunction.
The court in June held a four-day hearing on the motion, with in-person testimony from the plaintiffs, who include six midwives and student midwives, and three women who wanted care from traditional midwives.
Many testified that schools for licensure do not align with Native Hawaiian cultural practices and pose a hardship due to the lack of qualified programs available in the state.
Plaintiffs also said the law reduces access to maternal care, which is particularly challenging in rural areas, where patients have to drive for hours or travel off-island for care.
Another hurdle, the court noted, was that the nonprofit group Papa Ola Lokahi does not create kupuna councils despite being written into the “midwifery restriction law” as the authority for exemptions for these practices.
Thus, there is currently no “workable pathway” for midwife practitioners to get an exemption for their traditional practices from Papa Ola Lokahi.
The court also noted that defendants have “not presented any evidence of negative outcomes attributable to births with pale keiki and hanau practitioners.”
Durante said that for essentially a year, local midwives faced threats of criminal penalties and civil fines for engaging in traditional practices such as pale keiki, hoohanau and hanau — a violation of the state’s constitution protecting the customary practices of Native Hawaiians.
“That means people learning those things were not able to continue learning in order to perpetuate the practice,” she said.
The parties have 30 days to appeal the judge’s decision. The state Attorney General’s Office said it was still reviewing the ruling.
Judge Kawamura’s temporary injunction is in place until a kupuna council recognizing Hawaiian birthing practices is formed. She did not block other parts of the law.
The NHLC said a date for a full trial on whether the law should be blocked permanently has not been announced yet.
The plaintiffs in the suit include Ki‘inaniokalani Kaho‘ohanohano, Kiana Rowley, A. Ezinne Dawson, Makalani Franco-Francis, Kawehi Ku‘ailani, Moriah Salado, Morea Mendoza, Emilie A. and Pi‘ilani Schneider-Furuya.
The defendants include the state of Hawai‘i, state Attorney General Anne Lopez and the Department of Commerce and Consumer Affairs, along with its director, Nadine Ando.
“Today, we are once again able to stand in our own ancestral knowledge and serve our community with skills and traditions passed down through generations,” said Franco-Francis, an apprentice midwife on Maui, in a statement. “In a nation scarred by colonization, I can now resume my path toward becoming a midwife, preserving the wisdom gifted to us by our kupuna. This ruling means we are now free to use our own community wisdom to care for one another without fear of prosecution.”
