A state Circuit Court has ruled in favor of plaintiffs challenging a Hawaii 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 Hawaii’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.