Judge’s ruling temporarily allows for unlicensed Native Hawaiian midwifery

HONOLULU — A Hawaii judge has temporarily banned the state from enforcing a law that requires practitioners and teachers of traditional arts to be licensed. Native Hawaiian midwifery while a lawsuit to overturn the law continues through the courts.

Lawmakers have announced the midwifery licensing lawwhich stated that the “improper practice of obstetrics poses a significant risk of harm to the mother or newborn, and may result in death,” in 2019. Violations are punishable by up to a year in prison, plus thousands of dollars in criminal and civil fines.

The measure requires anyone providing “assessment, monitoring and care” during pregnancy, labor, birth and the postpartum period to be licensed.

A group of women filed a lawsuit arguing that a wide range of people, including midwives, doulas, lactation consultants, and even family members and friends of the new mother, should be criminalized and held criminally liable.

In their complaint, they also argued that the law threatens the plaintiffs’ ability to help women seeking a traditional Hawaiian birth.

Judge Shirley Kawamura issued a ruling late Monday afternoon prohibiting the state from “imposing, threatening to impose, or imposing penalties on those who practice, teach, and learn traditional Native Hawaiian healing practices in the areas of prenatal, maternal, and child care.”

During a four-day hearing last month, the plaintiffs testified that the law forces them to obtain licenses through expensive out-of-state programs that are not compatible with Hawaiian culture.

Kiʻinaniokalani Kahoʻohanohano testified that a lack of Native Hawaiian midwives when she prepared to give birth for the first time in 2003 inspired her to eventually become one herself. She described helping deliver as many as three babies a month for years, receiving them in a traditional woven bark cloth and singing sacred chants as she welcomed them into the world.

The law constitutes a deprivation of Native Hawaiians’ customary rights, which are protected by the Hawaii Constitution, Kawamura’s ruling said, and the “public interest is paramount in protecting Native Hawaiian customs and traditions that are threatened with extinction.”

The dispute is the latest in a long debate over whether and how Hawaii should regulate the practice of traditional healing practices that date back to before the islands became the 50th state in 1959. Such practices were banned or severely restricted for much of the 20th century, but the Hawaiian indigenous rights movement in the 1970s revived interest in them.

The state eventually adopted a system whereby boards specializing in Native Hawaiian medicine certify traditional practitioners. However, the plaintiffs in the lawsuit say their efforts to establish such a board for midwives failed.

The judge also noted in her ruling that the interim injunction is granted until there is a board that recognizes traditional Hawaiian birth practitioners.

“This ruling means that traditional Native Hawaiian midwives can once again care for families, including those who choose home births, who cannot travel long distances, or who do not feel safe or cared for in other medical settings,” plaintiff and midwifery trainee Makalani Franco-Francis said in a statement Wednesday. “We are now free to use our own community wisdom to care for one another without fear of persecution.”

Last month, she testified about the customs she learned in Kahoʻohanohano, including cultural protocols for a placenta, such as burying it to connect a newborn to its ancestral land.

However, the court ruled that state regulation of midwifery more broadly is “reasonably necessary to protect the health, safety, and well-being of mothers and their newborns.”

The ruling does not block the law because it applies to unlicensed midwives who do not focus on Hawaiian birthing practices, said Hillary Schneller, an attorney with the Center for Reproductive Rights, which is representing the women. “That’s a loophole that this order doesn’t address.”

The case is expected to continue to determine whether the law should be permanently blocked.

The state attorney general’s office did not immediately respond to an email seeking comment on Wednesday’s ruling.