Hawaii's midwifery licensure law comes under fire

Mar. 3—Part of the problem is that in order to comply with the law to obtain a state license, one must travel thousands of miles to be reeducated through expensive programs since no such programs exist in Hawaii.

The Center for Reproductive Rights, the Native Hawaiian Legal Corp. and law firm Perkins Coie filed a lawsuit last week on behalf of nine women and countless others affected by Hawaii's "Midwifery Restriction Law, " which they say criminalizes many practitioners including skilled midwives, birth workers and family members who provide care and support to pregnant people and those giving birth.

"We are going to court to ensure that every person in Hawaii has the right to make their own decisions about their pregnancy care, including the decision to give birth at home with a traditional midwife, " said Nancy Northup, president and CEO at the Center for Reproductive Rights, a global reproductive rights organization. "Right now in Hawaii, skilled midwives are facing criminal prosecution for serving their communities in ways they have for generations."

The Center for Reproductive Rights represented abortion providers in Dobbs v. Jackson Women's Health Organization, and has been involved in every major U.S. Supreme Court case involving abortion rights for the last 30 years.

Plaintiffs are suing the state, Attorney General Anne Lopez, the Department of Commerce and Consumer Affairs and its director, Nadine Ando, saying Hawaii Revised Statutes Sec. 457J essentially requires anyone providing advice or information or care during pregnancy, birth and after birth to have a state license ; otherwise they face imprisonment, fines and legal penalties.

The lawsuit attempts to block criminal and civil penalties imposed by that law. It claims the Midwifery Restriction Law violates the state Constitution because it violates an individual's right to reproductive autonomy and its duty to protect Native Hawaiian traditional and customary practices, which are also constitutionally protected. It also limits choices for care for pregnant people and those who want to grow their families, the plaintiffs claim.

"I am joining this lawsuit because of my kupuna—my ancestors—and the responsibility I have to care for and heal my community, " Kiinani ­okalani Kahoohanohano, who served as a midwife on Maui for 20 years before the Restriction Law went into effect, said in a written statement. "This law is preventing me from passing along the life-changing and life-saving knowledge and traditions that I was gifted. It is robbing the next generation of Native Hawaiians of our own ancestral healing knowledge and power.

"Our communities are experiencing a maternal health crisis in hospitals, and cutting off our ability to care for our families with our own traditions and practices is medical colonialism."

She, Kiana Rowley and A. Ezinne Dawson were recognized as trusted midwives before the law was put in place, and have had to cease the care, teaching and work performed with other trusted collaborators or risk criminal sanctions and legal penalties, the complaint says.

Dawson, who obtained her credentials from the North American Registry of Midwives, said in a written statement : "I went through three stressful and disempowering hospital births, so for my fourth child, I decided to do a home birth. It transformed my entire understanding of pregnancy and birth, which is why I decided to apprentice and become a midwife."

"My heart is breaking for every pregnant person in Hawaii, who is now unable to get the care that makes them feel most physically and emotionally safe because of this law."

Some who had been practicing midwifery without a state license, as a "birth attendant, " had been permitted to do so until July 1, 2023. Because that exemption expired, the lawsuit says communities are suffering "irreparable harm."

Licensed Hawaii island midwife Tara Compehos said in a written statement that there are only two licensed midwives within 75 miles of Puna. She used to partner with a traditional birth attendant who is a member of the Puna community, culturally competent and skilled, but she stopped practicing "mostly because she felt she couldn't risk criminalization."

Part of the problem is that in order to comply with the law to obtain a state license, one must travel thousands of miles to be reeducated through expensive programs since no such programs exist in Hawaii.

Plaintiffs Kawehi Kuailani and three others are either currently pregnant and are being denied access to their chosen midwife or have previously had a midwife care for them and will not be legally allowed to have a midwife in future pregnancies.

Kuailani and two others are Native Hawaiian student midwives who say their training and life plans have been disrupted by the law.

The state Legislature, by creating the midwifery law in 2019, "reduced access to maternal care and prohibited skilled midwives, doulas, lactation consultants, childbirth educators and even grandmothers from providing care and information to pregnant people, " a news release by the Pacific Birth Collective director says.

It says several bills before the Legislature to resolve the issues of ensuring every pregnant person has the right to decide about their own pregnancy and birth experiences did not survive a Feb. 16 filing deadline.

The last legislative option would be House Bill 955, a carryover bill from last year, the news release says, scheduled for a floor hearing March 7. Finance Chair Kyle Yamashita failed to schedule it, despite overwhelming community support, the news release said.

A rally was held Friday at the state Capitol for the right to choose traditional home birth.