Kahoʻohanohano v. State of Hawaiʻi

Case update: Native Hawaiian midwives will be able to resume pregnancy and birth care in their communities for now after a state court ruled on July 23 to temporarily block part of the state’s midwifery restriction law. Read more here.

The Center for Reproductive Rights and its partners filed this lawsuit challenging Hawaiʻi’s midwifery restriction law, HRS §457J, which is preventing pregnant people from receiving pregnancy and birth care from trusted, skilled midwives. The law has been particularly devastating for Native Hawaiian midwifery practitioners and families of color. 

Brought on behalf of nine plaintiffs—including midwives, midwifery students, and women who are pregnant or plan to become pregnant and grow their families—the lawsuit was filed in the Circuit Court of the First Circuit, Honolulu, Oʻahu.

> Read about the plaintiffs and why they joined the case.

The lawsuit is part of the Center’s strategy to defend reproductive autonomy rights—fundamental rights that people do not lose when they become pregnant. Reproductive autonomy encompasses the right to make informed decisions about where, how, and with whom to access care in pregnancy, birth, and postpartum—including with a trusted midwife.

Background

After decades of suppression of Native Hawaiian healing practices and legal restrictions on midwifery, in 1998 Hawaiʻi repealed its restrictive midwifery licensure requirement. Over the next 25 years, midwives practiced openly, and cultural practitioners worked to revitalize Native Hawaiian practices around pregnancy and birth. A new generation of midwives—many apprentice-trained—was beginning to emerge.

In 2019, Hawaiʻi lawmakers enacted the midwifery restriction law, which defines midwifery broadly and imposes new licensure requirements on midwives in the state. The law included an exemption that allowed the practice of midwifery without a license, which expired in July 2023.

The midwifery restriction law threatens the network of traditional and apprenticeship-trained midwives and cuts off culturally informed maternal care by:

• Defining midwifery in broad terms, essentially requiring a specific state license for anyone providing advice, information, or care during pregnancy, birth, and postpartum.
• Using arbitrary and discriminatory criteria to determine who is eligible for a midwifery license, limiting eligibility to individuals who have completed certain accredited programs and cutting some midwives off from state licensure if they complete one of the training paths after 2020.
• Threatening anyone who practices “midwifery” without a license—including midwives who have practiced for years—with criminal sanctions and other penalties. Licensed midwives, who had previously worked cooperatively alongside traditional midwives and other birth workers, also risk criminal penalties for “aiding and abetting” unlicensed midwifery.

Hawaii Faces a Maternal Health Crisis 

Hawaiʻi is facing a maternal health crisis in which pregnant people face a shortage of care in their communities, inequitable treatment in the health care system, and preventable deaths and illnesses during pregnancy, birth, and postpartum.  

Nationally, Native Hawaiian and other Pacific Islander people have the highest pregnancy related mortality ratio among all women of all races, with 62.8 deaths per 100,000 live births—compared to a rate of 39.9 for non-Hispanic Black women and 14.1 for non-Hispanic white women. According to the World Health Organization, increasing midwifery interventions could avert 41% of maternal deaths, as well as 39% of neonatal deaths and 26% of stillbirths.

Legal Arguments  

The lawsuit seeks a preliminary injunction to stop the threat of criminal and other penalties for traditional and apprenticeship-trained midwives and others who may fall within the law’s expansive reach. In addition, it is requesting the court to enjoin the law’s 2020 cutoff for students pursuing their certified professional midwife (CPM) credential via apprenticeship training.

The Center argues that the midwifery restriction law violates the Hawaiʻi Constitution because it: 

• Violates individuals’ fundamental rights to reproductive autonomy, which the state constitution guarantees through its protections for rights to privacy, life, liberty, and equality;  
• Violates the state’s affirmative duty to protect Native Hawaiian traditional and customary practices; and  
• Is unconstitutionally overbroad, chilling the exercise of constitutional rights by plaintiffs, pregnant people, midwives, and others who support and care for pregnant people.

Center attorney(s): Hillary Schneller

Co-counsel/cooperating attorneys: The Native Hawaiian Legal Corporation and Perkins Coie 

Plaintiffs: Kiʻinaniokalani Kahoʻohanohano, Kiana Rowley, A. Ezinne Dawson, Makalani Franco-Francis, Kawehi Kuʻailani, Moriah Salado, Morea Mendoza, Alex Amey, and Piʻilani Schneider-Furuya. Read more about the plaintiffs here.

Defendants: The state of Hawaiʻi; Anne Lopez, in her official capacity as Attorney General of the State of Hawaiʻi; Department of Commerce and Consumer Affairs; and Nadine Ando, in her official capacity as the Director of the Department of Commerce and Consumer Affairs

Legal Documents:

• Preliminary Injunction, 07.23.24
• Complaint, 02.27.24