Court Rules in Favor of Native Hawaiian Midwives

07.24.2024 (PRESS RELEASE) – Yesterday, a Hawai‘i state court temporarily blocked part of the Midwifery Restriction Law, which prevents pregnant people in Hawai‘i from using traditional midwives for their pregnancies and births, as they have for generations. The lawsuit was filed by the Center for Reproductive Rights, the Native Hawaiian Legal Corporation, and the law firm Perkins Coie on behalf of nine plaintiffs, including six midwives and student midwives, as well as three women who wish to access care from traditional midwives.

Since July 2023, when this law went into effect, many traditional midwives have not practiced for fear of penalties and criminal liability. This ruling means that the law’s threat of prison time and fines for individuals who practice, teach, and learn traditional Native Hawaiian healing practices of prenatal, maternal, and child care—or pale keiki, hoʻohānau, and hānau—is halted as the case continues. However, the court did not block other parts of the Midwifery Restriction Law, meaning that some midwives who trained through other pathways still face penalties for serving their communities.

This ruling comes after the court heard testimony from six plaintiffs in mid-June over the course of a four-day hearing. The parties have 30 days to decide whether to appeal this decision. Timing for a full trial has not yet been announced by the court.

In her ruling, Judge Shirley M. Kawamura wrote: “If Plaintiffs, especially student midwives, and other pale keiki and hānau [birth] practitioners, educators, and apprentices are not able to practice, teach, and learn, they will lose the opportunity to gain knowledge from the kūpuna [elders] to pass on to future generations.”

“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. In a nation scarred by colonization, I can now resume my path toward becoming a midwife, preserving the wisdom gifted to us by our kūpuna,” said Makalani Franco-Francis, who spent five years apprenticing as a student midwife in Maui before the Restriction Law went into effect and made her training illegal. “This ruling means that traditional Native Hawaiian midwives can once again care for families, including those who choose home births, who can’t travel long distances, or who don’t feel safe or seen in other medical environments. We are now free to use our own community wisdom to care for one another without fear of prosecution.”

“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 Kirsha Durante, Litigation Director, Native Hawaiian Legal Corporation. “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 ʻike (knowledge) of birthing practices can resume before more ʻike kupuna (ancestral knowledge) is lost.”

“Today’s ruling recognizes that the Midwifery Restriction Law fails to provide the meaningful protections for traditional Native Hawaiian birthing practices that the Hawai‘i Constitution demands.” said Hillary Schneller, Senior Staff Attorney at the Center for Reproductive Rights. “Decisions and practices around pregnancy and birth, including to birth at home with the people you choose, are among the most private, personal, and culturally significant. As the court acknowledged, the state does real damage to Indigenous peoples’ health, safety, and culture when—instead of filling the many gaps that already exist in Hawai‘i’s maternal health care system—it takes away trusted midwives. Although the court stopped short of blocking the Law’s penalties across the board, today’s ruling is a relief for many of our clients and for families who will have more options for trusted care.”

Read more about the plaintiffs here.

Read the hearing transcript, including testimony from six of the plaintiffs, here.

The Midwifery Restriction Law reduces access to maternal care for pregnant people, including in rural areas of Hawai‘i who may have to drive many hours—or travel to another island—to reach the nearest hospital. In the face of poor health outcomes and discrimination in health care, it is critical that pregnant people have access to the trusted provider of their choosing. The law also endangers constitutionally protected Native Hawaiian traditional birthing practices, and despite the law’s promises, no protections have materialized.

As of summer 2023, the Midwifery Restriction Law penalizes essentially anyone providing advice, information, or care, during pregnancy, birth, and postpartum who does not have a specific state license. There are no education programs in Hawai‘i that meet the law’s requirements, meaning that already-trained traditional midwives would need to travel thousands of miles to be re-educated through western programs that are expensive and inaccessible to many. Further, the law erases the time-honored apprenticeship model utilized and sought out by many pregnant Native Hawaiians and midwives.  

Pregnant people in Hawai‘i are already facing a shortage of care in their communities, inequitable treatment in the health care system, and preventable deaths and illnesses during pregnancy, birth, and postpartum. Today, Native Hawaiian and Other Pacific Islander people are 4.5 times more likely to die from pregnancy-related causes than white people, and have the highest rates of mortality overall.

In the U.S. hospital system, physicians routinely pressure their patients into unnecessary medical interventions including cesarian surgery, induction, and episiotomy, and override patients’ wishes and decisions about what position they give birth in, who can accompany them, and even whether they can drink water during labor. Many people who birth at home do so to maintain autonomy about their birthing experience and to ensure their cultural values and traditions are respected. The fight for reproductive autonomy and freedom must include decisions on how, and with whom, people choose to give birth. It’s been two years since the fall of Roe, and it is clear how detrimental it is when personal reproductive decisions are legislated out of the hands of individuals.

The lawsuit was filed by the Center for Reproductive Rights, the Native Hawaiian Legal Corporation, and Perkins Coie on behalf of plaintiffs Ki‘inaniokalani Kaho‘ohanohano, Kiana Rowley, A. Ezinne Dawson, Makalani Franco-Francis, Kawehi Ku‘ailani, Moriah Salado, Morea Mendoza, Alex Amey, and Pi‘ilani Schneider-Furuya. 

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MEDIA CONTACTS

Center for Reproductive Rights: [email protected]

Native Hawaiian Legal Corporation: [email protected]