Lawsuit filed to protect midwifery in Hawaiʻi; Group to rally for traditional birth practices at state Capitol

A lawsuit was filed Tuesday by the Native Hawaiian Legal Corporation and the Center for Reproductive Rights challenging a midwifery law that they say is preventing pregnant people in Hawaiʻi from using skilled midwives for their pregnancies and births, as they have for generations.

The nine plaintiffs include three midwives and three midwifery students who, under the Midwife Licensing law, say they could now face criminalization for providing culturally informed care for their communities. Plaintiffs also include Native Hawaiian women who have relied on or wish to access care from such midwives for their pregnancies and births. 

Many of the plaintiffs are from Maui including Ki‘inaniokalani “Kiʻi” Kaho‘ohanohano who has more than 20 years of experience.

“I am joining this lawsuit because of my kūpuna—my ancestors—and the responsibility I have to care for and heal my community,” said Ki‘inaniokalani Kaho‘ohanohano, in a news release. “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 is joined by Kiana Rowley, an apprenticeship-trained midwife based in Maui County, who is currently a student in a certified nurse midwifery program.

Fellow plaintiff A. Ezinne Dawson is a certified professional midwife and licensed midwife in Oʻahu who obtained her credential from the North American Registry of Midwives. The three were recognized by their communities for years as trusted midwives before the Midwifery Restriction Law, according to the filing.

“This law is undermining the sisterhood and the community of midwives who work together to provide support for mamas who seek out our knowledge and care,” said Dawson in the announcement. “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 Hawai‘i who is now unable to get the care that makes them feel most physically and emotionally safe because of this law.”  

The next group of plaintiffs (also part of the same lawsuit) are women who say their reproductive autonomy is restricted under HRS 457J, Hawaiʻi’s 2019 Midwife Licensing law. They are either currently pregnant and being denied access to their chosen midwife or have previously accessed care from a midwife who will not be legally permitted to assist them during future pregnancies. These group of women are:

• Kawehi Ku‘ailani, a Native Hawaiian mother who gave birth to two children at home in Maui, under the care of Kaho‘ohanohano. She became a student midwife of Kaho‘ohanohano and is currently pregnant again, and wishes to birth at home in March 2024 with her chosen midwife.
• Moriah Salado is a Native Hawaiian mother living in Maui who received midwifery care from Kaho‘ohanohano as well. She wishes to grow her family and access her chosen midwife for her next pregnancy birth.
• Morea Mendoza is a mother living in Maui who received midwifery care from Kaho‘ohanohano. She also wishes to grow her family and access her chosen midwife for her next pregnancy birth.
• Emilie A. is a student in a CNM program and plans to practice midwifery alongside midwives who are not licensed but will be risking criminal penalties for doing so.

A third group of plaintiffs are Native Hawaiian student midwives whose training and life plans have been disrupted by the Midwifery Restriction Law.

• Makalani Franco-Francis is a Native Hawaiian doula and student midwife who has been training under Kaho‘ohanohano since 2017.
• Pi‘ilani Schneider-Furuya is a Native Hawaiian doula and student midwife pursuing the apprenticeship-based path—the PEP—to earn her CPM credential and is an apprentice to Plaintiff Dawson.

This lawsuit is asking the Court to stop the law’s threat of prison time and fines for midwives who train through traditional and apprenticeship-based pathways, which have served pregnant people in Hawai‘i since it was an independent nation. The law reduces access to maternal care for pregnant people 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.

As of summer 2023, the Midwifery Restriction Law penalizes individuals providing advice, information, or care, during pregnancy, birth, and postpartum who do 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,” according to those seeking change. “Furthermore, this law erases the time-honored apprenticeship model utilized and sought out by many pregnant Native Hawaiians and midwives.”

The State Attorney General issued a letter on Jan, 17, 2024, clarifying criminalization of unlicensed birth workers. The letter states that anyone providing “care” or “advice” to any pregnant or birthing person, unless licensed or narrowly exempted by HRS 457J, is subject to criminal misdemeanor penalties that carry the potential for jail time and/or fines of up to $1000 per day., according to those seeking change.

“We are going to court to ensure that every person in Hawai‘i 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. “Right now in Hawai‘i, skilled midwives are facing criminal prosecution for serving their communities in ways they have for generations. Hawai’i is unconstitutionally restricting who can provide advice, information, and care during pregnancy, birth, and postpartum. The Hawai‘i Constitution protects the right to reproductive autonomy and guarantees that an individual can make the fundamental decision to have a home birth supported by those trained in the wisdom and practices passed down for generations. The government’s criminalization of traditional midwives is bad law and bad policy. People in Hawai‘i need more, not fewer, midwives to address the serious lack of maternal health services in the state.”  

“An important part of this case is the protection of traditional and customary Native Hawaiian birthing practices. This legislation results in significant risk of criminal liability for cultural practitioners, threatens the extinction of those traditional practices, and must be challenged,” said Kirsha Durante, Litigation Director, Native Hawaiian Legal Corporation.  

Later this week, the Pacific Birth Collective hosts a press conference and rally at the state Capitol in support of the right to choose traditional home birth. The group is pursuing legal, legislative and administrative action to provide relief to those they say are criminalized under HRS 457J. 

The group hosts a press conference at the Queen Liliʻuokalani Statue on Thursday at 9 a.m., followed by a peaceful “Dads Deliver” action led by home birth fathers, children and elders.  A rally will also be held on Friday at 11 a.m., followed by a peaceful visibility action.

There were at least two bills this legislative session that sought to address the current law, but were killed before a hearing was scheduled.

• A bill proposed by Lahaina Representative Elle Cochran would have narrowed the definition of “midwifery” to clinical services provided by licensed midwives and exempted cultural practitioners of all ethnicities.  
• A short form bill was proposed by Makiki Representative Della Belatti, which would have exempted grandparents from criminalization and created a task force to develop a solution. 

A third measure capable of providing legislative relief in 2024 is HB 955, a carryover measure continuing a previous exemption of birth attendants from licensure requirements.

The events on Thursday and Friday are collaboratively organized by Pacific Birth Collective and Hawai’i Home Birth Collective.