By Kirsha K.M. Durante, NHLC Litigation Director
Earlier this year, NHLC, together with a national nonprofit called the Center for Reproductive Rights and a law firm called Perkins Coie, filed a lawsuit challenging the Midwife Licensure Act under Hawaiʻi Revised Statues (“HRS”) §457J.
NHLC participated to protect Hawaiian birthing practices, including pale keiki, hoʻohānau, and hānau that were being impacted by serious restrictions in the law preventing practitioners from practicing and families from receiving traditional care.
As part of the case, our team filed a Motion for Preliminary Injunction which requested, in part, that the court block the State of Hawaiʻi from pursuing criminal and civil penalties against cultural practitioners while the case is being litigated, so they can practice while the legality of the law is being decided. In mid-June 2024, the court conducted a four-day hearing on the request for injunction where multiple cultural practitioners testified about the impact the law was having on their ability to engage in traditional birthing practices.
Under Article XII, section 7 of the Hawaiʻi State Constitution, the State of Hawaiʻi has an affirmative duty to protect all “rights, customs, and traditions that are traditionally exercised for subsistence, cultural and religious purposes…” This right, however, like all constitutional rights, is not without limits and can be subject to regulation by the state. The question in the case is whether HRS §457J is an allowable state regulation on Native Hawaiian birthing practices.
HRS §457J is a licensing statute, and it generally requires that caregivers for birthing obtain midwifery education and credentials that can only be obtained from training programs for Western healthcare outside of Hawaiʻi.
However, the law states it does not prohibit traditional Hawaiian healers from engaging in traditional healing practices of prenatal, maternal, and childcare by creating a licensing exemption for those recognized by any council of kūpuna convened by Papa Ola Lōkahi.
The problem is that for the past year, there was no actual pathway to obtain this recognition and benefit from the exemption. Testimony during the June injunction hearing revealed that our clients exhausted extensive efforts to be recognized as traditional birthing practitioners by existing kūpuna councils recognized by Papa Ola Lōkahi and/or to form a kūpuna council that could be recognized by Papa Ola Lōkahi. These efforts were unsuccessful, leaving these practitioners vulnerable to civil and criminal penalties for engaging in their Native Hawaiian birthing traditions.
On July 23, 2024, the court issued a decision acknowledging the strength of our client’s arguments that the regulation of Native Hawaiian birthing traditions and practices under HRS §457J was unreasonable. The court also looked at the licensing pathways under HRS §457J where cultural practitioners might seek to become licensed as a midwife but determined those pathways, for cultural practitioners, also amounted to unreasonable regulation.
Ultimately, the court granted a statewide injunction preventing the state from enforcing, threatening to enforce, or applying penalties to individuals who practice, teach, and learn Native Hawaiian traditional birthing practices. The injunction will remain in effect until a kūpuna council exists that can recognize practitioners of Native Hawaiian birthing practices, or until there is another pathway for recognition of practitioners.
This case is ongoing, and trial in this matter has yet to be set. For updates on this case, you can follow the Native Hawaiian Legal Corporation on Instagram, Facebook and LinkedIn. You may also read more about this case on the NHLC website.
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