HONOLULU (AP) 鈥 A Hawaii judge has temporarily blocked the state from enforcing a law requiring the licensing of practitioners and teachers of traditional Native Hawaiian midwifery while a lawsuit seeking to overturn the statute wends its way through the courts.
Lawmakers enacted , which asserted that the 鈥渋mproper practice of midwifery poses a significant risk of harm to the mother or newborn, and may result in death,鈥 in 2019. Violations are punishable by up to a year in jail, plus thousands of dollars in criminal and civil fines.
The measure requires anyone who provides 鈥渁ssessment, monitoring, and care鈥 during pregnancy, labor, childbirth and the postpartum period to be licensed.
A group of women sued, arguing that a wide range of people, including midwives, doulas, lactation consultants and even family and friends of the new mother would be subject to penalties and criminal liability.
Their complaint also said the law threatens the plaintiffs' ability to serve women who seek traditional Native Hawaiian births.
Judge Shirley Kawamura issued a ruling late Tuesday afternoon barring the state from 鈥渆nforcing, threatening to enforce or applying any penalties to those who practice, teach, and learn traditional Native Hawaiian healing practices of prenatal, maternal and child care.鈥
Plaintiffs testified during a four-day hearing last month that the law forces them to get licensed through costly out-of-state programs that don't align with Hawaiian culture.
Ki鈥榠naniokalani Kaho驶ohanohano testified that a lack of Native Hawaiian midwives when she prepared to give birth for the first time in 2003 inspired her to eventually become one herself. She described how she spent years helping to deliver as many as three babies a month, receiving them in a traditional cloth made of woven bark and uttering sacred chants as she welcomed them into the world.
The law constitutes a deprivation of Native Hawaiian customary rights, which are protected by the Hawaii constitution, Kawamura's ruling said, and the 鈥減ublic interest weighs heavily towards protecting Native Hawaiian customs and traditions that are at risk of extinction.鈥
The dispute is the latest in a long debate about how and whether Hawaii should regulate the practice of traditional healing arts that date to well before the islands became the 50th state in 1959. Those healing practices were banished or severely restricted for much of the 20th century, but the Hawaiian Indigenous rights movement of the 1970s renewed interest in them.
The state eventually adopted a system under which councils versed in Native Hawaiian healing certify traditional practitioners, though the plaintiffs in the lawsuit say their efforts to form such a council for midwifery have failed.
The judge also noted in her ruling that the preliminary injunction is granted until there is a council that can recognize traditional Hawaiian birthing practitioners.
鈥淭his ruling means that traditional Native Hawaiian midwives can once again care for families, including those who choose home births, who can鈥檛 travel long distances, or who don鈥檛 feel safe or seen in other medical environments,鈥 plaintiff and midwife trainee Makalani Franco-Francis said in a statement Wednesday. "We are now free to use our own community wisdom to care for one another without fear of prosecution.鈥
She testified last month how she learned customary practices from Kaho驶ohanohano, including cultural protocols for a placenta, such as burying it to connect a newborn to its ancestral lands.
The judge found, however, that the state's regulation of midwifery more broadly speaking is 鈥渞easonably necessary to protect the health, safety, and welfare of mothers and their newborns."
The ruling doesn't block the law as it pertains to unlicensed midwives who do not focus on Hawaiian birthing practices, said Hillary Schneller, an attorney with the Center for Reproductive Rights, which represents the women. 鈥淭hat is a gap that this order doesn鈥檛 address.鈥
The case is expected to continue to trial to determine whether the law should be permanently blocked.
The state attorney general's office said in an email Wednesday that it was still reviewing the decision.
___
This story has been corrected to show that the ruling was issued Tuesday, not Monday.
