The state Legislature is running against a time limit on its controversial 2019 law to regulate midwifery that will sunset in June.
While the law set standards for schooling and testing from accredited programs, it also barred traditional Native Hawaiian midwives from practicing.
When the law was enacted, it included an exemption for “birth attendants” that allowed people to continue to practice even without a license until mid-2023. That gave the state four years to come up with a new statute that would allow birth practitioners to legally offer maternal care.
But lawmakers did not pass a new law and instead let the exemption lapse. It effectively made it illegal for anyone without a midwifery license to assist mothers during childbirth.
People could face fines as high as $2,000 and up to one year in prison.
“It's about the ability to practice for all of the people that are affected. It's about having proper pathways carved out so that this work is even accessible for people to practice in Hawaiʻi,” said Kiʻi Kahoʻohanohano, one of the Native Hawaiian traditional midwives who sued the state.
Arguments for regulation
Plaintiffs say the law threatens reproductive rights. The case brought by the Native Hawaiian Legal Corporation and the Center for Reproductive Rights secured a temporary injunction from the court that has allowed some Native Hawaiian cultural practitioners to again offer services.
The current law will sunset in June – completely deregulating the midwifery industry back to how it was before the 2019 law was enacted.
Midwives Alliance of Hawaiʻi President Leʻa Minton emphasized the importance of setting clear legal standards on who can perform midwifery services.
“It is vitally important that the person who is hiring that service knows what they're getting, and the vast majority of people that we talked to did not understand that they weren't in fact getting midwifery services because they had not, in fact, hired a midwife,” she said.
“And when things unfortunately and tragically went very wrong, people that debrief with us, wanting to talk about what happened, it's really devastating to hear how, if that was a midwife, we would consider it exceptionally negligent, but in reality, all I could say was, I don't know what type of care you received. I don't know what that's called, but it's not midwifery.”
She added that before the 2019 law went into effect, there was no way for people who received bad care to report it. That’s why lawmakers are working on a new law.
“There is a sense of urgency to pass a new law, to replace it. And from the ACLU's perspective, it is a wonderful opportunity to address some of the shortcomings in the current law,” said American Civil Liberties Union of Hawaiʻi Policy Director Carrie Ann Shirota.
There were several measures introduced this legislative session, but only one was selected by the House Health and Consumer Protection committees to advance.
Protections for Native Hawaiian healers
President of Hawaiʻi Home Birth Collective Kristie Duarte explained that there needs to be clear protections in the measure for Native Hawaiian healers.
One of the ways the measure could do this is by explicitly saying that Native Hawaiian healing practices are not part of the definition of midwifery services that you need licensing for.
She added that there needs to be more accessible pathways for Hawaiians and those who are from the state to be certified. Especially since midwives help to fill a hole in maternal care in rural areas.
“What we're asking for is to expand access to licensure, right?” Duarte said. “Because right now we know that zero of our 41 licensed midwives are kānaka maoli, and one of our 41 licensed midwives is born and raised here.”
Makalani Franco-Francis, a traditional Native Hawaiian midwife, warned that if the practice is restricted, it could be lost.
“ It feels as if it's a repeat of our history when our elders were forced to have to go underground and not be able to feel like they could share these skills with the future generations,” she said. “That in itself is an erasure of our cultural practices. This is us trying to prevent that.”
Is there a pathway for licensure?
The selected bill still only includes a singular pathway to licensure that requires a person to attend a Midwifery Education Accreditation Council school — all of which are not located in Hawaiʻi, although there are distance learning options. Prices for the programs cost between $7,000 and $36,000 a year, depending on the type of degree being pursued.
It does not allow what is called the portfolio evaluation process, or PEP, where students study under a certified midwife and then are required to take the same exam as those enrolled in school and sometimes some of the classes.
The North American Registry of Midwives, which administers the exam and sets the standard for credentialing, approves of the PEP pathway. Director Brynn Potter explained that it is one of the most accessible ways for midwives to be trained.
“ We're still looking for resource and support and so it sounds really good to require this accredited pathway, but the fact is, it doesn't exist… And so the question that I would ask and that I have asked is, on what basis are you protecting the public by requiring this pathway?” she said.
Potter explained that although going through the Midwifery Education Accreditation Council school program is the gold standard, Hawaiʻi does not yet have enough midwives nor infrastructure in the profession to make it accessible.
However, Minton did not agree and explained that the school pathway follows that of most health professions, where you must go to school and then pass your board exams.
“When you have a client in front of you, there isn't someone else there to tell you what the diagnosis is, you have to have that knowledge base to do so,” she said. “When you go through accredited education, you have to pass every class. You're taking exams in order to demonstrate that knowledge.”
Data on home birth outcomes in Hawaiʻi is sparse
“A lot of the complications from home birth aren't recorded as home birth complications, they're recorded as in-hospital events,” said Hawaii Chapter of the American Academy of Pediatrics Co-chair Dr. Cassandra Simonson.
She explained that there is no way to clarify that the complication or bad outcome happened at home during a home birth.
“That's why you will hear that they don't have any bad outcomes is because they bring people to the hospital,” she said. “Whatever complications are happening, they get dealt with in the hospital. And that's how it's recorded.”
Simonson added that while many of the home births, which she says have become more frequent on Maui, are fine — there have been instances with patients where complications have had life-long impacts on the child’s health.
However, many of the midwives who testified about the midwifery bill pointed to traumatic experiences in the hospital that have caused mothers to choose home birth instead.
Shirota emphasized that these conversations about midwifery regulation come back to accessing maternal care.
“ There are severe disparities. Native Hawaiian and Pacific Islander women have the highest rates of maternal morbidity, not only in Hawaiʻi, but even compared nationally,” she said. “ We need to address that through a spectrum of health care and services within our communities… Midwifery care and access to midwifery care is a reproductive justice, a reproductive autonomy issue.”
Center for Reproductive Rights lawyer Hillary Schneller explained Hawaiʻi’s midwifery licensing issues hit at the heart of allowing women to make informed decisions about pregnancy and birth.
“I think making these connections between abortion [and] pregnancy decisions more generally, you know, when one is attacked, the other can be attacked as well,” she said. “Hawaiʻi has done a wonderful job shoring up access to abortion and abortion rights and should be doing exactly the same on decisions and access to pregnancy and birth support.”
House Bill 1194 will next be heard by the full House.
