‘Medical colonialism’: midwives sue Hawaii over law regulating Native birth workers

Makalani Franco-Francis and Ki’i Kaho‘ohanohano. ‘We are again on the brink of losing our people’s knowledge of sacred birthing traditions.’ Photograph: Brendan George Ko/The Guardian

Six midwives and three patients sued the state of Hawaii on Tuesday after the government last year prohibited birth workers without a specific midwifery license from providing maternal healthcare.

The lawsuit, filed today by the Center for Reproductive Rights, claims that state lawmakers have criminalized Indigenous birthing customs and hollowed out medical care for pregnant women and families across Hawaii.

Ki’i Kaho‘ohanohano, a Native Hawaiian midwife, was forced to end her two-decade career as a maternal care provider on 1 July 2023. That month, the state required all birth workers, even Native Hawaiian medicine experts like Kaho‘ohanohano, to obtain a specific midwifery license.

Now a lead plaintiff in the lawsuit, Kaho‘ohanohano is part of a network of Native Hawaiian midwives who risk a $2,000 fine and up to one year in prison if they are caught offering care – or even advice – to pregnant women and families.

Attorneys for the Center for Reproductive Rights told the Guardian that Hawaii law is startlingly vague on what legally constitutes a midwife, “essentially requiring anyone providing advice, information or care during pregnancy, birth and postpartum to have a specific state license”. They say it effectively chills the provision of much-needed support in a state struggling to ensure adequate maternal healthcare.

The lawsuit, one of the first major legal challenges designed to protect Native Hawaiian healing practices, comes amid renewed calls for Indigenous self-governance following the Maui wildfires of August 2023.

The complaint also says that state lawmakers have created unreasonably steep barriers that block the next generation of Native Hawaiian midwifery students from obtaining legal credentials, shirking their state constitutional duty to “protect all rights customarily and traditionally exercised” by Native Hawaiians.

Nearly every week for the past year, Kaho‘ohanohano says she has been forced to turn away families who ask for her guidance through pregnancy and childbirth.

“I am known to my community as a resource, a person who can help our moms,” she said. “Why can’t I use the knowledge I have to help my own, my ohana?” she said, using a Hawaiian word for family.

When it was first passed in 2019, the Hawaii midwifery licensure law offered an exception for “birth attendants”, an umbrella term that included Native Hawaiian midwives who do not have a midwifery license. The 2019 law stated that, before the birth attendant exemption expired in July 2023, the Hawaii legislature should pass a new statute that would allow “all birth practitioners” to legally offer maternal medicine.

In January 2023, the state representative Natalia Hussey-Burdick introduced legislation that would have allowed Native Hawaiian midwives to continue to practice after the three-year exemption period had elapsed. The bill also would have allowed apprentice midwives – students who learn about maternal healthcare through hands-on training – to be eligible for licensure.

Despite overwhelming support from gender equality groups such as the Hawaii State Commission on the Status of Women, the proposal died in committee last year after the house finance committee chair, the representative Kyle Yamashita refused to schedule a hearing on the bill.

Midwives camped outside Yamashita’s office last March, waiting to get an audience with the state lawmaker, who represents central Maui. Nearly 100 birth workers, including Kaho‘ohanohano, traveled to Honolulu to stage a sit-in protest at the state capitol, hoping to revive Hussey-Burdick’s bill. But Yamashita never opened his door.

Without a new law to provide legal cover for the Native Hawaiian midwives, Kaho‘ohanohano and her colleagues were left vulnerable to prosecution starting in July 2023.

“We are not against licensure, we have never been against licensure, for those who want to pursue that path,” she said. “But the wisdom of our elders defies settler logic, which sees our teachings and rituals as less than.”

Kaho‘ohanohano wants the state to recognize both her work as a cultural practitioner, and the value of the Native Hawaiian apprenticeship system, an intensive, years-long training process in which a student studies and practices alongside a more seasoned midwife. That’s the only way, she believes she will be able to continue teaching the next generation of midwives, so that Maui’s families “can continue to be cared for, like we deserve”.

Maternal care in crisis

Just one month after the state banned unlicensed midwives in July 2023, the deadliest wildfires in US history razed West Maui and created a healthcare crisis in Kaho‘ohanohano’s beloved āina kūpuna, the Hawaiian term for ancestral lands.

The smoke had barely started to clear when Kaho‘ohanohano rushed to Lāhainā to join a team of EMTs, nurses and other medical workers at a makeshift mutual aid hub at Honokowai beach. The volunteers distributed emergency supplies and waited for what would ultimately be a sluggish and piecemeal disaster relief response by the federal government.

“We, the people who belong to the āina, we take care of each other when institutions don’t, when the state and federal government don’t,” Kaho‘ohanohano said.

In the first week at the Honokowai hub, Kaho‘ohanohano says she watched a pregnant woman beg the volunteer medics to listen to her belly and confirm the sound of a fetal heartbeat. Another woman discovered that she had miscarried while fleeing the burn zone. Women who did not know they were pregnant when the fires first swept through West Maui came to the hub doubled over from vomiting.

Kaho‘ohanohano did what she could for the people who sought her care. She distributed pregnancy tests and menstrual products, and provided emotional support to the families whose loved ones were still missing.

But despite her two decades of experience offering prenatal and postpartum care to Maui’s families, out of fear of prosecution, she did not use herbal medicine to help ease the nausea that was plaguing multiple pregnant women at the hub, or acupuncture to calm the nervous system of panicked parents, many of whom had lost homes in the fires.

Maternal healthcare in Hawaii was in crisis long before the fires. Native Hawaiian and other Pacific Islanders are 4.5 times more likely to experience pregnancy-related deaths than white people, according to recent data from the Centers for Disease Prevention and Control.

Hawaii’s licensure law is in part an effort to address this grim picture, to ensure that midwives are trained in treating complications and identifying when pregnant and birthing women require hospitalization.

In a testimony submitted on behalf of the Hawaii department of health, one senator wrote that state public health officials recognize “that women have the right to choose the location and provider for their births”, but noted that “improved oversight may improve birth outcomes for mother and baby alike”.

But Kaho‘ohanohano fears that the licensure policy, even if well-intentioned, will worsen maternal mortality statistics in the state if it does not protect Native Hawaiian midwifery.

Midwives like Kaho‘ohanohano, who travel to the homes of their patients, serve remote parts of Hawaii that cannot easily access hospital care. Maui’s sole hospital, for example, is a roughly three-hour drive from the rural homes of east Maui. The long and winding highway that connects east Maui to the hospital is often clogged by tourist traffic.

“The drive there is so bad sometimes, we’re lucky if these moms don’t end up giving birth on the side of the road,” Kaho‘ohanohano said.

On smaller islands like Lāna‘i, where there is no hospital labor and delivery services, expecting mothers must fly to O‘ahu for “evacuation births”, an expensive trip that few families can afford. The mothers whose health insurance will cover their airfare often have to travel alone, without family or loved ones to support their births.

It is a profoundly isolating experience that Kaho‘ohanohano said is antithetical to Native Hawaiian customs, in which birth is treated as a sacred moment that can bring families closer to each other and their ancestors. Without the option for home visits from midwives like Kaho‘ohanohano, more families on Lāna‘i are facing the lonely trek to O’ahu. The mothers who cannot afford the steep evacuation fees are often forced to have unassisted home births, according to the Center for Reproductive Rights.

For the women who do manage to travel to a hospital labor and delivery ward, “the care they receive may not be appropriate for their needs”, according to the suit. In 2022, more than 27% of births in Hawaii were via caesarean surgery, despite state public health officials warning that caesarean deliveries are typically linked to longer hospitalization and increased risks of maternal morbidity, compared to vaginal deliveries.

During an apprenticeship, student midwives are trained to assess health and safety risks before, during, and after the pregnancy. One prenatal visit with a Native Hawaiian midwife can take hours, Kaho‘ohanohano said, during which the pregnant woman’s overall health and wellbeing is closely monitored. The midwives are trained to be careful to notice any changes that might require hospitalization, though those more extreme cases are uncommon.

“This law is taking away trusted providers from people who desperately need their expertise and training,” said Hillary Schneller, senior attorney at the Center for Reproductive Rights, who is representing the plaintiffs.

Schneller argues that the right to reproductive autonomy, recognized in past rulings from the Hawaii supreme court, includes the ability to determine the contours of one’s own birth experience.

“Supporting reproductive rights has to include supporting pregnant people’s decisions during pregnancy and childbirth, including where, how and with whom to give birth,” Schneller said.

Schneller said that forcing seasoned Native Hawaiian midwives like Kaho‘ohanohano “to essentially be re-educated, against their wishes” in a western accreditation program is “akin to medical colonialism”.

‘History is repeating itself’

American midwifery is regulated through a tangled web of credentials. There are Certified Professional Midwives (CPM), Certified Midwives (CM), and Certified Nurse Midwives (CNM). Each credential offers slightly different privileges and responsibilities: a CPM, for example, cannot prescribe medication, but a CM and a CNM can.

Hawaii previously licensed CPMs who completed an apprenticeship and passed an exam, but the state’s new law requires midwives to attend a training program credentialed by the Midwifery Education Accreditation Council (MEAC), a national non-profit. There are just eight MEAC-approved programs in the country, all of which are located in the continental US, and are prohibitively expensive for many of Hawaii’s prospective midwives.

“If I had been forced to go attend school full-time, I would not be here,” said Ezinne Dawson, one of the only Black midwives in Hawaii, who joined the lawsuit even though she holds a state midwifery license. “When I started training, my baby was six months and my oldest was 12. Apprenticeship was the only way I could study and learn.”

Midwives credentialed through the apprenticeship route before 2020 are able to continue practicing under the new law – but that doesn’t help Kaho‘ohanohano, who did not go through the CPM training process.

For many Native Hawaiian midwifery students, the inscrutable bureaucracy of professional credentials and state licensure offers little benefit compared to the hands-on, centuries-old training and wisdom available through cultural medicine experts like Kaho‘ohanohano. One of Kaho‘ohanohano’s current apprentices and co-plaintiffs, Makalani Franco-Francis, told the Guardian that “it wouldn’t make sense” to uproot her family, leave Maui and shell out thousands of dollars in tuition at a MEAC program just because state lawmakers deemed one form of education more appropriate.

Franco-Francis had been studying under Kaho‘ohanohano since 2017, after Kaho‘ohanohano helped deliver Franco-Francis’s own babies. Until last year, Franco-Francis joined Kaho‘ohanohano on home visits to patients across Maui county, offering care and support to families at all stages of pregnancy.

Franco-Francis says the western model of midwifery education is antithetical to Native Hawaiian healing customs, which emphasize a close connection between the healer, the patient and their shared ancestral lands. Both Franco-Francis and Kaho‘ohanohano spoke about a guiding ethos in Native Hawaiian healing tradition: E Malama ‘oe I ka ‘Āina, e Malama ka ‘Āina ia ‘oe.

The phrase roughly translates to “take care of the land, and it will take care of you.”

Kaho‘ohanohano is one of the few living midwives with the ‘ike, or extensive knowledge, of Native Hawaiian birthing practices. She fears that, without the legal right to teach and practice Native Hawaiian midwifery, the ‘ike that she inherited from her elders will die with her.

She says the threat to her practice fits squarely into a longer history of Native Hawaiian cultural suppression.

In 1905, 12 years after a group of US sugar magnates overthrew the queen of the Hawaiian Kingdom in a coup d’état that paved the way for the US annexation, US settlers banned Hawaiian healing practices. Today, Native Hawaiians are the only Indigenous group in the nation that does not have self-governance rights.

It wasn’t until the 1970s, during a period of cultural flourishing known as the Hawaiian Renaissance, that the Hawaiian language was allowed to be spoken in schools. During that resurgence, Native Hawaiian healers were again permitted to practice lawfully with some restrictions. Finally, in 1998, the midwifery licensing requirement was repealed. Kaho‘ohanohano started learning about Native Hawaiian midwifery that same year.

“We were able to reclaim these practices that were stolen from us, we were able to heal some of the trauma of being treated as second-class citizens in our own land,” Kaho‘ohanohano said. “Now, with this new law, history is repeating itself. We are again on the brink of losing our people’s knowledge of sacred birthing traditions.”