‘We are just asking to continue to exist’: Hawaiian midwives sue the state in a high-stakes case

On Monday, June 10, Indigenous Hawai’ian midwives took the witness stand in a humble Honolulu courtroom, testifying for the very first time in opposition of Hawai’i’s Midwifery Restriction Law.

The law, passed in 2019, regulates midwifery care by mandating a specific state license for anyone who provides information, advice or assistance during a pregnancy, birth or the postpartum period. As a result, Indigenous midwives who have long served their rural communities face significant fines and jail time for providing traditional, apprentice-based care that aligns with and protects customary Hawai’ian birth practices.

The law is now being challenged in the First Circuit Court of Hawai’i by the very midwives the regulation has effectively stifled, and with the assistance of litigators from the Center for Reproductive Rights.

Those in favor of the law claim mandating state licenses make pregnancy and birth safer. But Hawai’ian midwife Ki’iniokalini (Ki’i) Kaho’ohanohano, the lead plaintiff in the case, says the opposite is true — the mandate is directly harming those who already have limited access to prenatal, birth and postpartum care.

“It is not creating more safety, and I can see that already,” Ki’i told The Independent, one day after testifying in court. “People that I have served prior that I haven’t been able to attend since 2023 have gone into hospitals and [experienced complications.]” One woman who she had provided care to for three previous children “never had really severe postpartum depression, but did after the fourth baby. Why? Because her choice was removed and she didn’t have access to what she needed.”

Ki’i says women are also being forced to travel far from home — sometimes to a completely different island — in order to receive prenatal and birth care. Others are, sadly, going without, only increasing their risk of complications.

“Their birth stories are changing,” Ki’i adds. “They’re becoming part of those birth disparities [statistics].”

According to the Centers for Disease Control and Prevention (CDC), non-Hispanic Native Hawai’ian and Pacific Islander women have the highest pregnancy-related mortality ratio of any other racial or ethnic group in the United States. They’re also more likely to receive late or simply no prenatal care at all.

In 2022, a reported one in eight infants were born to women in Hawai’i who received late or no prenatal care. Indigenous Hawai’ians have reported grave mistreatment in hospitals, including being racially profiled for drug testing, forced to endure unwanted procedures, and denied pain medication.

“The result is the opposite of what the law tries to do,” Jen Rasay, staff attorney at the Center for Reproductive Rights on the litigation team in Hawai’i arguing the case, told The Independent. “It creates an inability for people to safely become pregnant and carry on their pregnancy, and they are now going without their trusted providers.”

Everything from the island’s geographical makeup to the number of women living in rural areas — an estimated 85,597 women, which amounts to nearly 14% of the state’s population according to the 2020 US Census — can make it challenging for more modern practitioners and medical facilities to provide pregnancy- and birth-related care. That makes it all the more important, Rasay argues, for traditional Hawai’ian midwives to maintain their ability to practice.

“There are reasons why people choose to live in rural areas in Hawai’i — they may have a personal, cultural connection to the land, it may be where they grew up, it may be where they can afford to live,” she explains. “But in these rural areas, there is a lack of maternity care providers that they can turn to when they become pregnant, and they need help or assistance.”

Protecting that cultural connection to Hawai’ian’s ‘āina — or ancestral lands — as well as their traditional, Indigenous birth practices that have been passed down from generation to generation is equally as important for midwives like Ki’i, who say they feel a “kuleana,” or responsibility, to carry on the practices of their ancestors and elders.

Plaintiffs, attorneys and families outside the courthouse in Honolulu (Marie Eriel Hobro)

“There is a level of mastery in the work that we do, and we don’t need exams or licenses or certification to solidify our integrity,” she says. “So much of who we are has been oppressed for so long … It feels really frustrating to have to attempt to explain to these folks that we exist and we are just asking to continue to be able to exist. I don’t understand why we have to sit there and defend who we are, particularly in our own homeland where many of our own practices have been pushed to extinction [by colonization and assimilation]. There is a disconnect from our ‘āina, a disconnect from our language; a disconnect from our native Hawai’ian practices, because we were persecuted and taken from our land, and that continues to occur today.”

In preparation for her testimony, Ki’i says she honored many of those traditions — just like she does when attending a birth — by consuming traditional foods and Hawai’ian teas, as well as spending time in the ocean after meeting with attorneys. “Before court, we opened in ceremony through prayers below the courthouse — we held each other and called in what was needed,” she explained. “We made lei and everyone received lei, particularly ti leaf lei, which is used for cleansing, purification and protection.

“When I took the stand, I took everyone that I stand for with me,” she adds. “It’s not about me, actually — it’s for seven generations forward and seven generations back.”

In a post-Roe world, where over 5.6 million women in the U.S. live in “maternity deserts” without access to prenatal or postnatal care, the implications of the case certainly do reach far beyond Ki’i, her fellow midwives and the Indigenous populations they have — up until this point — proudly served.

“This is about reproductive autonomy,” Rasay says. “It’s about a pregnant person’s ability to make the decisions that are right for them and to define for themselves what a healthy, safe pregnancy and birth looks like.

“When you limit reproductive autonomy, you send a message that once a person becomes pregnant, they suddenly lose the right to make those personal, intimate decisions.”

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