Hawaii’s Midwives Challenge Law Criminalizing Traditional Birthing Practices

People in Hawaii can face criminal charges for helping in childbirth without a license — with outsized impacts on those practicing Indigenous Hawaiian birthing customs and the families they serve.

Last month, a group of midwives, their apprentices, and women seeking midwife care filed a state constitutional challenge to Hawaii’s Midwifery Restriction Law. Enacted in 2019, the statute requires that all midwives providing services in the state comply with costly training and licensing requirements, effectively criminalizing traditional practices of midwifery. The midwives’ multi-pronged challenge includes claims arising under the state constitution’s robust protections for privacy rights, its constitutional equality and due process provisions, and the state’s protection of native Hawaiians’ cultural traditions.

The World Health Organization defines “midwifery” as “skilled, knowledgeable and compassionate care for childbearing women, newborn infants and families across the continuum from prepregnancy, pregnancy, birth, postpartum and the early weeks of life.” Traditionally, midwives learned their skills through apprenticeships with experienced practitioners. This approach to midwifery care was the accepted standard in the United States until the early 20th century, when the medical profession and hospitals began a systematic effort to undermine trust in traditional midwives and to shift childbirth to hospital settings. The territorial government of Hawaii criminalized unlicensed midwifery practice in 1941. 

With the women’s movement in the 1960s and the Native Hawaiian rights movement in the 1970s, however, came renewed interest in traditional midwifery. In 1988, after more than four decades of restrictions, traditional midwifery practice in Hawaii was decriminalized. This change allowed lay midwives such as the plaintiffs — unlicensed practitioners who serve families in home settings — to resume providing culturally sensitive care to indigenous communities and others, and to teach apprentices about traditional Hawaiian approaches to childbirth.

However, in 2019, the law shifted again. The new midwifery statute, in conjunction with a preexisting licensing act, reinstated criminal and civil penalties for unlicensed midwifery. The legislation’s supporters were motivated by the belief that comprehensive licensing would improve birth outcomes and promote greater integration between midwives and hospitals. As enacted, the law included a “birth attendant” exception that permitted the practice of midwifery without a state-issued license until July 1, 2023. But that exemption was not extended, with the result that unlicensed lay midwives now risk criminal prosecution if they assist in childbirth. In fact, the broad definition of midwifery embedded in the law potentially criminalizes the assistance of family and friends as well, since it includes not only “supervising the conduct of labor and childbirth,” but also giving “advice and information regarding the progress of childbirth and care for newborns and infants.”

State regulation of lay midwifery is common across the United States, with the large majority of states requiring some kind of formal licensing and professional certification in order to lawfully provide midwifery services. A number of state courts — for instance, in California and Maryland — have considered challenges to these state restrictions on both state and federal constitutional grounds. By and large, these challenges have been unsuccessful, and courts have found that no fundamental rights are burdened by the requirements. Vagueness challenges to midwifery laws have had more success, but such challenges do not touch core issues of birthing rights and can be readily remedied by refining legislative terms.

Plaintiffs hope that the outcome in Hawaii will be different. And the state’s history and legal protections do provide some basis for distinguishing prior cases and establishing affirmative rights around birthing choices. 

First, courts may find it pertinent that from 1988 to 2023, traditional midwives were allowed to practice in Hawaii. During this time, there were apparently no dire consequences for birthing people or infants (though a state task force on home births acknowledged the need for improved data collection). Moreover, lay midwives have been uniquely positioned to provide traditional care to Native Hawaiians, especially those living in the state’s outer islands who may be uncomfortable in hospital settings or unable to travel to medical facilities. With fewer than thirty licensed midwives statewide and no in-state midwifery licensing or training programs, lay midwives are the only option for childbirth assistance available to some pregnant people in the state. Since Native Hawaiians have disparately high pregnancy-related mortality rates as compared to their white peers, ensuring their access to culturally sensitive care is critical. This state-specific context might encourage a court to take a harder look at the legislature’s decision to criminalize traditional midwifery.

Second, Hawaii’s state constitutional protection for native cultural practices, while not unique among the states, has particular resonance in a state where one fifth of residents are Native Hawaiian. This provision is not merely aspirational: it has been deemed enforceable by the state supreme court. For example, government agencies in Hawaii are required to assess the impact on — and take steps to protect — cultural practices when issuing development permits. And as the high court recently indicated, these constitutional protections should not be narrowly construed.

Third, Hawaii has taken equality rights seriously. For example, as early as 1993, the state supreme court ruled in Baehr v. Lewin that the state’s equal rights amendment barring discrimination on the basis of sex required recognition of same-sex marriage, making it the first state to announce a state constitutional right to marriage equality. Hawaii was also the first state to adopt a legal right to abortion, three years before the U.S. Supreme Court’s 1973 decision in Roe v. Wade. Privacy rights are explicitly enshrined in the state constitution.

Fourth, state courts in Hawaii have been willing to carve their own path in recognition of Hawaii’s unique history. One recent example is the state supreme court’s opinion in State v. Wilson, which explicitly rejected the U.S. Supreme Court’s approach to analyzing the scope of the Second Amendment. According to the Hawaii court, upholding a broad right to individual gun possession would violate the state’s “Aloha Spirit.” 

While midwifery care is often marginalized in the United States, it is recognized internationally as an important component of a well-rounded health care system. Both the United Nations Committee on the Elimination of Racial Discrimination and the Human Rights Committee have urged the United States to remove restrictions on midwifery, particularly as they affect low-income communities, people of African descent, and Indigenous peoples. 

Reproductive health care is moving underground in parts of the United States after the U.S. Supreme Court announced in Dobbs v. Jackson Women’s Health Organization that there is no federal constitutional right to an abortion, and doctors in pro-choice states are trying to handle the influx of clients crossing borders to seek care. Against this backdrop, access to midwifery will only become more important. The challenge pending in Hawaii provides a timely occasion for judicial review of the current medically oriented approach to midwifery regulation.

Martha F. Davis is a distinguished professor at the Northeastern University School of Law.

Suggested Citation: Martha F. Davis, Hawai’i Midwives Challenge Law Criminalizing Traditional Birthing Practices, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 12, 2024), https://statecourtreport.org/our-work/analysis-opinion/hawaiis-midwives-challenge-law-criminalizing-traditional-birthing.