Current lawsuit regarding HRS 457J
Current lawsuit regarding HRS 457J:
On January 17, 2024 the Attorney General’s office responded to an email inquiry from a legislator regarding HRS 457J. The Attorney General’s email response included that anyone providing midwifery services, as defined by HRS 457J, is required to be licensed. This means that any birth professional who is not otherwise licensed and practicing within their scope (such as an RN, RD, LMT, APRN, ND, etc) could be considered to be practicing midwifery without a license if they provide “advice and information regarding the progress of childbirth and care for newborns and infants.” MAH’s understanding is this was not the legislators intent when they regulated the profession of midwifery. MAH’s understanding is that only midwives and midwifery should be regulated through HRS 457J, as we describe in a Community Voice article in Civil Beat.
After the Attorney General’s email correspondence, on February 24, 2024, plaintiffs filed a lawsuit against the Attorney General and the Director of the Department of Commerce and Consumer Affairs in Hawaii. The plaintiffs allegations include that HRS 457J violates “the right to pursue one's chosen profession free from unreasonable government interference” for those “who do not meet the requirements” to practice midwifery as defined by HRS 457J; their “rights to free speech and expression, including by restricting who can call themselves a ‘midwife’”; and “fails to reasonably protect the rights of Native Hawaiian practitioners…to engage in Native Hawaiian traditional and customary pale keiki practices as guaranteed” under the Constitution of the State of Hawaii.
A preliminary trial was held from June 10 - June 14, 2024 to determine if HRS 457J would be enjoined (prohibited from being enforced) until this case could be heard and a final determination made. The judge’s decision regarding the preliminary trial is currently in process.
Update on 7/25/24: Judge decides to uphold licensure for midwives & protect Native Hawaiian cultural practices
The Honorable Judge Shirley Kawamura issued her decision regarding the request for a preliminary injunction in the lawsuit against the Attorney General of Hawaii and the Director of the Department of Commerce and Consumer Affairs (DCCA). This means this is the judge's current decision based on a brief trial that occurred in June 2024. A full trial will be scheduled for the future. We appreciate and value the judge's decision. We support requiring licensure for midwives, and we support ensuring that Native Hawaiian cultural practices are protected, including birth practices historically performed by Native Hawaiian healers. This was always our understanding to be what the law intended.
Our summary of the decision is Judge Kawamura determined that the midwife licensure law, HRS 457-J, will remain intact as it is, and that anyone practicing Native Hawaiian cultural birth practices continues to be considered exempt, but is not required to be recognized by a kupuna council convened by Papa Ola Lokahi in order to be exempt at this time. The judge determined the State cannot enforce HRS 457-J against any “individuals who practice, teach, and learn pale keiki, hoʻohānau, and hānau, i.e., “traditional [Native Hawaiian] healing practices of prenatal, maternal, and child care,” see Haw. Rev. Stat. § 457J-6(b), but who currently have no practical and meaningful pathway to obtain recognition under the HRS § 457J-6(b) exemption. Such injunction is granted until a kūpuna council that can recognize pale keiki, hoʻohānau, and hānau practices and/or practitioners exists or an otherwise tenable recognition pathway under HRS § 457J-6(b) is formulated. The Court denies all other requests for relief."
If you wish to read the full decision, you can read it here.