Regulations gone wrong

by Keli'i Akina, Ph.D. President/CEO Grassroot Institute of Hawaii, July 27, 2024

I’ve been saying for a long time that Hawaii lawmakers should be careful to take a light-handed approach with occupational licensing — because as we’ve seen time and again, government regulations can have unintended consequences.

Back in December 2022, I wrote about the negative effect that licensing requirements can have on niche beauty services that aren’t even taught in cosmetology schools, such as natural hair braiding.

Natural hair braiding, I noted, is “often passed down as part of a cultural tradition and is given little attention in traditional cosmetology schools.”

This is similar to what is happening regarding Native Hawaiian healing practices utilized in childbirth, which have become the focus of a lawsuit making its way through state court.

Now, I know that braiding hair is not healthcare, but bear with me.

In 2019, the state Legislature passed a law stating that anyone who provides “assessment, monitoring, and care” during pregnancy, birth or post-partum is required to pass a program accredited by the Midwifery Education Accreditation Council or the North American Registry of Midwives — neither of which are reported to specialize in Native Hawaiian cultural practices or even offer classes in the state.

However, the law did include an exception that allowed mothers-to-be to sign a special form allowing them to make use of an unlicensed birth attendant, but the exemption was only temporary and expired in 2023.

The Legislature had four years to pass a more permanent exception for birth attendants but failed to do so. Meanwhile, the rest of the law remains in place, effectively making it a crime for anyone without a midwifery license to assist mothers during childbirth.

This unfortunate scenario prompted six midwives and three mothers to file a lawsuit arguing that this law, without the exemption, makes it impossible for Native Hawaiian cultural practitioners to provide maternal care.

The plaintiffs were dealt a win in the case this week when Hawaii First Circuit Court Judge Shirley Kawamura issued a preliminary injunction — based on the state’s duty to preserve Native Hawaiian customs — that prohibits the state from “enforcing, threatening to enforce or applying any penalties to those who practice, teach, and learn traditional Native Hawaiian healing practices of prenatal, maternal and child care.”

Judge Kawamura’s ruling doesn’t apply to any other non-licensed birth attendants, and the ultimate outcome of the case remains to be seen, but in any case, this lawsuit highlights how easily a well-meaning regulation can restrict important freedoms.

Broad regulations, even well-meaning ones, can have negative consequences, and lawmakers who consider expanding regulations should consider the possible repercussions. Who might be out of a job? What cultural traditions could be restricted? Which freedoms will be curtailed?

I hope our state legislators will right this wrong by passing permanent legislation aimed at exempting non-licensed birth attendants from the state’s midwifery licensure law — and take care in the future to pass regulations that respect freedom, choice and tradition.

E hana kākou! (Let's work together!)