Sally Kaye: How Secure Are Hawaii's Abortion Laws? - Honolulu Civil Beat


About the Author

Sally Kaye

Sally Kaye is a resident of Lanai, an editor and former prosecutor. Opinions are the author’s own and don’t necessarily reflect the views of Civil Beat.


Opinion article badgeIn the fall of 1947, my mother, then 19 years old, discovered she was pregnant.

She told her parents, and family lore has it that my outraged grandfather indignantly confronted my father, insisting that he do the right thing. My father denied responsibility and his family backed him up; they were not about to let their lace curtain Irish son marry into what they considered a shanty-Irish family. Lawyers got involved.

Shortly thereafter, my great grandfather was diagnosed with cancer and moved into my mother’s house so the family could care for him; several months later my mother’s younger brother, then 13, died suddenly of meningitis. This was not a good time for my mother to be pregnant, and certainly not a good time to be unmarried and pregnant. But they were Catholic, and she had no choice.

My mother was deposited in an unwed mother’s home and I was born shortly thereafter. After I was duly baptized – my grandparents standing in as godparents – they all walked away. I spent several months in the home before being adopted, and never saw any of them again.

I was extremely lucky, no question. But I learned very early that my people weren’t really my people, much as I loved my adoptive family and they me. Still, it would be almost 60 years before I learned my birth name, the details I’ve shared above, and the fact that I have two brothers and a sister who don’t know I exist.

In fact, in 2005 when I found my birth mother, she made it clear (in writing) that she considered me “an invasion of her privacy” and threatened to sue me if I ever attempted to contact her again.  I haven’t.

Hawaii’s Statutory Protections

Denby Fawcett wrote an excellent piece last year noting that we were the first state to decriminalize abortion in 1970, but that even with “supportive legislatures” like Hawaii’s, vigilance was required.

The overturning of Roe v. Wade on June 24 brought an end to what my generation considered settled law, and worse, a fundamental right. This got me thinking about the pain forced pregnancies and adoptions can cause — and wondering just how secure is the right to end an unwanted pregnancy under Hawaii state law?

I think our state law could use some tweaking.

Hawaii Revised Statutes §453-16 essentially says it is illegal to perform any abortion in Hawaii – unless it is performed by a licensed physician or surgeon in a licensed hospital or facility. Abortion is defined as “an operation to intentionally terminate the pregnancy of a nonviable fetus.” The legislation was passed in 1970 and did not define “operation” or “nonviable.”

Then, in 2021 the Legislature adopted and Gov. Ige signed into law a revision to a different section of Hawaii’s statutes, §457-8.7, that allows advanced practice registered nurses to also perform abortions by “medication or aspiration” in the “first trimester of pregnancy.”

Demonstrators head up Kalakaua Avenue in a rally and march to defend the right to abortion.
Demonstrators head up Kalakaua Avenue in a rally and march to defend the right to abortion. Cory Lum/Civil Beat/2022

Clearly both statutes agree that only licensed physicians and advanced practice registered nurses can perform abortions. But which statute takes precedence, the first or the most recently enacted? Which definitions control and for whom? Can physicians perform medicinal abortions or only advanced practice registered nurses? Are physicians now also limited to performing operations during the first trimester or does it extend to non-viable fetuses, regardless of fetal age?

Although both statutory provisions go on to say the “State shall not deny or interfere with a female’s right to choose or obtain an abortion of a nonviable fetus,” we’ve seen how Texas got around “state” action by giving individuals the right to sue anyone aiding a person seeking the procedure.

Lest you think it’s inconceivable that any of these Hawaii statutes could be challenged, I suspect those who oppose choice are already poring over them, because the Supreme Court just unequivocally found the “authority to regulate abortion is returned to the people and their elected representatives.”

Does the State Constitution Protect a Woman’s Right to Choose?

One of the commenters on Denby’s piece observed that the “right to an abortion is protected under Section 6, Article I of the Hawaii Constitution (right to privacy.)” The 1978 Hawaii Constitutional Convention said this right included a woman’s right to an abortion under Roe v. Wade, the commenter wrote.

There are two problems with this observation: First, Roe is now gone, and second, what the conventioneers meant in 1978 doesn’t really matter if it’s not codified in law.

Even more important, the right to privacy recognized by Article I, Sec. 6 isn’t absolute; as currently written, it can be infringed upon the showing of “a compelling state interest.”

What exactly is a compelling state interest under our constitution? Well, it’s what the state says it is and just might include “the state’s interest in fetal life”— at any stage. (The Supreme Court’s decision in Dobbs went even further, holding that such state interest no longer has to be compelling: “It follows that the States may regulate abortion for legitimate reasons”).

But might we go back to a time when forcing a woman to carry an unwanted pregnancy results in such shame that she considers her child an invasion of her privacy? I surely hope not.

Civil Beat correctly pointed out that the right to an abortion in Hawaii wouldn’t change with the Dobbs decision; there are no trigger laws here waiting to extinguish a woman’s right to the procedure.  But what if viability is defined to mean “at conception,” as is happening in other states? (According to Dobbs, a viable fetus is one that can survive outside the womb “but why is this the point at which the State’s interest becomes compelling?”)

It would behoove our Legislature to clean up the inconsistent language in our statutes, and better yet, consider a constitutional amendment such as California’s, which includes the right not only to abortion but to contraceptives as well. Article I, Sec. 6 invites the Legislature to “take affirmative steps to implement” the right to privacy and I hope they do.

My mother did not have a choice when she was faced with an unwanted pregnancy, one that my father refused to acknowledge, and here I am, that ship has sailed. But might we go back to a time when forcing a woman to carry an unwanted pregnancy results in such shame that she considers her child an invasion of her privacy?

I surely hope not.


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About the Author

Sally Kaye

Sally Kaye is a resident of Lanai, an editor and former prosecutor. Opinions are the author’s own and don’t necessarily reflect the views of Civil Beat.


Latest Comments (0)

Here is a problem with your statement. "The overturning of Roe v. Wade on June 24 brought an end to what my generation considered settled law, and worse, a fundamental right. This got me thinking about the pain forced pregnancies and adoptions can cause — and wondering just how secure is the right to end an unwanted pregnancy under Hawaii state law"? It was not settled law. It was ill decided as there is no right in the constitution to an abortion. Hence it was needed to stay at the state level where it belongs. It was a political decision and not a legal one. You also stated "because the Supreme Court just unequivocally found the "authority to regulate abortion is returned to the people and their elected representatives." ". They in fact did find that it belonged in the state level and federal law had no right for Roe in the first place.You are however correct that our legislature needs to relook this entirely. Science now knows that the unborn child can live outside the whom at 20-24 weeks. I will continue to say. The only people that support abortion has already been born.

Stopthemadness · 1 month ago

We need to consider the ethnicity, cultures and religions of our state population.Koreans count the days in the womb as part of a child’s age.Hawaiians would hanai children.Other Asians and Pacific Islanders celebrate children from the time of conception and throughout a child’s life. We should not bring mainland ideology to Hawaii regarding our keiki.

Faith · 1 month ago

I would first like to state that I am pro-choice and fully support a woman's right to choose. That being said, in my eyes, the overturning of Roe vs. Wade is a good thing for abortion rights. The right to an abortion is no longer dictated by one governing body subject to the political whims of a few. It is now up to each state and its citizens to decide how they want to treat abortion. It is extremely unlikely that we will ever have every state ban abortion. Heavy liberal states such as California and Hawaii will never outlaw it. Yes, we will have states like Texas that will make it hard or ban abortion but that doesn't stop someone from going to a neighboring state to get one. And thankfully, unlike what Perseus says in his comment, a person can not be punished for breaking a state law in another state where their actions are not illegal.We need to stop the sky is falling approach that the overturning of Roe vs. Wade is going to ban abortion nationwide. The truth and not exaggerations are the best way to have people listen to us and try and bring them to see things as we do.

nks · 1 month ago

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