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Georgia lactation consultant licensing law scrutinized by state high court  

A decision on the constitutionality of the 2016 law could impact hundreds of Georgia lactation counselors and breastfeeding mothers.

ATLANTA (CN) — The Georgia Supreme Court heard arguments Tuesday in a case that will decide whether it is constitutional for the Peach State to keep a 2016 law on the books regulating the profession of lactation care.

Earlier this year, an Atlanta superior court judge struck down the Georgia Lactation Consultant Practice Act as unconstitutional for violating equal protection guarantees and blocked the state from enforcing it.

The decision came after certified lactation counselor Mary Jackson challenged the law, which requires that anyone practicing lactation consulting become certified by the International Board of Lactation Consultant Examiners.

Jackson, who does not hold such a credential, sued the Georgia Secretary of State’s Office in 2018. She claimed the provision is an obstacle that deprives her and other lactation counselors of the ability to work in their chosen profession.

To become certified by the IBLCE, prospective lactation consultants must complete the equivalent of about two years of college courses and log more than 300 hours of supervised clinical work. Certified lactation counselors like Jackson are required to have only 45 hours of training.

Joined by nonprofit Reaching Our Sisters Everywhere and the Institute for Justice, Jackson claimed in the lawsuit that the Lactation Consultant Practice Act prevents them from continuing to provide lactation care and services in violation of their constitutional due process and equal protection rights.

Although the state has argued that the law is necessary to ensure the highest quality care for mothers and their newborns, the plaintiffs have claimed that it does more to limit access to lactation care and services, particularly for minorities and those living in rural areas.

Fulton County Superior Court Judge Eric Dunaway sided with Jackson in March, ruling that certified lactation counselors and lactation consultants certified by the board “are doing the same work and are equally competent to provide lactation care and services to mothers and babies.”

However, Dunaway also ruled that the law is reasonable, does not block all individuals from continuing their work and is “rationally related to the protection of Georgia’s mothers and babies.” The law does not prevent providers from giving encouragement, support or breastfeeding counseling, the judge ruled.

An attorney for Jackson on Tuesday urged the Georgia Supreme Court to uphold the lower court’s findings with respect to the equal protection claim but to overturn the decision as to the due process claim.

“The state has conceded they are not aware of any instance of any harm by any lactation provider to any mother or baby in Georgia,” said Renée Flaherty, a senior attorney with the Institute for Justice. “They’ve conceded all types of lactation providers are of importance and have an important role to play. And they’ve conceded that Georgia needs more [lactation counselors.]”

Georgia has more than 700 CLCs and 506 IBCLCs, according to data from the board. Only 162 of them are licensed lactation consultants, a brief filed in the case by the plaintiffs states.

If the law is allowed to go into effect, Flaherty warned, lactation counselors "couldn’t do anything directly creating a plan of care for mother and baby.”

As part of their jobs, lactation counselors typically counsel new mothers about breastfeeding, create and implement lactation care plans, evaluate breastfeeding outcomes, teach breastfeeding topics to doctors and nurses, and help mothers use tools like breast pumps.

Asked by the justices whether counselors under the Lactation Consultant Practice Act would be able to give opinions about whether mothers are having a successful breastfeeding experience. Flaherty said no, adding that “all they could do is provide emotional support and cheerlead.”

An attorney for the state argued that the law should be allowed to stand, telling the court that the legislature had a rational basis for believing that the practice of clinical lactation consulting should be limited to the group that has “actual clinical training.”

“Plaintiffs are asking this court to sit as a super-legislature imposing libertarian policy preferences,” Deputy Solicitor General Ross Bergethon said. “This court has always made clear that policy decisions are for the legislature and that if the legislature makes a mistake and passes a law that turns out to be unwise, we leave it to the democratic process and not the courts to fix it.”

Telling the court that the state’s “entire case is imaginary,” Flaherty argued that there must be “a connection between a law and its purpose in the real world.”

“The state has the burden to identify an interest and they need to identify real world interests, not just hypothetical interests,” Flaherty said. “This law was not based on true concern that Georgia mothers and babies were being harmed.”

Bergethon disagreed, telling the court, “The Legislature doesn’t have to wait until something happens to act. They don’t need a list of evidence that babies have died.”

Asked by the justices what the negative impacts of low-quality care might be, Bergethon said new mothers might stop breastfeeding early or their baby might not get enough milk due to bad lactation advice, leading to dehydration, failure to thrive or even brain damage.

Under pressure by Justice Sarah Warren to enumerate the evidence in the record showing that this type of harm has occurred in Georgia, Berger said the Legislature is not obligated to show that those injuries have actually happened.

It is unclear when the Georgia Supreme Court will issue a ruling in the case but decisions are typically issued within six months of a hearing.

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