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Georgia lactation consultant licensing law struck down by state high court

The Peach State’s top court ruled the law is too restrictive as to who can professionally support mothers in breastfeeding their newborns.

ATLANTA (CN) — The Georgia Supreme Court on Wednesday unanimously ruled that a law regulating the licensing of lactation care providers is unconstitutional and violates the right of providers to pursue their occupation without unfair government interference, ending a yearslong legal dispute over the statute.

In a 39-page decision, the state's top court struck down the Georgia Lactation Consultant Practice Act and ruled that the state lacks a sufficient interest in restricting the profession of lactation care only to those who are certified by the International Board of Lactation Consultant Examiners.

The law “imposes significant burdens" on those who make their living by providing lactation care and services, according to the ruling written by Georgia Supreme Court Chief Justice Michael Boggs.

The 2016 law required lactation care providers to get a license from the Office of the Georgia Secretary of State. Only those who obtained a privately issued certification as an International Board Certified Lactation Consultant (IBCLC) could get a state license.

The decision is a victory for certified lactation counselor Mary Jackson who, along with the nonprofit Reaching Our Sisters Everywhere (ROSE) and the Institute for Justice, sued Georgia Secretary of State Brad Raffensperger in 2018 to challenge the law.

The lawsuit, filed in Fulton County Superior Court, alleged that the law was “irrational” and violated consultants’ due process and equal protection rights under the Georgia Constitution by interfering with their ability to work in their chosen profession. The state agreed not to enforce the law until the litigation concluded.

Balking at arguments from the state that the legislation was necessary to ensure the highest level of care for breastfeeding mothers and their newborns, the plaintiffs argued that the law lacked any real connection to the health, safety and welfare of the public.

Attorneys for Jackson and ROSE told the court at a December hearing in the case that there is no evidence that non-IBCLC providers of lactation care have ever harmed anyone.

According to the ruling, Raffensperger admitted that he is not aware of any evidence of harm from a person providing lactation care either before or after the passage of the law. The state had previously argued that a non-IBCLC lactation care provider might give bad advice which could lead to negative health impacts from inadequate breastfeeding or ending breastfeeding too early.

“Such speculation, in the face of substantial evidence that the provision of lactation care and services by non-IBCLC providers is safe for and beneficial to nursing mothers and babies, is insufficient to authorize the regulatory scheme adopted, which greatly restricts those able to be employed as lactation care providers,” the ruling states.

A spokesperson for Raffensperger did not respond to a request for comment Wednesday afternoon. However, the secretary's office released a statement applauding the decision to strike the "unnecessary" licensing requirements and claiming that Raffensperger was duty-bound to defend the law despite his own personal opposition to it.

"As a legislator I opposed the law that required lactation consultants be licensed and voted against it. But it passed the legislature and was signed into Georgia law. Upon assuming my duties as Secretary of State, I became the named defendant and was constitutionally obligated to defend it in court,” Raffensperger said.

"Disputes such as these should not result in multi-year lawsuits costing time and taxpayer dollars to arrive at a commonsense solution,” he added.

Lactation care providers work primarily to support mothers in breastfeeding their newborns by offering counseling and assessments on breastfeeding challenges, creating lactation care plans and helping mothers use breast pumps and other tools.

To become certified by the International Board of Lactation Consultant Examiners, prospective lactation consultants must complete the equivalent of about two years of college courses, log more than 300 hours of supervised clinical work and take an exam that costs as much as $700. By contrast, certified lactation counselors like Jackson are required to complete only a 52-hour course, demonstrate competency in breastfeeding assessments and other areas and pass an exam which costs about $120.

According to the ruling, there are only 162 IBCLCs who have obtained licenses under the Act out of the approximately 470 IBCLCs in Georgia. There are about 735 CLCs in Georgia.

A report by the Georgia Occupational Regulation Review Council found that blocking CLCs from working would actually result in a greater risk of harm to the public because the majority of consultants would no longer be able to provide care, Boggs wrote.

Georgia is the only state to have enacted a law prohibiting a CLC from providing lactation care services for compensation.

“All we want is to continue doing our jobs,” Jackson said in a statement issued by the Institute for Justice on Wednesday. “It’s been a long journey, but we were always confident we were doing the right thing. This fight wasn’t just for me or ROSE, it’s been for all the lactation care providers and for all the mamas and babies in the state.”

This is the second time the case has landed before the appellate court. A trial court initially granted Raffensperger’s motion to dismiss the lawsuit, but the Georgia Supreme Court overturned that decision in 2020.

The case went back to the trial court, where a judge found in favor of Raffensperger on the plaintiffs’ due process claim but in favor of the plaintiffs on their equal protection claim. Wednesday’s ruling threw out the lower court’s decision.

The ruling also clarifies Georgia’s standard of review with regard to similar regulatory cases and sets a standard requiring the state to show why laws that burden occupations are necessary moving forward.

“Georgia’s due process clause requires more than a talismanic recitation of an important public interest,” the ruling states.

Challengers to regulatory laws must show “that an occupation is otherwise lawful and that a regulation unreasonably burdens the ability to pursue it,” the ruling explains, adding that these two showings are “the indispensable elements of a claim that a given law violates the right to pursue a lawful occupation free from unreasonable government interference.”

Institute for Justice senior attorney Renée Flaherty, who represents Jackson and ROSE, said Wednesday’s decision "sets a precedent that the Georgia Constitution demands the government justify restrictions on economic liberty.”

Follow @KaylaGoggin_CNS
Categories / Appeals, Employment, Health, Law, Regional

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