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A Look at Enacting Breastfeeding Legislation

By Elizabeth N. Baldwin, JD
April 4, 1999

We provide articles from our publications from previous years for reference for our Leaders and members. Legal information changes rapidly over time. Consequently, much of the information in this article is no longer relevant or accurate and this article should not be used as a reference.

Contents

BREASTFEEDING LEGISLATION: AN OVERVIEW

In the United States, breastfeeding legislation has been enacted nearly one-third of the states over the past six years, and many more states have pending bills. This article gives some pointers on enacting legislation.

THE CONSTITUTIONAL RIGHT TO BREASTFEED

In looking at legislation, first look at the language of the case of Dike v. Orange County School Board, 650 F.2d 783 (5th Cir., 1981) . This case sets forth that mothers have a constitutional right to breastfeed. In that case, a teacher wanted to nurse her baby on her duty free lunch break. The school claimed that insurance provisions prohibited teachers from bringing their children onto school property, and also prohibited teachers from leaving the school grounds during the day. The trial court ruled that the mother had no right to breastfeed. In Dike, the appeals court reversed the case and remanded it for a new trial, stating that breastfeeding is a protected constitutional right. "Breastfeeding is the most elemental form of parental care. It is a communion between mother and child that, like marriage, is "intimate to the degree of being sacred," Griswold v. Connecticut, 381 U.S. at 486, 85 S. Ct. at 1682, 14 L. Ed. 2d at 516. Nourishment is necessary to maintain the child's life, and the parent may choose to believe that breastfeeding will enhance the child's psychological as well as physical health. In light of the spectrum of interests that the Supreme Court has held specially protected we conclude that the Constitution protects from excessive state interference a woman's decision respecting breastfeeding her child." 650 F.2d at 787

Constitutional rights are not absolute, and often collide with legitimate, recognized interests. Sometimes the courts must balance individual rights with state interests. In the Dike case, the trial court determined that the state had a legitimate interest in restricting the teacher's comings and goings because of certain school policies . Although the appellate court ruled that mothers have a constitutional right to breastfeed, Mrs. Dike did not have the right to leave school to go home and nurse her baby, or to bring her baby on to school grounds. Keep in mind that this constitutional right may not apply to a mother who is breastfeeding in a private location, such as a store or restaurant. And although there are some other legal theories upon which the right to breastfeed can be based (discrimination laws, equal protection, etc.), breastfeeding legislation is the best way to clarify the right that women have - to feed their babies where they do.

RESTRICTIONS ON THE RIGHT TO BREASTFEED

Can states restrict the right to breastfeed? We think not! Women have a constitutional right to breastfeed, and no one has the right to discriminate or segregate against breastfeeding mothers. However, some states initially considered limiting a mother's right to breastfeed, while considering legislation that would clarify a mother's right to breastfeed in public. For instance, New Jersey's Assembly initially passed an amendment to their bill that would allow mothers to breastfeed in public only if there was no designated area for them to go. This amendment was rejected by the NJ Senate, and caused quite an outcry from the public and press. This is why the City of Philadelphia enacted an Ordinance that not only prohibited discriminating against breastfeeding mothers, but expressly prohibited segregating breastfeeding mothers. (Amending Section 9-1105 of the Fair Practices Code, 1996). They felt strongly that it is segregation to tell a mother that she has to go to a certain place or area to breastfeed. Some other states considered requiring a mother to breastfeed discreetly. However, this legislation restricts the right mothers already have, and would impose an arbitrary and subjective standard on breastfeeding. The purpose of legislation is to clarify the mother's right, in the hopes that it will increase the incidence and duration of breastfeeding. Restrictions would defeat the entire purpose of breastfeeding legislation, and could deter a mother from making this healthy choice!

PROMOTING AND SUPPORTING BREASTFEEDING LEGISLATION

Many people complain that breastfeeding legislation is not necessary, or that it is a shame that it necessary to enact legislation concerning such a basic act of nurture. However, this is looking at the cup half empty rather than half full. Any legislation that deals with breastfeeding is a positive step, and a statement that recognizes the importance of breastfeeding. Breastfeeding legislation accomplishes what it intends to - to increase the incidence and duration of breastfeeding, by helping to change the public opinion about breastfeeding. And we can use breastfeeding legislation to help accomplish more, by knowing what laws exist, why they exist, and by spreading this knowledge. It is very important that our society learns that breastfeeding is not just a lifestyle choice, but a significant health choice for mother and baby. Educating people about this can do much to promote breastfeeding, and to help legislation succeed.

TYPES OF LEGISLATION THAT CAN HELP PROMOTE BREASTFEEDING

Different types of legislation can affect different breastfeeding issues. Certainly the most common is legislation regarding breastfeeding in public. This section will look at various types of breastfeeding legislation, with pointers on how they could be approached.

BREASTFEEDING IN PUBLIC - SAMPLE LANGUAGE FOR A PREAMBLE TO A BILL

The most popular breastfeeding legislation, dealing with the right to breastfeed in public, usually has a preamble to the bill that contains information on why it is important. Florida's bill was the first to do this, and several other states have either used similar language, or updated Florida's information to make it more current. A preamble to a bill could contain the following language. Note that most of the language came from Florida's original bill and was updated, as in Utah's bill.

The legislature finds and declares that:

1. The World Health Organization and UNICEF seek to increase the incidence and duration of breastfeeding globally, as set forth in the Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding, adopted in 1990 by 32 governments and ten United Nations agencies. The Innocenti Declaration states: "As a global goal for optimal maternal and child health and nutrition, all women should be enabled to practice exclusive breastfeeding and all infants should be fed exclusively on breast milk from birth to four to six months of age. Thereafter, children should continue to be breastfed while receiving appropriate and adequate complementary foods for up to two years of age or beyond. This child feeding ideal is to be achieved by creating an appropriate environment of awareness and support so that women can breastfeed in this manner."

2. The World Health Organization and the UNICEF have established as one of their major goals for the decade the encouragement of breastfeeding. Despite their recommendations, statistics reveal a declining percentage of mothers who are choosing to breastfeed their children;

3. Many new mothers are now choosing to use formula rather than to breastfeed even before they leave the hospital, and only a small percentage of all mothers are still breastfeeding when their children are 6 months old;

4. Breastfeeding provides significant health benefits to both the mother and child. Breastfeeding provides maternal protection from breast cancer, osteoporosis, urinary tract infections, and other cancers. A recent study indicates that if all women breastfed all their children for two years, that breast cancer in the United States could decline by 25%.

5. Studies now show that babies who are not breastfed have higher rates of death, meningitis, childhood leukemia and other cancers, diabetes, respiratory illnesses, bacterial and viral infections, diarrhoeal diseases, otitis media, allergies, obesity and developmental delays. Breastfeeding may raise a baby's IQ.

6. The social constraints of modern society weigh against the choice of breastfeeding and lead new mothers with demanding time schedules to opt for formula feeding to avoid embarrassment, social ostracism or criminal prosecution; and

7. Any genuine promotion of family values should encourage public acceptance of this most basic act of nurture between a mother and her child, and no mother should be made to feel incriminated or socially ostracized for breastfeeding her child.

BREASTFEEDING IN PUBLIC - SAMPLE LANGUAGE GIVING A MOTHER A RIGHT TO BREASTFEED

In looking at giving a mother the right to breastfeed, the following could be used. Language in parenthesis is optional.

Breastfeeding is an important and basic act of nurture which must be encouraged in the interests of maternal and child health (and family values). A woman has a right to breastfeed in any location, public or private, where she has the right to be (with her child) (irrespectively of whether the (nipple)(areola) is exposed during or incidental to breastfeeding).

Some suggestions:

1. New York's approach of creating a new law under a civil rights act provides the most protection for mothers, as it gives them a remedy for violating this law. However, this is not always necessary to accomplish the goal of encouraging breastfeeding. Most establishments and people that initially try to tell mothers to leave or stop breastfeeding will retract their position when educated on this important health choice. Also, some states may have more difficulty enacting legislation that is this strong.

2. Note that New York did not include the language "Breastfeeding is an important and basic act of nurture, …" into their law as Florida did, but only placed this language in the bill's preamble. The law itself contained only language concerning the right to breastfeed where a mother has the right to be. It is more beneficial to include this other language as well (as Florida did), as then the encouragement of breastfeeding could apply in legal situations other than breastfeeding in public, such as family law situations.

3. Some states may be concerned that providing a legal remedy would result in a rash of litigation. Although this has not been shown to be the case, an alternative could be to place the law under the health statutes, as Florida did. Note that we are not aware of any litigation that has resulted from breastfeeding legislation, even in New York who provides the strongest remedy.

4. Other states have preferred to just clarify the fact that breastfeeding is not indecent exposure, and thus specifically excluded breastfeeding from their criminal statutes. Some of those states included language in the criminal statutes also specifically giving mothers the right to breastfeed where they may be with their babies.

5. There is no reason to use the words ‘baby' or ‘infant'. As women only breastfeed human children, why say anything at all? Utah's language referred to ‘a mother's breastfeeding', rather than raising the issue of how old the child is. Using the word infant or baby may imply that a mother cannot breastfeed her toddler. Given the current recommendations to breastfeed until age two or beyond, we do not want to create a mistaken impression. Either the word "child or children" should be used, or the term should be eliminated altogether, as was done in Utah.

6. Some states have feared if they included language which expressly sets forth the mother does not have to breastfeed discreetly (such as when the nipple or areola is exposed during or incidental to breastfeeding), that there may be a rash of women exposing themselves at beaches, or other places. Although this fear is completely unfounded as no state has had a problem with exposure after enacting this type of law, there is also no reason why one should feel compelled to include this language. Both Texas and Virginia decided to eliminate this language. Practically this has no effect; the legislation still accomplishes its goal.

7. A sensible alternative to setting forth a right to breastfeed, would be to enact a simple law that states "Breastfeeding is an important and basic act of nurture that must be encouraged in the interests of maternal and child health". This type of law would then require encouragement of breastfeeding is all situations.

8. Some have considered enacting laws that required mothers to breastfeed discreetly. California considered requiring mothers to breastfeed ‘as discreetly as the mother deemed appropriate'; Georgia, breastfeed ‘modestly'. Arguments in favor of this claim that since it is subjective, it will not affect mothers. However, this is not true. Such language would defeat the entire purpose of legislation, to encourage mothers to make this healthy choice. These words of limitation not only take away the right women already have, but would have a chilling effect on mothers if put into law. We would be saying to a mother that she can breastfeed in public but only if she does so modestly. This could cause great distress to mothers not knowing how to satisfy such a subjective standard. It would also open any mother up to allegations that she was not doing it discreetly enough, and thus the establishment would be entitled to remove her. It would be better to have NO legislation, than to enact a law that would take away the right that already exists.

BREASTFEEDING AND EMPLOYMENT

1. Breastfeeding is an important health choice that women make for themselves and their babies. Each mammal's milk is species specific. Human milk is clearly the most complete and ideal food for the growth of healthy human babies. Breastfeeding uses the resources of the mother's body to create perfect and optimal nourishment for the baby, and provides immunological benefits to the child that are only available from human milk. Studies have proven that breastfed babies are healthier than those babies who are not breastfed, and less likely to become ill with gastrointestinal infection, diarrhea, respiratory infections, ear infections and serious diseases, such as pneumonia and meningitis. Breastfed babies are one-half as likely to become sick in the first year of life. Breastfeeding also reduces the mother's risk of breast, ovarian and cervical cancer, osteoporosis, and urinary tract infections. See LLLI's Breastfeeding Fact Sheets which set forth many of the studies documenting the health benefits of breastfeeding.

2. The savings of breastfeeding a baby are just now being researched. Families who breastfeed have fewer health care claims. Based on the unequivocal studies that show breastfeeding reduces the risk of many illnesses, it is logical to conclude that an increase in breastfeeding rates can save lives and have a significant impact on our national health care budget. Breastfeeding should be thought of as a low cost health improver for both mother and baby. Conversely, formula feeding should be thought of as a high cost health degenerator for mothers, babies and society. It is our tax dollars that pay for the consequences of feeding babies a milk designed for baby cows, or a milk designed from a plant.

3. The World Health Organization and UNICEF have now made breastfeeding a priority issue and are strongly encouraging employers globally, including those in the United States, to facilitate the continuation of breastfeeding when women return to work. Throughout the past few years, many large employers have set up lactation support for their employees, including providing education regarding the benefits of breastfeeding, and assistance in handling of breastfeeding problems, as well as difficulties often experienced by breastfeeding mothers in the workplace. In 1993, the World Alliance for Breastfeeding Action (WABA) prepared an Action Folder entitled "Women, Work and Breastfeeding: Everyone Benefits!", in support of World Breastfeeding Week, celebrating the signing of the Innocenti Declaration. (Available from LLLI). This document sets forth reasons why women should breastfeed when they return to work, as well as providing tips for successfully combining work and breastfeeding.

4. Other studies indicate that women who continue to breastfeed once returning to work miss less time from work because of baby-related illnesses, and have shorter absences when they do miss work, compared with women who do not breastfeed. (See "Comparison of Maternal Absenteeism and Infant Illness Rates Among Breast-feeding and Formula-feeding Women in Two Corporations" by Rona Cohen, Marsha B. Mrtek, and Robert G. Mrtek, published in the American Journal of Health Promotion , Nov/Dec 1995, Vol. 10, No. 2.) Also, one study indicates that worksite lactation programs can increase breastfeeding rates among employed women to a level comparable to rates among women not employed outside the home. (See "The Impact of Two Corporate Lactation Programs on the Incidence and Duration of Breast-Feeding by Employed Mothers" by Rona Cohen and Marsha B. Mrtek; American Journal of Health Promotion, July/August 1994, Vol. 8 No. 6.) Both of these studies were done by Medela, Inc. Other studies may be released in the near future; check with the PL Department for information on these.

5. Both Texas and Florida have developed breastfeeding support policies for state employees, recognizing that continuing to breastfeed once returning to work is beneficial not only to the mother and baby, but the employer and society at large. For instance, Florida Statutes, section 383.018 (1994) provides: "The Legislature recognizes a mother's responsibility to her job and to her child when she returns to work and acknowledges that a woman's choice to breastfeed benefits the family, society-at-large, and the employer… The department shall develop written policies supporting breast-feeding practices for the workplace which address issues including work schedule flexibility; scheduling breaks and work patterns to provide time for milk expression; provision of accessible locations allowing privacy; access nearby to a clean, safe water source and sink for washing hands and rinsing out any needed breastpumping equipment; and access to hygienic storage alternatives in the workplace for the mother's breastmilk." Fla.Stat. sec. 383.015. Nearly identical language is included in Texas Health and Safety Code, sections 165.031-033 (1995). Although these actions by the legislature point out the importance of breastfeeding, apparently neither state has actually implemented such policies for their state employees. However, Texas became the first state in the nation to provide an incentive to the private sector to encourage women to continue breastfeeding when they return to work. Texas Health & Safety Code, section 165.003 (1995).

6. Minnesota recently enacted the most progressive legislation so far, in that employers there are required to provide mothers with reasonable unpaid break time to express milk and a room or other location (other than a toilet stall) to express in privacy.

7. California enacted Assembly Concurrent Resolution #155, which encourages the State of California and California employers to strongly support and encourage the practice of breastfeeding by supplying breastfeeding mothers with adequate facilities in which to breastfeed or express milk.

8. U.S. Congresswoman Carolyn Maloney (N.Y.) drafted a federal bill, previously entitled "New Mothers' Breastfeeding Promotion and Protection Act".

This bill, which supports breastfeeding by new mothers and encourages employers to support workplace lactation programs, is being resubmitted as separate bills plans to introduce four federal breastfeeding bills to Congress during the 1999 legislative session. If passed, these bills would provide a tax credit for employers who set up a lactation location, purchase or rent lactation or lactation related equipment, hire a health professional, or otherwise promote a lactation-friendly environment; would clarify the Pregnancy Discrimination Act to ensure that breastfeeding is protected under civil rights law; would require the FDA to develop minimum quality standards for breast pumps; and would ensure a woman's right to breastfeed her child anywhere on federal property that she has a right to be with her child. Note that the section that provided mothers with unpaid break time to breastfeed has not been resubmitted. There was too much controversy about this portion of the bill, and it is feared that this might undermine the other portions that have a better chance of being passed.

9. In order for women to successfully continue breastfeeding when they return to work, it is necessary that they are able to express milk during the day in a clean and private location, and to breastfeed the baby both before going to work, and upon coming home from work on a daily basis. A woman's milk supply is directly related to how much stimulation her breasts receive. If a mother is unable to breastfeed or pump sufficiently, she will gradually lose her milk supply, which can result in the baby weaning prematurely.

10. In the event that a mother is unable to express milk during the day, it is likely that her breasts will become engorged. This can result in milk leaking onto her clothing, and developing plugged ducts, which can lead to mastitis, or a breast infection, requiring the use of antibiotics and bed rest.

ENCOURAGEMENT OF BREASTFEEDING IN THE WIC PROGRAMS

Both Florida and Texas amended sections of the nutrition counseling statutes (which apply to WIC participants) requiring encouragement of breastfeeding. This language is positive, as in some of these programs breastfeeding is not encouraged at all. This is an easy way for the state to save money. A study from Colorado indicated that the national WIC program could save $9.3 million a month in lower food package costs alone if all mothers breastfed their infants. (See "Paying Attention to the Bottom Line: New Evidence for the Cost-Effectiveness of Breastfeeding", Action News, Winter 1997, Action for Corporate Accountability, Washington, DC).

BABY FRIENDLY INCENTIVE/MOTHER FRIENDLY EMPLOYERS

Florida is the only state that enacted legislation so far regarding Baby-Friendly Hospital Initiative. This law would allow hospitals to advertise themselves as Baby-Friendly if they comply with 80% of the requirements to become a Baby-Friendly Hospital. Other states have not copied this language, as it could undermine current efforts in the United States to put the Baby-Friendly Hospital Initiative into effect. If a state did want to include language regarding this, they should contact those sponsoring this initiative to determine what would be helpful. Or, a state could put this language in the negative - prohibiting a hospital from advertising itself as being Baby-Friendly unless they obtain a certificate complying fully with the requirements. Or hospitals could be provided with incentives to become fully Baby-Friendly. Thus, this part of Florida's legislation is not very positive, and probably should not be copied. Texas eliminated baby-friendly language from their bill, and instead substituted "Mother Friendly" for employment. Any private employer that provides breastfeeding support policies can advertise themselves as mother friendly. Other states have considered copying this idea, as it can encourage employers in the private sector to look at this important health choice.

ENCOURAGEMENT OF BREASTFEEDING IN SCHOOLS

One state looked at sponsoring breastfeeding legislation that would require schools (as well as employers) to reasonably accommodate breastfeeding mothers. Although this legislation did not become enacted, it is an idea that other states could follow:

"Breastfed babies are one-half as likely to become ill in the first year of life. In addition, women under the age of 20 can reduce their risk of breast cancer by over 50% by breastfeeding just six months. Because of these significant health benefits, employers and schools shall provide encouragement of breastfeeding, and shall reasonably accommodate the breastfeeding needs of employees and students."

FAMILY LAW CASES - DIVORCE AND PATERNITY - CUSTODY AND VISITATION

As the majority of cases where mothers have breastfeeding legal problems are in the area of family law, it would be very beneficial if there was legislation that would require courts to consider breastfeeding in fashioning custody and parenting time decisions. If possible, courts should try to fashion these decisions in a manner that encourages the breastfeeding relationship, while protecting the other rights and interests involved. Rarely if ever should a Judge have to pick breastfeeding over a bond with the father. There are so many ways to protect and encourage both interests! Legislation should require courts to encourage breastfeeding in making custody and parenting time decisions. If realistic alternatives exist, why should a young baby be separated for lengthy periods of time when it can jeopardize the breastfeeding relationship? To give an example, Judges may order lengthy visitations every other weekend with young breastfed babies that will cause weaning, while the father could have just as much time with the baby, in shorter visits, where weaning would not be necessary. Some Courts have ordered weeks at a time in the summer with breastfed babies as young as three months old when shorter frequent visits are better for both the baby and the relationship the baby has with both parents. For more information on this, see our articles "Breastfeeding and Visitation", and "Is Breastfeeding Really a Visitation Issue". Legislation could either be as simple as stating "Breastfeeding is an important and basic act of nurture that must be encouraged in the interest of maternal and child health, and family values", which could then apply to the family law cases, or more specific by stating "In fashioning parenting time in family law cases, courts must consider and encourage the breastfeeding relationship".

JURY DUTY

Breastfeeding mothers can have a very difficult situation if called for jury duty. If the mother cannot breastfeed her baby regularly, her breasts may become engorged, which could result in embarrassing stains on her shirt if her milk begins to leak, or worse, the mother could end of with a breast infection with fever and chills, resulting in bed rest and medication. If the baby is old enough, the mother may be able to pump her breasts. However, this would involve giving the mother adequate time to pump at regular intervals, a private place to do this, a place to clean and store the breastfeeding equipment, and a place to store her milk. What an ordeal! No wonder that two states have enacted legislation exempting breastfeeding mothers from jury duty. Iowa amended its jury duty statute in 1994 to exclude mothers of breastfed children who are responsible for the daily care of the child and not regularly employed outside the home. Idaho exempted mothers who are breastfeeding their children from jury duty in 1995. However, what about the parent who is not breastfeeding, but is at home with their child? Many bottle fed children are not accustomed to separations from their primary caretaker. An at home mom who is not breastfeeding may be very distressed if called for jury duty. The baby may not be able to handle the separation from the mother, or the mother may not have adequate child care available. Florida's exemption of all parents at home with a child under the age of six protects all parents, and is a preferred approach.

POINTERS ON HOW TO ASSIST A STATE IN ENACTING BREASTFEEDING LEGISLATION

Contact a local legislator, and find out if they might be interested in sponsoring a breastfeeding bill. Give the legislator information on other bills, and ideas for bills. Refer the legislator to others that can give more information. Help to get information out to the community about the bill. Encourage positive, informative letters to legislators, rather than angry, upset letters. Nurse-ins, demonstrations, or other activities that might appear fanatical hinder rather than help with this. However, rallies where reputable speakers and breastfeeding information is distributed can help to educate everyone about the importance of breastfeeding.

CONCLUSION

There is much we can do to help change the way society views breastfeeding. A sweet smile to a mother we observe breastfeeding can give her the message that we think it is wonderful that she has made this healthy choice for her baby. Getting accurate information regarding the importance of breastfeeding, and information on the current recommendations can help educate society that this is a health choice and not just a lifestyle choice. Promoting legislation can be a very effective way to get the message across to the public that breastfeeding must be encouraged, and to help change the way we view breastfeeding.

Elizabeth N. Baldwin was an attorney and family mediator in private practice with her husband, Kenneth A. Friedman, in Miami, Florida. She died in March 2003 after an extended illness. Her family law practice primarily focused on protecting young, securely attached and breastfed babies in divorce cases. Elizabeth was also a La Leche League Leader, and a member of LLLI's Professional Advisory Board, Legal Advisory Council. She published numerous articles on breastfeeding and the law, and often spoke at conferences. She assisted hundreds of parents involved in breastfeeding legal cases, and provided information and help to parents, attorneys and other professionals dealing with these issues.

Copyright 1999, all rights reserved. This article may be copied for personal use but may not be reproduced or sold for profit without permission.

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