Breastfeeding Legislation in the United States
By Elizabeth N. Baldwin, JD and Kenneth A. Friedman, JD
North Miami Beach, Florida, USA
From: NEW BEGINNINGS, Vol. 11 No. 6, November-December 1994, pp. 164-7
[Note: information in this article was current as of 1994.]
One day in 1977, New York mother Barbara Damon was banished from a public swimming pool when she refused to nurse her two-and-one-half-month-old infant in the ladies' room. As a result, her family's pool pass was revoked, and the village enacted an ordinance forbidding public breastfeeding at the pool! The legal battle that ensued took three years to settle, but eventually the ordinance was repealed, Barbara was paid damages, and a structure was erected where all mothers could feed their babies.
While this litigation was pending, New York legislators were considering amending the state's indecent exposure statute to exclude the breastfeeding of an infant. It is rumored that the legislation was put on hold because it would have been a slap in the face to the municipality involved in the lawsuit. New York's amendment to the indecent exposure law was enacted in 1984, but largely in a vacuum, since it was not widely publicized. One reason why so few people may have known about it was that New York amended its administrative codes affecting hospital policies and actions regarding breastfeeding at the same time, and this generated more interest.
Several years later, a Missouri mother named Marlene Pennekamp was nursing her eight-month-old baby in her car. A police officer, searching the parking lot for a shoplifting suspect, spied this mother engaging in what he perceived to be criminal behavior--breastfeeding in public. He advised her to find somewhere else to feed her child, because actions could lead to a citation for indecent exposure. Once this stunned mother calmed herself down, her indignation grew. She could not believe that anyone would perceive a nursing mother as indecent, and the St. Louis County Council agreed with her. After some local publicity led to indignant letters pouring into the offices of the County Council Members and the County Police Department, the Council passed an amendment to the county's indecent exposure ordinance. It stated that this law did not apply to breastfeeding an infant.
Over the next several years mothers continued to be harassed for breastfeeding. Although some local ordinances may have been amended, New York was the only state to address the issue. That changed in 1992 when a mother in a Florida mall was told that she could be cited for breastfeeding her four-month-old baby. But what did that mean? Could her mall privileges be revoked? Or would they want her to take her purchases back? Luckily, this mother was not new to breastfeeding, was not intimidated by this incident, and was a writer. She wrote a well-researched, funny, informative, and accurate article on breastfeeding in public which appeared in Tropic, a magazine published by the Miami Herald. State Representative Miguel DeGrandy read the article, and since he had been breastfed himself, could not understand why anyone would discourage a mother from this important act of nurture. After reviewing LLLI's Legal Rights Packet, the St. Louis Ordinance, and the language of the Dike case in which a Florida teacher sued her employer over the right to breastfeed her child, Rep. DeGrandy proposed a new Florida law in 1993 that was much more expansive than any previous measures. The bill amended any criminal statutes that could apply hypothetically to breastfeeding, and specifically excluded the breastfeeding of a baby, even if not done discreetly. But more importantly, it created a new section of the public health laws which states:
The breastfeeding of a baby is an important and basic act of nurture which must be encouraged in the interests of maternal and child health and family values.
The law goes on to state that:
A mother may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother's breast uncovered during or incidental to the breastfeeding.
The response to Florida's legislation was not only positive, but inspiring. Other states quickly followed suit by enacting new legislation protecting the right to breastfeed in public. In the midst of this pending legislation, more and more mothers began to speak out when harassed for nursing in public. One incident helped pass New York's new legislation. A breastfeeding mother shopping at a mall asked if there was some place to go and nurse, as her baby could not wait for her to get home. When she was told that there was no place but the ladies' room, she sat down in the food court and discreetly breastfed her baby. The security guard asked her to go to the ladies' room, justifying his actions by telling her that he had asked another mother a few days earlier to leave, and she had complied. This incident caught the attention of many nursing mothers in New York, and they staged a "nurse-in" at the mall attended by over fifty nursing mothers, health professionals, and other advocates of breastfeeding. As a result, the mall changed its policy to make it perfectly clear that mothers may nurse there.
Around the same time, a new mother in Ohio was ushered out of a museum after discreetly nursing her baby in an exhibit. Apparently mothers have nursed in that museum all along, but this mother inadvertently called attention to herself by turning the chair around and throwing a shawl over her shoulder. This museum also changed its policy and now expressly allows the nursing of children in exhibits. But another museum in Texas was more reluctant to change.
Apparently, personnel at this museum did not think it was necessary to breastfeed in public and after asking a mother to nurse somewhere else, concocted a variety of reasons to support their request. A Texas "nurse-in" ensued, again drawing the attention of the nation to this important issue.
As a result of the increased national publicity, North Carolina amended its indecent exposure law to exclude breastfeeding and used language similar to Florida's which stated that a mother has a right to breastfeed in any public or private location where she is otherwise authorized to be, even if not done discreetly. Virginia amended its indecent exposure statute to say that it is not a violation of the law to breastfeed a child in any public place or any place where others are present. Michigan also amended its criminal laws to exclude breastfeeding. Finally, New York enacted legislation that went further than any other state to date by creating a civil rights law guaranteeing a mother's right to breastfeed in any location. Thus, a violation of this law is a violation of a mother's civil rights. This makes New York the first state to offer legal recourse to a mother if her right to breastfeed is violated.
The Necessity for Breastfeeding Legislation
These incidents and others (a mother in California was thrown out of a restaurant, another asked to leave a large department store) have helped many to recognize that breastfeeding legislation is necessary. Legislation is being enacted not because it is currently illegal to breastfeed in public, but because, despite the growing awareness of the advantages, there are still stumbling blocks that affect a mother's decision to breastfeed or to continue to do so. We know of no law that prohibits breastfeeding, or tells a mother how long she can nurse.
As noted, much of the new legislation amends criminal statutes in order to ensure that breastfeeding mothers are protected from charges of indecent exposure, lewd behavior, or violation of any criminal laws. Again, this was done not because it is a crime to breastfeed in any state, but because many of these statutes are vague and could apply hypothetically to the breastfeeding situation. More importantly, this legislation also was enacted to change the public's perception of breastfeeding, since many people in our society view breastfeeding in public as obscene or indecent.
These recent changes in the law support the growing body of evidence that demonstrates that breastfeeding is not only a lifestyle choice, but a health choice for mother and baby. As James P. Grant, the Executive Director of UNICEF, stated:
Study after study now shows, for example, 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. Women who do not breastfeed demonstrate a higher risk for breast and ovarian cancers.
These benefits are also recognized by US federal law in the Women, Infants and Children (WIC) program, which provides food supplements to low income families. It is now mandated that breastfeeding be promoted as the best method of infant nutrition and provides funding for state-delivered breastfeeding aid, education, and promotion programs.
Encouraging and protecting breastfeeding benefits not only the individuals involved, but society in general. The US federal government, and many states have supported breastfeeding programs partly because hundreds of millions of tax dollars continue to be used to purchase artificial baby milk. With health care reform currently on the national agenda in the United States, legislators are beginning to realize that there are economic and medical benefits to society if breastfeeding is promoted. According to one study, if women breastfed their children until two years of age, the incidence of breast cancer could decrease by twenty-five percent. Considering the cost of caring for the victims of that disease and other serious illnesses against which breastfeeding offers protection to mother and baby, the lost productivity, and the emotional trauma for families, there are certainly no good reasons not to promote breastfeeding.
Both Florida and New York stated the reasons for encouraging breastfeeding in their bills. These included the US Surgeon General's recommendation that babies be breastfed at least one year, the health and psychological benefits to mother and baby, and the goals of the World Health Organization. They concluded that "hostility to mothers and babies in our culture based on archaic and outdated moral taboos" can seriously deter a mother from breastfeeding. They hoped that enacting this legislation would help put an end to the vicious cycle of embarrassment and ignorance about breastfeeding so that mothers would be encouraged to continue to breastfeed without feeling discriminated against or ostracized.
What the Future Holds
Since Barbara Damon and Marlene Pennekamp began calling attention to this issue in the early 80s, breastfeeding legislation has gained momentum. Not only have other states submitted bills on breastfeeding (Arizona, Illinois, New Jersey, and Wisconsin), but some have also taken breastfeeding legislation one step beyond nursing in public. For instance, Iowa recently amended its jury duty statute to exclude mothers of breastfed children who are responsible for the daily care of the child and not regularly employed outside the home. Florida, though, leads the way this year with its newest legislation that creates a breastfeeding project to determine the benefits, barriers, and costs of implementing worksite breastfeeding support policies for state employees. Policies supporting the practice of worksite breastfeeding will be formulated for the entire state. These policies will address issues such as work schedule flexibility, accessible locations and privacy to pump or nurse, and access to clean, safe water sources for cleaning breast pump equipment. Florida's newest law also revises various laws governing services for WIC recipients by requiring an emphasis on breastfeeding. The law also takes a small step toward encouraging hospitals to become more baby-friendly.
New legislation affecting the health laws, family law, civil rights, employment law, and criminal law will be submitted next year in Texas. These laws, if passed, will be the most expansive and thorough legislation to date that affects breastfeeding mothers.
As the legal system continues to recognize and encourage breastfeeding, a message is sent to the public at large that breastfeeding is an important issue, one that has an impact on our lives and futures of our children. But society's views and taboos are not easily changed. Legislation that recognizes the importance of breastfeeding is just one step toward helping our society become more supportive of breastfeeding.
We'd like to hear from you. If you live in the US, let us know of other pending breastfeeding legislation. If you live outside of the US, what are the laws that affect a woman's right to nurse her baby in your country? Write to: LLLI, 957 N. Plum Grove Road, Schaumburg, IL 60173-5194 USA.
ENACTED BREASTFEEDlNG LEGISLATION
[Ed. note: the file Breastfeeding Legislation in the United States has a more up-to-date listing.]
Florida Statutes, section 383.015 (1993) contains Florida's law which states that breastfeeding must be encouraged and gives a mother a right to breastfeed anywhere she has the right to be.
Florida Statutes, section 383.018 (6) (1994); Florida Senate Bill No. 1668, Florida 13th Legislature, Second Regular Session (1994) Chapter 94-217, Florida Advance Legislative Service contains the full text of Florida's new law implementing breastfeeding worksite policies, baby-friendly hospital incentive, and encouragement of breastfeeding in the nutrition programs.
Iowa House File 2350, Seventy-Fifth General Assembly 1994, Iowa Advance Legislative Service contains the new law regarding jury duty and breastfeeding mothers.
Michigan Senate Bills 107,108, and 109 (Acts 313, 314, 315, Public Acts of 1994), Michigan 87th Legislature, 1994 Regular Session, Michigan Advance Legislative Service.
New York Senate Bill No. 3999-A, 1994 Regular Session, Chapter 98, New York Advance Legislative Service contains the full text of the bill which lays out the health benefits for breastfeeding and why it should be encouraged. The text of this bill is virtually identical to the Florida bill that resulted in FL stature 383.015.
North Carolina General Statutes, section 14-190.9 (1993). Virginia Code Annotated section 18.2-387 (1994)
Arizona Senate Bill 1510, 41st Legislature, 1994 Regular Session, Arizona Bill Tracking Statenet, introduced February 8, 1994.
Illinois Senate Bill 1501, 88th General Assembly, 1993-4 Regular Session, Illinois Bill Tracking Statenet, introduced March 4, 1994.
New Jersey Assembly Bill 2009, 206th Legislature, First Regular Session 1994), New Jersey Bill Tracking Statenet, introduced March 29, 1993, last action May 16, 1994.
Ohio Senate Bill 342, 120th General Assembly, 1993-4 Regular Session, Ohio Bill Tracking Statenet, introduced August 4, 1994.
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.
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