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Breastfeeding Legislation in the United States:
A General Overview and Implications for Helping Mothers

Melissa R. Vance, Esq.
Moorestown NJ USA
From: LEAVEN, Vol. 41 No. 3, June-July 2005, pp. 51-54.

This article deals exclusively with legislation in the United States. Many other countries have or are considering legislation pertinent to breastfeeding and future articles will address breastfeeding and the law in countries outside the US. We are seeking people to write or compile information for these articles. Melissa Vance has already received many emails and mailings concerning breastfeeding in other countries and will share those with an author(s) writing a non-US article. As you can see, the topic, even limited to the US, is exhaustive.

In 1994, when the late Elizabeth Baldwin addressed this issue in LEAVEN, only five states in the United States had enacted legislation pertaining to breastfeeding. Today, approximately 39 states have laws pertaining to breastfeeding; several more have proposed legislation.1 These laws generally fall into one of the following categories: public breastfeeding; jury duty; workplace accommodations; health, education and insurance measures; custody/visitation; and miscellaneous provisions.2

Breastfeeding has been declared by some courts as a constitutional right,3 but the issue has never reached the United States Supreme Court. There is a constitutional right to privacy that includes the right to marry, procreate, use birth control, and engage in consensual adult sexual activity; thus, the Supreme Court might well likely find breastfeeding to be a constitutional right. A constitutional right, however, is subject to restriction and is not absolute. The government may restrict a fundamental right, and the constitutional right may not apply in a private setting. Thus, assuming there is a constitutional right to breastfeed, this right does not automatically override other interests such as those of a private employer who may refuse a mother breaks for pumping, or a private restaurant asking a mother to leave, however unfair that seems to breastfeeding advocates.

Unfair treatment of breastfeeding mothers is often viewed as "discriminatory." Courts in the United States, however, have often found that actions regarding breastfeeding, such as asking a nursing mother to leave or refusing to allow her to pump while working, do not constitute discrimination under federal and/or state civil rights statutes.4 Thus, one of the best ways to protect the breastfeeding relationship of a mother and child is through state legislation.

Public Breastfeeding

The most likely legal situation a Leader will encounter is the issue of public breastfeeding. "Breastfeeding in public" laws are uncommon outside of the United States and Canada. There are two general types of law in the United States: (1) those which exclude breastfeeding from indecent exposure or other criminal laws; and (2) those which expressly state a mother may breastfeed in public. Thirty-four states currently have laws that fall into one of those categories. Several more had legislation pending at the time this article was written, but several legislative efforts later failed. Approximately 16 states exempt breastfeeding from various types of criminal statutes,5 while several of these states also have separate statutes addressing breastfeeding in public.6 One of these states, Virginia, only addresses breastfeeding on property that is owned, leased, or controlled by that state. Another state, North Carolina, exempts breastfeeding from the indecent exposure laws, and states that a woman has a right to breastfeed in any public or private location in the same statute. Alaska, Montana, and Utah have laws prohibiting political subdivisions, i.e., counties or towns, from passing laws restricting breastfeeding.

In 1999, an amendment was added to a US postal appropriations (spending) bill that included language that stated a woman may breastfeed her child at any location in a federal building or on federal property, if the woman and her child are otherwise authorized to be present at the location.7 Federal buildings and property may include museums, courthouses, agencies, and national parks throughout the country -- if owned or maintained by the federal government. The District of Columbia does not have any laws addressing breastfeeding.

Approximately 28 states have laws addressing breastfeeding in public that are not laws exempting breastfeeding from criminal statutes.8 There is some variety in the language of public breastfeeding statutes. Some states include the language that a mother may breastfeed where she has the right to be; others state that the mother and child must be authorized to be in the place. The latter is more restrictive as there are places where a child might not be permitted, such as a classroom party where siblings are not allowed, or some type of professional conference that does not allow children.

Several states, including New Jersey and Connecticut, make reference to "public accommodation" which usually includes more than a government-owned facility. That term is usually defined elsewhere in state law and/or court decisions, and often includes privately owned places that are open to the general public. For example, in New Jersey, a public accommodation includes, among other places, restaurants, schools, colleges, hotels, music halls, skating rinks, boardwalks, and hospitals.

Some states use the term "child" and others use "baby" or "infant." It might be argued that such statutes exclude the nursing of a toddler or preschooler in public; however, these statutes should not be read as prohibiting such an act unless there is a judicial decision to the contrary. La Leche League is not aware of any such decisions.

Some states, for example, Minnesota, utilize language that a mother may breastfeed "irrespective of whether the nipple of the mother's breast is uncovered during or incidental to breastfeeding." Although other public breastfeeding statutes do not include this language, the omission does not mean incidental exposure of the nipple is illegal or improper. By its nature, breastfeeding may involve incidental exposure. There is one exception in state laws. Missouri requires mothers to breastfeed "with as much discretion as possible." This language is subjective and can create problems. Recently, a Kansas bill addressing public breastfeeding was amended to include the word "discreet" and a female legislator supporting the amendment stated that this meant feeding under a blanket or towel.9

The lack of a state law does not mean that it is illegal to breastfeed in public. If a state does not have a law addressing public breastfeeding, it may mean that a private person, such as a restaurant owner, may have the right to ask a breastfeeding mother to leave. States with laws that only exempt mothers from criminal prosecution, also do not prevent a restaurant or store owner from asking a breastfeeding mother to leave or breastfeed in another area.

Even where there are laws, there are still incidents where mothers are asked to leave or breastfeed their children in a public toilet facility. In 2004, there were several highly publicized incidents. In Maryland, a mother was asked to cover up or feed the baby in the toilet facility of the store of a popular coffee chain, although that state's law says a mother may breastfeed wherever she has a right to be, and that no person may restrict or limit that right. In New Hampshire, a mother breastfeeding in a department store was advised that she would be more comfortable in the rest room rather than in the corner of the store.

In the summer of 2004, a controversy arose in Texas, which has a statute stating that a mother is permitted to breastfeed her baby in any location in which she is authorized to be. A restaurant refused to serve a breastfeeding mother, and a local police official was quoted as saying that a restaurant has a right to refuse to serve anyone. There was no such law, however, there was a law regarding trespassing on private property, which allowed the property owner to ask people to leave. Elsewhere in Texas, mothers in the San Antonio area were also asked to leave several places, including a grocery store, because they were breastfeeding.

What is the appropriate response? That depends on the individual mother, the state in which she resides, and the situation. Some mothers may wish to assert their right at that moment; others may decide to leave and not engage in any discussion or confrontation. Writing the offending entity, enclosing the law as well as information on the health benefits of breastfeeding, is one way to respond to the matter. Well-written letters to newspapers, if the incident has become public, is another appropriate response. A mother may decide to consult an attorney, particularly if she lives in either Connecticut or Hawaii, whose laws include provisions for penalties. A mother in New Jersey might choose to contact the local Department of Health, which has the authority to fine public accommodations that violate the law.

In two of the situations that arose in Texas, the mothers consulted an attorney who is the husband of an LLL Leader. The mothers wrote the offending entities, advising them of the law. They received apologies and assurances that their employees would be advised of the law.

If the mother resides in a state that only has a law exempting breastfeeding from criminal statutes, or no law at all, she may wish to contact her state legislators and ask them to sponsor a bill that clarifies a woman's right to breastfeed in public.

Nurse-ins, where mothers and babies gather at a specific location to breastfeed and call attention to an issue, should not be suggested by a La Leche League Leader, although some mothers may choose to respond in this manner. A Leader is not prohibited from participating in a nurse-in, but should do so as a private citizen. Nurse-ins are not always an effective tool and may lead to more public backlash.

Jury Duty

Jury duty is part of being a citizen in a democratic country. While inconvenient for many, especially breastfeeding mothers, it is a civic obligation. Six states have statutes specifically addressing breastfeeding and jury duty.10 Idaho, Oregon, and Nebraska provide that jury duty will be postponed until the mother is finished nursing the child; Oklahoma law states that a mother breastfeeding a "baby" shall be excused upon request. A breastfeeding mother in Iowa will only be excused if she is not employed outside the home. Nebraska requires a doctor's certification. In five states, the request must be made in writing. As of March 20, 2005, mothers of breastfeeding children in Virginia are exempt from jury duty.

The La Leche League Web site only lists statutes expressly excusing jury duty. There may be other general exemptions that a breastfeeding mother may utilize as some states provide exemptions for those caring for dependents or others.

What can a mother do if she is called to jury duty? First, see if an excuse applies. If so, follow the directions and request the exemption. If there is no exemption, the mother should immediately write a polite letter requesting an excuse. She should address it to the person in charge of jury service, or the head judge of the court. If possible, the mother should include a note from the child's doctor stating the child is exclusively breastfed. The letter should state that the mother is willing to do jury duty at a future time.

Mothers should realize that in places where there is no exemption available for breastfeeding or other reason, such as care of a family member, the court's decision may depend on the age, situation, and health of a child. For example, a woman working full-time outside the home who has a 10-month-old child is unlikely to be excused, although she should make it clear that she needs adequate time and a place to pump, which in turn may lead to a postponement of service. A mother of a three-month-old is more likely to be excused on the basis of breastfeeding than a mother of a three-year-old. Breastfeeding should not be used to gain an excuse when the real concern is something else such as the running of a home business.

Workplace Accommodations

Many mothers who return to the workplace and wish to continue breastfeeding may face reluctance or hostility from their employers. Employed mothers who are breastfeeding may need regular breaks, a private place to pump, and a place to store milk. Only 10 states have statutes addressing these issues, and some encourage, but do not mandate employers to provide breaks and places to pump.11 Many of these statutes exclude toilet stalls as an appropriate place to pump.

Employers in California, Illinois, Minnesota, and Tennessee must provide reasonable break time and make reasonable efforts to provide a place to pump, unless the breaks would unduly disrupt operations. Rhode Island's law is similar but states that the employer "may" provide breaks. Connecticut allows the mother, on her breaks, to express milk or breastfeed her child on site; it also requires the employer to make reasonable efforts to find a place to express. "Reasonable efforts" is a legal term of art which is not defined in the laws, but will be subject to court interpretation. In California, the term "reasonable efforts" will take into account undue hardship on the employer. Hawaii mandates that employers may not prohibit employees from expressing during break periods. Neither Connecticut nor Hawaii require extra breaks for breastfeeding, rather the mother cannot be prohibited from using her existing breaks. Both of those states prohibit employers from taking adverse action or discriminating against employees who choose to take breastfeeding breaks. California provides for fines for violations of its law.

Texas and Washington encourage employers to provide accommodations by designating those who meet certain criteria as "mother" or "infant-friendly." Georgia's law states that employers may provide, but are not required to provide, unpaid breaks and a place to pump.

If there is no state law in place, the mother may wish to educate her employer about the benefits of providing a time and place to express milk. There is information available from La Leche League that can be given to the employer.

Health, Education, and Insurance Measures

Several states have laws addressing health, education, and/or insurance issues. These laws range from requiring breastfeeding information to be provided to certain persons.

Texas requires its health department to provide guidelines regarding milk banks, and also requires health insurers to provide breastfeeding services to new mothers who are discharged early after delivery. Florida has several statutes encouraging breastfeeding information in various settings.

Illinois law provides that Women, Infant and Children (WIC) nutrition programs may include lactation support services, including money for pumps, breast shields, and other supplies. Additionally, a law allows the Illinois Department of Health to conduct a public breastfeeding campaign. Minnesota law requires that certain programs include information about breastfeeding. California probably has the strongest law regarding informational campaigns. The weakest law of this type is found in Missouri, where hospitals are to provide new mothers with breastfeeding information, but only if the doctor deems it appropriate. The Missouri Department of Health was required to produce information regarding the health benefits, but it is only to be given to physicians and hospitals "upon request."

Massachusetts, which has no other laws regarding breastfeeding, states that a maternity patient has the right to know the percentage of women breastfeeding upon discharge from her admitting hospital.

Custody & Visitation Issues

There are only three states that address breastfeeding and custody/visitation in their statutes: Maine, Michigan, and Utah. Maine considers the breastfeeding of a child under the age of one year in its determination of what custody arrangement is in the best interest of the child. Breastfeeding, however, is just one of many factors to be considered. A court in Michigan, when determining parenting time, must take into consideration whether a child younger than six months is breastfed, or if one younger than a year "receives substantial nutrition" by breastfeeding. Utah provides for a minimum visitation schedule for children under the age of five, but "the lack of reasonable alternatives to the needs of a nursing child" may be taken into consideration.

The lack of a statute does not mean that a judge cannot consider breastfeeding issues in determining visitation or custody. Courts will consider the child's best interests in dealing with family law issues. Additionally, there may be prior court decisions in individual states that recognize the issue of breastfeeding in family law situations. Referring a mother to articles on the LLL Web site (www.lalecheleague.org/Law/LawMain.html) written by Liz Baldwin is a starting point. Area Professional Liaison Leaders may also have information regarding prior court decisions in their states that may be helpful to a mother. The latest American Academy of Pediatrics policy statement on breastfeeding calls on health care professionals to support the efforts of parents and the courts to ensure continuation of breastfeeding in separation and custody proceedings.

Miscellaneous Laws

There are a handful of other laws that involve breastfeeding. Louisiana has the only state law that prohibits child care facilities from discriminating against breastfed babies. Rhode Island requires notices explaining the dangers of mercury to pregnant and breastfeeding women who ingest contaminated fish. A New York statute addresses incarcerated mothers and breastfeeding. Maryland exempts products supporting breastfeeding from sales tax.

Resolutions and Proposed Legislation

Resolutions do not have the same legal standing as a statute. For example, Wyoming has a resolution that "encourages" the accommodation of working and breastfeeding mothers and "encourages" relevant state agencies to provide breastfeeding information. This resolution does not legally require anything, but could be used for informational purposes.

Proposed legislation has no legal impact. Many bills are introduced and die for varying reasons. It is very important to understand this difference when giving mothers information. A new addition to the LLL Web site lists proposed legislation.

As the Policy and Standing Rules Notebook states, individual Leaders may support legislation in their capacity as Leaders:

Leaders may act as interested private citizens or as LLL Leaders to promote breastfeeding to public officials, heads of state, and other recognized government groups at any time. Such advocacy is especially appropriate when action is pending anywhere that may affect breastfeeding. Under the Lobbying Disclosure Act of 1995, the United States Internal Revenue Service does not consider the activities of volunteers as lobbying. Therefore, advocacy by volunteer Leaders does not affect the nonprofit status of LLLI in the USA. Leaders are advised to determine whether advocating breastfeeding to government groups will affect the legal status of LLL in their country. (Jun 94; rev June 94, Feb 98)

Conclusion

State laws pertaining to breastfeeding are varied in their nature and scope. Leaders can provide mothers with relevant laws and related information, but should refrain from interpreting laws or offering legal advice. Oftentimes, additional information relating to breastfeeding, such as LLL materials explaining the importance of breastfeeding, may assist a mother in addressing her legal situation.

References

  1. As of March 10, 2005, the following states did not have any breastfeeding-related legislation: Alabama, Arizona, Arkansas, Kansas, Kentucky, Mississippi, North Dakota, Ohio, Pennsylvania, South Carolina, West Virginia and Wyoming. Of these states, Alabama, Kansas, Kentucky, North Dakota, Ohio, and West Virginia had bills pertaining to breastfeeding in their current legislative session. Massachusetts, which does not have a law addressing breastfeeding in public, also has proposed legislation.
  2. This article will omit most statutory references. Laws and or references can be found at: www.lalecheleague.org/LawBills.html. Additionally, most states have their statutes on line.
  3. See e.g. Dike v. Schl. Bd. of Orange Co., Fla., 650 F.2d 783 (5th Cir. 1981).
  4. See Derungs v. Wal-Mart Stores, Inc., 374 F.3rd 428 (6th Cir. 2004).
  5. AK, FL, IL, MI, MN, MO, NE, NC, NY, OK, RI, SD, UT, VA, WA, WI.
  6. FL, IL, MN, MO, NE, NY, OK, UT, VA.
  7. Pub. L. 106-058, sec. 647 (1999).
  8. CA, CO, CT, DE, FL, GA, HI, IL, IN, IA, LA, ME, MD, MN, MO, MT, NE, NH, NJ, NM, NY, NC, OR, RI, TX, UT, VT, VA.
  9. The word "discreet" was then taken out, but the bill failed to advance during this legislative session.
  10. Kansas and Illinois had bills exempting breastfeeding mothers pending as of 3/30/05; however, the Kansas bill will not be passed this year.
  11. CA, CT, GA, HI, IL, MN, RI, TN, TX, WA

Helpful Web Sites

La Leche League International
www.lalecheleague.org/Law/LawBills.html.

The Family Friendly Jury Duty Web site
www.familyfriendlyjuryduty.org.

Melissa R. Vance is an LLL Leader and member of the Legal Advisory Council. An attorney since 1987, she is an assistant counsel for the New Jersey Association of School Administrators. Melissa maintains the legislative portion of the LLLI Web site. She resides in Moorestown, New Jersey, USA with her two sons, Kevin (14) and Sean (10) Kirsch. She wishes to thank Shannon Lee Denney, Esq. and Hugo de los Santos, Esq. for their assistance. Melissa can be contacted at mrvance12 at hotmail dot com or by Leaders through the LLL Community Network.

[updated 9/17/06 and 7/11/07]

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