Breastfeeding Battle: New Georgia Law Will Put Many Lactation Consultants Out of Work

For decades, Mary Jackson has worked as a lactation consultant, helping new moms and babies during a critical time in their lives. After the birth of her second child, Mary realized that new moms interested in breastfeeding were offered very little information or support. Her own experience inspired her to change careers and became a certified lactation counselor (“CLC”).

Although Mary has helped countless new moms and taught breastfeeding education to doctors, nurses, and medical students, the state of Georgia recently decided that she and over 800 other qualified lactation consultants must stop working. No other state in the nation licenses lactation consultants in this manner—and only three other states license lactation consultants at all. In 46 states, lactation consultants are not required to get licenses. There is zero evidence that unlicensed lactation care has ever harmed anyone, anywhere.

Nonetheless, Georgia has decided to put many of its lactation consultants out of business.

Beginning July 1, 2018, only consultants certified by the International Board of Lactation Consultant Examiners will be allowed to continue working in Georgia. To obtain an International Board Certified Lactation Consultant (“IBCLC”) certification an individual must take roughly two years of college courses and complete more than 300 hours of supervised clinical work. The time and expense involved in seeking certification make it impossible for many people to obtain licensure, especially people of modest means.

To date, fewer than 100 lactation consultants have become licensed in Georgia, meaning that, on July 1, for every 1,300 babies born in Georgia, there will be fewer than one licensed lactation consultant.

Licensure does not serve the interest of those babies or their mothers; it only serves to enrich IBCLCs at the expense of all other types of lactation consultants. More importantly, new moms and babies will be hurt the most, as finding local consultants becomes more difficult. In fact, a state report shows that minority and rural communities—the very communities who already lack access to lactation support—will suffer the most.

Licensing lactation consultants is just the latest example of the explosion in irrational occupational licensing across the country.  In the 1950s, only one in twenty American workers had to seek a license to work. Today, that number is about one in four. But the Georgia Constitution prevents the government from kicking experienced lactation consultants from pursuing their chosen profession. That is why Mary and Reaching Our Sisters Everywhere—a grassroots nonprofit dedicated to providing breastfeeding support to minority communities—have teamed up with the Institute for Justice to challenge lactation consultant licensure in Georgia.

Georgia Lactation Consultants

Date Filed

June 25, 2018

Original Court

Fulton County Superior Court

Current Court

Fulton County Superior Court

Case Status

Open

Attorneys

Media Contact

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Lactation consultants provide breastfeeding education, guidance, and support to expecting and new mothers. In every state, lactation consultants are prohibited from diagnosing medical conditions—that is the work of doctors or nurse practitioners. Their role, instead, is to share their practical knowledge of breastfeeding with new mothers who may not be familiar with techniques for teaching an infant to breastfeed, holding the infant in an effective position, and tracking the child’s success. For decades, lactation consultants have done this work safely in Georgia (and across the country) without state regulation.

Over the last decade, there has been a national movement to increase awareness of the potential benefits of breastfeeding.[1]In 2010, Congress passed the Affordable Care Act (ACA), which, among other things, mandated that insurance companies provide coverage for lactation services. What the ACA didn’t do was provide specific guidance regarding what and who was required to be covered.

In the wake of this, insurance companies have used licensure as an artificial standard to limit coverage.[2]IBCLC lobbyists have leveraged this issue to convince a few states that there is a pressing need to license lactation consultants and exclude others from the profession.[3]For example, New Mexico,[4]Oregon,[5]and Rhode Island[6]recently began licensing lactation consultants in a way that allows many types of people to work in the profession. By contrast, similar efforts to license lactation consultants have failed or stalled in Massachusetts,[7]Minnesota,[8]New York,[9]Pennsylvania,[10]and Washington.[11]

Some groups that support lactation consultant licensure have advanced the myth that IBCLCs are the only lactation consultants qualified to work in the field. But to obtain IBCLC certification, an individual must pay for and pass 14 college-level courses—or, roughly two years—complete a minimum of 300 supervised, clinical hours, and pass an exam. The necessary investment of time and money makes it impossible for many people to obtain licensure, even people with decades of experience as lactation consultants

But more education doesn’t translate to better outcomes; in this case, it will likely do real harm to many mothers in search of a close and qualified consultant. IBCLCs generally practice in clinical settings located in cities or suburbs, while few serve rural or lower-income communities.

In contrast, becoming a CLC involves completing an intensive 45-hour training, demonstrating a mastery of skills, and passing an exam. Many other private lactation certifications have similar training requirements. These non-IBCLC lactation consultants devote their careers to working directly with moms and babies and have the flexibility of catering to varying schedules and meeting mothers where they are.

The State Has Already Concluded that Lactation Consultants Do Not Need to Be Licensed

In 2013, the Georgia House first considered a bill to license lactation consultants (HB 363). In response, the Georgia Occupational Regulation Review Council (“Review Council”)[12]issued a report concluding that licensing lactation consultants would not provide any benefit to the public. Specifically, this government auditor concluded that licensing lactation consultants “would not improve access to care for the majority of breastfeeding mothers.”[13]The Review Council further determined that in all but high-risk situations, “the CLC is equally as qualified to provide care and services as an IBCLC in several settings including hospitals and clinics. If this legislation prohibited CLCs from providing services, the citizens may be at a greater risk of harm because the majority of lactation consultant providers would no longer be able to provide care.”[14]As a result of the Review Council’s findings, HB 363 failed.

The Lactation Consultant Practice Act 

Despite the Review Council’s warnings about diminished access to care, the next session, the Georgia General Assembly passed the Lactation Consultant Practice Act (“Act”).[15]

Beginning July 1, 2018, the Act will prohibit paid lactation consulting except by IBCLCs. To date, fewer than 100 IBCLCs have obtained a license from the state, meaning there will be fewer than one available lactation consultant for every 1,300 babies born annually in Georgia.

The Act exempts a number of professionals from licensure, even though they require no training in lactation.[16]For example, any dentist, chiropractor, or dietician may provide lactation counseling without becoming an IBCLC.[17]The Act also exempts government employees and volunteers.[18]Stated otherwise, a non-IBCLC lactation consultant who works for a state hospital or who works for free is allowed to continue providing lactation care and services regardless of training. Yet, no exception will allow trained, non-IBCLC lactation consultants to continue working for payment.[19]After July 1, 2018, someone who ignores the requirements of the Act will be subject to a fine of up to $500 per day.[20]

The Plaintiffs  

Mary Jackson is a licensed CLC and Vice President of Reaching Our Sisters Everywhere, Inc. (“ROSE”), which is also a party to the lawsuit. Her experience in lactation consulting spans nearly three decades. Mary’s passion for helping families led her to change careers and become a lactation consultant after the birth of her second child. She works at Grady Memorial Hospital in Atlanta, where she works with the Women Infants and Children (WIC) program and is co-chair of Grady’s Baby Friendly Initiative and previously served as the president of the Georgia Breastfeeding Coalition. Mary’s expertise is widely recognized. She has taught breastfeeding principles to Emory and Morehouse medical school students. She has trained doctors and nurses at hospitals around the country. But beginning July 1, 2018, Mary can no longer work in her current position helping women and children with hands-on breastfeeding advice. Instead, she will be reassigned to a purely educational role and other hospital duties.

ROSE is an Atlanta-based, nonprofit organization that works to increase access to breastfeeding support and improve healthcare equity among African-American communities in Georgia and around the country. Founded in 2011, ROSE is a leader in training healthcare providers and community organizations to provide support, encouragement and clinical care to increase the rates of breastfeeding among minorities. ROSE engages in activities such as educating the public about the general benefits of breastfeeding, training healthcare providers, training “community transformers” on how to lead local breastfeeding clubs and advocating for policies that support breastfeeding. Members and supporters of ROSE include healthcare professionals, volunteer counselors, new and expecting moms, and community leaders. Many of ROSE’s educators will be negatively affected by the Act because they will no longer be able to do lactation counseling for pay. As a result, new mothers, particularly in rural and disadvantaged communities, will soon lose access to lactation counseling. Doctors will no longer be able to hire or refer patients to non-IBCLC certified consultants. ROSE itself will also be injured, as it will no longer be able to pay non-IBCLC lactation consultants to provide community-based breastfeeding support, endangering its community programming.

Together, Mary and ROSE have teamed up with the Institute for Justice to protect their rights, and the rights of non-IBCLC lactation consultants across the state, to earn a living.

 The Legal Arguments 

In their lawsuit, Mary and ROSE argue that licensing lactation consultants violates the Georgia Constitution. Under the constitution’s guarantees of equal protection[21]and substantive due process,[22]Georgia cannot license an occupation irrationally and without there being a “real and substantial” connection between the license and the public good. Unlike many federal courts, the Georgia Supreme Court has used these constitutional guarantees to provide robust protection for the right to earn a living in one’s chosen profession.[23]

The Actviolates the right to equal protection by irrationally picking and choosing who may continue working as a lactation consultant. For example, chiropractors (who have no lactation training) are exempted from licensing, while experienced lactation consultants (like Mary) are put out of work. This outcome undermines the Act’s stated goal of ensuring that lactation consultants have undergone appropriate training. Additionally, the Act irrationally allows an unlicensed lactation consultant to provide care at a government-run clinic, but not a private one.

Second, the Due Process Clause of the Georgia Constitution prohibits the government from passing laws that interfere with the right to earn a living, unless those laws have a real relationship to a public harm. Here, the state itself determined that there is no existing harm posed by non-IBCLC lactation consultants. In fact, the Georgia Review Council determined that, under ordinary circumstances, there is no difference in the standard of care provided by a CLC versus an IBCLC.[24]The Act is merely a solution in search of a problem. By its own terms, the purpose of the Act is to ensure that lactation consultants are “trained and competent professionals.”[25]But, the Act only undermines that goal—especially since it exempts a whole host of professionals who may have little or no background in breastfeeding education, while excluding professionals, such as Mary, who have decades of experience.

The Litigation Team

IJ Attorneys Jaimie Cavanaugh and Wesley Hottot represent the Plaintiffs. 

About the Institute for Justice

The Institute for Justice (“IJ”) is the national law firm for liberty and for more than 20 years has defended the right to earn a living from unnecessary occupational licensing requirements. IJ has successfully protected the rights of entrepreneurs in federal and state courts across the country, including African hair braiders, casket-making Catholic monks, and ridesharing drivers. In Georgia, IJ has challenged state attempts to interfere with the right to work[26]and is currently fighting the City of Doraville’s abusive practice of imposing municipal fines to generate revenue. For more on IJ and its work, visit www.ij.org.

[1]SeeOffice of the Surgeon General, A Call To Action to Support Breastfeeding(2011), https://nwlc.org/blog/i-know-all-about-aca%E2%80%99s-breastfeeding-benefit-and-i-couldn%E2%80%99t-get-services-covered/

[2]E.g., Ferrer v. CareFirst, Inc., 265 F.Supp.3d 50, 51 (D.D.C. 2017) (mothers challenging insurer’s refusal to cover full cost of lactation services as mandated by the ACA); see also, Anna Benyo, I Know All About the ACA’s Breastfeeding benefits and I Couldn’t Get Services Covered(May 26, 2015), https://nwlc.org/blog/i-know-all-about-aca%E2%80%99s-breastfeeding-benefit-and-i-couldn%E2%80%99t-get-services-covered/

[3]See, e.g., https://uslca.org/licensing-ibclc.

[4]N.M. Stat. §§ 61-36-1, et seq.(effective June 16, 2017).

[5]Or. Rev. Stat. §§ 676.665, et seq.(effective Jan. 1, 2018).

[6]Rhode Island §§ 23-13.6-1, et seq. (effective July 3, 2014).

[7]House No. 1151 (Jan. 18, 2017), https://malegislature.gov/Bills/190/H1151.Html

[8]S.F. No. 1151 (Feb. 20, 2017), https://www.revisor.mn.gov/bills/text.php?number=SF1151&version=0&session=ls90&session_year=2017&session_number=0&format=pdf.

[9]A357A (Jan. 5, 2017), http://legislation.nysenate.gov/pdf/bills/2017/A357A

[10]S.B. 763 (June 14, 2017), http://www.legis.state.pa.us/cfdocs/billInfo/billInfo.cfm?sYear=2017&sInd=0&body=S&type=B&bn=763

[11]H-4795.1/16 (Apr. 2016), https://www.doh.wa.gov/Portals/1/Documents/2000/LactConsultFINAL.pdf (review report recommending against licensing lactation consultants).

[12]Ga. Code § 43-1A-g (governing the Review Council’s duty to review all proposals to create new occupational licenses).

[13]Georgia Occupational Regulation Review Council, “House Bill 363: Georgia Lactation Consultant Practice Act, A Review of the Proposed Legislation,” 17 (Dec. 2013) (“Review Council Report”), https://opb.georgia.gov/sites/opb.georgia.gov/files/related_files/site_page/HB%20363%20Final%20Combined%20%28PUBLISHED%29.pdf

[14]Id.at 13; see alsoGa. Dep’t of Pub. Health, Georgia Maternal Morality, 4 (June 2015), https://dph.georgia.gov/sites/dph.georgia.gov/files/MCH/MMR_2012_Case_Review_June2015.pdf (documenting that Georgia has the highest maternal mortality rate in the nation); id. at 16 (suggesting that breastfeeding may positively affect rates of postpartum depression).

[15]Ga. Code §§ 43-22A-1, et seq.

[16]Ga. Code § 43-22A-11.

[17]These professionals may not, however, call themselves “licensed” lactation consultants. Ga. Code § 43-22A-13(1).

[18]Ga. Code § 43-22A-13(2).

[19]See Op. Ga. Att’y Gen. 2018-1 (Jan. 24, 2018, modified slightly May 11, 2018), original opinion available at, https://law.georgia.gov/opinion/2018-1

[20]Ga. Code § 43-1-20.1(b).

[21]Ga. Const., art. 1, § 1, ¶ II.

[22]Ga. Const., art. 1, § 1, ¶ I.

[23]Rockdale Cnty. v. Mitchell’s Used Auto Parts, Inc., 254 S.E.2d 846 (Ga. 1979); Eubanks v. Ferrier, 267 S.E.2d 230 (Ga. 1980).

[24]Georgia Occupational Regulation Review Council, “House Bill 363: Georgia Lactation Consultant Practice Act, A Review of the Proposed Legislation,” at 13.

[25]Ga. Code § 43-22A-2.

[26]Holton v. Battle, 14-CV-03824-LMM, 2017 WL 5236147 (N.D. Ga. Feb. 1, 2017); Hambrick v. Reed, Order, 2011CV203707 (Sup. Ct. Fulton Cnty. Dec. 21, 2012).

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