J. Justin Wilson
J. Justin Wilson · June 25, 2018

For nearly three decades, Mary Jackson has provided hands-on advice to help new mothers learn how to breastfeed. Despite her years of training and experience, on July 1st, she will be out of a job—but not because she has done anything wrong. Rather, on July 1st, a new Georgia law goes into effect requiring that anyone who makes a living helping new mothers breastfeed must obtain an expensive, burdensome and unnecessary certification from a private group, in order to get a license from the state.

But Mary is not willing to give up her career without a fight. Today, she has teamed up with the Institute for Justice (IJ) to file a lawsuit asking the court to immediately halt implementation of Georgia’s unconstitutional licensing law and preserve her right (and that of hundreds of other lactation consultants) to earn an honest living doing what she loves.

Lactation consultants provide hands-on practical breastfeeding advice and support to new mothers.  They have been working safely in Georgia for decades, without any state license, although many lactation consultants have chosen to become privately certified in their field.  There are two predominant certifications: a Certified Lactation Counselor (CLC) and an International Board Certified Lactation Consultant (IBCLC).

Mary and more than 800 other lactation consultants in Georgia are CLCs, but, on July 1st, only IBCLCs will be allowed to get the state’s new license, and so only IBCLCs will be allowed to continue working. To obtain an IBCLC, 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 obtaining certification will make it impossible for many people to obtain state licensure, especially people of modest means.

“Licensing lactation consultants does nothing to protect public health and safety,” said Wesley Hottot, an attorney at IJ, which represents the plaintiffs. “This license will harm the public by making it harder—if not impossible—for new moms to find someone to help them with breastfeeding. In Georgia, the courts have a responsibility to strike down unnecessary and burdensome regulations that have no clear public benefit. We expect the Court will strike down this law.”

No other state in the nation licenses lactation consultants like Georgia does. This is because there is no evidence that unlicensed lactation care has ever harmed anyone, anywhere. In fact, in 2013 the Georgia Occupational Regulation Review Council (a state agency) issued a report concluding that licensing lactation consultants would not provide any benefit to the public, reasoning that licensing “would not improve access to care for the majority of breastfeeding mothers.”

In fact, next week there will be a severe shortage of lactation consultants if this law is not stopped.  There are only some 1,100 lactation consultants in Georgia, and only around 300 of them are IBCLCs.  To date, fewer than 100 IBCLCs have become licensed, yet the licensing law threatens to put more than 800 CLCs out of business overnight.

Licensure does not serve the interest of babies or their mothers; it only serves to enrich IBCLCs at the expense of all other lactation consultants. The drive toward licensure is not motivated by health or safety concerns, but rather by IBCLCs’ interest in billing health insurance companies for their services. In 2010, the Affordable Care Act mandated that insurance companies provide coverage for lactation services. Since then, insurance companies have used licensure as a means of limiting the expense of that coverage. To ensure they could bill insurance companies, the IBCLCs’ lobbyists have begun pushing state-mandated licenses across the country to artificially differentiate IBCLCs from CLCs. Georgia is the only state so far to have caved to the IBCLCs’ demands.

Mary is not taking on the State of Georgia alone. She is joined in her lawsuit by Reaching Our Sisters Everywhere (ROSE), the Atlanta-based non-profit she helped found in 2012. ROSE works to increase access to breastfeeding support and improve healthcare equity among African-American communities in Georgia and around the country.

“Every day I go to work with a smile on my face because I’m doing something I love—helping moms help their newborns,” said Jackson. “I don’t want to give that up, and I shouldn’t have to. I’m passionate about breastfeeding and I do everything I can to make sure moms in minority, rural and at-risk communities, regardless of their socioeconomic status, have access to quality lactation support from qualified lactation supporters. But now, if the courts don’t intervene, hundreds of my colleagues across the state will be out of a job, unable to continue to help their community, and thousands of moms will be left without the help they need.”

“As the state itself concluded in 2013, licensing lactation consultants will only decrease access to breastfeeding support,” said IJ Attorney Jaimie Cavanaugh. “This law serves no purpose other than to enrich one group of privately certified lactation consultants to the detriment of all others.”

The lawsuit, which requests a temporary restraining order halting the law’s effective date of July 1st, argues that licensing lactation consultants violates the Georgia Constitution. Under the state constitution’s guarantees of equal protection and substantive due process, the government cannot license an occupation without there being a “real and substantial” connection between the license and the public good.

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