Institute for Justice · March 3, 2022

ATLANTA—A law requiring that Georgians who want to teach women how to breastfeed obtain the equivalent of an advanced degree was ruled unconstitutional today by the Fulton County Superior Court. Georgia’s licensing requirement, enacted in 2016, made it the only state in the nation that licensed lactation consultants in this way, and would have forced hundreds out of work. That led Mary Jackson and Reaching Our Sisters Everywhere (ROSE), the nonprofit she helped found to educate families of color about breastfeeding, to challenge the law with representation from the Institute for Justice (IJ). Now, Georgia lactation consultants are free to teach new moms about breastfeeding without fear that their work will become illegal. 

Lactation consultants provide hands-on practical breastfeeding advice and support to new mothers. They had 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). The Lactation Consultant Protection Act would have prohibited lactation consultants from working for pay unless they were IBCLCs or fit into a handful of arbitrary exemptions. 

To obtain an IBCLC credential, an individual must take roughly two years of college courses and complete at least 300 hours of supervised clinical work. The time and expense involved in obtaining certification would make it impossible for many people to obtain state licensure, especially people of modest means. In fact, a state report showed that families seeking breastfeeding help in minority and rural communities—the very communities who already lack access to lactation support—would suffer most from this law because IBCLCs are expensive and concentrated in urban areas. CLCs and other kinds of lactation care providers are more spread out throughout the state and are more affordable. Now, lactation consultants throughout the state can without fear help new moms as they always have. 

“The Court recognized that keeping perfectly competent lactation consultants from doing their jobs doesn’t protect the public, but instead reduces access to breastfeeding care and violates constitutional rights,” said IJ Attorney Renée Flaherty. “Now, IBCLCs will have to think twice before pushing for more laws like this in other states.” 

“We took this on because of our passion and love for our community,” ROSE CEO & Founder Kimarie Bugg said. “It feels so amazingly good. We cannot wait to celebrate with our community.” 

The week ROSE filed its lawsuit, they reached an agreement with the Georgia Secretary of State’s Office to not enforce the IBCLC requirement as litigation proceeded. In 2019, the Fulton County Superior Court dismissed the lawsuit, which ROSE then appealed to the Supreme Court of Georgia. The Supreme Court of Georgia unanimously declared that it has “long interpreted the Georgia Constitution as protecting a right to work in one’s chosen profession free from unreasonable government interference.”  

“Women have been helping other women learn to breastfed for millennia. This decision means that in Georgia, they can continue to do so,” IJ Attorney Jaimie Cavanaugh said. 

Georgia lawmakers created the lactation consultant license despite a government study—known as a “sunrise” review—recommending against regulating the occupation. An IJ report released last week, “Too Many Licenses?,” looked at more than 30 years of sunrise reviews across more than a dozen states. The report showed that an overwhelming majority of sunrise reviews recommended against the creation of new licenses and often recommend no new regulation at all. 

Now, Defendant Secretary of State Brad Raffensperger will have 30 days to appeal to the Supreme Court of Georgia. 

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