J. Justin Wilson
J. Justin Wilson · May 31, 2023

ATLANTA—This morning, the Supreme Court of Georgia unanimously ruled that a law requiring lactation care providers to obtain a state-issued license is unconstitutional and violates Georgian’s right to earn an honest living. 

The law, which was the first-of-its-kind in the nation, would have forced hundreds of women out of work—including Mary Jackson, a lactation care provider with more than three decades of experience. Together with Reaching Our Sisters Everywhere (ROSE), the nonprofit she helped found to educate families of color about breastfeeding, Mary challenged the license to stand up for her right to economic liberty and protect access to breastfeeding care for all moms and babies.

Today’s ruling shows that courts look at the real-world implications of laws and are willing to strike those that harm the public. 

“Mary and ROSE’s five-year battle to defend their rights has culminated in today’s decision, which confirms their unwavering determination and courage to stand against protectionism and fight for every Georgian’s right to earn an honest living,” said Institute for Justice (IJ) Senior Attorney Renée Flaherty. “This case sets a precedent that the Georgia Constitution demands the government justify restrictions on economic liberty. IJ will continue to challenge laws infringing on this essential right under other state constitutions so that every American can enjoy the same freedom.”

Lactation care providers offer practical breastfeeding support and advice to new families. Even though ordinary women and specially trained lactation care providers have worked safely throughout Georgia and the United States for decades, the Georgia General Assembly adopted a new law in 2016 requiring that lactation care providers obtain the equivalent of an advanced college degree before continuing to work in the field. After Mary and ROSE teamed up with IJ in 2018 to challenge the law, the state of Georgia agreed not to enforce the new law until the lawsuit was finalized.

“All we want is to continue doing our jobs,” said Mary Jackson. “It’s been a long journey, but we were always confident we were doing the right thing. This fight wasn’t just for me or ROSE, it’s been for all the lactation care providers and for all the mamas and babies in the state.”

The licensure law would have required even experienced lactation care providers to become International Board Certified Lactation Consultants (IBCLC), involving two years of college courses, 300+ hours of clinical work, and an expensive exam. This would have made state licensure unattainable for many. Despite claims that the law aimed to increase access to breastfeeding care, the Georgia Occupational Regulation Review Council found it would not improve access for most mothers. 

“The court was crystal clear that the state must articulate a real reason for interfering with someone’s right to earn a living,” said IJ Attorney Jaimie Cavanaugh. “The state can’t rely on mere speculation. The court correctly rejected the state’s unfounded argument that the licensing law is necessary to protect the public from harm. The decision confirms the simple premise that legislative actions that affect economic liberty can’t be contrary to common sense.”

This ruling is important, not just for lactation care providers, but for everyone who lives or works in Georgia. Specifically, the decision distinguished Georgia’s standard of review from the federal standard of review. While federal courts are more likely to uphold laws based on hypothetical justifications, Georgia courts will now require the state to show why laws that burden occupations are necessary: “Georgia’s Due Process Clause requires more than a talismanic recitation of an important public interest.” The state can’t speculate about how a law might protect the public, especially in the face of evidence that a law will affirmatively cause harm. The Court also ruled that the government can’t enact licensing laws for the purpose of favoring or protecting a group from economic competition. 

This case is part of IJ’s effort to protect every American’s right to earn an honest living free from unreasonable government restrictions. IJ currently has similar cases challenging restrictions on doctor dispensing in Texas, end of life care in California, hair braiders in Louisiana, and eyelash extension specialists in Oklahoma

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