Judge: Georgia lactation consultant law is unconstitutional

ATLANTA (AP) — A Georgia law that requires people who provide lactation care and services to be licensed by the state and only allows people who have obtained a specific certification to obtain a license violates the state Constitution, a judge has ruled.

A provision in the 2016 law requires people who provide “lactation care and services” to be certified by the International Board of Lactation Consultants. That certification requires college-level courses, hands-on training and at least 300 hours of supervised clinical work.

A lawsuit filed in June 2018, just before the provision was set to take effect, argued that the requirement would force many who help mothers who want to breastfeed out of work. It was filed on behalf of Mary Jackson, who has helped new mothers struggling with breastfeeding for three decades, and the nonprofit she helped found to educate families of color about breastfeeding, Reaching Our Sisters Everywhere, or ROSE.

Some people who have been providing breastfeeding support have no certification. Others, including Jackson, are certified lactation counselors, which requires 45 hours of training. The lawsuit argued that many mothers just need some hands-on help to get started breastfeeding but don’t need the clinical help provided by consultants certified by the International Board of Lactation Consultants.

Fulton County Superior Court Judge Eric Dunaway on Thursday ruled the law violates the equal protection guarantees of the Georgia Constitution and prohibited the state from enforcing it.

He found that certified lactation counselors and lactation consultants certified by the International Board of Lactation Consultants “are doing the same work and are equally competent to provide lactation care and services to mothers and babies.”

“Having reviewed the record and the applicable law, the Court finds that there is no rational reason to treat the two groups differently,” Dunaway wrote.

“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 attorney Renée Flaherty with the Institute for Justice, which filed the lawsuit.

The lawsuit had argued that the law would have disproportionately harmed women in rural areas and in low-income and minority communities because their access to certified lactation consultants is limited, and the other lactation professionals who are more readily available to them wouldn’t have been allowed to provide certain services.

After the lawsuit was filed, the provision was put on hold pending the outcome of the litigation.