Georgia's highest court rules state lactation consultant law is unconstitutional

May 31st, 2023

Mary Jackson speaks at a news conference, June 25, 2018, in Atlanta. Jackson works at Grady Memorial Hospital in Atlanta and has provided hands-on breastfeeding help for new mothers for nearly three decades. (AP Photo/Kate Brumback, File)

Georgia’s highest court has ruled that a 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.

The opinion issued Wednesday by the Georgia Supreme Court says the 2016 law violates the due process rights of certain lactation care providers to practice their chosen profession. It stems from a lawsuit filed in June 2018, right before the law was set to take effect.

The law required anyone who provides “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.

Mary Jackson, who has worked for more than 35 years to help new mothers struggling with breastfeeding, said the law would force people like her out of work. The lawsuit was filed on behalf of her and Reaching Our Sisters Everywhere, or ROSE, a nonprofit she cofounded to educate families of color about breastfeeding.

Jackson is certified as a lactation counselor, which required 45 hours of training, but some people provide breastfeeding support with no certification. The lawsuit asserted that many mothers don’t need the clinical help provided by certified consultants — they just need some hands-on help to get started breastfeeding.

“All we want is to continue doing our jobs,” Jackson said in a statement issued after the ruling. “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.”

In ruling in favor of Jackson and ROSE, the Georgia Supreme Court reinforced its interpretation of due process under the state Constitution as providing the right for people in Georgia “to pursue a lawful occupation of their choosing free from unreasonable government interference.”

Institute for Justice attorney Renée Flaherty, who represented Jackson and ROSE, said in a statement that the ruling “confirms their unwavering determination and courage to stand against protectionism and fight for every Georgian’s right to earn an honest living.”

“This case sets a precedent that the Georgia Constitution demands the government justify restrictions on economic liberty,” she said.

In addition to finding in favor of Jackson and ROSE, the opinion also lays out a framework for the court to apply when considering constitutional challenges to occupational licensing schemes.

“Indeed, not every burden on the ability to pursue a lawful occupation will be unconstitutional — sometimes a regulation will be ‘rational’ in the sense that it is reasonably necessary (either actually or because of the failure of the challenger to meet her burden),” Chief Justice Michael Boggs wrote in the unanimous opinion. “But if the challenger can establish that a regulation imposing restrictions on a lawful occupation does not advance the articulated public purpose by means that are reasonably necessary for that purpose, then the regulation cannot stand.”