Georgia Supreme Court rules that lactation care licensure scheme violates due process

Posted on October 26, 2023 in News, Sample Articles

Credit: Harrison Keely

The Supreme Court of Georgia, in a May 31 ruling, held that the state’s licensure requirement for lactation care consultants violates the due process rights of unlicensed providers, finding that there was insufficient reason to require licensure.

Raffensperger v. Jackson, Nos. S23A0017, S23X0018

Georgia’s Lactation Consultant Practice Act, passed in 2016, requires that people providing lactation care via “clinical application” obtain licensure from the International Board of Lactation Consultant Examiners. Mary Jackson, the practitioner plaintiff in the case, worked as a lactation consultant at a hospital but did not have a license from the Board and was told by her employers that she would no longer be permitted to practice because of the new law. The institutional plaintiff, an organization called Reaching Our Sisters Everywhere, or ROSE, offers a free course on lactation care. They challenged the law in court, arguing, among other things, that it violated their rights to due process under the Georgia Constitution.

In order to show that a law unduly hinders a right to pursue a chosen profession, plaintiffs in Georgia must show that their occupation is both otherwise lawful and that the challenged law unreasonably burdens them. In response, the government must show that the challenged law furthers a legitimate state interest.

A trial court had found that the Act did not actually prohibit the plaintiffs from pursuing their profession because its interpretation of the Act excluded breastfeeding education because this type of educational activity was not included within the phrase “clinical application.” However, the Supreme Court did not agree, holding that “clinical” in this case meant working directly with patients or providing education to parents, activities now prohibited to unlicensed consultants.

Regarding the merits of the case, the Court held that the state’s rationale was insufficient to impose the level of burden the act placed on lactation consultants. The state claimed that the licensure requirement would further the quality of care, but the Court noted that the state had not provided evidence of actual harm done by lactation care consultants. “Certainly, there is nothing inherently harmful in the practice of lactation care, and there is no evidence of harm to the public from the provision of lactation care and services by individuals who lack an IBCLC license,” wrote Chief Justice Michael Boggs.

Further, the evidence in the case indicated that care providers trained by ROSE’s free course, much shorter than the classes offered for Board certification, were sufficiently trained to provide competent care. The Georgia Secretary of State argued that the Act could prevent untrained providers from advising mothers to stop breastfeeding too early, but Justice Boggs wrote that “Such speculation, in the face of substantial evidence that the provision of lactation care and services by non-IBCLC providers is safe for and beneficial to nursing mothers and babies, is insufficient to authorize the regulatory scheme adopted, which greatly restricts those able to be employed as lactation care providers.”

As a result, the Court held that the Act violated the plaintiffs’ due process rights to practice their profession, vacating the ruling of the lower court.