Georgia’s Supreme Court today struck down a state law that required people who provide lactation consulting to obtain costly and time-consuming state licenses.
In a unanimous ruling, the justices determined that a law passed in 2016 unconstitutionally deprived Mary Jackson of work. Jackson had been providing lactation care consulting services for more than 30 years and started a nonprofit, Reaching Our Sisters Everywhere (ROSE), to provide breastfeeding education.
Georgia Supreme Court Chief Justice Michael P. Boggs wrote the ruling in Jackson v. Raffensperger, and he was critical of attempts to declare that the state has a “public welfare” interest for every licensing law it passes: “Georgia’s Due Process Clause requires more than a talismanic recitation of an important public interest.” Here the court examined whether the licensing requirement protected the public from unsafe or harmful health practices. They found the state’s evidence wanting:
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 [International Board Certified Lactation Consultant] license.
To get this license through a private credentialing body, the court notes, requires 14 different health courses (some college level), 95 hours of training, 300 supervised clinical hours, and up to $700 in costs. Boggs notes in his ruling that only 162 of Georgia’s 470 lactation consultants have gone through the process to get licensing.
The state admitted to the court that they had no evidence that anybody was harmed by unlicensed or incompetent lactation care before or after the law’s passage. An analysis of a version of the law that was considered in 2013 (and not passed) noted that there was no evidence of any harm caused by the state’s failure to license or regulate lactation consultants.
Thus, the Court concludes that the law “violates Plaintiffs’ due process rights under the Georgia Constitution to practice the chosen profession of lactation care provider.”
This is the second time the law has come before the Georgia Supreme Court. Jackson, represented by the Institute for Justice, has been fighting the law since 2018. In 2020 the state’s Supreme Court pushed back on an effort by the state to get the case dismissed entirely under the argument that the state’s due process protections did not guarantee the constitutional right to pursue a particular occupation. In 2020, Boggs wrote, “[W]e have long recognized that the Georgia Constitution’s Due Process Clause entitles Georgians to pursue a lawful occupation of their choosing free from unreasonable government interference.”
That’s good news for Jackson and other similarly situated people who may be lactation experts but haven’t spent hundreds of hours and thousands of dollars on an International Board Certified Lactation Consultant certification.
“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 in a prepared statement. “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.”
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