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Ga. Supreme Court says lactation counselors’ lawsuit over licensing law can proceed

Mary Jackson, a certified lactation counselor, sued the state after Georgia legislators passed a law requiring licensing.
Mary Jackson, a certified lactation counselor, sued the state after Georgia legislators passed a law requiring licensing.

A group that helps new mothers with breastfeeding has earned a significant victory from the Georgia Supreme Court, which ruled that its lawsuit challenging the constitutionality of a new state lactation license could go forward.

The high court voted unanimously Monday morning that a lower court erred in its decision to dismiss the case.

In 2016, the Georgia General Assembly passed the Georgia Lactation Consultant Practice Act, which prohibits providing lactation care and services for compensation without obtaining a license from the Secretary of State. Legislators at the time said the purpose was “to protect the health, safety and welfare of the public by providing for the licensure and regulation of the activities of persons engaged in lactation care and services.”

Two years later, a group led by Mary Nicholson Jackson sued Secretary of State Brad Raffensperger over the law, which essentially meant that anyone who wanted to assist with breastfeeding had to be licensed as an International Board Certified Lactation Consultant, or IBCLC. That meant completing eight college-level health and science classes, six health-related continuing education courses, 300 hours of supervised clinical experience and passing an exam.

Jackson, a certified lactation counselor who works for Grady Health System and set up the nonprofit Reaching Our Sisters Everywhere (ROSE), claimed in the lawsuit that the new requirements were too stringent and would put hundreds of care providers out of work, thus harming mothers and infants by reducing access to services.

Raffensperger’s office filed a motion to dismiss the action. The Fulton County Superior Court agreed last year.

Jackson and ROSE then appealed to the state’s high court.

Their argument was that they already had private credentials that made them equally competent to provide care and services and that they posed no risk of harm to the public. They also argued the law violated their rights to due process.

On Monday, the court sided with the provider group. Justice Michael P. Boggs wrote: "We have long interpreted the Georgia Constitution as protecting a right to work in one's chosen profession free from unreasonable government interference. And the trial court erred in concluding that Appellants are not similarly situated to lactation consultants who can be licensed because, according to the allegations in the complaint, they do the same work."

“This decision is a watershed,” Renee Flaherty, who represents the plaintiffs, said in a statement. “The court made crystal clear that the Georgia Constitution protects the right to earn an honest living free from unreasonable restrictions, putting every government official in Georgia on notice that they must respect people’s rights to provide for themselves, particularly in these difficult economic times.”

Certified lactation counselors such as Jackson, who work in people’s homes and clinical settings, are not medical providers and are not allowed to diagnose or treat medical conditions. In most cases, they earn certification by attending a 45-hour seminar and passing an exam.

According to court documents, there are only 335 IBCLCs in Georgia, compared to 800 CLCs.

“Licensing lactation consultants does nothing to protect public health and safety,” Wesley Hottot, an attorney with the Institute for Justice, said when the lawsuit was initially filed. “This license will harm the public by making it harder — if not impossible — for new moms to find someone to help them with breastfeeding.”

State House Health and Human Services Chairwoman Sharon Cooper, R-Marietta, sponsored the legislation requiring the licensing, saying it would benefit mothers and children to have health professionals who are highly trained.

“I believe our state needs to be encouraging people to further their education and recognize people who have achieved a higher level of education and have greater expertise in their area,” Cooper said at the time.

The Secretary of State's office, which oversees state licensing boards, agreed in 2018 not to enforce the new requirement while the lawsuit was ongoing.

“In sum,” the Supreme Court said Monday, “we reverse the trial court’s dismissal of Appellants’ substantive due process and equal protection claims, and we remand the case with direction to the trial court to reconsider the motion to dismiss for failure to state a claim.”

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