Breastfeeding Rights in the United States

1. Breastfeeding Rights in the United States Karen M. Kedrowski, Ph.D. Department of Political Science, Winthrop University Prepared for Annual Conference of La Leche League of South Carolina April 29, 2006

2. Policy Patchwork • Federal Laws/Priorities: • Treasury Appropriations Laws • Healthy People 2010 • WIC, Family Leave, Welfare Reform • Federal Court Cases (about 40) • Employment law (ADA and FMLA) • Incarcerated mothers • Sexual harassment

3. Policy Patchwork • State Laws (as of 2005, 39 states enacted) • State Court Cases (about 40) • Family Law • Child Abuse or Neglect • Employment Law • Medical Malpractice • Incarcerated Mothers • Harassment or Trauma

4. Breastfeeding as Contested Right • Breastfeeding is a constitutional right (at least in Florida) • Fifth Circuit Court of Appeals (Florida), 1982. • “We conclude that the Constitution protects from excessive state interference a woman’s decision respecting breastfeeding” • Consistent with case law involving parental rights to raise their children as they see fit. • Not an absolute right: also ruled that school district’s competing interests are equally valid. • Dike v. The School Board of Orange County, Florida. 650 F. 2d. 783. (1981 U.S. App.) • Not yet taken up by US Supreme Court or ensconced in federal law.

5. Federal Courts: Relevant Laws • Federal Employment Law: • Pregnancy Discrimination Act (1978 amendment to 1964 Civil Rights Act) • Americans with Disabilities Act (1992 amendment to 1964 Civil Rights Act) • Family and Medical Leave Act (1993) • Rights of the incarcerated under Dike

6. Little Protection for BF Right • No case refutes essential finding in Dike, that breastfeeding is a constitutional right. • Yet all cases rule against BF mother. • Pregnancy Discrimination Act. Breastfeeding mothers are not a protected class because • They are no longer pregnant; and • Need to nurse or pump is not a “medical condition.” • Americans With Disabilities Act. Unrelated cases ruled: : • Breastfeeding is not a disability, and • Inability to breastfeed is a not a disability. • Family and Medical Leave Actcannot be invoked in cases where bf is a medical necessity to child, or child refuses a bottle past the 12 weeks of unpaid leave. • Incarcerated mothers have no constitutional right to BF or pump while in prison.

7. Conflicting Federal Laws • Policies that Support: • Treasury Appropriations Laws • Women may breastfeed on any federal property where she is otherwise entitled to be. • Implies mothers employed on federal property may nurse or pump at work. • Healthy People 2010 and WIC • Policies that Undermine: • Family and Medical Leave: up to 12 weeks of unpaid leave. • Temporary Assistance to Needy Families (TANF, a.k.a. “welfare”): Two years and off; five year lifetime maximum.

8. As of 2005, 39 states had enacted breastfeeding rights legislation Allow women to breastfeed in any public or private location (32 states) Exemptions from public obscenity laws (15 states) Protections for employed mothers (10 states) Exemptions from jury duty (10 states, plus SC) BF awareness campaign (4 states) Assist low income women with breastfeeding (4 states) Consider in divorce, child custody and visitation (3 states) Regulate distribution of human milk (2 states) Exempt from child abuse or sexual conduct with a child statutes (2 states) Insurance coverage of BF support (TX) Prohibit discrimination against BF babies in child care centers (LA) Incarcerated mothers may keep babies in prison (NY) Public health campaign about mercury-tainted fish to bf moms (RI) Permit nursing babies to ride unrestrained in automobiles (MI) (Source: National Conference of State Legislatures and author) “Rights without Remedy” – only four states offer women any legal remedies if rights are violated. Usually modest fines. State Laws: A Beginning

9. State Court Cases: Conflicting Results • Family Law Cases (18): • 12 ruled against breastfeeding mother. • All cases involving extended breastfeeding (more than one year) ruled against mother. • Important: Father’s parental rights and child’s interest in having a relationship with her/his father. • Child Abuse and Neglect (14) • BF mothers found guilty of neglect when • Using illegal drugs, • Certain prescription medications, • High blood lead levels, • HIV positive, • Didn’t take lithium and suffered psychotic breakdowns • BF Babies were malnourished • Breastfeeding defined as child abuse (2 cases) • BF in front of older son. • BF in front of estranged partner who was under restraining order.

10. More State Cases: • State Employment Laws (4 cases): • Ruling Against Mother: • Unlawful termination: Baby refused bottle. Mother asked for extension of leave. When didn’t return to work, she was fired. • Unemployment compensation claim. BF chemist asked to be reassigned to reduce exposure to hazardous chemicals. Employer refused. Woman quit job and sued for unemployment benefits. State refused, stating bf was a “personal choice.” • Ruling for Mother: • Disability case (NY) because of infant’s condition. • Disability case (PA) where nursing mother refused treatment in order to continue bf. Extension of disability benefits.

11. Final State Court Cases • Medical Malpractice (3 cases) • All very different in details. Two of three ruled on behalf of BF mother. • Sexual Harassment or Trauma (4 cases) • Breastfeeding used as evidence of sexual harassment. • Trauma case, milk dried up as a result of witnessing car accident. • Incarcerated mothers (2 cases) • Ruled against mothers. • New York case predated NY law permitting incarcerated mothers to care for infants in prison.

12. Patterns in the Policy Patchwork • There is a constitutional right to breastfeed. Dike case cited widely; never overturned • But a woman’s right to breastfeed is contested, not absolute. • Breastfeeding rights recognized but considered less important than employers’ rights, fathers’ rights. • Defined as a woman’s right to breastfeed, but infant’s or child’s rights do not include being breastfed. • Not effectively argued under child safety, good nutrition, adequate care or protection. • A contested right leads to a policy patchwork. • State and Federal; laws and cases. • A policy patchwork leads to contradictory policies. • Supportive federal public health initiatives at odds with employment law and civil rights. • State laws recognize right to bf in public, but right does not extend to other situations. • Courts especially hostile to bf rights.

13. Tenuous Rights • As a package, policies imply that breastfeeding rights are most indisputable for women who are at a restaurant, shopping mall or museum. • Breastfeeding rights are more tenuous for any women who deviate from some ill-defined “ideal” mother, because they are: • Employed outside home • Divorced • Poor • Sick or disabled • Mentally ill • Suspected of child neglect for other reasons • Incarcerated

14. Issues for Concern • Resolve conflicts in state and federal legislation. • Extend FMLA • Comprehensive breastfeeding rights legislation at federal level. • PDA extension for employed mothers. • Includes “remedies” in state/federal legislation. • Certain breastfeeding rights espoused by some advocates are at odds with others’ natural rights: • Incarcerated babies • Jury duty exemptions • Narrow definition of children’s best interest in family law cases. • Reflects lack of public recognition of the value of children to society.