Lactation and the Law

By Jake Aryeh Marcus
Issue 143, July/August 2007

Most women who breastfeed their children will, at some time or other, find it necessary to nurse their children outside of their homes. For most women who nurse in public places, feeding their children will be no more stressful than nursing at home. Other people often do not notice when someone is breastfeeding near them, and those who do notice are generally indifferent or even supportive. All too often, however, we read stories of women who have been told to use a bathroom to nurse their children, asked to cover themselves and their child with a blanket, or told they must leave a place because they want or need to nurse.

"I have the right to breastfeed anywhere I have the right to be" has become the rallying cry of mothers who breastfeed outside their homes. But is this true? And if it is true, what can be done if someone interferes with that right while a woman is breastfeeding in a public space?

There are no laws in the US forbidding breastfeeding outside of the home, and only two states in which laws place any limitation on the way in which public breastfeeding may be done.¹ However, in the absence of a law establishing and protecting the right, a woman who breastfeeds in a public accommodation—a privately owned place open to the public, such as a restaurant or shopping mall—might lawfully be asked to leave, either by the owner or in accordance with the owner's instructions. If she refuses, she might be removed by the police or placed under arrest for trespass. Without a law to protect her, a woman breastfeeding in a public place such as a park, or state-owned properties (e.g., a courthouse), risks removal by the police and potentially (though this is rare) a charge of some form of indecent exposure. A basic maxim of American law is that a right without a remedy is no right at all.² In plain terms, this means that although you may have a "right" to do anything not otherwise forbidden by law, if you do not also have a legal protection against someone interfering with that right, your ability to exercise it may be limited.

What do state public breastfeeding laws say?

State laws that protect public breastfeeding fall into three categories. Currently, the strongest state laws are those that both protect a woman's right to breastfeed anywhere she or her child have a right to be, regardless of whether the breast is showing, and that also give the woman the power to bring a legal action against anyone who interferes with her breastfeeding.³ Other state laws establish a woman's right to breastfeed in public, but don't provide a way for her to enforce this right. The third category specifies that the act of breastfeeding is not indecent exposure (sometimes given other names, but always referring to the exposure of body parts), and prevent a woman from being charged with a sex crime for breastfeeding.

What does enforcement mean?

In Vermont, a woman whose right to breastfeed has been violated "may file a charge of discrimination with the human rights commission ... or may bring an action for injunctive relief and compensatory and punitive damages and any other appropriate relief in the superior court of the county in which the violation is alleged to have occurred."⁴ She may also seek an order for the offending party to pay her attorneys' fees.⁵

This statute enabled Emily Gillette to file a complaint against Freedom Airlines and Delta Air Lines before the Vermont Human Relations Commission in 2006. Gillette, a mother from New Mexico, was removed from a Freedom Airlines flight, while it was still on the ground in Vermont, for refusing a flight attendant's demand that she cover herself while breastfeeding her child. Without the law, she might have been left only with the statement of a Delta spokesperson (Delta had an agreement with Freedom to carry its passengers) that "Delta Air Lines fully supports a mother's right to breast-feed on board our aircraft, and we were very disappointed in the decision to move Ms. Gillette from the flight."⁶

Gillette and her family were not only humiliated by an airline employee, but had to wait until the next day for a new flight. Other than a few public words, the airlines have offered her nothing, and in the absence of a court or commission ruling, there are no guarantees that a Freedom or Delta employee will not behave the same way in the future.

In the other states that currently have enforcement mechanisms for their public breastfeeding laws, the possible awards include an injunction—a court order that the discriminatory behavior stop immediately—or, in a few states, a fine. New Jersey law, for example, imposes possible fines "not to exceed $25.00 for the first offense following initial notification, and not to exceed $100.00 for the second offense, and not to exceed $200.00 for each offense thereafter."⁷ Laws in some states also create a private right of action for someone who has suffered discrimination, which means that a woman may file a lawsuit to recover money damages.⁸ The stress, embarrassment, and humiliation that a woman may suffer when she is harassed is difficult to quantify in dollars, but the fact is that in many other contexts, our state and federal courts make these determinations every day. Often, the threat of having to defend against a lawsuit will motivate the offending party to settle the case. Most state laws enforcing protections for nursing in public also include the right to recover attorneys' fees and other costs incurred in bringing a complaint or lawsuit.