Legality Question

[snowbunny]

I see a lot of threads here in which it is assumed that if state law protects a woman's right to breastfeed in public, it then is illegal to ask a breastfeeding mom to cover up or move.

I don't believe that is the case, of course, I'm no attorney.

I'm under the impression that, no matter how tactless and disrespectful such a request is, it is not illegal because laws usually read something along the lines of "A mother has the right to breastfeed in any public place" not "a person may not ask a nursing mother to cover up or move."

If it were against the law to ask a nursing mother to cover up or move, wouldn't we be able to file criminal charges? Rather, a mother who has her state-protected right hindered can file only civil charges.

Again, I'm no legal expert, so I hope someone with a legal mind can clarify.

[calicocj]

Hi, I don't know the answer to your question, but it seems that if the laws were more explicit, there wouldn't be such a gray area where someone could feel justified in asking the mom to cover up...

I just moved from Florida, and the law there clearly says that the right to breastfeed in public (or private) place is irrespective of if the nipple is covered or not... so I guess (I'm not a lawyer either) in that case it would be illegal to ask them to cover up?

interesting question, I hadn't thought about that...

[alegna]

It's more of an issue that they can't REQUIRE that a woman cover up or move.

-Angela

[snowbunny]

It's more of an issue that they can't REQUIRE that a woman cover up or move.

I do know that; however, just because they can't legally require a woman to move or cover up doesn't mean asking a woman to cover up/move/hide is illegal.

We just get a lot of threads here where someone asking a woman to cover up or move is called "illegal" but such action isn't illegal at all, is it? I mean, while there's laws that say a woman may breastfeed in public, there's no law that says you can't ask a person to cover up.

[jessjgh1]

Interesting point Snowbunny... but the laws that a nursing woman might violate are indecency laws.

People can get away with wearing very provocative clothing and other people don't go around suggesting they cover up. A person might be charged if they were exposing body parts- but we don't legislate a 'dress code'. Certainly if a shop keeper starts to stop customers and request they 'cover up' there is going to be negative backlash against the shopkeeper.

Some people find nursing offensive and complain even when a mother is being discreet. Actually, the people that seem to find nursing offensive seem to be bothered by nursing no matter how discreet a mother is.

It is my understanding that most legislation that protects the right of a child to nurse specifically counter indecency laws in the state, for example. Specifically, many of the laws ALLOW a nursing woman to expose her nipple if need be to nurse and while nursing.

So sure, technically, it may not be illegal for a person to ask a woman to cover up-- however it is completely inappropriate to do so and she is within her legal right to breastfeed unrestricted and ignore the request.

It may be illegal for a person to try to restrict the actions of breastfeeding if legislation was carefully worded. I think each state law would have to be specifically examined. Unfortunatly, my state has none.

Jessica

[alegna]

Originally Posted by snowbunny

I do know that; however, just because they can't legally require a woman to move or cover up doesn't mean asking a woman to cover up/move/hide is illegal.

We just get a lot of threads here where someone asking a woman to cover up or move is called "illegal" but such action isn't illegal at all, is it? I mean, while there's laws that say a woman may breastfeed in public, there's no law that says you can't ask a person to cover up.

Correct. They can ask. I can refuse. They can't do jack about it.

-Angela

[jessjgh1]

More musings....

Another point may be that none of the laws define what is specifically meant by 'breastfeeding'. The act of breastfeeding could be defined in a way that would allow for exposure (thus asking a woman to cover up would be preventing breastfeeding by restricting the means of accessing the breast/nipple.)

For example.... Conneticut law state:
Conn. Gen. Stat. § 46a-64 (1997) prohibits places of public accommodation, resorts or amusements from restricting or limiting the right of a mother to breastfeed her child. [P.A. 97-210]

Couldn't asking a mother to cover up be construed as restricting/limiting the right?

Someone posted this link recently (thank you) a 50 State Summary: http://www.ncsl.org/programs/health/breast50.htm

Jessica

Editing to add more laws: Then there are laws like Georgia's that need a little editing:
Ga. Code § 31-1-9 (1999) allows a mother to breastfeed in any location where she is otherwise authorized to be, provided that she "acts in a discreet and modest way." [Act 304 (SB 29)]

Another law that could be modified
Mo. Rev. Stat. § 191.918 (1999) allows a mother, with as much discretion as possible, to breastfeed her child in any public or private location.

Here's more good examples that might protect against people asking people to cover up:
Md. Code § 20-801 Laws, Chap. 369 (2003) permits a woman to breastfeed her infant in any public or private place and prohibits anyone from restricting or limiting this right. (SB223)

Live Free or Die (and breastfeed happily)
N.H. Rev. Stat. Ann. § 121:1, et seq. (1999) states that breastfeeding does not constitute indecent exposure and that limiting or restricting a mother's right to breastfeed is discriminatory

In Washington you can pump too
Wash. Revised Code § 9A.88.010 (2001) states that the act of breastfeeding or expressing breast milk is not indecent exposure. (HB 1590)

Nipple protection!
Minn. Stat. § 145.905 a mother may breastfeed in any location, public or private, where the mother and child are otherwise authroized to be, irrespective of whether the nipple of the mother's breast is uncovered during or incidental to the breastfeeding.


These final 2 are just silly, obviosly (hopefully) the summary's leave some important info out:
Okay OKlahoma & RI are you sure about this!!!
2004 OK Laws, Chap. 332 allows a mother to breastfeed her child in any location that she is authorized to be and exempts her from the crimes and punishments listed in the penal code of the state of Oklahoma.
R.I. Gen. Laws § 11-45-1 (1998) excludes mothers engaged in breastfeeding from disorderly conduct laws. (HB 8103, SB 2319)
Hmmm, doesn't that sound like if you rob a bank while breastfeeding you can get away with it in OK, and in Rhode Island you can get rip roaring drunk while breastfeeding and fight and scream without repercussion! LOL!

[snowbunny]

Originally Posted by jessjgh1

More musings....

Another point may be that none of the laws define what is specifically meant by 'breastfeeding'. The act of breastfeeding could be defined in a way that would allow for exposure (thus asking a woman to cover up would be preventing breastfeeding by restricting the means of accessing the breast/nipple.)

For example.... Conneticut law state:
Conn. Gen. Stat. § 46a-64 (1997) prohibits places of public accommodation, resorts or amusements from restricting or limiting the right of a mother to breastfeed her child. [P.A. 97-210]

Couldn't asking a mother to cover up be construed as restricting/limiting the right?

Someone posted this link recently (thank you) a 50 State Summary: http://www.ncsl.org/programs/health/breast50.htm


Jessica

Okay ... this is exactly what I was looking for. In CT, it would be illegal to restrict nursing moms, but elsewhere where there's no prohibition on restricting/limiting the right of nursing moms it is *LEGAL* to ask moms to cover up / leave.

So, outside of CT and a few other places with that kind of wording, we are wrong when we say, "You are violating the law on breastfeeding in public" to a person who asks us to cover up, but would be right if we said, "You are violating my right to breastfeed in public."

I just think it is important to really know what the law means, and not to quote its meaning incorrectly lest we appear ill-informed, KWIM?

[jessjgh1]

snowbunny

Okay ... this is exactly what I was looking for. In CT, it would be illegal to restrict nursing moms, but elsewhere where there's no prohibition on restricting/limiting the right of nursing moms it is *LEGAL* to ask moms to cover up / leave.

Well, lets step back: some laws state that the mother has the right to breastfeed anywhere she has the right to be, so in those states it would seem wrong to be asked to leave.

My general feeling has been that the if push comes to shove there is very little incentive to actually try to take a breastfeeding woman to court and if that DID happen the spirit of the law would eventually come out in favor of breastfeeding.

One well written federal would be a huge relief to unmangle the various state laws, some being specific about prohibiting restriction, some protecting exposure, some suggesting discretion, some having an age limit (such as 12 months), etc.

The other huge point is that breastfeeding is NOT illegal. In some state exposing the nipple is indecent exposure and a violation, but in itself, breastfeeding is legal.


Jessica

[snowbunny]

Originally Posted by jessjgh1

Wouldn't it be wrong to ask a mom to leave? Well, step back: some laws state that the mother has the right to breastfeed anywhere she has the right to be, so in those states it would seem wrong to be asked to leave.

Jessica

Yes, I agree it is completely wrong, but it is not illegal. As in the person hindering the mom is not commiting a crime.

[Momtwice]

You can google "breastfeeding and the law" for articles at http://www.kellymom.com
http://lalecheleague.org

and more.

You can also try googling "Elizabeth Baldwin" the late attorney who specialized in breastfeeding and the law.

[Janice in Canada]

I don't have time to study all the posts in this thread, but wanted to mention that your question was the focus of an incident in Toronto Canada, early in 2005. (you could search "Dufferin Park" in the archives of this forum).

In Canada, breastfeeding is protected in our Human Rights legislation, and this is strongly promoted in Ontario. However, the violator continually and publically argued that she did NOT violate the mom's right to breastfeed when she simply asked her to move or cover. Lawsuits were threatened, but in the long run the debate just played out in public debate and on the Park website. The violator was a Park volunteer (not an employee of the City, but presented herself as the defacto manager of the Park facility). The incident forced City Hall to become aware of its policy to allow breastfeeding in public and reinforce it with its employees, but they were unable to discipline or muzzle this park volunteer.

Janice

[Nisupulla]

Originally Posted by snowbunny

I see a lot of threads here in which it is assumed that if state law protects a woman's right to breastfeed in public, it then is illegal to ask a breastfeeding mom to cover up or move.

This isn't a law yet, but the proposed breastfeeding law in Massachusetts does impose a fine on people who interfere with the right to BF.

http://www.llli.org/Law/proposedsummary.html

Whoever deprives any person who is breast-feeding, of any right conferred by this section shall be punished by a fine of not more than three hundred dollars and shall be liable to any person aggrieved thereby for such damages as are set forth in section five of chapter one hundred and fifty-one B; provided, however, that such civil forfeiture shall be of an amount not less than one hundred dollars.

I happen to be in favor of legislating a fine.

[RomanGoddess]

I do know that; however, just because they can't legally require a woman to move or cover up doesn't mean asking a woman to cover up/move/hide is illegal.

It is generally against state law for a person to require a breastfeeding woman to move or cover up. But something being against the law does not make it a criminal offence. It may just be a human rights violation, in which case the offender will be fined and/or forced to pay damages to the mother. It may be a civil offence, in which case the mother can bring a lawsuit against the person.

Alternatively, the law may just be there to ensure that the mother cannot be charged for obscenity under the criminal law, in which case, a person can say whatever he wants to the mother, and she does not have to do it. The law not render the request to cover up illegal, it just ensures that the mother's refusal is not considered illegal. If that person should then try to forcibly move the mother and child, this would be actionable independently under the civil laws of most states.

[airmide_m]

I'm TTC and starting my research early because I plan to breastfeed on demand, and have no intentions of being "discrete" unless that happens to be my child's preferance.

My understanding is that Oregon's laws state that a woman may breastfeed in public. Now I'm curious exactly what that means and doesn't mean. What qualifies as "public"? What about businesses who have those signs saying "we reserve the right to refuse service to anyone" and stuff like that?

I imagine the issue will come up at some point so I want to have as much knowledge and confidence as possible ahead of time so I'm just indignant rather than feeling afraid/powerless/at a loss for words when it does happen.

[MidwifeErika]

While asking a mother to cover may not be illegal, she has the legal right to refuse. Where I think it gets a little tricky is the asking a woman to leave. Basically, the request alone would be forcing a woman to leave, correct? Because as a business owner or manager, they have the power to request and their request is more like a demand. So, if they force you to leave an establishment for nursing then I think this is much different than asking a woman to put a blanket over the baby (it is and it isn't, you all know what I mean).

[shelbean91]

I would imagine freedom of speech would allow a person to ask a nursing mother cover up or move. Nursing mom has the right to refuse. Nothing further can be done.

[HomeBirthMommy]

Just wanted to let you know that the Georgia law was changed several years ago and the "discrete" part was removed.

[Janice in Canada]

See the article I posted about in this thread:
http://www.mothering.com/discussions...d.php?t=589094
The article & video clip I'm referring to is
http://www.channel3000.com/news/10674443/detail.html

Prohibiting the "interference" with breastfeeding moms, would certianly take care of this debate. And clear fines would certainly help, too.
(Watch the video clip, it gives more information than the article)
Janice

[hypatia]

So, outside of CT and a few other places with that kind of wording, we are wrong when we say, "You are violating the law on breastfeeding in public" to a person who asks us to cover up, but would be right if we said, "You are violating my right to breastfeed in public."

I don’t think we are exactly wrong – I think we’re being optimistic. I agree with your interpretation, Snowbunny, that these laws don’t explicitly prohibit a store from having a “breastfeeding patrons must cover up” policy.

But that’s not the end of the story. Most of these laws haven’t been tested by courts, so we don’t really know what a court would say about them. I believe that the best interpretations of these laws is that a “women have the right to breastfeed” law really means that “women have a right to breastfeed without covering up.” I hope that if these laws are tested, the court will argue along the lines of: “The purpose of this law is to protect the public policy goal of promoting breastfeeding by encouraging women to breastfeed in public. Policies asking women to cover up while breastfeeding unnecessarily erode women’s right to breastfeed in public, and thus, are not acceptable under the law of our state.”

Of course it’s possible that a court would come to a different outcome.