Massachusetts may FINALLY get BFing legislation!!!

[KirstenMary]

http://www.sentinelandenterprise.com/local/ci_8118199
.

[woodchick]

Thanks for posting! I'm glad to read that MA is finally starting to catch up with the rest of the country!

[CathMac]

Originally Posted by woodchick

Thanks for posting! I'm glad to read that MA is finally starting to catch up with the rest of the country!

It's often said that no legislation is better than bad legislation. I would be very concerned if the proposed law does not contain the key phrase: "where mother and baby are otherwise permitted to be". Otherwise, as I understand it there is nothing stopping a business owner from barring nursing moms and they would be in compliance with the law since the mom and baby would not permitted to be there.

I'm also curious about the issue of places of worship as "public accomodation". My guess is that the law won't apply there.

Does anyone have a link to a copy of the proposed law?

Thanks, ~Cath

[woodchick]

The article doesn't mention the specific bill, but does say that it ws sponsored by Sen. Susan Fargo, D-Lincoln who originally brought it in 2006.

Here's a link to that bill.

http://www.mass.gov/legis/bills/senate/st02/st02704.htm

I don't know if the bill that received initial approval Tuesday was the same one or if changes were made to it.

[CathMac]

Originally Posted by woodchick

...
I don't know if the bill passed Tuesday was the same one or if changes were made to it.

woodchick,
Thanks for the link. One point of clarification, the law hasn't passed yet. I think the article is explaining that there are some signs it may actually be put up for a vote, perhaps soon. I wonder if some of the language may be revised prior to that and if so how you could find out and voice any concerns about retaining some of the more important provisions?

The article doesn't specifically say that they have changed any of the proposed language, but that doesn't mean that they haven't. My guess is there must have been some minor revisions since the article refers to $500.00 in damages but I don't see any mention of that in the 2006 proposed legislation. If so, this may be putting a cap on the amount where there didn't seem to be one before. This could take the teeth out of the law when dealing with large businesses but it would be kind of sweet to tell anyone else it could cost them $500.00 if they continue to harass you.

If I am wrong about that perhaps someone could set me straight.

Here is an excerpt from the article and further below is a copy/paste of the 2006 proposed ;egislation, in its entirety.

Sentinel and Enterprise:
"This new bill not only exempts breast-feeding from indecency statutes, but gives women legal recourse against anyone who harasses them for nursing their child in public, including damages of up to $500 in civil court."

"SENATE, No. 2704 In the Year Two Thousand and Six. AN ACT Protecting the Rights of Nursing Mothers
http://www.mass.gov/legis/bills/senate/st02/st02704.htm
SECTION 2. Chapter 111 of the General Laws is hereby amended by inserting after section 219, the following 2 sections:-
Section 220. (a) A mother may breastfeed her child in any public place, or place or establishment which is open to and accepts or solicits the patronage of the general public; and where the mother and her child may otherwise be there lawfully.
(b) The act of a mother breastfeeding her child in any public or private location shall not be construed as lewd or indecent unlawful conduct, notwithstanding any other law to the contrary.
(c) It shall be unlawful for any person to, intentionally and without lawful justification, intimidate or interfere with, or attempt to intimidate or interfere with, a mother breastfeeding her child.
(d) The attorney general may bring a civil action for injunctive or other equitable relief to protect any right granted under this section.
(e) Any aggrieved person whose rights under subsection (a) have been unlawfully violated by another person may bring a civil action against such other person for equitable relief including injunctive relief and for (unspecified) monetary damages. If an aggrieved person prevails in an action brought under this subsection, the court shall award the costs of litigation and reasonable attorney fees as determined by the court in addition to any other relief.
(f) A civil action commenced by the attorney general under subsection (d) or by an aggrieved person under subsection (e) shall be instituted in the superior court for the county where the conduct complained of occurred or in which the person whose conduct complained of resides or has a principal place of business.
(g) Notwithstanding subsection (a), a place of religious instruction or worship may disallow breastfeeding on any of its premises.

Section 220½. The department shall provide educational information to the public on the health benefits of breastfeeding. All such information shall be compatible with the nutritional requirements to be provided by the department under section 1 of chapter 111I. The department shall post such information on its public internet site and may make the information available in written format, to local boards of health and to any state department, division or agency that administers a maternal or child health service or program, for public dissemination."

ETA - Perhaps the simplest thing to do would be to contact Senator Fargo's office.

~Cath

[woodchick]

ETA - Perhaps the simplest thing to do would be to contact Senator Fargo's office.

I think that would be the best thing to do. I couldn't find any current references to the bill online.

[mamajake]

Originally Posted by CathMac

woodchick,
Thanks for the link. One point of clarification, the law hasn't passed yet. I think the article is explaining that there are some signs it may actually be put up for a vote, perhaps soon. I wonder if some of the language may be revised prior to that and if so how you could find out and voice any concerns about retaining some of the more important provisions?

The article doesn't specifically say that they have changed any of the proposed language, but that doesn't mean that they haven't. My guess is there must have been some minor revisions since the article refers to $500.00 in damages but I don't see any mention of that in the 2006 proposed legislation. If so, this may be putting a cap on the amount where there didn't seem to be one before. This could take the teeth out of the law when dealing with large businesses but it would be kind of sweet to tell anyone else it could cost them $500.00 if they continue to harass you.

If I am wrong about that perhaps someone could set me straight.

Here is an excerpt from the article and further below is a copy/paste of the 2006 proposed ;egislation, in its entirety.

Sentinel and Enterprise:
"This new bill not only exempts breast-feeding from indecency statutes, but gives women legal recourse against anyone who harasses them for nursing their child in public, including damages of up to $500 in civil court."

"SENATE, No. 2704 In the Year Two Thousand and Six. AN ACT Protecting the Rights of Nursing Mothers
http://www.mass.gov/legis/bills/senate/st02/st02704.htm
SECTION 2. Chapter 111 of the General Laws is hereby amended by inserting after section 219, the following 2 sections:-
Section 220. (a) A mother may breastfeed her child in any public place, or place or establishment which is open to and accepts or solicits the patronage of the general public; and where the mother and her child may otherwise be there lawfully.
(b) The act of a mother breastfeeding her child in any public or private location shall not be construed as lewd or indecent unlawful conduct, notwithstanding any other law to the contrary.
(c) It shall be unlawful for any person to, intentionally and without lawful justification, intimidate or interfere with, or attempt to intimidate or interfere with, a mother breastfeeding her child.
(d) The attorney general may bring a civil action for injunctive or other equitable relief to protect any right granted under this section.
(e) Any aggrieved person whose rights under subsection (a) have been unlawfully violated by another person may bring a civil action against such other person for equitable relief including injunctive relief and for (unspecified) monetary damages. If an aggrieved person prevails in an action brought under this subsection, the court shall award the costs of litigation and reasonable attorney fees as determined by the court in addition to any other relief.
(f) A civil action commenced by the attorney general under subsection (d) or by an aggrieved person under subsection (e) shall be instituted in the superior court for the county where the conduct complained of occurred or in which the person whose conduct complained of resides or has a principal place of business.
(g) Notwithstanding subsection (a), a place of religious instruction or worship may disallow breastfeeding on any of its premises.

Section 220½. The department shall provide educational information to the public on the health benefits of breastfeeding. All such information shall be compatible with the nutritional requirements to be provided by the department under section 1 of chapter 111I. The department shall post such information on its public internet site and may make the information available in written format, to local boards of health and to any state department, division or agency that administers a maternal or child health service or program, for public dissemination."

ETA - Perhaps the simplest thing to do would be to contact Senator Fargo's office.

~Cath

There is a lot of good language in this but I never trust the press for a description of either the status or the content of a legislative action. I have some big concerns with (g). Looking forward to see what you find Cath. I couldn't find the most recent version on-line either.

[CathMac]

More current version of Fargo's Legis. Note, new ref #: No. 78

It looks like the version below is current as of 12/3/07.

The earlier penalty provision of Fargo's proposed law has been omitted. The good news is that the "otherwise allowed" language is still there. And it now contains provisions for pumping at work; there is a penalty provision there but it is incorporated by reference from two sections of another law that I couldn't find. That might be where the $500.00 amount is coming from.

If anyone finds anything more current or hears from Fargo's office please advise. For any research geeks out there it looks like the reference info may have changed from Senate No. 2704 to Senate No. 78

http://www.openmass.org/bills/show/1030
Senate 78 - Petition of Susan C. Fargo, David P. Linsky, Edward M. Augustus, Jr., Lida E. Harkins and other members of the General Court for legislation relative to the public health benefits of breastfeeding.
Bill Status
Session: 185th General Court; Bill Status 12/03/07 S Accompanied a new draft, see S2438 -SJ 1014


In the Year Two Thousand and Seven.
________________________________________
AN ACT RELATIVE TO THE PUBLIC HEALTH BENEFITS OF BREAST FEEDING
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. The general court finds that:
(a) breastfeeding provides better nutrition for infants and greater protection against infection and illness, and reduces hospital visits and infant mortality;
(b) nursing mothers receive greater protection against various cancers and have better physical and emotional health; and
(c) breastfeeding benefits families, employers and the economy of the commonwealth by helping to lower health care expenses.
SECTION 2. Chapter 111 of the General Laws is hereby amended by inserting after section 220, as added by chapter 194 of the acts of 2006, the following section:-
Section 221. (a) A mother may breastfeed her child in any public place, or place or establishment which is open to and accepts or solicits the patronage of the general public; and where the mother and her child may otherwise be there lawfully.
(b) The act of a mother breastfeeding her child in any public or private location shall not be construed as lewd or indecent unlawful conduct, notwithstanding any other law to the contrary.
(c) It shall be unlawful for any person to, intentionally and without lawful justification, intimidate or interfere with, or attempt to intimidate or interfere with, a mother breastfeeding her child.
(d) The attorney general may bring a civil action for injunctive or other equitable relief to protect any right granted under this section.
(e) Notwithstanding subsection (a), a place of religious instruction or worship may disallow breastfeeding on any of its premises.
SECTION 3. Chapter 149 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by inserting after section 105D, the following section:-
Section 105E. (a) For purposes of this section, the following words shall have the following meanings:-
“Employee”, an employee as defined in section 1 of chapter 151B.
“Employer”, an employer as defined in section 1 of chapter 151B.
“Labor organization”, a labor organization as defined in section 1 of chapter 151B.
(b) No employer or labor organization shall prohibit an employee from expressing breast milk during any meal period or other break period required by law to be provided by the employer or required by a collective bargaining agreement. Employers and labor organizations shall also provide reasonable unpaid break time each day to an employee who needs to express breast milk for her child. If possible, the break time for breastfeeding shall run concurrently with any break time already provided to the employee. The employer or labor organization shall make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where the employee can express her breast milk in privacy. An employer or labor organization is not required to provide break time for breastfeeding by an employee under this section if to do so would unduly disrupt the operations of the employer or labor organization.
(c) It shall be an unlawful discriminatory practice for any employer or labor organization, because an employee expresses milk at the workplace, to refuse to hire or employ or to bar or to discharge from employment such employee or to discriminate against such employee in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.
(d) Violation of this section shall be subject to the second paragraph of section 150 and to section 180. An employer or labor organization shall be not liable for a violation of this section if reasonable efforts have been made to comply with its provisions. Nothing in this section shall prohibit employers or labor organizations from establishing internal rules and guidelines for employees who may wish to breastfeed or express breast milk in the workplace.
SECTION 4. The Massachusetts Commission Against Discrimination shall annually compile, analyze and publish data concerning incidences of discrimination involving breastfeeding or expressing breast milk in the workplace. The commission shall submit a written report on its findings annually to the clerk of the house of representatives and the clerk of the senate.
SECTION 5. (a) The executive office of health and human services shall maintain and make available for public inspection a list of businesses in the commonwealth and covered by this act that it designates as promoting breastfeeding in the workplace. A business seeking such designation may submit its breastfeeding policies to the executive office of health and human services.
(b) The executive office of health and human services shall develop a unique identifying mark or name to distinguish those designated businesses that promote breastfeeding in the workplace and a business may use such mark or name in its promotional materials, if the business develops and implements a written policy supporting the practice of workplace breastfeeding which includes the following elements:
(1) work schedule flexibility, including scheduling breaks and work patterns to provide time for expression of milk;
(2) the provision of accessible locations allowing privacy other than a bathroom stall;
(3) access to an electrical outlet; and
(4) access near to a clean, safe water source and a sink for washing hands and any needed breast-pumping equipment; and
(5) access to hygienic storage in the workplace for the mother's breast milk.

~Cath

[woodchick]

Thank you for posting that Cath! I have an email in to Sen. Fargo's office, but I haven't yet heard from them.

[CathMac]

Originally Posted by woodchick

Thank you for posting that Cath! I have an email in to Sen. Fargo's office, but I haven't yet heard from them.

woodchick,
See links below for what appears to be the most current status. The second link is to a list of matters before the House. However it doesn't show S 78 yet. And maybe I'm just a little paranoid but the first link refers to "new draft" without providing a copy. So in my mind there is no way to be absolutely sure the above version is the the one up for a vote.

http://www.mass.gov/legis/185history/s02438.htm
Senate, No. 2438 Bill to promote breastfeeding.
12/03/07 S Reported from the committee on Public Health
12/03/07 S New draft of S78
12/03/07 S Bill reported favorably by committee and referred to the committee on Senate Ways and Means -SJ 1014
01/28/08 S Committee recommended ought to pass
01/28/08 S Rules suspended
01/28/08 S Read second and ordered to a third reading
01/29/08 S Read third
01/29/08 S Passed to be engrossed - 38 YEAS to 0 NAYS (see Senate Roll Call, No. 169)
01/31/08 H Read; and referred to the committee on House Ways and Means

Mass.gov Legislation
http://www.mass.gov/legis/comm/h34.htm
List of matters currently referred to the committee

It looks like it’s not on the official "House" list just yet but if the info from the Mass.gov page above is correct it should be.

~Cath

[annettemarie]

Closed pending edits. Ladies, discussing articles is great. Discussing the comments and inviting people to go and fight is against the User Agreement:

Do not post to invite MDC members to other boards for adversarial purposes or post inflammatory information about MDC discussions at other boards, or about communities and discussions elsewhere, regardless of whether or not you link to that discussion or community. This is to maintain and respect the integrity of our own and other communities.

[annettemarie]

Reopening

[mamajake]

Originally Posted by CathMac

Section 221. (a) A mother may breastfeed her child in any public place, or place or establishment which is open to and accepts or solicits the patronage of the general public; and where the mother and her child may otherwise be there lawfully.
(b) The act of a mother breastfeeding her child in any public or private location shall not be construed as lewd or indecent unlawful conduct, notwithstanding any other law to the contrary.
(c) It shall be unlawful for any person to, intentionally and without lawful justification, intimidate or interfere with, or attempt to intimidate or interfere with, a mother breastfeeding her child.
(d) The attorney general may bring a civil action for injunctive or other equitable relief to protect any right granted under this section.
(e) Notwithstanding subsection (a), a place of religious instruction or worship may disallow breastfeeding on any of its premises.

~Cath

Some of this is worrisome to me. What is "lawful jurisdiction"? Is it property ownership? Also the only penalty is a civil action the attorney general "may" bring. Will he? Subsection (e) is not a good thing either, in my view.

[CathMac]

Massachusetts' Senate No. 2438 - An Act To Promote BF'ing

Mamajake,
I replied once and lost the whole lengthy post, courtesy of the ongoing technical difficulties.

I think I’ve located the most current version, see below. The "otherwise allowed" language is still there. If I understand your point from another thread this may be a bad thing. But perhaps not in light of the phrase “Notwithstanding any general, special or other law to the contrary”. Then again I don’t know how that squares with the phrase “No person, organization or governmental entity without lawful justification, shall restrict (etc.)...”

Regarding the exception for places of worship, I was pretty much expecting that. Arguably a stated exception strengthens the phrase “any law to the contrary” language by specifying one “lawful justification”.

The recently included language on workplace pumping has been deleted. The penalty provision is for actual damages but "not to exceed $500.00, with the possibility of "reasonable attorney fees" being awarded.

Is there any point in contacting the office of the sponsor, Senator Fargo, and asking about the potentially problematic language?

Mass.gov Legis - SENATE, No. 2438
http://www.mass.gov/legis/bills/sena...02/st02438.htm
In the Year Two Thousand and Seven.
AN ACT TO PROMOTE BREASTFEEDING
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 111 of the General Laws is hereby amended by inserting after section 219 the following section:-Section 220.
(a) A mother may breastfeed her child in any public place, or establishment or place which is open to and accepts or solicits the patronage of the general public; and where the mother and her child may otherwise be there lawfully.
(b) Notwithstanding any general, special or other law to the contrary, the act of a mother breastfeeding her child, and any exposure of a breast incidental to, and solely for the purpose of such act, shall not be considered as lewd, indecent or immoral, unlawful conduct in any public or private location.
(c) No person, organization or governmental entity without lawful justification, shall restrict, harass or penalize a mother who is breastfeeding to purposely violate her right under subsection (a).
(d) The attorney general may bring a civil action for equitable relief to restrain or prevent a violation of subsection (c).
(e) A civil action may be brought under this section by a mother who has been subject to conduct in violation of subsection (c). In such action, the court may, award her actual damages in an amount not to exceed $500 and, enter appropriate orders to restrain such unlawful conduct.
In addition to any such relief, the court may award reasonable attorney fees.
(f) A place of religious instruction or worship shall not be subject to this section.

If I understand correctly it needs to go to the House Ways and Means Committee. That could take years. I am told that they are unlikely to change the language again. If the committee approves it would be put to a vote in the House and if it passes then the Senate would vote upon the current version. It would then go to the governor for his signature. Thank goodness the former governor is on the presidential campaign trail.

BTW, I did get an mail reply from the Mass. BF’ing Coalition suggesting that I check Mass.gov/Legis using the Bill #. Do you think she would like to know that there have been two sets of changes with corresponding Bill # changes since the version posted on their site?
~Cath

[mamajake]

Originally Posted by CathMac

Mamajake,
I replied once and lost the whole lengthy post, courtesy of the ongoing technical difficulties.

I think I’ve located the most current version, see below. The "otherwise allowed" language is still there. If I understand your point from another thread this may be a bad thing. But perhaps not in light of the phrase “Notwithstanding any general, special or other law to the contrary”. Then again I don’t know how that squares with the phrase “No person, organization or governmental entity without lawful justification, shall restrict (etc.)...”

Regarding the exception for places of worship, I was pretty much expecting that. Arguably a stated exception strengthens the phrase “any law to the contrary” language by specifying one “lawful justification”.

The recently included language on workplace pumping has been deleted. The penalty provision is for actual damages but "not to exceed $500.00, with the possibility of "reasonable attorney fees" being awarded.

Is there any point in contacting the office of the sponsor, Senator Fargo, and asking about the potentially problematic language?

Mass.gov Legis - SENATE, No. 2438
http://www.mass.gov/legis/bills/sena...02/st02438.htm
In the Year Two Thousand and Seven.
AN ACT TO PROMOTE BREASTFEEDING
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 111 of the General Laws is hereby amended by inserting after section 219 the following section:-Section 220.
(a) A mother may breastfeed her child in any public place, or establishment or place which is open to and accepts or solicits the patronage of the general public; and where the mother and her child may otherwise be there lawfully.
(b) Notwithstanding any general, special or other law to the contrary, the act of a mother breastfeeding her child, and any exposure of a breast incidental to, and solely for the purpose of such act, shall not be considered as lewd, indecent or immoral, unlawful conduct in any public or private location.
(c) No person, organization or governmental entity without lawful justification, shall restrict, harass or penalize a mother who is breastfeeding to purposely violate her right under subsection (a).
(d) The attorney general may bring a civil action for equitable relief to restrain or prevent a violation of subsection (c).
(e) A civil action may be brought under this section by a mother who has been subject to conduct in violation of subsection (c). In such action, the court may, award her actual damages in an amount not to exceed $500 and, enter appropriate orders to restrain such unlawful conduct.
In addition to any such relief, the court may award reasonable attorney fees.
(f) A place of religious instruction or worship shall not be subject to this section.

If I understand correctly it needs to go to the House Ways and Means Committee. That could take years. I am told that they are unlikely to change the language again. If the committee approves it would be put to a vote in the House and if it passes then the Senate would vote upon the current version. It would then go to the governor for his signature. Thank goodness the former governor is on the presidential campaign trail.

BTW, I did get an mail reply from the Mass. BF’ing Coalition suggesting that I check Mass.gov/Legis using the Bill #. Do you think she would like to know that there have been two sets of changes with corresponding Bill # changes since the version posted on their site?
~Cath

A bit crazy-making. For some reason I have a software conflict with the Mass. Legislature site so I can't tell what the most recent version is. It is hard to tell how protective the language you quote is. Important to note, though, is that the language of (a) and of (b) do not relate to each other or modify each other because (b) applies to criminal laws only.

Giving women an independent ability to seek a sanction is a good thing. I am always uncomfortable leaving that to state discretion.

The exemption for houses of worship exists in only one other state to my knowledge. I would be unhappy about it. Being able to nurse in church is important to a lot of people and restricting it is the exception and not the norm.

In terms of time line, keep in mind that most legislatures have two year sessions. Any bill that is not passed within one session disappears like so much smoke. My understanding is that Fargo has introduced bills in several sessions. I don't know how much time is left in the current MA session.

Perhaps the MBC is not working with Fargo on this. I might search around on local lists to see who is or if there is a contact in Fargo's office. I don't know what else to suggest.

[honeybunch2k8]

So some churches don't want women to breastfeed there? I'm confused!

[mamajake]

Originally Posted by honeybunch2k8

So some churches don't want women to breastfeed there? I'm confused!

Dunno. There are threads here pretty frequently going both ways. Church was the first place I ever saw someone breastfeed - I was four but remember it very clearly. I was mesmerized.

Including an exemption in the law for houses of worship is very unusual. The only other one I know of is Illinois which says "however, a mother considering whether to breastfeed her baby in a place of worship shall comport her behavior with the norms appropriate in that place of worship." The Illinois law has always irked me particularly since it is so subjective. The provision Cath posts in the MA bill would give houses of worship in MA a right to forbid breastfeeding they don't enjoy anywhere else in the country.

[CathMac]

Ohio Law

Mamajake,
Check out this thread on the Ohio law. If my analysis is correct the "public accomodation" language is problematic.

Do you have a rough idea of how many states' laws use similar wording? I think it's a pretty subtle way for state government to defer to religion.

MDC Lactivism thread: Help Understanding “Public Accomodation” (with respect to Ohio’s BF’ing laws and BF’ing in church) - posted by MoreThanApplesauce on 11/20/07
http://www.mothering.com/discussions...ghlight=church

my response, Post #8
“I did a little bit of research and I found the two links below. The first one is ambiguous. On the one hand it lumps Ohio in with a list of 39 states having statutes "with language specifically allowing women to breastfeed in any public or private location." On the other hand, it paraphrases the actual Ohio law as saying "A mother is entitled to breast-feed her baby in any location of public accommodation wherein the mother (is) otherwise permitted." As you point out, this begs the question of what a public accomodation is.

So I used a MetaSearch engine (Dogpile) and searched the terms "public accomodation worship" to see where that would lead me and I found the second link which discusses the religious entity exemption to the Federal "American with Disabilities Act (ADA)." Essentially it is saying that even when a church is acting as a "public accomodation" (e.g.: running a daycare) that they are exempted from the ADA. I would expect that the Ohio state legislators intended a similar exemption for churches with regard to breastfeeding; and therefore the omission of "places of worship" from the list is probably intentional.

Reading between the lines a little bit here it seems likely that if churches are allowed an exemption even when they are acting as a "public accomodation" that they certainly wouldn't have to allow BF'ing when they aren't acting as a public accomodation. My guess is that church services, religious instruction, church meetings, etc. would all be examples of non "public accomodation" type activities.

This would seem to save the circular analysis of whether a mother is "otherwise permitted to be" in a church that might claim a religious objection to BF'ing in church. It only makes sense given the separation of church and state that legislators would be deferential to places of worship.”

~Cath

[mamajake]

Originally Posted by CathMac

Mamajake,
Check out this thread on the Ohio law. If my analysis is correct the "public accomodation" language is problematic.

Do you have a rough idea of how many states' laws use similar wording? I think it's a pretty subtle way for state government to defer to religion.

MDC Lactivism thread: Help Understanding “Public Accomodation” (with respect to Ohio’s BF’ing laws and BF’ing in church) - posted by MoreThanApplesauce on 11/20/07
http://www.mothering.com/discussions...ghlight=church

my response, Post #8
“I did a little bit of research and I found the two links below. The first one is ambiguous. On the one hand it lumps Ohio in with a list of 39 states having statutes "with language specifically allowing women to breastfeed in any public or private location." On the other hand, it paraphrases the actual Ohio law as saying "A mother is entitled to breast-feed her baby in any location of public accommodation wherein the mother (is) otherwise permitted." As you point out, this begs the question of what a public accomodation is.

So I used a MetaSearch engine (Dogpile) and searched the terms "public accomodation worship" to see where that would lead me and I found the second link which discusses the religious entity exemption to the Federal "American with Disabilities Act (ADA)." Essentially it is saying that even when a church is acting as a "public accomodation" (e.g.: running a daycare) that they are exempted from the ADA. I would expect that the Ohio state legislators intended a similar exemption for churches with regard to breastfeeding; and therefore the omission of "places of worship" from the list is probably intentional.

Reading between the lines a little bit here it seems likely that if churches are allowed an exemption even when they are acting as a "public accomodation" that they certainly wouldn't have to allow BF'ing when they aren't acting as a public accomodation. My guess is that church services, religious instruction, church meetings, etc. would all be examples of non "public accomodation" type activities.

This would seem to save the circular analysis of whether a mother is "otherwise permitted to be" in a church that might claim a religious objection to BF'ing in church. It only makes sense given the separation of church and state that legislators would be deferential to places of worship.”

~Cath

Cath, you are sort of off in the wrong direction here but you make a good point. Each state has its own statutory definition of what a public accomodation is. ADA law is entirely inapplicable (completely different statute with tons and tons of case law interpreting it). Most state breastfeeding laws make no reference to the term "public accomodation." More commonly you see language like "any place public or private in which she is otherwise authorized to be" which includes public accomodations but applies to lots of other space as well You can see the specific language of state laws at http://llli.org/Law/LawBills.html . Where the term "public accomodation" is used, there will be preexisting state law that determines whether or not houses of worship are included. As you write, Ohio state law does use the term "public accomodation" and cross-references to an explicit definition. However, whether a church is a public accomodation under the ADA has no impact on whether a church is a public accomodation under state law. If under Ohio law a church is not a pub. acc., then you are right that the Ohio public breastfeeding law would not apply to churches because the Ohio statute only covers pub. acc.s.

But you are right that using "public accomodation" as a limiting term in a public breastfeeding statute in a state where houses of worship are not included in the definition is a backdoor way of allowing breastfeeding to be excluded from houses of worship.

This is separate from the "authorization" issue though. If a house of worship is excluded from the law, then withdrawing authorization is unnecessary.

[CathMac]

Originally Posted by mamajake

... But you are right that using "public accomodation" as a limiting term in a public breastfeeding statute in a state where houses of worship are not included in the definition is a backdoor way of allowing breastfeeding to be excluded from houses of worship.

This is separate from the "authorization" issue though. If a house of worship is excluded from the law, then withdrawing authorization is unnecessary.

Mamajake,
The mom in the Ohio thread did quote the state law on "Public Accomodation". She had noticed that houses of worship were not listed (and presumably not added back into the BF'ing law that referenced the "Public Accomodation law"). Essentially she wanted to know if the omission was an oversight or deliberate.

I used the Federal law as a point of reference to explain why I felt the omission was not a mere oversight. But also to raise the question --without necessarily answering it-- of whether or not a state BF'ing law with "Public Accomodation" language that does apply to churches would necessarily require churches to allow NIP'ing in situations when a church isn't actually acting as a "public accomodation". E.g.: during church services, religious instruction, etc. as opposed to acting as a private school or a daycare.

At the risk of confusing things further, this is where I think any "otherwise permitted" type language could be limiting (where it normally might not be), since any church with doctrine on this could argue that the doctrine precludes NIP'ing. I think the state is far more likely to defer to a church on a matter of religious principle (whatever we may think of that principle, or however misinterpreted it might be) than it is to a business owner concerned about offending a certain segment of his clientele.

So, having read the thread on the Ohio law I wasn't surprised to see that churches are specifically excluded in the proposed Mass law. If I had to have guessed I would have thought that most states would be deferential to churches on this. Maybe it's a credit to Mass that they are up front about it. It would be nice if churches construed any perceived ambiguity in favor of the nursing mom but my sense is that any churches that frown on NIP'ing will spend the time and resources necessary to figure out how the law applies to them.

Not that any of us has the time, but if we did it would be interesting to see how many of these states' laws authorize NIP'ing by virtue of a state "Public Accomodation" law, and out of those how many seemingly apply to churches and other places of worship.
~Cath