The Georgia Supreme Court stated that the Georgia Lactation Consultant Practice Act “violates plaintiffs’ right to due process under the Georgia Constitution to practice their profession.” [their] chosen profession.” The decision paves the way for lactation consultants to mentor Georgian women without first having to obtain a costly and onerous license from the state. The landmark ruling also signals comprehensive protections for individuals from onerous licensing laws across the board.
Husch Blackwell, on behalf of Dr. Morris M. Kleiner, Dr. Alicia Plemmons and Dr. Edward J. Timmons – three of the leading scholars studying the profession – prepared and filed an amicus curiae brief challenging the constitutionality of the law on the grounds that the Supreme Court broadly upheld its decision. The Jackson v. Raffensperger case was originally filed in 2018 by the Institute for Justice, a nonprofit public interest law firm, and Reaching Our Sisters Everywhere, a nonprofit grassroots organization dedicated to helping minority communities breastfeed.
The Supreme Court’s decision was based on the due process guarantee of the Georgia Constitution, which protects an individual’s right “to pursue a lawful employment of his choosing without undue government interference.” The law in question required anyone who wanted to work as a lactation consultant to first take college-level courses, complete 300 supervised clinical hours, pass a written exam, and pay the state a substantial sum of money for a license. The court ruled that the requirements of the law were unreasonable and that the state had not demonstrated a sufficient interest in enforcing them. Importantly, the court clarified that the state cannot restrict a person’s ability to practice a legitimate profession on the basis of protectionis[t]“Interests or mere “general interests in the quality or honesty of goods and services”.
In its conclusion, the court concluded that “the practice of breastfeeding care is not generally harmful and that there is no evidence of harm to the public from the provision of breastfeeding care and services by persons who are not licensed under the law.” . This conclusion echoes the amicus brief written by Husch Blackwell, which states: “[c]Contrary to often claimed justifications, empirical evidence shows that professional licensing schemes … bring little or no public benefit, while at the same time incurring significant costs and harm.”
“Our clients’ fundamental contention – that there is no evidence that these costly licensing standards provide any measurable public benefit – played an important role in the court’s decision in this case,” said Joseph Diedrich of Husch Blackwell. “We are very pleased that plaintiffs and others are able to work without incurring the costs of complying with the law, which has always seemed like a solution to us when we were trying to find a problem. The court’s decision also offers workers in other occupations and other states a roadmap for fighting restrictive licensing laws.”
The Husch Blackwell team included Joseph Diedrich, Rebecca Furdek and James Spung.