Constitutional challenge to lactation consultant license moves forward

The team at Reaching Our Sisters Everywhere (ROSE) exemplifies resilience through tumultuous times. A bright spot shone through tragic recent events when the Georgia Supreme Court unanimously ruled in May 2020 that ROSE’s constitutional challenge to the state’s 2016 Georgia Lactation Consultant Practice Act will go forward.

Source: United States Breastfeeding Committee.

Our Milky Way spoke with ROSE Chief Empowerment (CEO) and Change Leader Kimarie Bugg, DNP/FNP-BC/MPH/IBCLC/CLC, Vice President Mary Nicholson Jackson, CLC and Program Director Andrea Serano, CLC, IBCLC who provided an update and commentary on the case. 

The team says that the recent reversal feels like a victory because it means that the 2016 law is still not enforceable and lactation care providers (LCPs) with any credential can continue their work. 

“The problem is that it’s still being misinterpreted in some places,” Jackson explains. “Sometimes trying to figure out what’s going on is the real concern.”

The Georgia Lactation Consultant Practice Act calls to prohibit provision of lactation care and services for compensation without obtaining IBCLC licensure. But in June 2018, the court put a freeze on the implementation of the law after Jackson, in partnership with the Institute for Justice (IJ) and ROSE, filed a lawsuit to preserve the right to earn an honest living.

The recent reversal affects close to 1,000 Certified Lactation Counselors (CLCs) among other breastfeeding helpers practicing in Georgia, all of whom would have not been lawfully permitted to continue their work under the law after July 2018. 

The ROSE team explains that while LCPs continue to legally offer services and support, there’s still some confusion within the community. Individuals lobbying for the Lactation Consultant Practice Act have offered up erroneous guidance at places of employment for example.

Especially in the current context of Covid-19, the team expresses relief that they and other lactation supporters are still able to provide support to families. Many long-standing and already-dire situations have been illuminated and compounded during the pandemic, like labor and birth support. 

In Georgia, only one support person is allowed to accompany a laboring person in certain maternity care facilities, and that support person is not allowed to leave and return to the hospital.  In many cases, this restriction is not sustainable for families who have other children or employment obligations.  

“We know that if [the law] would have been in effect, [birthing people] could not fall back on the resources that they know of and are familiar with after already being traumatized after labor and birth,” Bugg explains.  

Source: United States Breastfeeding Committee.

Racial inequities and structural racism have been brought to the forefront of our national conversation especially in light of Covid-19, and the issues at hand are no different in the world of lactation.

Not surprisingly, some have suggested that the entire premise of the Lactation Consultant Practice Act is fraught with racism. 

The case is not only about economic freedom, but equally important, access to lactation care especially in marginalized communities. 

Jackson’s petition points out that “the Act defeats its own purpose of promoting public health because it will, overnight, put hundreds of highly qualified lactation consultants… out of business. This will dramatically reduce breastfeeding support statewide, particularly in the minority and rural communities where CLCs are most active.” 

Pages 19 to 25 of the petition detail ways in which the Act causes harm to LCPs including those who work as milk lab technicians, Baby Café support people, military families, and the list goes on. 

In Why is That IBCLC Licensure Lawsuit in Georgia Such a Big Deal? author Liz Brooks, JD, IBCLC, FILCA details how lactation professionals of color are disproportionately impacted by the 2016 Act citing one example in particular where an African American RD IBCLC practitioner of many years had her application halted.

Brooks writes, “The systemic racism is made obvious because an IBCLC of color now has to take the time, and money, and lawyer up, and dig through paper work from 29 years ago, and file an appeal, and show people that she is an excellent, honest, forthright person who just wants to **continue** working to help families breastfeed/access human milk, which is what she was showing them when she filed her license application in the first place.” 

IJ explains that the “drive toward licensure is not motivated by health or safety concerns, but rather by IBCLCs’ interest in billing health insurance companies for their services.”

“In 2010, the Affordable Care Act mandated that insurance companies provide coverage for lactation services. Since then, insurance companies have used licensure as a means of limiting the expense of that coverage. To ensure they could bill insurance companies, the IBCLCs’ lobbyists have begun pushing state-mandated licenses across the country to artificially differentiate IBCLCs from CLCs,” the IJ statement continues. 

Source: United States Breastfeeding Committee.

SELCA released a response in regard to the Georgia Lactation Consultant Practice Act claiming that the law’s passing “has already improved access to clinical lactation care” citing new jobs, a community college program, and the promise of in-network lactation consultants for mothers using Medicaid. 

The ROSE team reports that this large scale change has not transpired. 

“That panacea that they thought was going to happen has not happened,” Bugg says.  

Again in Why is That IBCLC Licensure Lawsuit in Georgia Such a Big Deal? Brooks makes note:

“Who in the heck thinks any license, waived high over their head by an IBCLC, will now instantly generate credibility, job offers, insurance company cooperation, money in the bank? Anything having to do with payment for/coverage of health care services in the USA in 2018 is a humongous pain-in-the-neck. Ask any hospital, doctor, nurse, midwife, speech therapist, dentist, etc etc etc just how easy-peasy it is to see patients, spend quality time with them, have all services fairly and easily covered, and so on. Yeah. Not so much.

I’ve said it countless times: The issue should be about HOW to pay [for lactation care, from counseling on up through skilled clinical care], not WHO to pay [which is what flawed and even better-than-most licensing bills necessarily must focus on].” 

While ROSE moves forward, Serano urges maternal child health advocates to keep the issue of licensure on the radar on a state-by-state basis. When legislation is presented, look at it through an equitable lens, she suggests. Educate local and federal legislators. 

On this note, starting at the state level is an effective way to vindicate rights for others, as pointed out in IJ’s video Can the Government Throw You Out of Work? (Not in Some States!). An IJ attorney explains that the U.S. has a long history of looking at what state high courts have done, and that it’s a traditional method for achieving constitutional change. 

It’s important to make clear that it is not solely the fault of one or a handful of organizations or individuals for carrying out a racist agenda. We are all called to this work, striving for an antiracist society. 

You can stay up to date and support this ongoing case here.