I posted this about a week, but never saw it appear - so I'm posting it
again.

Jake and Beth, I am going to respond to your emails together. I really am
happy that you have raised these issues, as I think everyone will get a
better education as a result.

You both raise some interesting points, and you are not alone in raising
them. For the past 11 years that I have become so involved in breastfeeding
and the law, several lawyers have expressed similar concerns to me. I am
more than happy to respond to them.

> With all due respect to Liz, I have to say that as a lawyer I think that
> it is misleading and potentially harmful to say that public
> breastfeeding is legal unless there is a law saying it is not (none of
> which exist to my knowledge).

Well, you could argue both ways. On one hand, breastfeeding has been found
globally to be a fundamental human right. Also, there are a variety of
theories upon which a right to breastfeed can be based, even if none are
'completely clear' or apply in call cases (i.e. some state laws may consider
it sex discrimination, some theorize that it may result in violation of
equal protection under the law, etc.). And, other laws may apply - depending
on where the mother is breastfeeding. For instance, we have a federal
statute that allows a mother to breastfeed on any federal property. The
Federal Circuit Case (Dike) you refer to may give a mother some rights, but
as we know constitutional rights are not absolute, do not apply to the
private section, and must be balanced against competing interests. And,
there is some bad federal case law - Martinez case out of NY saying it is
not sex discrimination to treat women differently from women, Ohio Wal-Mart
case citing this and finding no discrimination (that case has been settled
and Wal-Mart agreed you can breastfeed in their stores). The law is not
clear, and thus, one reason for legislation is to clarify once and for all
that women have a right to breastfeed in public. However, the primary reason
for legislation is to raise the rates of breastfeeding. Don't forget that.

>The issue is whether a state, or more
> accurately in any given situation an individual police officer, makes
> the judgment that public breastfeeding is "indecent exposure."

Yes and no. Several states have acknowledged that their indecent exposure
laws clearly would not apply to breastfeeding, and unfortunately their
proposed breastfeeding laws failed as they concluded that it wasn't illegal
so we don't need a law. Missing the point. For those states where it 'might
apply' if you read it the 'right way', well, still likely not, but more
importantly our police offices know better, they don't arrest people for
breastfeeding in public, and the few times that they have taken some stance
usually it is resolved later, either through apologies to the breastfeeding
mother, ordinance amended (trend in the 1980's), etc. The reality is that
mothers are not being arrested anywhere that I know of for breastfeeding in
public. The large majority of mothers asked to stop breastfeeding come from
stores, malls, security guards at malls, libraries, museums, restaurants,
etc. - the PRIVATE sector.

But in response to what you said, yes, you are right - it is up to the
officer whether he thinks the law was broken, and what to do. Luckily, they
are pretty smart about this.


>My fear
> continues to be that in practice we create women who believe that by
> saying "I have the right to breastfeed everywhere I have the right to
> be" they are immune from arrest and/or prosecution under indecent
> exposure statutes.

Yes. And I would fear that too, and I would hope that nothing I have written
would lead a mother to believe that she could pitch a huge fit, and get out
of a situation by demanding her rights, or think for one second that she was
immune from arrest and/or prosecution if she did not obey an officer's
commands. I hope that no one, if ever in the situation where an officer of
the law tells you to stop breastfeeding, that you do so immediately, and
deal with the situation later in another manner. I also recommend this for
mothers who are asked to stop breastfeeding in any situation where they are
not able to easily resolve the situation by education on the spot.

> Here is Pennsylvania, I get calls from women who have been tossed out of
> public spaces for public breastfeeding.  I get these calls with
> frightening regularity.

That is very interesting information, and when your state tries again for
legislation, I hope that you will have statistics and mothers for them to
talk to that can verify this. This is exactly why states enact legislation -
to stop this social ostracism.

>Since I live in the suburbs of Philadelphia, my
> first question is always whether the public space was within city
> limits.  I ask this because the city of Philadelphia has a wonderful
> ordinance forbidding a wide variety of harassing conduct for public
> breastfeeding and providing for sanction for violating the ordinance.

Yes, and Philadelphia's ordinance does something that no other law does -
clarifies that it is nothing more than segregation to tell a mother where to
go breastfeed.

> Outside of the city, there is nothing to be done unless the mom had had
> the knowledge and inclination to take a stand, challenge the offender to
> get a cop, and get ready to be a test case.

Ah - there are other options. I recommend that mothers with nursing in
public problems take action after the fact through education. Moms can
contact their local La Leche League Leader, who can work with the state's
APL to help the mother put together a packet of information that can be used
to educate, and to look at the best way to communicate it. Most times, this
resolves the situation. If it doesn't, the mother can take her situation to
the press (many do this successfully, and it usually is best to do it after
giving them an opportunity to clear it up voluntarily), and if that fails,
to look at finding a legislator to sponsor legislation.

>Well, needless to say, this
> never happens.  And then if this were to happen, who would litigate this
> test case?

Yes, it doesn't happen because the breastfeeding mom just wants to go home
and cry, not hire a lawyer and spend thousands of dollars. She is likely to
think she has to give bottles to go out in public.

Jake, your fear is that mothers will become militant in asserting their
rights. I don't want that either. But my fear is that when we continue to
tell mothers that it is illegal to breastfeed in public, that we put fear
into them that does not need to be there, and this continues the social
ostracism, making them feel helpless to do anything about it. There is much
that women can do to change things without being militant or getting
arrested.

> And yes, I know there is a federal case finding a right to breastfeed.
> It is a Circuit Court case, not a US Supreme Court case, meaning it is
> binding only within the Circuit in which it was decided.  Not my
> Circuit.

While it is not binding on other circuits, it would certainly be considered,
and there are a few other states that have decisions adopting it. However,
the 'right to breastfeed' does not 'come' from the Dike case - it is a
general right, a basic fundamental human right, and it should be viewed as
such by all of us.

And Jake, I love your other approach - lets get legislation out there
everywhere. I'd like to see it clarify that breastfeeding is legal, and to
specify that it is discrimination to treat a breastfeeding mother
differently in any regard. I'd like it to be under the state's civil rights
law as NY has done, as this gives more remedies to mothers than by just
providing for a small fine or penalty. If anyone tries to get legislation
going, please let me know, and don't hesitate to give out all three
legislation articles on LLLI's webpage (see cite at end). One is reasonably
current (yes, I'm working on changes these days), another traces the history
of legislation, and the third is ideas I put together several years ago
about how to enact legislation and what language could be used. Please give
the legislator my name and number, and let him or her know I am more than
happy to help.

Beth, on to your concerns:

> Our Massachusetts law is currently stuck in committee, but this is akin
> to a question I raised when researching the issue last year, to which I
> have never heard an answer.

Hope I answered it in terms of your state - if not, let me know.

> We pass the laws to ensure that breastfeeding is spelled out clearly as
> being protected.  Otherwise it is in danger of being considered "lewd
> and lascivious behavior."
> How does this relate to sex offender reporting laws?  A man near Boston
> got "Megan's Lawed" for urinating off his own porch.  He ended up in the
> database as a sex offender.

I see that this is a big concern, and it should be raised as one more reason
why a good breastfeeding law should be enacted. However, I cannot see this
as something that realistically would happen. First, people are not being
arrested. Maybe there have been one or two over the last ten years, but if
anyone knows of someone who was actually arrested for indecent exposure for
breastfeeding, please let me know. There was a mom in NJ who was arrested
for disturbing the peace when they got into a 'scene' over her breastfeeding
in public, but there was no arrest for breastfeeding. Never has been that I
know of. So I can't see this as being a big problem. Women really can freely
breastfeed in public without a parade of horribles happening to them. The
worst is that some stupid person might tell them to stop. We can help
mothers by letting them know what to do if they are asked to stop. I have
some suggestions in the legislation article on the web.

> In the Judiciary Committee our proposed law was amended to only give
> clearance to mothers nursing children under 3 years of age.  This leaves
> mothers of older toddlers specifically unprotected.

NOW THIS IS A BIG PROBLEM. It is much worse than leaving older toddlers
unprotected, but it could actually criminalize breastfeeding over age three,
when it is not already so. Also, restrictions of any sort (age of child,
discreetly, where to do it) fly in the face of reason for the law to begin
with - to encourage more women to choose breastfeeding - and they may be
unconstitutional (no age restriction on federal property - conflict with a
federal law). I cannot say strongly enough that legislation contains a
restriction should not be supported at all. PERIOD. If this restriction is
not removed, then I encourage everyone to oppose the bill. Don't let a
restriction get in that sets breastfeeding legislation back. I wrote a very
detailed letter regarding this restriction in Mass., which you can get from
Marsha Walker. I encourage you and anyone else working on this to read it.
Please, it is so important.

Elizabeth N. Baldwin, Esq.
2020 N.E. 163rd Street, Suite 300
North Miami Beach, Fla. 33162
305-944-9100

www.lalecheleague.org/LawMain.html
www.compromisesolutions.com

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