Booby Traps Series: Most nursing in public laws have no teeth

breastfeeding, breastfeeding in public, nursing in public, nursing in public laws, booby traps, best for babes foundationYour state law has protections for nursing in public.  That means that you shouldn’t have trouble using them, right?

Unfortunately, it’s not that simple.

A recent story told in the New York Times provides a great example of a fundamental weakness in most state laws:

At the beginning of the summer, I visited a discount store on the fringe of Park Slope. C. C. and I looked at curtain rods while his younger brother nursed peacefully in the carrier … until all three of us were subjected to a barrage of abuse from a female security guard. I was told repeatedly and at top volume to cover myself. When I tried to calmly explain that the law was on my side, the guard retorted: “Don’t talk to me about the law. Next thing you gonna be taking off your clothes and walking around naked.”

This mother was right:  New York state law establishes a mother’s right to breastfeed in public places such as this store.

But the security guard’s dismissive attitude toward the law was unfortunately probably reasonable.  Why?  Because she and her employer would face no consequences for their violation of the law.

While 45 states establish a mother’s right to breastfeed in public, “if,” as lawyer Jake Marcus points out, “a law has no enforcement provision, there is nothing you can do if the law is broken.”  And New York is one of the vast majority of states which have nursing in public laws which include no enforcement provision.  Jake explains further:

That means that while a state may have a law that says a mother has a right to breastfeed in public, if someone harasses her while she does it, there is probably no legal action she can take against the harasser. Depending on the circumstances of a particular incident, there may be a lawsuit a lawyer can bring but, by and large, women can not afford lawyers, few lawyers will take breastfeeding cases pro bono, and there are few viable legal claims. In short, a breastfeeding law without an enforcement provision is of little to no value to breastfeeding women.

What does an enforcement provision look like?  Here’s the law in my state, Massachusetts:

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 subjected to a violation of subsection (c). In any such action, the court may: (i) award actual damages in an amount not to exceed $500; (ii) enter an order to restrain such unlawful conduct; and (iii) award reasonable attorney fees.

In addition to Massachusetts, New Jersey, Rhode Island, Vermont, Washington state, Washington, D.C. and Connecticut are among the states that have enforcement provisions.  But they represent a handful of the 45 states which have nursing in public laws.  For most mothers, the law provides a right with no way to enforce it.

And some laws are even weaker.  South Dakota, Michigan, and West Virginia, have laws stating only that breastfeeding in public is not indecent exposure, meaning that a woman cannot be charged criminally for breastfeeding in public.  These laws do not establish a right to breastfeed in public.  Idaho doesn’t even have this provision.

State laws protecting nursing in public without an enforcement provision are certainly still useful.  They can act as a deterrent or persuade establishments to back off even when there is no legal consequence (especially when they aren’t aware of it).  And most businesses will to go great lengths to avoid an evening news report stating that they’ve broken the law.

But short of shame and bad publicity, there isn’t anything in most state laws to compel a business to comply.

To see if your state law includes an enforcement provision, see the Breastfeeding Law site run by Jake Marcus.

Does your state’s law include an enforcement provision?  Have you had to raise your state law to exercise your right to breastfeed in public?  Have you experienced the limits of your state’s nursing in public laws? 

Image credit:  Wikimedia Commons

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