Breastfeeding Rights in
the United States
Karen M. Kedrowski, Ph.D.
Department of Political Science, Winthrop University
Prepared for Annual Conference of La Leche League of South Carolina
April 29, 2006
Treasury Appropriations Laws
Healthy People 2010
WIC, Family Leave, Welfare Reform
Federal Court Cases (about 40)
Employment law (ADA and FMLA)
State Laws (as of 2005, 39 states enacted)
State Court Cases (about 40)
Child Abuse or Neglect
Harassment or Trauma
Breastfeeding as Contested Right
Breastfeeding is a constitutional right (at least in Florida)
Fifth Circuit Court of Appeals (Florida), 1982.
“We conclude that the Constitution protects from excessive
state interference a woman’s decision respecting
Consistent with case law involving parental rights to raise
their children as they see fit.
Not an absolute right: also ruled that school district’s
competing interests are equally valid.
Dike v. The School Board of Orange County, Florida. 650 F.
2d. 783. (1981 U.S. App.)
Not yet taken up by US Supreme Court or ensconced in federal
Federal Courts: Relevant Laws
Federal Employment Law:
Pregnancy Discrimination Act (1978
amendment to 1964 Civil Rights Act)
Americans with Disabilities Act (1992
amendment to 1964 Civil Rights Act)
Family and Medical Leave Act (1993)
Rights of the incarcerated under Dike
Little Protection for BF Right
No case refutes essential finding in Dike, that breastfeeding is a
Yet all cases rule against BF mother.
Pregnancy Discrimination Act. Breastfeeding mothers are
not a protected class because
They are no longer pregnant; and
Need to nurse or pump is not a “medical condition.”
Americans With Disabilities Act. Unrelated cases ruled: :
Breastfeeding is not a disability, and
Inability to breastfeed is a not a disability.
Family and Medical Leave Act cannot be invoked in cases
where bf is a medical necessity to child, or child refuses a
bottle past the 12 weeks of unpaid leave.
Incarcerated mothers have no constitutional right to BF or
pump while in prison.
Conflicting Federal Laws
Policies that Support:
Treasury Appropriations Laws
Women may breastfeed on any federal property where
she is otherwise entitled to be.
Implies mothers employed on federal property may
nurse or pump at work.
Healthy People 2010 and WIC
Policies that Undermine:
Family and Medical Leave: up to 12 weeks of unpaid
Temporary Assistance to Needy Families (TANF, a.k.a.
“welfare”): Two years and off; five year lifetime
State Laws: A Beginning
As of 2005, 39 states had enacted breastfeeding rights legislation
Allow women to breastfeed in any public or private location (32 states)
Exemptions from public obscenity laws (15 states)
Protections for employed mothers (10 states)
Exemptions from jury duty (10 states, plus SC)
BF awareness campaign (4 states)
Assist low income women with breastfeeding (4 states)
Consider in divorce, child custody and visitation (3 states)
Regulate distribution of human milk (2 states)
Exempt from child abuse or sexual conduct with a child statutes (2 states)
Insurance coverage of BF support (TX)
Prohibit discrimination against BF babies in child care centers (LA)
Incarcerated mothers may keep babies in prison (NY)
Public health campaign about mercury-tainted fish to bf moms (RI)
Permit nursing babies to ride unrestrained in automobiles (MI)
(Source: National Conference of State Legislatures and author)
“Rights without Remedy” – only four states offer women any legal remedies if
rights are violated. Usually modest fines.
State Court Cases: Conflicting Results
Family Law Cases (18):
12 ruled against breastfeeding mother.
All cases involving extended breastfeeding (more than one year) ruled
Important: Father’s parental rights and child’s interest in having a
relationship with her/his father.
Child Abuse and Neglect (14)
BF mothers found guilty of neglect when
Using illegal drugs,
Certain prescription medications,
High blood lead levels,
Didn’t take lithium and suffered psychotic breakdowns
BF Babies were malnourished
Breastfeeding defined as child abuse (2 cases)
BF in front of older son.
BF in front of estranged partner who was under restraining order.
More State Cases:
State Employment Laws (4 cases):
Ruling Against Mother:
Unlawful termination: Baby refused bottle. Mother
asked for extension of leave. When didn’t return to
work, she was fired.
Unemployment compensation claim. BF chemist
asked to be reassigned to reduce exposure to
hazardous chemicals. Employer refused. Woman quit
job and sued for unemployment benefits. State
refused, stating bf was a “personal choice.”
Ruling for Mother:
Disability case (NY) because of infant’s condition.
Disability case (PA) where nursing mother refused
treatment in order to continue bf. Extension of
Final State Court Cases
Medical Malpractice (3 cases)
All very different in details. Two of three ruled on behalf
of BF mother.
Sexual Harassment or Trauma (4 cases)
Breastfeeding used as evidence of sexual harassment.
Trauma case, milk dried up as a result of witnessing
Incarcerated mothers (2 cases)
Ruled against mothers.
New York case predated NY law permitting
incarcerated mothers to care for infants in prison.
Patterns in the Policy Patchwork
There is a constitutional right to breastfeed. Dike case cited widely;
But a woman’s right to breastfeed is contested, not absolute.
Breastfeeding rights recognized but considered less important than
employers’ rights, fathers’ rights.
Defined as a woman’s right to breastfeed, but infant’s or child’s rights
do not include being breastfed.
Not effectively argued under child safety, good nutrition, adequate care
A contested right leads to a policy patchwork.
State and Federal; laws and cases.
A policy patchwork leads to contradictory policies.
Supportive federal public health initiatives at odds with employment law
and civil rights.
State laws recognize right to bf in public, but right does not extend to
Courts especially hostile to bf rights.
As a package, policies imply that breastfeeding rights
are most indisputable for women who are at a
restaurant, shopping mall or museum.
Breastfeeding rights are more tenuous for any
women who deviate from some ill-defined “ideal”
mother, because they are:
Employed outside home
Sick or disabled
Suspected of child neglect for other reasons
Issues for Concern
Resolve conflicts in state and federal legislation.
Comprehensive breastfeeding rights legislation at federal
PDA extension for employed mothers.
Includes “remedies” in state/federal legislation.
Certain breastfeeding rights espoused by some advocates
are at odds with others’ natural rights:
Jury duty exemptions
Narrow definition of children’s best interest in family law
Reflects lack of public recognition of the value of children