Georgia S. Ct.: Right to Pursue Lawful Occupation Invalidates License Requirement for Lactation Consultants

The court so holds applying the Georgia Constitution's Due Process Clause, which the court had long interpreted as securing a right to pursue a lawful occupation.

Today's unanimous decision in Raffensperger v. Jackson, written by Chief Justice Boggs, strikes down the 2016 Georgia Lactation Consultant Practice Act, which requires lactation consultants to have an International Board Certified Lactation Consultant (IBCLC) license, issued by a private licensing organization (or "a license issued by another jurisdiction if the requirements for that license are equal to or greater than" the IBCLC requirements):

IBCLC certification may be obtained in three different pathways, each of which requires that a person pass a written examination and complete 14 courses in health sciences, eight of which must be college-level courses; 95 hours of lactation-specific education, including five focused on communication skills; and at least 300 supervised clinical hours. The IBCLC examination costs approximately $600-$700.

{According to the affidavit of the Secretary's expert, the eight required college-level courses are biology; human anatomy; human physiology; infant and child growth and development; introduction to clinical research; nutrition, psychology, counseling skills, or communication skills; and sociology, cultural sensitivity, or cultural anthropology. The other six courses, which may be completed as continuing education courses, are basic life support, medical documentation, medical terminology, occupational safety and security for health professionals, professional ethics for health professionals, and universal safety precautions and infection control.}

A Certified Lactation Counselor (CLC) license, offered by another organization, doesn't suffice; that license requires that the licensee "complete a 52-hour course; demonstrate competency in breastfeeding assessments, counseling, teaching, infant weight gain, contraindications, and the CLC Code of Ethics; and pass a written examination, which costs approximately $120." Likewise, it doesn't suffice to have training from a separate group, such as ROSE (Reaching Our Sisters Everywhere), which sued to challenge the law:

ROSE, which was founded in 2011, trains individuals to provide breastfeeding education and support to mothers, primarily in African-American communities, through a research and evidence-based curriculum in a free 16-hour course.

The Georgia Supreme Court began by noting that it had long held that the Georgia Constitution's Due Process Clause protects a right to pursue a lawful occupation:

Across each successive Constitution following the addition of the Due Process Clause in 1861, we articulated a consistent and definitive understanding of how the Due Process Clause applied to occupational licensing and the ability to pursue a lawful occupation. This understanding begins as far back as 1896, Odell v. City of Atlanta, 97 Ga. 670 (25 SE 173) (1896), past the turn of the century, Bazemore v. State, 121 Ga. 619, 620 (49 SE2d 701) (1905), through the 1930s, Southeastern Elec. Co. v. City of Atlanta, 179 Ga. 514 (1934) and Bramley v. State, 187 Ga. 826, 832 (2 SE2d 647) (1939), the 1950s and 1960s, Jenkins v. Manry, 216 Ga. 538, 541-546 (1) (118 SE2d 91) (1961), all the way up to the middle of the committee meetings to revise Article 1 of the Constitution, Rockdale County v. Mitchell's Used Auto Parts, Inc., 243 Ga. 465, 465 (254 SE2d 846) (1979); Transcripts of Mtgs., Committee to Revise Article I, Vol., 1 (Meetings 1977-1981). Our cases, in sum, display a consistent and definitive understanding of the Constitution's Due Process Clause, reaffirmed at least once under the 1945 Constitution's Due Process Clause, and referenced approvingly under the short-lived 1976 Constitution. Thus, "[the] history reveal[s] a consistent and definitive construction" of the Due Process Clause, "whose words remain materially unchanged since [they] first appeared" in their present form, and (since we have been offered no evidence to the contrary) "we presume[ ] that construction was carried forward into the 1983 constitution."

This right, the court held, has the following elements:

[1.] The challenger must show that the occupation sought is, at a minimum, lawful but for the challenged restriction. See Odell, 97 Ga. at 671 ("[T]he keeping of an establishment for the purpose of enabling persons to bet upon horse-races is not a useful or necessary occupation which any citizen has either a common law or constitutional right to carry on."); Schlesinger v. City of Atlanta, 161 Ga. 148, 159 (129 SE 861, 866) (1925) (the right to pursue a lawful occupation "has no application to the inhibition of that which the individual has no natural or inherent right to do. If the individual has no such inherent right to conduct the business of a common carrier by jitneys or busses upon the streets of the city, his case does not fall within this principle.").

[2.] And the challenger must also show that the regulation "unreasonabl[y] … interfere[s]" with the ability "to pursue a lawful occupation of their choosing free from unreasonable government interference[.]" Jackson I, 308 Ga. at 740 (2) (emphasis added); see also Bramley, 187 Ga. at 832 (the defendant in a criminal prosecution for violating occupational licensing restrictions on photographers successfully argued that "the statute on which the accusation was based [was] unconstitutional and void" because it was "an arbitrary and unreasonable interference with a lawful and harmless business").

[3.] [If those elements are shown], the government must offer a legitimate interest behind the regulation justifying some interference with the ability to pursue the occupation. This is not an open-ended exercise in interest-balancing—our consistent and definitive understanding of the Due Process Clause shows well-settled limits on what government interests are sufficient for these purposes: a burden on the ability to practice a lawful occupation is only constitutional if it is reasonably necessary to advance an interest in health, safety, or public morals. See Bramley, 187 Ga. at 835-836 (listing government interests as "health, safety, morality, or other phase of the general welfare"); Jenkins, 216 Ga. at 540 ("The right to work and make a living …. may be abridged to the extent, and only to the extent, that is necessary reasonably to insure the public peace, safety, health, and like words of the police power."). And while this same understanding does not require the challenger to disprove "any reasonably conceivable state of facts that could provide a rational basis for the classification," as the rational basis test does under federal law, neither does it call on courts to analyze whether a justification offered in litigation is the "real" one. There is no requirement that the government must compile or offer evidence in the course of enacting such a regulation, nor that the government defend such an act solely by reference to some purported legislative intent.

Conversely, this same consistent and definitive understanding makes clear that certain interests are decidedly not sufficient to justify a burden on the ability to practice a lawful profession. These include (1) protectionism and (2) generic interests of quality or honesty of goods and services, especially when this latter sort of interest is unmoored from the particular profession—i.e., when the given profession does not create special need to deal with the quality or honesty of goods and services, but shares those risks on the same terms as some other business not so regulated. See, e.g., Bramley, 187 Ga. at 836 (speaking of licensing photographers: "No business, however innocent and harmless, is entirely free from the possibility of becoming, under improper or dishonest management, in some degree inimical to the public interest …. If this should be held to be a sound argument[,] the police power could be used to lay upon any business, however unrelated to the general welfare, [and however] burdensome and unreasonable [the] restrictions." (cleaned up)). In short, once the challenger has made a prima facie case, the government must offer (but not necessarily prove the veracity or efficacy of) a specific interest in health, safety, or public morals. If the government fails to offer such an interest, or offers only an illegitimate interest, the regulation violates the right to pursue an occupation free from unreasonable government interference.

{None of our prior cases resolving state due process challenges to occupational licensing statutes expressly adopted the federal due process test, which generally gives extraordinary deference to the legislature in determining whether a stated interest is legitimate. Therefore, our prior cases applying that test to state due process challenges in other contexts are not controlling here. See, e.g., Women's Surgical Ctr., LLC v. Berry, 302 Ga. 349, 354-355 (806 SE2d 606) (2017) (applying federal due process test to state constitutional due process challenge to statute requiring certificate of need for new healthcare facility); Quiller v. Bowman, 262 Ga. 769, 770-771 (425 SE2d 641) (1993) (applying federal due process test to state constitutional due process challenge to state statute requiring suspension of driver's license upon conviction for possession of controlled substance or marijuana).}

[4.] Finally, the challenger has the ultimate burden to prove that the regulation unreasonably interferes with her right to practice the occupation of her choosing. Because statutes are presumed to be constitutional, this burden starts and remains with the challenger throughout.

Indeed, not every burden on the ability to pursue a lawful occupation will be unconstitutional—sometimes a regulation will be "rational" in the sense that it is reasonably necessary (either actually or because of the failure of the challenger to meet her burden). See, e.g., Cooper, 152 Ga. at 593-594 (rejecting a challenge to an occupational regulation of barbers to prevent "[t]he spread of disease by unsanitary … barber shops"). But if the challenger can establish that a regulation imposing restrictions on a lawful occupation does not advance the articulated public purpose by means that are reasonably necessary for that purpose, then the regulation cannot stand.

The court then applied this framework to the lactation consultant licensing requirement. It held that lactation consulting was a lawful occupation, that the law substantially burdened people who wanted to engage in it. But it went on to conclude that the law wasn't sufficiently justified by the government's "proffered rationale for the Act—promoting access to quality care":

[The interest in promoting access to quality care] is an insufficient basis upon which to authorize only IBCLCs to provide lactation care and services for compensation given our consistent and definitive understanding of the scope of the due process right to practice one's chosen profession free from unreasonable government restrictions. The Secretary does not contend that the Act is inherently a health and safety regulation—that, say, unlicensed lactation consultants would do affirmative harm (in the way a surgeon might), as opposed to merely failing to help, their patients. Certainly, there is nothing inherently harmful in the practice of lactation care, and there is no evidence of harm to the public from the provision of lactation care and services by individuals who lack an IBCLC license. Compare Coker, 188 Ga. at 174 (acknowledging obvious risk of fire from defectively installed electrical wiring and so authorizing regulation of installation of electrical wiring for safety of public).

Moreover, the record supports the trial court's conclusion that CLCs and the individuals educated by ROSE are trained to provide safe and competent lactation care and services within their respective scopes of practice. The Secretary admitted that he is not aware of any evidence of harm from a person providing lactation care and services either prior to or after the passage of the Act and that the advisory group set up under the Act has not received any complaints regarding untrained or incompetent providers of lactation care and services. And careful review of the affidavits and depositions of experts and lactation care providers entered into the record fails to reveal any injury to mothers or babies caused by lactation care providers of any type.

Finally, we note that the record contains the Review Council's report of the 2013 version of the Act. That report concludes that there is evidence that having access to proper lactation support has many benefits; that in its review, which included hearings, there was "no substantive evidence of harm identified" that flowed from the unregulated provision of lactation care; and that prohibiting CLCs from providing lactation care may cause "a greater risk of harm because the majority of lactation consultant providers would no longer be able to provide care."

In the absence of evidence of harm, the Secretary relies on speculation to suggest that there is a danger to breastfeeding mothers and nursing babies from "unqualified and untrained" lactation care providers. At oral argument, the Secretary contended that a lactation care provider without the IBCLC certification might lead to the premature cessation of breastfeeding, which would result in the baby and mother not receiving the benefits of breastfeeding or to the continuance of breastfeeding that is inadequate for a baby's nutritional needs. Such speculation, in the face of substantial evidence that the provision of lactation care and services by non-IBCLC providers is safe for and beneficial to nursing mothers and babies, is insufficient to authorize the regulatory scheme adopted, which greatly restricts those able to be employed as lactation care providers.

{We note that while statutes in other states provide for the licensing of lactation care providers, no other state has enacted a statutory scheme that categorically prohibits a CLC from providing lactation care services for compensation, contrary to the Secretary's assertion.}

Congratulations to the Institute for Justice lawyers Renée Flaherty and Jaimie Cavanaugh, and local counsel Yasha Heidari (Heidari Power Law Group), who represent the challengers.