Did You Think It's Legal to Breastfeed Anywhere? You'd be Surprised
Updated: Feb 15, 2020
Before I breastfed a baby, I assumed breastfeeding in public means your baby quietly eats under a soft cover draped lovingly over your chest. After I had said baby, and I draped a cover over my chest to feed him, he immediately pulled it down with his tiny yet strong hands. It was his little act of rebellion. "No mama! I don't want to eat in a hot tent!" He was a summer baby in Southern California after all.
He was also an alert baby and just wanted to see me and his surroundings. He was already a baby with difficulty latching, so breastfeeding in public became a constant struggle. I felt like I needed ten hands to hold both the latch and the cover. So I stopped covering up. This was a lot better for both of us.
Then I started thinking, "Why did I even feel the need to cover up in the first place?" Just because that's what we're supposed to do? Would you want to eat a sandwich with a blanket draped over you? Doesn't that seem terribly inconvenient? That's how it's like for the baby too.
In addition, the connection between the mother and child are paramount while breastfeeding. When we are asked to cover up, we break that connection. Yet I heard story after story of a mother being asked to cover up while nursing, in an airplane, in a store, in a restaurant. The reason? So the other patrons wouldn't be uncomfortable. What about the comfort of the mother and child?
After hearing these stories, I became outraged and I started breastfeeding without a cover whenever I could, just so I set an example to young women. After all, I rarely saw women breastfeed without a cover, and maybe if I would have, I would never have felt the need to do so. It's shocking how intolerant our society is with the most basic human function there is; feeding our young.
We tend to forget we're mammals. We're ensuring the next generation of taxpayers is fed, people! We should be lauded with applause, not with disdain. We have more tolerance for a gorilla feeding its baby in the zoo than we have with our own species. The more I thought about it, the more confidence I had that I wanted to disrupt the status quo.
Yet while breastfeeding without a cover, I could often feel the tension in the air. People would look away, sometimes even roll their eyes. Because I'm a lawyer, the first thing I did was educate myself on my rights regarding breastfeeding in public places. I knew employers have to accommodate expressing breastmilk, and I was curious whether these protections were extended to public areas too. I assumed there would be federal a law stating, "A mother may feed her child at all times using whatever method works for her and her child." That law does not exist. Instead, what we see is that the states have wildly different breastfeeding laws.
Some states have very protective rights for nursing mothers, such as Rhode Island, which looks at public breastfeeding as a civil right, providing compensatory damages and attorneys' fees awarded to a woman who is obstructed from breastfeeding.
Other states have an exception for nursing in their indecent exposure laws, such as Wyoming, "The act of breastfeeding an infant child, including breastfeeding in any place where the woman may legally be, does not constitute public indecency."
Many of the states' laws dictate that breastfeeding is protected in a public space (such as a park or an airport), but are silent on whether it is protected in a private space (such as a business or someone else's house). For example, Arizona only protects breastfeeding on property owned or controlled by the state. Technically, a private business in Arizona may interfere with a woman's request to breastfeed.
In contrast, California protects breastfeeding in public and private places, yet carves out an exception for the private home of another. This means that in California, women can breastfeed in businesses, but can still get asked to leave if they are breastfeeding during a neighbor's dinner party.
Most of the states have the following law, "A mother may breastfeed her child in any location where the mother and baby are authorized to be." This means that the mother can breastfeed as long as she's not trespassing. Technically, if a business does not like the woman breastfeeding on its premises, it can declare that the woman is trespassing and ask her to leave.
Most of these laws are silent on whether not using a cover is protected. Some states, such as DC, New York, Pennsylvania and Florida, clarify that whether the breast is covered or uncovered is not important.
Hawaii has a good law. It provides that denying or interfering with breastfeeding is a discriminatory act, which means that it is actionable under discrimination laws, similar to ADA rules that businesses have to respect. In contrast, Illinois seems to have a religious exception. It provides that breastfeeding is protected, "however, a mother considering whether to breastfeed her baby in a place of worship shall comport her behavior with the norms appropriate in that place of worship." Do places of worship really not want mothers feeding their babies? Come on!
Some states have pretty offensive laws, like North Dakota, "If the woman acts in a discreet and modest manner, a woman may breastfeed her child in any location, public or private, where the woman and child are otherwise authorized to be." Whatever that is supposed to mean.
You would think that it would be legal everywhere to FEED YOUR CHILD, but sadly, it is not. The laws on breastfeeding in public are not clear. Because there is no clear protection for mothers feeding their babies, nursing mothers still get asked to leave all the time and have no legal recourse to correct this behavior. Very few states have actual penalties for violating public breastfeeding laws. What's the point of a rule if there's no repercussions for breaking it? Babies need to eat whenever they're hungry. If a woman is not allowed to feed her child, that baby goes hungry. Why is this even a debate? What is the competing interest here? That the public should not see an exposed breast? Yet we see topless women or women in low cut shirts on tv all the time. So breasts are only okay if portrayed in a sexual way? The entire reason we have breasts in the first place is to feed our babies.
The lack of clear laws on an issue means that it has not been a priority. So let's make it one. The more stories we share about difficulties breastfeeding in public, the more this will become a priority. Don't be afraid to breastfeed in public. It is the law of nature to breastfeed our young. The law of the people will catch up.
DISCLAIMER - This blog is for educational purposes and to give general information and a general understanding of the laws relating to employment law. It is not intended to provide specific legal advice, nor should you use it for that purpose. By using this blog you understand there is no attorney client relationship between you and the Momattorney or Gruenberg Law and you should not use this blog as a substitute for competent legal advice from a licensed attorney in your state. We don't know anything about your particular situation, and the law has many exceptions. If you have a dispute with your employer, you need to consult with an employment lawyer.