September 16, 2019
By Timothy Sandefur
In Georgia, it’s
illegal to advise a new mother about breastfeeding, unless you first get a
government license. That may seem absurd—lactation consultants aren’t
practicing medicine or treating patients or prescribing drugs or anything—but
the state legislature nevertheless requires people to get a government license
before they may engage in their trade.
But only if they
do it for money.
In other words,
the state thinks lactation consulting is a potentially hazardous activity—so
dangerous, in fact, that according to state law, “the licensure and regulation”
of people “engaged in lactation care” is necessary “to protect the health,
safety, and welfare of the public.” It’s so dangerous you can’t do it without
government permission. Yet the law also allows people to engage in “lactation
care”—performing exactly the same services—without any license, without any
supervision, and without any regulation whatsoever—as long as they don’t charge
money for it.
That doesn’t make sense.
You can’t perform open-heart surgery without a medical license, even if you do
it for free. You can’t fly a 737 without a license, even if you do it for free.
There’s no “free” exception to the licensing requirements for demolition experts.
Yet many licensing requirements have this kind of exception—and if you think
about it, that’s very revealing. It indicates that the licensing requirement is
probably not actually based on protecting people, but was written instead to
prevent fair economic competition—for the private financial benefit of those
who already have licenses, and don’t want to have to compete fairly.
That’s what we and
our friends at the Pacific Legal Foundation argue in a brief we’ve filed in the Georgia
Supreme Court in a lawsuit that challenges the constitutionality of the
lactation consultant licensing law. A group of lactation consultants filed a
lawsuit arguing that the law deprives them of their right to earn a living, but
a Georgia trial judge dismissed the case, holding that “Georgia law does not
recognize a constitutional right to work in a chosen profession.” As we explain
in the brief, that’s a completely incorrect statement of the law—the right to
practice a trade of one’s choice was well-established a century and a half
before the colony of Georgia was even founded, and it has been protected by
Georgia courts ever since. What’s more, we argue, the fact that the state
allows people to practice this trade without a license so long as they charge
no money for it should be a factor considered when determining whether this
licensing requirement crosses the line into irrationality and unconstitutionality.
As I argued in a recent article in the NYU Journal of Law & Liberty, laws that apply based solely on
whether money changes hands—what I call “trade trigger” laws—should be
considered constitutionally suspect. There’s nothing about the exchange of
money that magically transforms something from good to bad and vice versa, and
there’s certainly nothing about the exchange of money that makes an otherwise
dangerous trade suddenly safe enough to be done without regulation.
Of course, the
real explanation is plain: Lactation consulting is not a dangerous practice
that the government must regulate with a licensing requirement. It’s safe
enough to be done daily in ordinary life by people who have never passed some
burdensome government exam. The same is true of blow-drying hair, or dozens of
other businesses that government imposes licensing requirements on—requirements
that are not actually designed to protect the public, but to protect the
private interests of existing businesses.
Timothy Sandefur
is the Vice President for Litigation at the Goldwater Institute.
