Breastfeeding in Public: Know Your Legal Rights

Planning to nurse your baby whenever and wherever? Read this first!
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When Jacqui Blue of Los Angeles breastfed her five boys, she followed the "feed on demand" rule. "When my children were hungry, I fed them, and it didn't matter where we were," she says. Blue got her share of stares and dirty looks over the years, and was once even confronted by a hostess at a Florida restaurant, who said Blue's discreet nursing was bothering a nearby patron. "She asked me to continue feeding my child in the bathroom or out in my car," Blue recalls. "I politely informed her that I was going to continue feeding my child right where I was, and told her that I was protected to do so by Florida state law. Then I asked her to remind the other guest if she had an issue with my child needing to eat, she always had the option of takeout."

The nursing mama's response wasn't just bold—it was correct: According to the National Conference of State Legislatures (NCSL), 49 states, the District of Columbia, and the U.S. Virgin Islands all have laws that specifically allow women to breastfeed in any public or private location. (Idaho is the only holdout.)   

So why are nursing moms still being asked to cover up or leave? Blame legal loopholes, legislation that lacks teeth, and insufficient education, experts say. "It's great that most states say that moms have a right to breastfeed in public, but there's not much these women can do if the owner of an establishment tells them to 'do that somewhere else,'" says Diana West, a lactation consultant and a spokesperson for La Leche League International. "We really need consequences built into the laws to truly protect breastfeeding mothers."

For instance, while in many states restaurant or store owners can't legally tell a nursing mother to cover up, they could claim she's a trespasser who refuses to leave, which would allow them to boot her out, says J. Kathleen "Jake" Marcus, a lawyer in Philadelphia who specializes in breastfeeding law.  

"Most state laws regarding public breastfeeding are written in such a way that the owner may still do this," Marcus points out. "So if a state doesn't offer legal protection against others impeding the right to nurse in public—or, more specifically, enforcement provisions to the law—then those rights have limitations. The property rights of others override the breastfeeding right."

Then there's the question of whether a nursing mom can be slapped with a charge of public indecency, which is a criminal offense. Currently, 29 states, the District of Columbia, and the U.S. Virgin Islands exempt breastfeeding from public indecency laws, but that doesn't mean nursing moms in the 21 other states are out of luck. "No woman in the United States has ever been prosecuted for indecent exposure arising from a public breastfeeding incident, so these laws exist only as a feel-good measure, providing protection from a nonexistent risk," says Marcus.

In fact, a state's public breastfeeding law trumps any indecent exposure law, says Joanna Grossman, a professor at Maurice A. Deane School of Law at Hofstra University, author, and a frequent contributor to Justia. "Most states have passed a public breastfeeding law in the last two decades," she explains. "The laws vary but the most typical version provides that a woman has the right to breastfeed anywhere she otherwise has a right to be. This more specific law gives her the right to nurse and overrides any potential application of the indecent exposure law."

That said, it pays to read up on your state's specific law to know your rights. (The NCSL offers a handy state-by-state guide.) Look for an enforcement provision, which offers you some recourse should you be asked to leave a public place for breastfeeding.

Although most of us aren't exactly swimming in free time, spending a few minutes researching your rights is well worth it. Breastfeeding has been shown to offer many benefits for both baby and mom, and part of finding success with it is being able to nurse confidently in and out of the home. "Women should be encouraged to feed their babies on cue, whenever [the babies] are hungry, and wherever they are, which includes feeding in public," says Joan Younger Meek, M.D., professor of clinical sciences at Florida State University College of Medicine and chair of the American Academy of Pediatrics' section on breastfeeding. "This will help to make breastfeeding the norm in our country."

Grossman agrees, saying breastfeeding in public and staged nurse-ins are among the most effective ways to educate the community and, especially, other moms. "The law is not the problem," she adds.""Unfortunately, women need to be the ones to know their rights. They can't assume the manager at Target or a judge or a police officer is necessarily looking to honor their rights."

And don't be shy about speaking up for yourself—something Blue wishes more nursing women would do by politely informing the opposing party that she, the nursing mom, is within her legal rights and doing something that's good for her baby. "If we do that in a kind tone without reacting defensively or hostility," she adds, "we'll get a lot further with the progression of breastfeeding becoming normalized in our society."

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