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.

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