Public Breastfeeding in America: Legal in all 50 States but what does it really mean?
Are you a breastfeeding mom? Do you know what the laws of your home state say about breastfeeding? Recently it has become legal to breastfeed in public in all 50 states. In Part two of our public breastfeeding series, we dig deeper into what the laws actually say and might mean in application.
Part Two: To what extent do U.S. State laws protect breastfeeding moms?
Once we step into the public domain as breastfeeding moms, we can never know for sure who we will meet and what will happen. Different people (as is normal) have different feelings, and opinions about everything, and of course breastfeeding in public is no different.
Where do we stand then in the eyes of the law? What happens if someone tells us to cover up/ leave/ or move? Or worse, report you to the authorities for public indecency? Can we stand our ground? Or should we listen to their demands? What if someone harasses us in another way, through insults or crude comments?
In rue of the fact only recently has breastfeeding become legal in all 50 states (it was not before!), in part two of our series on breastfeeding in public, we are exploring the laws across America and to what extent women are protected.
Didn't catch part one yet? Part one discusses the benefits of breastfeeding and explores some of the challenges moms face when they try. In particular, we discuss the stigma associated with public breastfeeding.
Want to get straight to the action? Then, check out part three, as we set out a "game plan" for moms who want to get out and about with their little guzzlers armed with the knowledge of their public breastfeeding rights.
For the moment, in Part 2 of the series, let's talk about what the laws say in relation to public breastfeeding.
1. What do our state laws really say?
Across America, we can find a general concept in the laws relating to women breastfeeding in public which nearly all 50 states now have in place.
This general public breastfeeding law gives women the right to breastfeed in public places as long as they are somewhere they already legally have the right to be. Forty eight states have a law granting women this right. Furthermore, encompassed in the general concept, in all 50 states women who breastfeed in public are exempt from indecency laws.
The wording used in the laws of each state, however, varies. Some laws are short and specific, some go into much more detail, and some have elements which could result in grey areas when applied "on the ground."
There are two states which fall short of the general law concept granting women the right to breastfeed in public: South Dakota, S.D. Codified Laws Ann. § 22-24A-2 (2002) and Idaho, Idaho Code § 18-4101 (2018). These two states don't specifically grant the right to women to breastfeed in public. They only exempt them from indecency charges.
Some state’s version of the law has little language quirks which will certainly affect any actions anyone wants to take to the courts. These wording variations can also affect the support a woman might receive from an officer of the law.
We won't go into all the details about the laws of all 50 states in this article, but we would like to explore some of the notable state laws a little further. We need to discuss some of the major differences between the laws, and what those differences mean to us breastfeeding moms.
Who are the most supportive and least supportive states? Which states have special clauses or wording moms should be aware of if they are breastfeeding?
The Most Supportive States
Hawaii has great laws supporting moms to breastfeed without having to hide out at home or wean your baby earlier than you plan to do. The full wording they use is detailed below.
"...provide that it is a discriminatory practice to deny, or attempt to deny, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodation of a place of public accommodations to a woman because she is breastfeeding a child. The law allows a private cause of action for any person who is injured by a discriminatory practice under this act." (Hawaii Rev. Stat. § 489.21 and § 489-22.)
Slightly off topic here, but incidentally, Hawaii is the only state which “requires the Hawaii Civil Rights Commission to collect, assemble and publish data concerning instances of discrimination involving breastfeeding or expressing breast milk in the workplace.” (Hawaii Rev. Stat. § 367-3,1999)
Like Hawaii, Rhode Island also specifies in its law that they allow for a private cause of action (R.I. Gen. Laws § 23-13.5-1 and § 23-13.5-2 (2008), (2008 R.I. Pub. Laws, Chap. 223 and Chap. 308, HB 7467 and SB 2283.)
The only other state to specify they have a provision for mothers to take action is Massachusetts. Their laws specifically state they have a provision for mothers to take civil action should they need to.
"...provides for a civil action by a mother subjected to a violation of this law." (2008 Mass. Acts, Chap. 466, SB 2438)
Sadly only Hawaii, Rhode Island, and Massachusetts clearly state they provide a provision for prosecution in their law. This means, sometimes, in reality, the practical support breastfeeding moms are given on the ground leaves room for improvement.
We love the strong language Maryland uses in its law such as the word “prohibits” and making clear she can breastfeed anywhere in very clear terms:
Their law is short and sweet but crystal clear.
Washington uses good comprehensive phrasing, and they also make clear when someone tries to prevent a woman breastfeeding her baby, the person is considered to be discriminating.
“...provides that it is the right of a mother to breastfeed her child in any place of public resort, accommodations, assemblage or amusement.” (Wash. Rev. Code § 49.60.30(g) & 2009 Wash. Laws, Chap. 164, HB 1596)
“...states that it is an unfair practice for any person to discriminate against a mother breastfeeding her child in any place of public resort, accommodations, assemblage or amusement.” (Wash. Rev. Code § 49.60.215 & 2009 Wash. Laws, Chap. 164, HB 1596)
Some state laws go into a lot of more details, and make very clear the right of the breastfeeding mom still stands, even if she exposes her nipple(s.)
In 2018, Michigan added the following to their breastfeeding law (which they initially passed in 2014).
"...states that public nudity does not include woman's breastfeeding of a baby whether or not the nipple or areola is exposed during or incidental to the feeding." (Mich. Comp. Laws § 117.4i, HB 5313)
Minnesota also specifies the woman is not indecent even if her nipple should get exposed during the course of breastfeeding (Minn. Stat. § 145.905.)
The state of Wisconsin has a supportive law which goes into a lot of detail. They specify no person should direct a nursing mother to move, cover herself or her child or otherwise restrict her from breastfeeding. The law reads as follows:
“...provides that a mother may breastfeed her child in any public or private location where the mother and child are otherwise authorized to be. The law specifies that in such a location, no person may prohibit a mother from breastfeeding her child, direct a mother to move to a different location to breastfeed her child, direct a mother to cover her child or breast while breastfeeding, or otherwise restrict a mother from breastfeeding her child.” (2009 Wis. Laws, Act 148, 2009 AB 57)
The Least Supportive States
South Dakota and Idaho have the least comprehensive laws of all states. They both do specifically exempt women from being charged under the indecency laws. However, they have not yet passed a law which specifically grants the right for women to breastfeed in public.
South Dakota law:
“...exempts mothers who are breastfeeding from indecency laws.” (S.D. Codified Laws Ann. § 22-24A-2, 2002)
“...revises provisions relating to breastfeeding; provides an exemption from indecent exposure and obscenity for the breastfeeding of a child.” (Idaho Code § 18-4101, 2018)
This means if you are in South Dakota or Idaho breastfeeding in public you have the support of the law in the sense you can't be charged for indecency. However, you don't necessarily have the support of the law in the instance when someone might try to get you to move or harass you.
If you are a breastfeeding mom in South Dakota or Idaho, it is a good idea to get involved with a local breastfeeding support group(s) (South Dakota and Idaho.) Then, you can discuss with other moms any scenarios they may have faced, and how best to handle any difficult circumstances should something happen to you.
Bear in mind, in Idaho, the law protecting women from being charged for indecency is VERY recent (2018 meaning) they were the last state to pass this law. This means, when you go out, there is a very good chance not everyone knows about the law. Potentially, even officers of the law might not yet know about the developments.
If you live in Idaho, I would definitely take a little index card everywhere you go with the exact phrasing of the law written on it. This can help in case someone starts to assert you are indecent. Having the law written down on a piece of paper or an image saved on your phone ready to show could diffuse an uncomfortable situation quickly.
Some States with Quirky Phrasings, and Exceptions to the Rule
California allows moms to breastfeed in any location public or private as long as they have a right to be there. The exception to this law is when the woman is on the private property of another. This means if you are at your friends home, and she/he doesn't want you to breastfeed there, she/he has the right to ask you to stop or leave. (Cal. Civil Code § 43.3, AB 157, 1997)
Kansas has a good law in place. However, I do wonder how potential cases would play out because of the wording. This is what their law says:
"provides that it is the public policy of Kansas that a mother's choice to breastfeed should be supported and encouraged to the greatest extent possible and that a mother may breastfeed in any place she has a right to be." (Kan. Stat. Ann. § 65-1,248)
The phrase which personally concerns me is "to the greatest extent possible." Now, while it sounds good on the outset, we wonder if it also leaves room for uncertainty because different people holding a variety of views will interpret what "the greatest extent possible" means in real life terms.
Illinois has a good comprehensive code protecting women's right to breastfeed their babies. However, they specify when in a place of worship the mother should follow the norms of the place of worship. Therefore, if you attend a church in Illinois and the church leaders don't want you to breastfeed in full view of the congregation, you need to respect their wishes even if you disagree. We would have thought most people will do this anyway because if we attend a place of worship we will choose somewhere which aligns with our views whatever they are. Here is the exact wording:
“...creates the Right to Breastfeed Act. The law provides that a mother may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be; a mother who breastfeeds in a place of worship shall follow the appropriate norms within that place of worship.” (Ill. Rev. Stat. ch. 740 § 137, 2004, SB 3211)
Moms in Missouri should be aware their state uses the following terms in their law:
“...allows a mother, with discretion, to breastfeed her child or express breast milk in any public or private location where the mother is otherwise authorized to be.” (Mo. Rev. Stat. § 191.918, 1999, 2014)
Notice here the law specifically mentions the mother is permitted to breastfeed her child in public with discretion. This does mean a grey area has been created because everyone will have a different idea of what discretion means in practical terms. Moms might find themselves having to defend how discrete other people think they may or may not have been.
2. Educate yourself and know your Rights
From conducting this thorough state by state review of public breastfeeding laws, we can see that it is not technically illegal to publicly breastfeed your child. However, the extent to which you are protected under the law varies. Furthermore, levels of awareness in regards to the law can differ considerably across the general public.
In the end, we as moms can take the initiative to inform and educate ourselves about the laws. Then, we can better understand how they apply and protect us personally. This knowledge can equip us to go out in public with confidence, and in the worse case scenarios, we can better cope with any harassment we might be subjected to.
In navigating your exciting new life with a baby as a nursing mom, one of the things you want to brush up on is the public breastfeeding law of your home state (and any state you plan to visit.)
If this article has not mentioned your state specifically in one of the sections above, then the general concept in the law will stand, meaning you have the right to breastfeed anywhere you have the right to be, and you are exempt from indecency laws. However, we recommend every mom checks and takes note of the exact wording of your home state law. You can do this in a few minutes using the National Conference of State Legislatures (NCSL) website.
Next, join us for part three of our public breastfeeding series and learn how to better prepare yourself in the eyes of the law. Then, together we can develop a “game plan” to confidently breastfeed in public.
Do you know what your home state laws are? Have you ever diffused an uncomfortable situation by showing someone the law in writing? Do you feel more confident going out with your baby when you know what the law says? Let us know in the comments.
If you didn't already read part one of this series where we discuss the benefits of breastfeeding and some of the challenges moms face when they try to breastfeed, why not have a look now?
Or carry on to part three as we discuss a public breastfeeding "game plan" for moms. Let's get prepared and get out there!
Primary Source: National Conference of State Legislatures
Note: Details given may not be comprehensive, but is representative of state laws that exist. We appreciate any additions and corrections, so let us know if you spot any errors.