At Last – Massachusetts Gets a Public Breastfeeding Law

After years of lobbying and failed legislative bills, Massachusetts breastfeeding advocates have at long last succeeded in getting a law passed to protect breastfeeding in public.  Yay and congratulations to all the people who have worked so hard and for so long!  I am particularly pleased to see that that the new law, which goes into effect in April of 2009, has an enforcement provision.  As I wrote about at some length in the July/August Mothering, women in states with public breastfeeding laws lacking enforcement provisions have found themselves with no way to effectively use these laws.  Many woman find themselves shouting "but I have a right!" waiving the law, while the store owner says "so what?"

"An Act to Promote Breastfeeding" states:

Chapter 111 of the General Laws is hereby amended by adding the following
section:-
Section 221. (a) A mother may breastfeed her child in any public place
or establishment or place which is open to and accepts or solicits the
patronage of the general public and where the mother and her child may
otherwise lawfully be present.
(b) Notwithstanding any general or special law to the contrary, the act
of a mother breastfeeding her child, and any exposure of a breast incidental
thereto that is solely for the purpose of nursing such child, shall not be
considered lewd, indecent, immoral, or unlawful conduct.
(c) No person or entity, including a governmental entity, shall, with the
intent to violate a mother’s right under subsection (a), restrict, harass or
penalize a mother who is breastfeeding her child.
(d) The attorney general may bring a civil action for equitable relief to
restrain or prevent a violation of subsection (c).
(e) A civil action may be brought under this section by a mother
subjected to a violation of subsection (c). In any such action, the court may:
(i) award actual damages in an amount not to exceed $500; (ii) enter an order
to restrain such unlawful conduct; and (iii) award reasonable attorney fees.
(f) A place of religious instruction or worship shall not be subject to
this section.

So the new Massachusetts law creates a private right of action – the ability to file a civil lawsuit – for a mother against anyone who "restrict[s], harass[es] or penalize[s] a mother who is breastfeeding her child."

In my usual role as "she who finds the problems," I have some concern with how the enforcement provision will work.  Needless to say, there may be some disputes about what conduct on the part of, say, a store owner will be considered restricting, harassing, or penalizing,  Asking a nursing woman to leave a store or refusing to serve a nursing woman seems obviously to meet the test.  I wonder whether asking a mother to move or cover will be considered harassing if nothing is done when the mothers says no.  I certainly think asking is harassing but I suspect this will remain a question until a court decides.  But I don't think this wording is a problem with the law – often the more specific one gets in drafting a statute the more you end up accidentally excluding things you want to prohibit.  Laws get too long and unwieldy.  In noting the room for interpretation in this new law, I am just giving women a bit of a heads-up that passing a civil rights law is never the end of the journey.

I also have a concern with the language requiring that recovery under the private right of action requires that the wrongdoer act with the "intent to violate a woman's right."  Intent is essentially what is going on in someone's head when he or she acts and it can be difficult to prove.  I second Angela White's concerns over at Breastfeeding 1-2-3 that the intent requirement might be used to protect wrongdoers ignorant of the law but agree that that argument is generally unsuccessful.  I am just baffled as to why the intent requirement is there at all.  Seems like an unnecessary hoop to jump for someone bringing a lawsuit.  Angela suggests that a nursing woman might be asked to move for some other legitimate reason and I too hope that is why the provision is there.

There are two more problems I see with the enforcement provision that might prevent women from making full use of it.  First, few people have the skill to file a lawsuit without hiring a lawyer and lawyers cost money.  I prefer an enforcement provision under which a mother can file a complaint herself with a government agency and can go forward without expenses that might exceed anything she might recover.  The new Massachusetts law does allow the court to award attorneys fees (which it should) but lawyers usually need to be paid upfront and one risks that the attorney fee award won't be as much as what the fees actually are.  Believe me.  Been there.

Which leads me to my other question about the recovery element of the new law.  In a successful lawsuit under this law, a court may award "actual damages in an amount not to exceed $500."  This is where I need a Massachusetts lawyer (I am going to try and find one and check back with you but feel free to speak up about this).  I am concerned that this provision puts another burden on the woman to prove that she has been injured in a measurable way – "actual damages" also known at Common Law as "compensatory damages" means different things in different states.  It may mean a measurable monetary loss.  Hmm.

Any woman who has been harassed for breastfeeding in public can tell you about her embarrassment, her humiliation, sometimes her fear that she would be arrested or touched physically by the menacing stranger who was harassing her.  In what way will a woman have to prove that this resulted in loss that should be compensated with money?  I need a Massachusetts lawyer to tell me if my concerns about this are valid.

Finally, I'll note that the new Massachusetts law does not apply to religious schools and houses of worship.  While I believe currently only Illinois specifically limits the application of its public breastfeeding law in houses of worship, it has been pointed out to me that houses of worship are excluded from the definition of "public accommodation" in other states and therefore civil rights laws often apply differently in religious buildings.  I don't agree with it.  I can't see the justification.  But there it is.

After all that peeing on the parade, let me say again that it is a great thing that Massachusetts finally has a public breastfeeding law and that it is one with an enforcement provision.  Massachusetts has gone from one of only five states with no law protecting breastfeeding in public (the final four are West Virginia, Idaho, North Dakota, and Nebraska) to being one of only nine states with a penalty for violating the right to breastfeed in public (check here for the other eight).  And that is something to celebrate.