When it does not create or protect the right of a woman to breastfeed.  When is breastfeeding rights legislation a really really bad thing? When it makes it even more difficult for a woman to breastfeed than if there were no law at all.  And this really really bad thing is what is happening in North Dakota.

Witness the sad journey of North Dakota Senate Bill 2344.  As originally introduced this past January, SB 2344 amended the North Dakota crimes code to exclude breastfeeding from all forms of indecent conduct, and created a new section of the state civil rights law making discrimination on the basis of breastfeeding prohibited both in public accommodations and in the workplace.  North Dakota would go from being one of a handful of states with no law protecting breastfeeding to having one of the strongest laws.  But then the bill made a trip into the North Dakota Senate Human Services Committee where on February 16th SB 2344 was completely gutted.  The Committee removed the entire section of the bill which would have created a civil right – therefore removing the only mechanism for enforcing any protection the bill would have created.  The Committee also removed the section creating a right to pump breast milk in the workplace.

But the Committee did not just remove vital portions of SB 2344, it added a few words too:  "discreetly" and "if the woman acts in a discreet and modest manner."  So instead of a new section in the civil rights code, the bill adds this to the health code (therefore without any penalty for violation):

Right to breastfeed. If the woman acts in a discreet and modest manner, a woman may breastfeed her child in any location, public or private, where the woman and child are otherwise authorized to be.

So who decides what is a discreet and modest manner?  You?  Me?  The owner of the public accommodation?  The police?  The mother?  The bill does not say.  So who will it be?  Whoever doesn't want a woman to breastfeed in public.  After all, if a woman is breastfeeding in a restaurant and the owner orders her to stop or leave, the final arbiter of whether the mother is arrested for trespass is the police.  Will the police officer watch the woman breastfeed to determine whether she is breastfeeding in a discreet and modest manner?  Will he rely on the owner for that determination?  Will witnesses be interviewed?

And what does "discreet and modest manner" mean?  Visible skin?  Visible areola a/k/a the Facebook test?  A flash of nipple (I think I'll call this the "Janet Jackson test")?  Anyone who has breastfed a child knows that a woman's control over these factors in any given nursing session with any particular child is pretty limited.  Any person with breasts can probably understand that a large (pun intended) determining factor in one's ability to control the occasional flash is breast size.

The amended SB 2344 isn't just vague, ambiguous, and totally lacking in protections.  Unlike any breastfeeding law to date, North Dakota's SB 2344 arguably makes some public breastfeeding a crime.  How? With that tricky word "discreetly."  Rather than excluding breastfeeding from the crime of "indecent exposure" as so many other states do, SB 2344 amends the criminal law as follows:

The act of a woman discreetly breastfeeding her child is not a violation of this section.

So does that mean that a woman breastfeeding "indiscreetly" is in violation of the indecent exposure statute?  To my knowledge, no woman in North Dakota (or anywhere else – and I have been following this for years) has ever been charged with indecent exposure for breastfeeding.  Under North Dakota's existing indecent exposure law, the prohibited conduct is:

A person, with intent to arouse, appeal to, or gratify that person's lust, passions, or sexual desires, is guilty of a class A misdemeanor if that person:
a. Masturbates in a public place or in the presence of a minor; or
b. Exposes one's penis, vulva, or anus in a public place or to a minor in a public or private place.

Not conduct easily confused with breastfeeding.  So excluding "discreetly" breastfeeding must mean that indiscreetly breastfeeding, whatever that might mean, is indecent exposure, right?

I have heard the argument that something is better than nothing.  Hey, North Dakota has no law concerning breastfeeding so this is better than nothing, right?  Wrong. This law offers breastfeeding women nothing – no protection against harassment and discrimination when in public, no rights or protections in the workplace – and it explicitly limits the way in which breastfeeding in public is to be done, possibly even to the point of creating a crime.  This particular "something" is most definitely worse than nothing.