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For some months now I have been hearing about a proposed bill heading to the Taiwan Parliament that would impose a large fine (30,000 Taiwan dollars, about 940 US dollars) on "anyone attempting to prevent breastfeeding in public." Breastfeeding advocates the world over have heralded this bill as a model for laws elsewhere. However, I have been unable to find a copy of the proposed Taiwanese law. Before I support penalties, I want to know what conduct is being outlawed. Is the Taiwan bill going to impose this fine on owners and employees of public accommodations or will anyone be subject to it? What constitutes "preventing" breastfeeding? Should a store owner who harasses a breastfeeding customer in any way be fined? In my view, absolutely. Public accommodations enjoy certain benefits from the state and are regulated so that they can be truly public. Should a passerby in the park who makes a rude remark be fined? In my view, no. Regulating speech is dangerous business. If I limit your ability to say things with which I disagree, you may limit my ability to say things with which you disagree. Down that road, I don't get to say much.
But this post isn't really about what conduct should be fined and what conduct should be endured. When I find out what the Taiwan law actually says, then I'll see if it is appropriate to go on about free speech and the need to suffer fools in order to protect our own rights. This post is about what I found in my search for the text of the Taiwan bill.
Back in 2004 the Scottish Parliament was debating the ultimately successful passage of a bill imposing a large fine on stopping a woman from breastfeeding a child under age two in licensed premises (what would be called "public accommodations" in the U.S.). Now this is my kind of law. And this was also my kind of debate. A representative of the National Childbirth Trust said:
We therefore welcome this landmark legislation, which will establish a mothers' right to breastfeed her baby whenever and wherever they are together and convey the message that breastfeeding is a positive choice to be supported by society rather than discouraged.
I admit, the little hairs on the back of my neck go up every time I see breastfeeding described as a choice. After giving birth, one can choose not to breastfeed but lactating happens when you give birth. But otherwise that statement is right on: mothers must be able to breastfeed their babies wherever they are. However, there was a statement in the Scottish Parliament that day I find more interesting and certainly more memorable. Then-Member of the Scottish Parliament Carolyn Leckie said the following; suitable for framing, T-shirt or refrigerator magnet:
There are tits all over the newspapers, tits all over newsagents' shelves, tits all over the telly, tits in the cinema, tits in advertising hoardings and no doubt tits in the parliament.
All right, some U.K. friend is going to have to tell me what "advertising hoardings" are but Leckie makes a great point with a suitable amount of outrage. It isn't breasts people object to – just breasts with children attached to them.
Back in July of 2007, I gave a session on Breastfeeding and the Law at the La Leche League International Conference in Chicago. Good session, if I do say so myself, which you can buy on CD here. [Disclaimer: I don't make a cent if you buy it.] While at the Conference, I also did a podcast which has just become available for free here.
So why listen to me talking about the state of breastfeeding law over two years ago? Well, sadly, while there have been some new breastfeeding laws passed – both good and bad – breastfeeding law, and the public attitude toward breastfeeding rights in general, really haven't changed much.
Word of warning, the podcast is almost fifty minutes long so grab some knitting or a hungry baby or something else to do while you listen. I think there some amusing things to learn about my parenting life (how many times do I use the word "clueless" to describe myself as a new parent?) and the role La Leche League has played in it (and how I took my job as Group librarian entirely too seriously). Also I talk about the history of breastfeeding law, current laws and attitudes, and my experience working with the Ronald McDonald House moms. The Ronald McDonald House incident had happened recently and, if anyone is unclear about this, neither Ronald McDonald House of Houston nor Ronald McDonald House Charities has ever dealt appropriately with the moms. So you are going to hear a good bit of justified Jake outrage.
Hope you enjoy it and would love to hear impressions. If nothing else, you have to love a podcast that ends because the interviewer's baby needs a diaper change. 
Stacey Anvarinia, the North Dakota women who pled guilty to child neglect for allegedly breastfeeding her infant daughter while intoxicated, has been arrested again. According to the Grand Forks Herald, within hours of Anvarinia's sentencing to 18 months imprisonment, all but six months suspended and with an option to serve part of the six months in substance abuse treatment, she was arrested for slashing the tires on a truck parked in the lot of her apartment building. No word on to whom the truck belonged but I do wonder whether perhaps it was to Delbert Harrison, the man Anvarinia said had beaten her when she called the police for help the night of her arrest for child neglect. Regardless, the police found her "hiding in a closet and appearing intoxicated." (Yes, once again it appears police did not feel it necessary to do a blood alcohol test.) She also had cuts on wrists severe enough for police to bring her to the hospital before bringing her to jail. Well, she got a hospital visit this time rather than the "go directly to jail" card dealt by police after she was kneed in the head last February.
Let's review:
-Woman calls police for help because she is being beaten by her boyfriend as she tries to leave her apartment.
-Police arrive, describe her as "extremely intoxicated" but do not question her ability to care for her six week old daughter until she "began breastfeeding her infant in front of us."
-Woman is never given a blood alcohol test.
-Woman is charged with felony child neglect and the man she identifies as having beaten her is never arrested or charged. In fact, the state lists him as a witness in the case against her.
-Woman loses custody of her child for six months, is then sentenced to a minimum of another six months away from her child, leaves the courthouse after sentencing and slashes someone's tires as well as, possibly, her own wrists.
A North Forks Herald article concerning Anvarinia's sentencing hearing last week reported that the officer on the scene in February testified:
Anvarinia’s demeanor, a strong smell of alcohol on her and the alcohol containers throughout the apartment suggested to him that she was intoxicated.
and
he saw Anvarinia shake the baby girl, hold her without supporting her head and, at one point, hold her upside down by one leg
However, none of this is in the original incident report by the same officer. If a six week old infant were being held upside down by one leg and shaken, would you wait until the mother put the child to the breast to arrest her for child neglect? Would the breastfeeding and nothing else be in the arrest report?
If we are to assume that Anvarinia indeed has an alcohol problem, it was some solace that, though she lost custody of her daughter for at least a year and her abuser walked away with no charges, her sentence included substance abuse treatment. Well, not anymore. In today's report:
Stacey Anvarinia, 26, had been allowed to spend at least part of her sentence at a substance abuse treatment facility, but Judge Sonja Clapp of the State District Court rescinded that option today.
The judge has sent a battered mother who allegedly has an alcohol problem straight to jail and, as punishment for allegedly getting drunk again, won't let her go to alcohol treatment.
Mothers can learn a lot of very disturbing lessons from the Anvarinia case. If you are being beaten while trying to escape an abusive boyfriend, calling the police may result in losing custody of your child. And your abuser won't be charged with any crime. If you plead guilty to charges for which the state appears to have very little evidence in exchange for a lighter sentence and substance abuse treatment, you better not abuse substances before you get treatment because the judge will change your sentence to deny you the treatment you need. So the punishment for being abused is losing your child and the punishment for being an alcoholic is not getting alcohol treatment. Please, someone tell me who this protects?
As promised, here is an update on Stacey Anvarinia, the North Dakota women who pled guilty to child neglect for allegedly breastfeeding her six-week-old daughter while drunk. For more on what appears to be a startling lack of evidence, see my post here. My suspicion that Anvarinia pled guilty as part of a deal for a lighter sentence and return of her baby seems to have been spot on.
According to the Grand Forks Herald, rather than the maximum sentence of five years imprisonment, Anvarinia was sentenced today to six months which she can serve in a substance abuse treatment facility. No news story published before today has mentioned whether Anvarinia had custody of her infant daughter since the arrest. In my previous blog post, I wondered whether she might have waived her right to trial in order to get her child returned to her. The Grand Forks Herald reports that at Anvarinia's sentencing she said:
"I’m very sorry for what I did, and I know it was wrong,” 26-year-old Stacey Anvarinia told the judge. “And I would like to continue working toward getting my daughter back.
So Anvarinia does not currently have her daughter and does not appear to know when she will regain custody of her. She was arrested in this case on February 13, 2009. As of today's sentencing then, she has been without her daughter for nearly six months and can now, it appears, look forward to at least another six months without her.
The brief news released today makes no mention of Delbert Harrison, the man Anvarinia says was beating her when she called police for help. As of last week, he had not been arrested or charged. Anvarinia's sentence for calling for help is a year without custody of her daughter, six months of which will be in some sort of detention.
Even if Anvarinia was intoxicated when police arrived – something for which there is apparently no evidence other then the police shock at her breastfeeding in their presence – is the loss of custody for a year (or more) and detention for six months an appropriate sentence? If you were a breastfeeding mother in need of help, how willing would you be to call the police? You might find yourself nursing an infant one minute, and regaining custody of a toddler a year later.
UPDATE/CORRECTION: According to the New York Times:
Clapp sentenced Anvarinia to 18 months in jail with all but six months suspended and said Anvarinia could get credit for chemical dependency treatment.
So Anvarinia's sentence is more severe than I reported above. Many thanks to Cate Nelson for the heads-up on this.
When I read the Associated Press story this past June about the guilty plea for "child abuse or neglect" by a North Dakota woman alleged to have breastfed her child while intoxicated, a few things leapt off the screen at me. I wondered why this mother had pled guilty. As a lawyer I know that people don't plead guilty because they are guilty. Guilty pleas are generally the result of a deal. The accused is waiving the right to a trial in exchange for an agreed upon sentence or in order to be charged with a lesser crime. Sometimes they plead guilty because they are frightened or inadequately represented or fear losing or being separated from their children. This woman pled guilty to the original charge so the "deal for a lesser charge" theory can be eliminated. Why then?
Also of significance to me was that the police were called to the mother's home in response to a "domestic disturbance" call. Often "domestic disturbance" means that the call was in response to domestic violence. Had the original call been made so police would protect the mother?
The next Associated Press article contained a few more clues and some disturbing admissions on the part of the police. This led me to take a look at the Grand Forts Police Incident Summary and States Attorneys Office charge statement. According to these official reports, Stacey Anvarinia stated:
[s]he was assaulted by her boyfriend identified as Harrison, Delbert.
She stated he kneed her in the chin and struck her face when she attempted to leave.
Officers observed red and swelling area on the bridge of her nose, a small scratch to her left cheek, and a red swollen area on her chin.
So Anvarinia had called the police because she had been the victim of a crime. She called for help.
Also according to the police reports, "she was extremely intoxicated." How did the police know this? Neither the police reports nor subsequent police comments to the press give any indication. No report says police smelled alcohol, saw alcohol, heard slurred speech, and the police did not administer a blood-alcohol test. What behavior did Anvarinia engage in that led to her arrest for child abuse or neglect? She "began breast feeding in front of us." Paramedics were called but they transported the baby to the hospital. Battered Stacey Anvarinia was taken to jail.
Reports of this story led to much debate about the safety of drinking alcohol while breastfeeding. That is certainly an important issue. However, for Stacey Anvarinia, I wonder whether we have any reason to believe she was intoxicated at all. As this case got more press, the Grand Forks police have gotten a little defensive on this point:
This case is more than just the breast-feeding. It was the totality of the circumstances," said Grand Forks Police Lt. Rahn Farder. "It is quite unusual for a mother to be breast-feeding her child as we are conducting an investigation, whether she was intoxicated or not.
Well, what truly is the totality of the circumstances? In defense of itself, the police cite her breastfeeding as … what? Evidence of her intoxication? Might having been recently beaten cause one to seem disoriented? Check the time she is alleged to have committed the "crime." 3:57 a.m. Had she slept at all that night? She had injuries to her face. Did she have a head injury? Despite protests that breastfeeding isn't the issue, the police still only point to her breastfeeding in front of them as being "unusual" in her behavior.
What then happened to Delbert Harrison, the man identified as having beaten Stacey Anvarinia? He was neither arrested nor charged with any crime. Why not?
According to a 2005 study in the American Journal of Public Health, homicide is the third leading cause of injury-related death for women who are pregnant or who have given birth in the previous year. A 2002 study in The British Medical Journal concluded that a woman's risk of domestic violence doubles during pregnancy and the year after birth. The U.S. Centers for Disease Control reported in 2005 that due to poor reporting, we really don't have accurate figures on how high the rate of homicide is for women during pregnancy and the post-partum period because few states report whether a homicide victim was pregnant or had recently given birth. Even given the admitted under-reporting, homicide was found to be the second leading cause of injury-related maternal death. Of those deaths, 57% were caused by gunfire.
Stacey Anvarinia could have been a homicide statistic. According to the police report, she was beaten while trying to leave. She reached out to the police to save her. Instead, they arrested her.
According to news reports, Anvarinia will be sentenced this Friday. Let's see how much jail time you get for breastfeeding in front of the police you ask to save your life.
Top Hat over at Its All About the Hat suggested a Breastfeeding Blog Carnival called "This is What a Nursing Toddler Looks Like." [This is my first blog carnival so I will link to the other participants as soon as I figure out the rules of the game - UPDATE: I have added some links at the bottom to other Carnival participants.] Luckily for me, the Carnival theme left a good bit of room for interpretation since I don't currently have a nursing toddler. I have many fond memories of nursing my kids when they were toddlers and so do they. I and they remember how important it was that they could nurse when they were sick or hurt or needed comfort. We nursed when they needed some time with mom. We nursed when they were getting used to sharing mom with a new sibling. We nursed when they were hungry. We nursed to sleep. We nursed standing up and sitting down and in positions I used to call "Olympic Freestyle Nursing."
A nursing toddler can also go hiking and he looks like this:
But with my kids getting older, I am seeing more of what a nursing toddler looks like when he is no longer nursing and is no longer a toddler. That can be someone who really understands how important it is that kids get to nurse and mothers get to nurse their kids. A former nursing toddler isn't fazed by seeing women breastfeed wherever they are.
A few years ago my then 12 year old son saw me helping to organize a nurse-in. I explained that a woman had been quietly nursing her baby on a bench in a shopping mall when a security guard ordered her to stop and move. She refused, saying she needed to finish feeding her son. Soon she was surrounded by security guards who engaged her husband in a shouting match and left the woman terrified. When the mom shared her story and the shopping mall management refused to respond to her complaint about her treatment, a nurse-in was planned.
My son was confused – why would anyone think there was something wrong with a mother feeding her baby? Then he was mad – this was wrong. He asked if he could come to the nurse-in. When he saw me making signs, he asked if he could create one for himself. I told him that we expected press coverage and there was a chance his friends would see a photo of him from the protest. He was adamant that he wanted to be seen.
Back to the Carnival theme – This is What a Nursing Toddler Looks Like. He looks like a proud breastfeeding activist.
UPDATE: Other What Does a Nursing Toddler Looks Like Carnival participants.
A Breastfeeding Toddler Photoshoot, Escaping to my Controversial Place
The Joys, Humors, and Struggles of … , The Mother's Lamentation
Nursing a (and Around a) Toddler Creates Cute Stories, Melissa's Place
I Never Thought I'd Nurse a Toddler, The Prudent Woman
The Pros and Cons of Breastfeeding a Toddler, Breastfeeding Moms Unite
Nursing an Older Toddler, Musings of Mommy Bee
My Nursing Toddler Story, babyREADY
Beautiful at Any Age, A Piece of My Mind
This is What A Nursing Toddler Looks Like, Three Girl Pile-Up
This is What a Nursing Toddler Looks Like, Permission to Mother
This is a Nursing Toddler, Gaze Into the Heavens
This is What a Nursing Toddler Looks Like, My Seaside Retreat
Nursing a Toddler in a Ring Sling, PhD in Parenting
This is What a Nursing Toddler Looks Like … , Mama's Apple Cores
Seems odd to me that people are confused about what to do when a woman is breastfeeding her child on an airplane. If you have ever walked on a plane with a small child, you know that look on people's faces – that look that says "please, please don't sit next to me." No one wants to be trapped near a crying, fussing child. Why then would anyone object to anything (safe) that would silence an unhappy child?
I was among many who were shocked in late 2006 when Emily Gillette and her family were thrown off a Delta Airlines flight for refusing to put a blanket over her breastfeeding child's head. While the Gillette case resulted in a multi-city nurse-in and an on-going lawsuit – both of which I have been writing about in Mothering – it also generated lots of negative statements about breastfeeding in public generally and breastfeeding on airplanes specifically.
I was surprised recently (though shouldn't have been) to find that Her Bad Mother, who blogged in September of last year about her experience with a rude flight attendant on WestJet, was still getting comments about her experience – 213 comments at this writing and still coming in. In Under the Blanket, Her Bad Mother blogger Catherine writes about how humiliated she was by a flight attendant pressuring her to cover her breastfeeding child with a blanket and finally throwing the blanket next to her when Catherine refused. It is an eloquent, sad, and truthful post about how vulnerable we are when we are feeding our children. Please go read it.
Most of the many comments to Catherine's blog post are supportive – lots of angry mothers wanting WestJet to apologize for this unacceptable flight attendant. Some of those commenting try to justify the flight attendant – perhaps the flight attendant actually thought she was being helpful, they write. And then there are the other comments. The nasty "I don't want to see your boobs" comments. And there is the response from WestJet which maintained requiring a cover is within the rights of the airline and then announced a change in policy (apparently in response to another well-publicized breastfeeding harassment case on a WestJet flight early last year).
Clearly people need a primer. It isn't a legal analysis – you get enough of that from me. It is a primer about being human. So here it is and I owe it to a woman who sat next to me on an airplane a decade ago.
I was flying alone with my two eldest sons. One was three years old and one was a few months old. Both were breastfeeding. My large infant (ten pounds at birth and much larger at a few months) was in a sling and I walked down the airplane aisle with my toddler holding one hand, dragging a car seat behind me with the other hand, and averting my eyes from all the panicked "please don't sit next to me" looks of my fellow passengers. I had a window seat and I secured the car seat into the middle seat. I knew that both my sons were going to want to nurse at some point during the flight and since each had always steadfastly refused to nurse while the other did, I knew I would need to switch them in and out of the car seat.
When the person assigned to the aisle seat arrived, it was an older woman perhaps in her sixties. She looked at me with my kids and their toys and the sling and the car seat and seemed … well … tense. I had no idea how she would react once the nursing started. No sooner had the doors closed when the boys started racing for my breasts. As soon as one came off the breast, the other wanted to nurse. Whichever boy wasn't nursing was squirming, crying, and tossing toys on the ground I couldn't reach. The woman in the aisle seat looked increasingly uncomfortable. She looked at me, then looked away. Twice it seemed as if she was about to say something and then didn't. I tried to prepare myself for her comment. Completely overwhelmed, I was torn between an indignant reply and just bursting into tears. And then she spoke:
"If it is okay with you, would it help if I held whichever child isn't nursing?"
Fighting back my tears, I said, "Yes! Thank you so much!"
For the next few hours, this wonderful stranger played with whichever child wasn't nursing, cheerfully passed my sons back and forth to me, fetched the toys from the ground. When the flight attendant ignored me, our new friend asked what I needed and set up my water on her tray. At one point, she even stood in the aisle and rocked my chubby baby in her arms. We never talked about breastfeeding or whether she was a mother or a grandmother. I don't think we even exchanged names, though she asked the boys' names so she could chat with them while they played. She saw I needed help and she helped me. I thanked her again and again but she only smiled back at me.
So, whoever you are, the person in the next seat or many rows away, and particularly if you are the flight attendant who is actually being paid to help the passengers, if you see a breastfeeding woman, consider what she needs. A smile might be all. If she is alone, chances are she needs some help managing toys or kid stuff. At the very least, she needs something to drink. If a breastfeeding woman (or anyone traveling with a child) is on a plane with you, help her.
Now, was that so hard? If being the wonderful stranger who sat next to me isn't what you would do, read the primer again. There will be a pop quiz. Mothers who need your help are everywhere. You may need to take the quiz tomorrow.
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.
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.
This week the press and the mothering blogosphere have been filled with talk of Facebook. If you need to catch up, see this blog entry at PhDinParenting. If you want to hear some good old fashioned outrage, check out this podcast of Fox Across America which aired on 12/26 and includes an interview with me about 25 minutes in.
The short version is that Facebook has been sanctioning subscribers for posting breastfeeding photos. A protest event took place on December 27th during which an estimated 11,000 Facebook subscribers changed their profile images to breastfeeding photos and changed statuses to "Hey Facebook, Breastfeeding is Not Obscene."
I have not had a Facebook page for very long so I watched the event with some interest. I changed my profile photo to one lots of people have seen – my youngest son's tiny head nursing at my huge breast. It is a beautiful photograph which I love because of my son's sweet comfort and the fact that my hair covers my face. By baby number three I was not at all self-conscious about people seeing my breasts but still don't like photographs of my face. Of my seventy-five or so Facebook "friends," nearly half of them changed their profile images to breastfeeding photos on the 27th. Three of them had those breastfeeding photos removed by Facebook within forty-eight hours. As far as I know, no one has discovered how many breastfeeding photos were removed on the 27th or have been removed in total (though there is a site with a collection of some of the removed photos).
While my inbox has been flooded with news stories about the Facebook breastfeeding photo virtual protest, it appears that Facebook is holding its ground. Other than a statement issued prior to the protest, Facebook has been quietly going about its usual business. It appears that images are reported to Facebook by Facebook users as violative of the anti-nudity provision of the user agreement and some not particularly strenuous evaluation process occurs at corporate. If Facebook officials in positions of authority are giving the breastfeeding question much thought, there is no indication of it in either their actions or their public statement.
Are these images really bothering anyone? Some of the public commentary on the Facebook event has been the same dichotomy I have seen for years in the public breastfeeding legislation debate. The “anti-“ camp statements are something like:
"I don't want to have to see that."
"Women aren't discreet enough when they do that."
or, my personal favorite, "I don't want my child to see that."
And the “pro-“ camp maintains:
“Breastfeeding is natural and healthy and normal.”
“If you don’t want to see it, look away.”
and, sometimes even when it isn't strictly true, “I have a legal right.”
While I have been forced to engage in these debates, the voice in my head is always shouting, "Too damn bad you don’t like seeing breastfeeding. Grow up or go home." It isn’t nice but the voice in my head rarely is.
But there are two truths at work here: people are uncomfortable with the unfamiliar and some people want to control what other people are allowed to do. As long as breastfeeding remains unfamiliar, it will make some people uncomfortable. The solution seems clear to me – familiarize people with breastfeeding and they will be more comfortable with it.
I have written at length elsewhere about dealing with these two questions (and will certainly write lots about it here) but right now the owners of Facebook must decide whether they will be the arbiters of this debate or leave it to the rabble. Will Facebook say, "These are photographs of people engaged in conduct that would be legal if done in public and therefore the photos will stay" or will Facebook continue to follow some other motivation. Facebook may be running the numbers and deciding that not enough people will boycott Facebook over the removal of breastfeeding photos to make this worth corporate attention. Maybe some Facebook vice president truly is offended by nursing children. Or maybe no one at Facebook cares less.
I do wonder why Facebook is not jumping at the chance to get some positive publicity by responding to subscriber hue and cry – while 11,000 is a relatively small fraction of the total number of Facebook subscribers, it is still a lot of people. Whoever is complaining about the presence of the photographs is not doing so in the press or on blogs or in any way that stands to hurt Facebook. So why not side with the breastfeeding supporters?
What about breastfeeding activists? For mothering to be sustainable, mothers must be free to perform the acts of mothering everywhere life requires they go. While Facebook membership is by no means a necessity, as activists we need to boycott places where mothering is not welcome. Breastfeeding is one of many acts of mothering (and by this I do not exclude or criticize mothers who do not breastfeed). Does that mean that the next step for mothering activists on Facebook is to leave? I don't know. But it is something we need to be talking about. If Facebook continues to remove breastfeeding images, what is the next step for supporters of mothering?
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