Is there a right to breastfeed in public?

December 23, 2017

Eau Claire City Councilor Catherine Emmanuelle still had to be a mom while representing the people who voted her into office. So she brought her infant son to Council meetings and breastfed him there.  

According to the Minneapolis Star Tribune, after “months of tension...Emmanuelle said she was told by Kerry Kincaid, council president, that four council members had complained about her breastfeeding. In a compromise, Emmanuelle agreed to sit in an area reserved for the public when she had her son with her.”

But as it was “impossible to fully participate in the council meeting when [Emmanuelle] sat in the public area,” she decided to sit on the dais to breastfeed.

On October 19, Eau Claire City Attorney Stephen Nick issued a memo to the City Council, addressing whether Emmanuelle could be prohibited from bringing her infant on the dais. Nick addressed “whether to confirm a rule that only city council members and certain staff are permitted on the dais and whether to make a limited exception to that general rule to permit an infant or toddler to accompany a council member parent on the dais.”  

The City Attorney confirmed that the Council did have authority to establish rules and regulations to govern decorum, including who could and could not be on the dais. Notwithstanding that breastfeeding was at the center of this controversy, Nick concluded, “The issue of breastfeeding is implicated but not directly before the City Council with the proposed resolution.

State law allows a mother to breastfeed her child in an area ‘mother and child are otherwise authorized to be’ [emphasis original]. The question...for City Council is whether an infant or toddler of a council member is authorized to be at the council desk with the member during a meeting.”  

The Council voted to ban children from the dais.  

Every state but Idaho protects a woman’s right to breastfeed in public. However, the phrasing of the law makes all the difference. In Wisconsin and Minnesota, a woman is allowed to breastfeed in any public venue where both she and her child are legally allowed to be. So the question becomes whether voting to bar a child from a public venue is constitutional.

Very few cases have addressed the issue head-on. Dike v. Orange County School Board (1981) noted that, “[b]reastfeeding is the most elemental form of parental care. It is a communion between mother and child that, like marriage, is ‘intimate to the degree of being sacred.’”

This issue is best analyzed under the Fourteenth Amendment, which says, “No State shall...deny to any person...equal protection of the laws.” The Equal Protection Clause applies to gender discrimination.

One might protest that the Eau Claire law is applicable to everyone, notwithstanding that only women breastfeed. By this rationale, it would be legal to, say, have only urinals in public bathrooms or to prohibit the sale of bras.

A version of this argument was used to fight marriage equality. Opponents claimed traditional marriage laws were nondiscriminatory, as every adult had the right to marry someone of the opposite sex. This was held to be without merit due to discriminatory intent. In Arlington Heights v. Metropolitan Housing Corp (1977), Justice Lewis Powell, speaking for the majority, opined that even if a law is facially nondiscriminatory, evidence of discriminatory intent in its passage is still unconstitutional.

The next question is what test to use in determining whether the Eau Claire ordinance is constitutional. Some laws are scrutinized more closely than others. For instance, laws that implicate race are subject to “strict scrutiny.” Laws that implicate gender are typically analyzed with “intermediate scrutiny.” In other words, while it’s clear that a breastfeeding law implicates gender, this does not mean the law is unconstitutional as long as it furthers an important governmental interest.

Unfortunately, no one in the City Attorney's Office bothered to address that. Even using a “rational relationship” test, which is almost always a constitutional softball, the government must articulate some reason to justify a limitation on liberty. If a woman can breastfeed in the public atrium around the council dais, but cannot breastfeed on the dais, what justifies this distinction? If nursing is a distraction due to the infant crying or exposure of the mother’s breast, how is that meaningfully different from these distractions occurring in the atrium?

The Eau Claire decision directly impacts a woman’s right to serve as an elected official. If a governing body seeks to limit that right, then its lawyer damn well better carefully analyze the law. Sloppy legal work is one thing; sloppy unconstitutional legal work is just wrong.  

Could a law like this satisfy Equal Protection analysis? I doubt it. Given the gender implications, a legislative body would have to offer specific and extensive facts showing it was not capable of functioning if women were able to breastfeed on the dais, especially where they can already legally breastfeed while in the audience.

I hope that city councils everywhere reject the constitutional violations of Eau Claire’s decision.

The information and opinions in this column do not constitute legal advice nor establish an attorney-client relationship. For your legal needs, please consult an attorney about the specifics of your case.

 Leslie Dollen was a criminal and juvenile defense attorney for over 23 years with the Wisconsin State Public Defenders office. She  is a Legal  Studies instructor at  the University of Wisconsin-Superior, and is a community activist around sexual assault, domestic violence, and reproductive health.

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