106 Calif. L. Rev. 1827
Over the last twenty years, state legislatures have passed a number of laws designed to support and encourage breastfeeding, including laws that protect public breastfeeding and lactating employees in the workplace. Both sides of the political aisle cheered the passage of these laws, and more recent federal laws, as an unqualified positive for women, families, and public health. This Article argues that such unbridled enthusiasm may be unwarranted.
While the legal rights of women in the reproductive process have been extensively theorized through the lens of abortion and contraception, considerably less attention has been paid to the question of how the law should approach the rights of lactating women. Courts have generally been unwilling to envision lactation rights as encompassed within existing antidiscrimination or accommodation frameworks. Consequently, modern statutes that specifically address lactation fill a void in the law. This Article turns a critical eye on such laws by exploring the ways that they are underinclusive—leaving without protection individuals that the state should protect as a normative matter—and the ways they reinforce the assumed naturalness and primacy of the maternal experience and the desirability of traditional family structures. Thus, while lactation laws respond to a real need, they do so at the expense of reinforcing traditional notions of gender, motherhood, and family.
This Article focuses on three main critiques of modern lactation laws. First, these laws often frame the rights involved as the right of an infant child to access breast milk, not as the right of a woman to lactate. Break time laws, for instance, often mandate that any milk expressed during a break be “for [the woman’s] infant child.” This language conditions a woman’s right to lactate on the eventual benefit to her child and does not protect her rights as an individual actor with potentially separate interests. Second, modern lactation laws often condition legal protections for lactating women on women’s adherence to traditionally feminine, and maternal, gender norms. For example, both Missouri and North Dakota protect public breastfeeding only when it’s done with “discretion” or “modesty.” Finally, lactation laws restrict the access of nontraditional families to the benefits of breastfeeding and breast milk by limiting the language of the statutes to protect only certain types of lactation. This limitation leaves many lesbian and gay parents, socioeconomically disadvantaged families, and adoptive parents without an economically viable or legally protected way to provide breast milk to their children. These common characteristics of modern lactation laws work in concert with one another to encourage or even require women and families to adhere to traditional roles and structures. This Article concludes by exploring how legislatures could draft new lactation laws that meet the stated public health goals of the current laws while avoiding the negative discursive effects and distributional consequences identified.