Spring 2008 - #8. Breastfeeding Laws in Vermont: A Primer.

Author:by Charity R. Clark, Esq., and Elizabeth R. Wohl, Esq.

Vermont Bar Journal


Spring 2008 - #8.

Breastfeeding Laws in Vermont: A Primer

THE VERMONT BAR JOURNAL #173, Volume 34, No. 4 SPRING 2008

Breastfeeding Laws in Vermont: A Primerby Charity R. Clark, Esq., and Elizabeth R. Wohl, Esq.The health benefits for mothers and babies that stem from breastfeeding are virtually uncontested. Doctors, midwives, and formula manufacturers alike dutifully recite the slogan that "breast is best."(fn1) Nevertheless, only 56 percent of new mothers in this country breastfeed(fn2) as compared to much higher rates in other developed countries.(fn3) These figures vary widely from state to state.(fn4) For example, in Utah, 80 percent of children start off breastfeeding, while that figure in Louisiana is 27.5 percent.(fn5) Vermont stacks up in the top of the middle with 65.9 percent of mothers ever breastfeeding.(fn6) By six months, only 32.9 percent are still breastfeeding.

Heeding the call to action, state legislatures have stepped in to address the problem.(fn7) Currently forty-seven states have laws that protect breastfeeding in public places in some form or another, and no state prohibits breastfeeding in public.(fn8) State laws address several categories of behavior:

(1) breastfeeding in public(fn9) ; (2) jury duty exemption for breastfeeding mothers(fn10) ; (3) breastfeeding as a custody consideration(fn11) ; (4) and miscellaneous provisions.(fn12) The federal government has also repeatedly expressed its support for mothers who need to breastfeed in federal buildings or on federal property.(fn13)

In addition, some states prohibit private citizens from interfering with nursing mothers' abilities to nurse in public.(fn14) Five states provide for a private right of action such that women can recover damages from persons who discriminate on the basis of breastfeeding.(fn15) Most of these laws include the right to cover attorneys' fees and costs.(fn16)

This article examines Vermont's place in the national context of laws relating to breastfeeding.

Origins of Vermont's First Breastfeeding Law

In 2000, Margaret O'Toole, a registered nurse and lactation consultant first approached the House Health and Welfare Committee concerning breastfeeding legislation.(fn17) The Committee authored a resolution creating the Vermont Breastfeeding Study Commission.(fn18) That summer, a split Commission concluded that there was no need for breastfeeding legislation.(fn19) Nonetheless, a Montpelier La Leche League leader convinced her senators to sponsor a bill, and in January of 2001, Senator Doyle of Washington County, Senator McCormack of Windsor County, Senator Cummings of Washington County, and Senator Scott of Washington County introduced S.156.(fn20) In its original form, the bill exempted breastfeeding women from jury duty, protected breastfeeding women in places of public accommodation, and included breastfeeding as a factor to be considered in making custody determinations in divorce proceedings. (fn21) The Senate referred the bill to the Senate Health and Welfare committee. When returned to the Senate floor for its second reading, the bill had acquired an extensive set of findings,(fn22) and a new section exempting breastfeeding from the definition of "Lewd and Lascivious" conduct in title 13.(fn23) The bill eventually passed the Senate, and the House referred it to the House Judiciary Committee.(fn24)

When the Legislature returned the following January, the House Judiciary Committee took testimony on the bill. The Committee expressed a variety of concerns. First, members noted that no law prohibited breastfeeding in public, so they wondered whether the bill was necessary.(fn25) Proponents encouraged testimony from women who had been removed from public places, including restaurants, day-care centers, and public buildings, because they were feeding their children.(fn26) Stakeholders in the business community testified in opposition to the bill, concerned that it would place an undue burden on employers, and that it would disconcert customers.(fn27) In addition, many expressed concern that a bill allowing breastfeeding in public would be a gateway to public nudity.(fn28)

On Monday, April 15, 2002, the bill emerged from committee vastly changed.(fn29) House Judiciary's amendment struck all of the Senate's text and replaced it with a one-sentence finding and a one-sentence addition to Vermont's Public Accommodations Act ("VPAA")(fn30) that read: "[n]otwithstanding any other provision of law, a mother may breastfeed her child in any location or place of public accommodation in which the mother would otherwise be permitted to bottle-feed her child."(fn31) The bill had its second reading in the House on April 17, 2002, and passed the next day.(fn32)

A conference committee then faced the task of reconciling the two drafts. In its final version, the bill maintained the House Judiciary's basic text, but it added a third section directing the Vermont Human Rights Commission ("HRC") to "develop and distribute materials that provide information regarding a woman's legal right to breastfeed her child in a place of public accommodation. Special attention shall be given to notifying public accommodation membership organizations."(fn33) The permissive provision allowing a woman to breastfeed wherever she and her child are allowed to be was not to become effective until after the Commission had had an opportunity to notify and educate places of public accommodation.(fn34)

Delta Flight 6160: The First Test of the VPAA's New Provision

One of the lingering concerns expressed by members of the House Judiciary Committee upon passage of S.156 was that the HRC would be overwhelmed with complaints from mothers alleging they had suffered discrimination while breastfeeding.(fn35) Contrary to those concerns, there has been just one complaint filed pursuant to the breastfeeding provision of the VPAA since it became effective in 2003.(fn36)

In October 2006, Vermont made international news when a flight attendant on Delta Flight 6160 at the Burlington International Airport asked Emily Gillette to cover herself with a blanket while breastfeeding her child.(fn37) Ms. Gillette refused, and was promptly asked to leave the flight.(fn38) Public outcry followed, including a national "nursein," in which breastfeeding mothers across the nation protested by gathering at airports' Delta counters to breastfeed their babies.(fn39)

Less than a month after the incident, Ms. Gillette filed with the HRC a Charge of Public Accommodations Discrimination, pursuant to 9 V.S.A. 4502(j), against Delta Air Lines and Freedom Airlines, which operated Flight 6160.(fn40) The charge alleged that Delta and Freedom violated the VPAA by discriminating against Ms. Gillette by not allowing her on the flight because she was breastfeeding.(fn41)

Delta and Freedom responded to Ms. Gillette's charge with letters...

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