State-mandated Occupational Licenses, Harmful or Helpful? a Look at the Due Process and Equal Protection Principles Surrounding the Constitutionality of Occupational Licensing Regulations

• Jurisdiction: Georgia,United States
• Publication year: 2021
• Citation: Vol. 72 No. 2

State-Mandated Occupational Licenses, Harmful or Helpful? A Look at the Due Process and Equal Protection Principles Surrounding the Constitutionality of Occupational Licensing Regulations

Laney Ivey

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State-Mandated Occupational Licenses, Harmful or Helpful? A Look at the Due Process and Equal Protection Principles Surrounding the Constitutionality of Occupational Licensing Regulations^*

I. Introduction

Mary Jackson, a twenty-eight-year lactation consultant veteran, saw her ability to pursue her passion and her livelihood slip away with the passing of the Georgia Lactation Consultant Practice Act (Act)¹ in 2016.² Under the Act, the International Board Certified Lactation Consultant (IBCLC) certification is required by the state of Georgia in order to be considered a licensed lactation consultant.³ Due to her lack of an IBCLC certification, Jackson, a Certified Lactation Counselor (CLC), cannot legally perform her job, where she provides crucial

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lactation support to families and mothers at Grady Memorial Hospital.⁴ This Act is one of many the Georgia General Assembly passed over the years in an attempt to expand regulations on occupational licensing in Georgia.⁵ However, instead, this Act detrimentally dampened the right of Georgians to pursue the career path of their choosing in lactation care and services.⁶

The battle between the police powers of the State and the right of citizens to freely choose their profession has been a conflict ranging over many centuries with roots in the authorities and rights granted by both the U.S. Constitution as well as the Georgia Constitution.⁷ This battle has taken a modern approach as courts now seek to address whether the police powers granted to the State outweigh the constitutional rights of Georgians to pursue the occupation of their choice and to receive equal treatment along with those who fall into the same class.⁸ The Georgia Supreme Court delved into this constitutional dilemma once again in Jackson v. Raffensperger,⁹ when it addressed whether the Georgia Lactation Consultant Practice Act violated the Due Process Clause¹⁰ and Equal Protection Clause¹¹ of the Georgia Constitution.¹² Relying on precedent, the court reaffirmed Georgians, specifically CLCs like Jackson, that their passion will not go to waste because they have the unwavering right to pursue a career in the occupation of their choosing free from unreasonable government interference.¹³ Likewise, the court reaffirmed the right of CLCs to be treated similarly to those with an IBCLC certification.¹⁴

II. Factual Background

Lactation care providers (LCs) offer breastfeeding education, support, and other guidance to families in both clinical settings and in

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their client's homes. It is important to note that LCs are not medical providers, nor can they diagnose or treat any medical conditions. Certification to become a LC is similar to other practitioners in the medical field, where hopeful applicants seek accreditation through private accrediting entities. In Georgia, there are two prominent certifications that LCs can seek, Certified Lactation Counselor (CLC), and International Board Certified Lactation Consultant (IBCLC). While IBCLCs require college-level courses, continuing education courses, and clinical hours on top of the examination in order to gain certification, CLCs only need to complete a forty-five-hour course and pass an examination.¹⁵

Further, CLCs and IBCLCs differ in a multitude of other ways. There are many diverse settings lactation consultants can work in. CLCs work in client's homes as well as medical settings across the state, thus increasing their accessibility to rural Georgians. IBCLCs, on the other hand, are located primarily in metro Atlanta and other urban areas as they are typically nurses or other healthcare professionals along with their position as an IBCLC. Furthermore, IBCLCs frequently charge their clients more than CLCs, as they are usually associated with hospitals or similar institutions. In the state of Georgia, there are roughly 335 IBCLCs compared to the more than 800 CLCs.¹⁶ Despite the licensure requirement difference, there is no evidence that CLCs or any other unlicensed lactation consultant have ever "harmed public health, safety, or welfare . . . ."¹⁷ Further, CLCs and IBCLCs are "equally competent to provide lactation care and services to mothers and babies."¹⁸

In June of 2018, a non-profit organization by the name of Reaching Our Sisters Everywhere, Inc. (ROSE) along with Mary Jackson, who is a licensed CLC and the Vice President of ROSE, filed a suit against the Georgia Secretary of State.¹⁹ Jackson and ROSE challenged the constitutionality of the Georgia Lactation Consultant Practice Act (Act), which was created to regulate the practice of lactation care and services by requiring a license from the Secretary of State.²⁰ Jackson and ROSE alleged that the Act violated the Due Process Clause of the Georgia Constitution, which protects ones right to freely pursue an occupation.²¹

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Likewise, Jackson and ROSE also alleged the Act violated the Equal Protection Clause of the Georgia Constitution on the grounds that the Act treats similarly situated individuals differently.²² The Secretary of State filed a motion to dismiss, stating there was a failure to state a claim upon which relief could be granted.²³ The Fulton Superior Court granted the motion to dismiss, citing that the Georgia Constitution "does not recognize a right to work in one's chosen profession . . . ."²⁴ The court also referenced a failure on the parts of Jackson and ROSE to adequately allege that a sufficient similarity existed between those who were able to obtain a license and those who were not.²⁵ Ultimately, the Georgia Supreme Court reversed the holding of the trial court, citing an extensive legal precedent which evidences the protection of Georgians' right to work in their chosen profession without unreasonable government interference.²⁶ Further, the Georgia Supreme Court again recognized that those who work in the same profession are generally similarly situated.²⁷

III. Legal Background

A. An Overview of the Georgia Lactation Consultant Practice Act

The Georgia Lactation Consultant Practice Act is not the General Assembly's first attempt at regulating the LC profession. In 2013, the Georgia General Assembly considered adopting a bill which would require LCs to obtain licensing. After reviewing the proposed bill, the Georgia Occupational Regulation Review Council (Council) unanimously concluded there was no substantive evidence the LC license requirement would improve the health and safety of Georgia residents, and agreed the exclusion of all lactation certifications except for the IBCLC would lead to a decrease in access to breastfeeding support.²⁸ The Council also advised that CLCs and IBCLCs are "equally qualified" to provide Georgians with lactation care services.²⁹ The proposed 2013 bill died in the committee.³⁰ Following the failure of the 2013 proposed bill, the General Assembly successfully passed the

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Georgia Lactation Consultant Practice Act in 2016 without review by the Council.³¹

The Georgia Lactation Consultant Practice Act outlines what constitutes lactation care and services, as well as the licensing requirements set forth by the state.³² The Act mandates any person seeking to provide lactation care or services for compensation to acquire a state-issued license.³³ However, not every LC is eligible to obtain the license; only IBCLCs are eligible.³⁴ The lack of eligibility to obtain a license deprives hundreds of CLCs from their right to legally pursue a career in the field of their choice, lactation care.³⁵ Looking past the general description of what LCs do, the Act contains multiple exceptions to the licensing requirement, with most regarding healthcare professionals and students being exempt from the licensure requirement.³⁶ Notably, the Act exempts those who volunteer as an LC from the licensure requirement so long as they do not hold themselves out as a licensed LC, do not charge a fee, and do not receive any form of compensation for their services.³⁷

B. The Georgia Constitution Protects the Right to Work in One's Chosen Profession

The Due Process Clause of the Georgia Constitution states, "No person shall be deprived of life, liberty, or property except by due process of law."³⁸ Recognizing the long line of history surrounding the due process clause, this statute applies to the right to pursue a lawful occupation of one's own choosing, free from unreasonable interference

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from the government.³⁹ For instance, the Georgia Supreme Court in Bramley v. State⁴⁰ struck down a statute requiring photographers to pay a licensing fee, sit for an examination, and to show good moral character in order to practice photography for hire.⁴¹ The Georgia Supreme Court continues to apply this standard through a legal analysis consisting of the court weighing whether or not the statute at issue is a legitimate regulation created to protect a public interest, or if it was created to restrict competition or promote revenue.⁴²

The right to pursue the profession or trade of one's choice has a longstanding history in Georgia jurisprudence. The recognition of this right has continued for upwards of four centuries, dating all the way back to Anglo-American common law.⁴³ The Due Process Clause of state and federal constitutions came into existence from the Manga Carta's Law of the Land Clause, which barred British government charter restrictions that created monopolies due to their unjust nature.⁴⁴ These clauses were understood from the beginning to protect the freedom of one to practice a trade of their choice without undue interference from government.⁴⁵

While there is a right to pursue the trade or profession of one's choice, in 1849, the Georgia Supreme Court recognized the right of the government to regulate the practice of a...