RAFFENSPERGER v. JACKSON (And Vice Versa) ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: May 31, 2023
S23A0017. RAFFENSPERGER v. JACKSON et al.
S23X0018. JACKSON et al. v. RAFFENSPERGER.
BOGGS, Chief Justice.
In 2018, Mary Jackson and a nonprofit organization, Reaching
Our Sisters Everywhere, Inc. (“ROSE”), filed a complaint against the
Secretary of State (“the Secretary”),1 challenging the
constitutionality of the Georgia Lactation Consultant Practice Act
(“the Act”), OCGA §§ 43-22A-1 to 43-22A-13. Under the Act, the
Secretary issues licenses authorizing lactation care providers to
provide lactation care and services for compensation. Only lactation
care providers who obtain a privately issued certification as an
At the time the suit was filed, Brian Kemp was Secretary of State, and
1
he agreed to stay enforcement of the Act during the pendency of the suit. After
Kemp was elected Governor, the parties agreed to substitute current Secretary
of State Brad Raffensperger as the defendant, and Secretary Raffensperger
also agreed to stay enforcement of the Act until the conclusion of the case,
including any appeals.
International Board Certified Lactation Consultant (“IBCLC”) are
eligible to obtain a license. Jackson and ROSE (collectively
“Plaintiffs”) allege that their work includes the provision of lactation
care and services and that the Act is irrational and lacks any real
and substantial connection to the public health, safety, or welfare
because there is no evidence that non-IBCLC providers of lactation
care and services have ever harmed the public. They also contended
that the Act will require them to cease practicing their chosen
profession, thus violating their rights to due process and equal
protection under the Georgia Constitution. See Ga. Const. 1983, Art.
I, Sec. I, Pars. I and II. In the first round of this litigation, the trial
court granted the Secretary’s motion to dismiss for failure to state a
claim, but this Court reversed and remanded with direction. See
Jackson v. Raffensperger, 308 Ga. 736 (843 SE2d 576) (2020)
(“Jackson I”).
Following remand, the Secretary withdrew his motion to
dismiss, and the parties engaged in discovery and filed cross-
motions for summary judgment. On the due process claim, the trial
2
court granted the Secretary’s motion for summary judgment, and on
the equal protection claim, the trial court granted Plaintiffs’ motion
for summary judgment. The Secretary appealed, and Plaintiffs filed
a cross-appeal. For the reasons detailed below, we conclude in the
cross-appeal that the Act is unconstitutional on due process grounds
and that the trial court therefore erred in granting summary
judgment to the Secretary and denying it to Plaintiffs. Accordingly,
we reverse the trial court on the due process claim and do not reach
the equal protection claim raised in the main appeal. 2
1. The background facts are undisputed. Lactation care
providers provide direct support to mothers in breastfeeding their
babies. While lactation care providers can make a living providing
their services, some volunteers also provide such support. Lactation
care providers may obtain certification from various private
accrediting entities, including the International Board of Lactation
2 The Court thanks Drs. Kleiner, Plemmons, and Timmons, Occupational
Licensing Scholars; Healthy Children Project, Inc.; Mom2Mom Global;
National Lactation Consultant Alliance, Inc. and Georgia Perinatal
Association; Pacific Legal Foundation and The Goldwater Institute; and
Southeastern Lactation Consultants Association for their briefs amicus curiae.
3
Consultant Examiners, which began granting the IBCLC
certification in 1985, and the Healthy Children Project, Inc., which
began granting certification as a Certified Lactation Counselor
(“CLC”) in 1992. IBCLC certification may be obtained in three
different pathways, each of which requires that a person pass a
written examination and complete 14 courses in health sciences,
eight of which must be college-level courses; 3 95 hours of lactation-
specific education, including five focused on communication skills;
and at least 300 supervised clinical hours. The IBCLC examination
costs approximately $600-$700. The IBCLC program is accredited
by the National Commission for Certifying Agencies. There are
approximately 470 IBCLCs in Georgia, only 162 of whom have
obtained licenses under the Act.
3 According to the affidavit of the Secretary’s expert, the eight required
college-level courses are biology; human anatomy; human physiology; infant
and child growth and development; introduction to clinical research; nutrition,
psychology, counseling skills, or communication skills; and sociology, cultural
sensitivity, or cultural anthropology. The other six courses, which may be
completed as continuing education courses, are basic life support, medical
documentation, medical terminology, occupational safety and security for
health professionals, professional ethics for health professionals, and universal
safety precautions and infection control.
4
To earn CLC accreditation, one must complete a 52-hour
course; demonstrate competency in breastfeeding assessments,
counseling, teaching, infant weight gain, contraindications, and the
CLC Code of Ethics; and pass a written examination, which costs
approximately $120.4 The CLC course is accredited by the National
College Credit Recommendation Service, and its examination is
accredited by the American National Standards Institute. There are
currently approximately 735 CLCs in Georgia.
Lactation care providers can also receive education from
organizations such as ROSE. ROSE, which was founded in 2011,
trains individuals to provide breastfeeding education and support to
4 According to the affidavit of Plaintiffs’ expert,
The CLC course covers breastfeeding management and the
underlying knowledge of anatomy and physiology that supports
the clinical skills needed for breastfeeding management. Topics
include, but are not limited to, theoretical foundations of milk
composition and milk production; health outcomes associated with
infant feeding choices; hand expression; milk storage and
handling; milk banking; contraindications to feeding human milk;
counseling; maternity care practices that influence breastfeeding
outcomes; assessing the breastfeed; breast problems; working
[while breastfeeding]; family planning; special challenges; effect of
foods and drugs; ages and stages of child development and infant
feeding; ethics; disparity in outcomes; and the Baby-Friendly
Hospital Initiative.
5
mothers, primarily in African-American communities, through a
research and evidence-based curriculum in a free 16-hour course.
Approximately 1000 individuals have participated in ROSE’s
training course.
In 2013, the General Assembly first considered a bill that
would require lactation care providers to be licensed through the
Secretary. See House Bill 363 (2013). Pursuant to OCGA § 43-1A-5
(a) (1), the Georgia Occupational Regulation Review Council
(“Review Council”) reviewed the proposal and unanimously
recommended against passage, and the 2013 bill did not become
law. 5
In 2016, the General Assembly passed the Act, which is
substantially similar to the 2013 bill. The Review Council did not
review the Act prior to its passage. The General Assembly included
the following statement of purpose in the Act:
The General Assembly acknowledges that the application
of specific knowledge and skills relating to breastfeeding
is important to the health of mothers and babies and
The law establishing the Review Council, see OCGA § 43-1A-1 et seq.,
5
has been repealed. See 2023 Ga. Laws Act 57 (HB 76) (May 1, 2023).
6
acknowledges further that the rendering of sound
lactation care and services in hospitals, physician
practices, private homes, and other settings requires
trained and competent professionals. It is declared,
therefore, to be the purpose of this chapter to protect the
health, safety, and welfare of the public by providing for
the licensure and regulation of the activities of persons
engaged in lactation care and services.
OCGA § 43-22-2A. The Act defines “lactation care and services” as
“the clinical application of scientific principles and a
multidisciplinary body of evidence for evaluation, problem
identification, treatment, education, and consultation to
childbearing families regarding lactation care and services,” OCGA
§ 43-22A-3 (5), and provides a nonexhaustive list of lactation care
and services. Under the Act, “[l]actation care and services shall
include, but not be limited to:”6
(A) Lactation assessment through the systematic
collection of subjective and objective data;
(B) Analysis of data and creation of a lactation care plan;
(C) Implementation of a lactation care plan with
demonstration and instruction to parents and
6 By specifying that the named services “shall include, but not be limited
to,” the list is not exhaustive. Compare Premier Health Care Investments, LLC
v. UHS of Anchor, L.P., 310 Ga. 32, 45 (849 SE2d 441) (2020) (concluding that
General Assembly’s use of “including but not limited to” in a statute introduced
a list of illustrative examples rather than an exhaustive list).
7
communication to the primary health care provider;
(D) Evaluation of outcomes;
(E) Provision of lactation education to parents and
health care providers; and
(F) The recommendation and use of assistive devices.
Id. Under OCGA §§ 43-22A-3 (6), 43-22A-6, and 43-22A-7, the
Secretary may grant a license as a “lactation consultant” only to a
person who has obtained an IBCLC certification or who holds a
license issued by another jurisdiction if the requirements for that
license are equal to or greater than the requirements of the Act. And
under OCGA § 43-22A-11, “no person without a license as a lactation
consultant issued pursuant to this chapter shall . . . practice
lactation care and services,” unless one of the exemptions set forth
in OCGA § 43-22A-13 applies.7 Anyone who provides lactation care
and services for compensation without a license may be subjected to
injunction proceedings in superior court. See OCGA § 43-1-20.8
7 See n.12, below.
8 The general provisions of Title 43, which governs professions and
businesses, authorizes professional licensing boards to enter cease-and-desist
orders against the unlicensed practice of a profession without a license and to
impose a fine of up to $500 for the violation of a cease-and-desist order. See
OCGA § 43-1-20.1 (b). The Act authorizes the Secretary to impose sanctions on
licensed lactation consultants. See OCGA §§ 43-22A-10, -12.
8
Jackson is a CLC and is employed by a hospital, where her job
duties include providing services that fall within the Act’s definition
of “lactation care and services,” including counseling mothers about
breastfeeding, assessing breastfeeding challenges, creating and
implementing lactation care plans, evaluating breastfeeding
outcomes, assisting mothers with babies in the neonatal intensive
care unit with breastfeeding help, and helping mothers use various
tools, such as breast pumps. After the Act was passed, she was
informed by her supervisor that she would not be permitted to
continue doing the same job duties.
ROSE employs CLCs and also trains individuals to provide
lactation care services directly to mothers, including breastfeeding
assessment, education, and support. ROSE offers lactation care and
services to mothers without cost, and while some of the individuals
trained by ROSE work as volunteers, others are paid for their work
by ROSE.
2. In considering Plaintiffs’ challenges to the Act, we begin with
the standard of review. Our review of the trial court’s order is de
9
novo because this appeal is from a ruling on cross motions for
summary judgment and raises a legal question as to the
constitutionality of a law. See Polo Golf & Country Club
Homeowners Assn. v. Cunard, 310 Ga. 804, 809 (854 SE2d 732)
(2021) (“Our review of the grant or denial of a motion for summary
judgment is de novo.”); State v. Holland, 308 Ga. 412, 414 (841 SE2d
723) (2020) (“[W]e review de novo the trial court’s conclusion
regarding the constitutionality [of a statute]”).
But the issues presented are not wholly legal, as the parties
presented evidence for the trial court’s consideration on the motions
for summary judgment. Therefore, in considering the propriety of
the trial court’s ruling on either motion, we view the evidence in the
light most favorable to the nonmovants. Because we conclude that
the trial court erred not only in granting summary judgment for the
Secretary on the due process claim, but in denying it to Jackson and
ROSE, we apply the same standard to Plaintiffs’ motion, and view
the evidence in the light most favorable to the Secretary. See
Chandler v. Robinson, 269 Ga. 881, 882-883 (506 SE2d 121) (1998)
10
(concluding on review of cross-motions for summary judgment “that
the undisputed facts, even when viewed in a light most favorable to
[the losing party], show an absence of genuine issue as to any
material fact, and [therefore the prevailing party was] entitled to
summary judgment as a matter of law”), disapproved of on other
grounds by Shearin v. Wayne Davis & Co. 281 Ga. 385 (637 SE2d
679) (2006).
S23X0018
3. We now turn to the issues presented in the cross-appeal.
Plaintiffs contend that the trial court erred in granting the
Secretary’s motion for summary judgment on their due process
claim. They assert that the Act violates their due process rights
because it precludes them from practicing their lawful, chosen
profession as providers of lactation care and services. The Secretary,
for his part, contends that the Act does not preclude Plaintiffs from
pursuing their profession and that, regardless, the General
Assembly’s choice to license only ICBLCs to provide lactation care
and services is rationally related to the Act’s stated purpose of
11
“protect[ing] the health, safety, and welfare of the public,” OCGA
§ 43-22A-2, and by promoting access to quality care.
The Georgia Constitution’s Due Process Clause provides that
“[n]o person shall be deprived of life, liberty, or property except by
due process of law.” Ga. Const. of 1983, Art. I, Sec. I, Par. I. 9
We have “long recognized” that this provision “entitles Georgians to
pursue a lawful occupation of their choosing free from unreasonable
government interference.” Jackson I, 308 Ga. at 740. We discerned
this right not merely from precedent, but also as a “consistent and
definitive” understanding of Georgia’s Due Process Clause. See
Elliott v. State, 305 Ga. 179, 184 (II) (B) (824 SE2d 265) (2019) (“A
constitutional clause that is readopted into a new constitution and
that has received a consistent and definitive construction is
presumed to carry the same meaning as that consistent
construction.”). Across each successive Constitution following the
9The language of the Due Process Clause has remained materially the
same for these purposes since it first appeared in the Georgia Constitution of
1861. See State v. Turnquest, 305 Ga. 758, 769 (827 SE2d 865) (2019) (tracing
language of Due Process Clause through Constitutions of 1861, 1868, 1877,
1945, 1976, and 1983).
12
addition of the Due Process Clause in 1861, we articulated a
consistent and definitive understanding of how the Due Process
Clause applied to occupational licensing and the ability to pursue a
lawful occupation. This understanding begins as far back as 1896,
Odell v. City of Atlanta, 97 Ga. 670 (25 SE 173) (1896), past the turn
of the century, Bazemore v. State, 121 Ga. 619, 620 (49 SE2d 701)
(1905), through the 1930s, Southeastern Elec. Co. v. City of Atlanta,
179 Ga. 514 (1934) and Bramley v. State, 187 Ga. 826, 832 (2 SE2d
647) (1939), the 1950s and 1960s, Jenkins v. Manry, 216 Ga. 538,
541-546 (1) (118 SE2d 91) (1961), all the way up to the middle of the
committee meetings to revise Article 1 of the Constitution, Rockdale
County v. Mitchell’s Used Auto Parts, Inc., 243 Ga. 465, 465 (254
SE2d 846) (1979); Transcripts of Mtgs., Committee to Revise Article
I, Vol., 1 (Meetings 1977-1981). Our cases, in sum, display a
consistent and definitive understanding of the Constitution’s Due
Process Clause, reaffirmed at least once under the 1945
Constitution’s Due Process Clause, and referenced approvingly
13
under the short-lived 1976 Constitution. 10 Thus, “[the] history
reveal[s] a consistent and definitive construction” of the Due Process
Clause, “whose words remain materially unchanged since [they]
first appeared” in their present form, and (since we have been
offered no evidence to the contrary) “we presume[] that construction
was carried forward into the 1983 constitution.” Elliott, 305 Ga. at
10 We have also decided a number of strikingly similar cases in this
stretch that either did not directly tie themselves to the Due Process Clause,
or cited the Equal Protection Clause instead. See, e.g., Cooper v. Rollins, 152
Ga. 588, 590-591 (110 SE 726) (1922) (a law requiring barbers, not other
professionals in “trades involving manual labor,” to get a license, was not
irrational and therefore did not violate equal protection; the state had the
“police power” to require a license for barbers, and “[t]he health of the citizens
as affected by diseases spread from barber shops conducted by unclean and
incompetent barbers is justification for such laws,” so the legislature could do
that “without requiring the members of all other trades or occupations to be so
examined and licensed.”); Gregory v. Quarles, 172 Ga. 45, 47-48 (157 SE2d 306)
(1931) (a law requiring plumbers to obtain a license before working on new
plumbing, but not existing plumbing, violated equal protection: “there is
respectable authority for saying that, since a city may easily protect itself
against the consequences of bad plumbing by a system of inspecting the work
itself, rather than by limiting the number of persons who shall engage in it,
those statutes and ordinances which provide that none but examined and
licensed persons shall engage in plumbing skirt pretty closely that border line
beyond which legislation ceases to be within the powers conferred by the people
of the state upon its legislative bodies.” (cleaned up)).
That is significant because, at the time, our cases also suggested that the
related equal protection attack on occupational licensing was “so intimately
connected” with the due process inquiry as to “not require separate
consideration.” Bramley, 187 Ga. at 832; see also Southeastern Elec., 179 Ga.
at 514 (concluding that the same examination requirement for electrical
contractors violated both due process and equal protection).
14
185 (II) (B).
The contours of the right we reaffirmed in Jackson I, as shown
by this consistent and definitive understanding, are as follows. It is
“the common inherent right of every citizen to engage in any honest
employment he may choose, subject only to such restrictions as are
necessary for the public good.” Bramley, 187 Ga. at 834-835. “The
[constitutional] regulation of a lawful business . . . is dependent upon
some reasonable necessity for the protection of [1] public health, [2]
safety, [3] morality, [4] or other phase of the general welfare; and
unless an act restricting the ordinary occupations of life can be said
to bear some reasonable relation to one or more of these general
objects of the police power, it is repugnant to constitutional
guarantees and void.” Id. at 835. So, for example, “an unjust
discrimination between classes of persons” will often violate the
disfavored class’s rights, particularly if “the actions of one class in
following the vocation . . . would affect the [government’s interests]
as materially as the actions of the other class.” Jenkins, 216 Ga. at
541-546.
15
To be clear, this does not mean the right is concerned with
invidious discrimination along the lines of modern equal protection
analysis. Instead, it is concerned with the imposition of arbitrary
(i.e., not reasonably necessary) burdens on the ability to pursue a
lawful occupation. Disparate treatment is not the violation itself; it
is evidence of the violation — if a similarly situated person is able to
pursue the occupation competently, then the burden imposed on the
person who is prohibited from pursuing the occupation is likely not
reasonably necessary to the State’s interest in health and safety. See
Jenkins, 216 Ga. at 545-546. (“There is no reasonable basis for
requiring the examination and licensing of plumbers and steam
fitters who are not employees of public utility corporations, and
exempting employees of public-utility corporations operating in the
territory covered by the act”); Southeastern Elec., 179 Ga. at 514 (an
ordinance regulating electrical contractors and requiring them to
pass examinations depending on whether they performed their work
in new buildings versus existing buildings was so arbitrary and so
standardless that it violated due process and equal protection).
16
Although we have previously considered a number of
constitutional challenges to occupational licensing schemes, we have
not identified a specific framework to apply in considering such
challenges under the Georgia Constitution. And our early case law
addressing such challenges often failed to carefully distinguish the
constitutional claims asserted. See, e.g., Bramley, 187 Ga. at 832(state and federal due process and equal protection challenges to
statute requiring licensure of photographers presented
“substantially a single question”). Nevertheless, this case law, which
we discuss further below, and case law addressing due process
challenges to statutes in other contexts, provides helpful guidance
and allows us to establish a framework for considering the challenge
here.
First, in order to establish that the Act violates their due
process rights under the Georgia Constitution to pursue their chosen
occupation free from unreasonable government interference,
challengers bear the burden of establishing that the Act “manifestly
infringes upon a constitutional provision or violates the rights of the
17
people.” Brodie v. Champion, 281 Ga. 105, 106 (636 SE2d 511)
(2006); see also Zarate-Martinez v. Echemendia, 299 Ga. 301, 305
(788 SE2d 405) (2016) (burden is on the party challenging the
constitutionality of statute). In the context of a challenge to an
occupational licensing scheme, this first step requires the challenger
to establish two things.
The challenger must show that the occupation sought is, at a
minimum, lawful but for the challenged restriction. Jackson I, 308
Ga. at 740 (2) (collecting cases describing the right as pursuing a
lawful occupation free from unreasonable government interference);
see also Odell, 97 Ga. at 671 (“[T]he keeping of an establishment for
the purpose of enabling persons to bet upon horse-races is not a
useful or necessary occupation which any citizen has either a
common law or constitutional right to carry on.”); Schlesinger v. City
of Atlanta, 161 Ga. 148, 159 (129 SE 861, 866) (1925) (the right to
pursue a lawful occupation “has no application to the inhibition of
that which the individual has no natural or inherent right to do. If
the individual has no such inherent right to conduct the business of
18
a common carrier by jitneys or busses upon the streets of the city,
his case does not fall within this principle.”).
And the challenger must also show that the regulation
“unreasonabl[y] . . . interfere[s]” with the ability “to pursue a lawful
occupation of their choosing free from unreasonable government
interference[.]” Jackson I, 308 Ga. at 740 (2) (emphasis added); see
also Bramley, 187 Ga. at 832 (the defendant in a criminal
prosecution for violating occupational licensing restrictions on
photographers successfully argued that “the statute on which the
accusation was based [was] unconstitutional and void” because it
was “an arbitrary and unreasonable interference with a lawful and
harmless business”).
These two showings — that an occupation is otherwise lawful
and that a regulation unreasonably burdens the ability to pursue it
— are the indispensable elements of a claim that a given law violates
the right to pursue a lawful occupation free from unreasonable
government interference.
In the second step in the framework, the government must
19
offer a legitimate interest behind the regulation justifying some
interference with the ability to pursue the occupation. This is not an
open-ended exercise in interest-balancing — our consistent and
definitive understanding of the Due Process Clause shows well-
settled limits on what government interests are sufficient for these
purposes: a burden on the ability to practice a lawful occupation is
only constitutional if it is reasonably necessary to advance an
interest in health, safety, or public morals. See Bramley, 187 Ga. at
835-836 (listing government interests as “health, safety, morality,
or other phase of the general welfare”); Jenkins, 216 Ga. at 540 (“The
right to work and make a living . . . . may be abridged to the extent,
and only to the extent, that is necessary reasonably to insure the
public peace, safety, health, and like words of the police power.”
(emphasis added) (quoting Richardson v. Coker, 188 Ga. 170, 175 (3
SE2d 636) (1939)). And while this same understanding does not
require the challenger to disprove “any reasonably conceivable state
of facts that could provide a rational basis for the classification,” as
the rational basis test does under federal law, see FCC v. Beach
20
Comms., Inc. 508 U.S. 307, 313 (II) (113 SCt 2096, 124 LE2d 211)
(1993), neither does it call on courts to analyze whether a
justification offered in litigation is the “real” one. See, e.g., Cooper v.
Rollins, 152 Ga. 588, 593-594 (110 SE 726) (1922); Bramley, 187 Ga.
at 838-839; Jenkins, 216 Ga. at 540. There is no requirement that
the government must compile or offer evidence in the course of
enacting such a regulation, nor that the government defend such an
act solely by reference to some purported legislative intent.
Conversely, this same consistent and definitive understanding
makes clear that certain interests are decidedly not sufficient to
justify a burden on the ability to practice a lawful profession. These
include (1) protectionism and (2) generic interests of quality or
honesty of goods and services, especially when this latter sort of
interest is unmoored from the particular profession — i.e., when the
given profession does not create special need to deal with the quality
or honesty of goods and services, but shares those risks on the same
terms as some other business not so regulated. See, e.g., Bramley,
187 Ga. at 836 (speaking of licensing photographers: “No business,
21
however innocent and harmless, is entirely free from the possibility
of becoming, under improper or dishonest management, in some
degree inimical to the public interest . . . . If this should be held to
be a sound argument[,] the police power could be used to lay upon
any business, however unrelated to the general welfare, [and
however] burdensome and unreasonable [the] restrictions.” (cleaned
up)); see also Moultrie Milk Shed v. City of Cairo, 206 Ga. 348, 352
(57 SE2d 199) (1950) (“[O]ne engaged in a lawful business injurious
to no one must not be arbitrarily prevented from the legitimate
prosecution of his business by city ordinances which set up trade
barriers solely for the purpose of protecting a resident against
proper competition.”). In short, once the challenger has made a
prima facie case, the government must offer (but not necessarily
prove the veracity or efficacy of) a specific interest in health, safety,
or public morals. If the government fails to offer such an interest, or
offers only an illegitimate interest, the regulation violates the right
to pursue an occupation free from unreasonable government
22
interference. See Bramley, 187 Ga. at 834, 838.11
Third, and finally, the challenger has the ultimate burden to
prove that the regulation unreasonably interferes with her right to
practice the occupation of her choosing. Because statutes are
presumed to be constitutional, this burden starts and remains with
the challenger throughout. See, e.g., Cooper, 152 Ga. at 591 (“What
such regulation shall be, and to what particular trade or business
such regulation shall apply, are questions for the state to determine,
and their determination comes within the proper exercise of the
police power of the state”; there must be “clear and palpable” conflict
before “an act of the legislature will be declared unconstitutional”);
Bramley, 187 Ga. at 832 (referencing the “duty of sustaining [an] act
11 None of our prior cases resolving state due process challenges to
occupational licensing statutes expressly adopted the federal due process test,
which generally gives extraordinary deference to the legislature in
determining whether a stated interest is legitimate. Therefore, our prior cases
applying that test to state due process challenges in other contexts are not
controlling here. See, e.g., Women’s Surgical Ctr., LLC v. Berry, 302 Ga. 349,
354-355 (806 SE2d 606) (2017) (applying federal due process test to state
constitutional due process challenge to statute requiring certificate of need for
new healthcare facility); Quiller v. Bowman, 262 Ga. 769, 770-771 (425 SE2d
641) (1993) (applying federal due process test to state constitutional due
process challenge to state statute requiring suspension of driver’s license upon
conviction for possession of controlled substance or marijuana).
23
unless its invalidity is clear and palpable”); see also Richardson, 188
Ga. at 175 (“Reasonableness as such is not a primary matter of
inquiry . . . . [T]he violation of the constitution may arise from
unreasonableness if it extends to the point of arbitrariness or
consists in unlawful discriminations.”).
Indeed, not every burden on the ability to pursue a lawful
occupation will be unconstitutional — sometimes a regulation will
be “rational” in the sense that it is reasonably necessary (either
actually or because of the failure of the challenger to meet her
burden). See, e.g., Cooper, 152 Ga. at 593-594 (rejecting a challenge
to an occupational regulation of barbers to prevent “[t]he spread of
disease by unsanitary . . . barber shops”). But if the challenger can
establish that a regulation imposing restrictions on a lawful
occupation does not advance the articulated public purpose by
means that are reasonably necessary for that purpose, then the
regulation cannot stand. See Bramley, 187 Ga. at 834 (“The
regulation of a lawful business . . . is dependent upon some
reasonable necessity for the protection of the public health, safety,
24
morality, or other phase of the general welfare . . . .”); Cooper, 152
Ga. at 591 (regulation of trades is general within the police power of
the legislature unless the ability to pursue an occupation is
“unnecessarily and in the main arbitrarily interfered with”).
4. With this framework in mind, we begin with the first step,
which requires answering two questions: (a) whether Plaintiffs have
established that they are engaged in a lawful profession as lactation
care providers; and (b) whether the Act actually burdens them in
their practicing of a lawful profession.
(a). The Secretary makes no argument that the profession of
lactation consultant is not a legal occupation, and indeed the
General Assembly has specifically “acknowledge[d] that the
application of specific knowledge and skills relating to breastfeeding
is important to the health of mothers and babies.” OCGA § 43-22A-
2. We thus conclude that Plaintiffs have met their burden of showing
that there is no genuine issue of material fact as to that issue.
(b). We next address Plaintiffs’ contention that the Act imposes
burdens on practicing their chosen profession as lactation care
25
providers. As noted above, only lactation care providers who hold an
IBCLC license are permitted to practice “lactation care and
services,” under the Act, 12 and “[l]actation care and services” are
defined as “the clinical application of scientific principles and a
multidisciplinary body of evidence for evaluation, problem
identification, treatment, education, and consultation to
childbearing families regarding lactation care and services.” OCGA
§ 43-22A-3 (5). Additionally, the Act sets forth a nonexhaustive list
of activities that constitute lactation care and services. See above at
7-8; OCGA § 43-22A-3 (5) (A)-(F).13
12 OCGA § 43-22A-11 provides that a person who falls within one of the
exemptions set forth in OCGA § 43-22A-13 is not prohibited from practicing
lactation care and services. Those exemptions cover individuals licensed to
practice other healthcare professions, such as dentistry and medicine, when
incidental to the practice of their profession; doulas and perinatal and
childbirth educators, when performing education functions consistent with the
standards of their professions; students under the supervision of an ICBLC or
other licensed healthcare professional; certain state and federal government
employees when in the discharge of their official duties; volunteers;
nonresident ICBLCs; and other healthcare professionals seeking licensure for
their professions. It is undisputed that Plaintiffs do not fall within one of the
exemptions.
13 Because “lactation care and services” is defined, circularly, as the
provision of “lactation care and services,” the enumeration of specific activities
is helpful to an understanding of the contours of the Act.
26
In considering whether the language of the Act covers
Plaintiffs’ professional activities, we begin with the statutory text
and read it “in its most natural and reasonable way, as an ordinary
speaker of the English language would.” Zaldivar v. Prickett, 297
Ga. 589, 591 (774 SE2d 688) (2015). Here, although “clinical” is not
defined in the Act, it has a common and well-understood meaning as
“of, relating to, or conducted in or as if in a clinic: such as (a)
involving direct observation of the patient [or] (b) based on or
characterized by observable and diagnosable symptoms.” Merriam-
Webster Dictionary (7th paperback ed. 2016).14 And this definition
is consistent with the definition applicable in the healthcare setting
as well. See Dorland’s Illustrated Medical Dictionary (28th ed. 1994)
(defining “clinical” as “pertaining to a clinic or to the bedside;
pertaining to or founded on actual observation and treatment of
patients, as distinguished from theoretical or basic sciences”). Thus,
14 When looking for the commonly understood meaning of a word in
statutory text, we generally look to dictionaries and, if relevant, legal
dictionaries from the time the statute was passed. See State v. Henry, 312 Ga.
632, 637 (864 SE2d 415) (2021).
27
“clinical application” in the context of the provision of lactation care
means services that are provided directly by a care provider to
breastfeeding mothers.
The trial court did not determine whether the Act burdens
Plaintiffs in the practice of their profession, but it did conclude that
“not all lactation care providers are providing care that rises to the
statutory definition of ‘lactation care and services,’” 15 based on its
conclusion that the phrase “clinical application” excludes
breastfeeding education from the scope of “lactation care and
services.” Similarly, the Secretary argues that Plaintiffs may
continue their work as “lactation peers and counselors” because such
work is not a clinical service. 16
However, the record indisputably shows that the vast majority
15 This conclusion appears to be inconsistent with the trial court’s
determination in ruling on the equal protection claim that “all non-IBCLC
providers are similarly situated to IBCLC providers because they perform the
same type of work.”
16 The Secretary’s argument contradicts, without explanation, the official
opinion of Georgia’s Attorney General that a person who is certified as a CLC
and who does not fall within one of the Act’s exemptions is prohibited from
performing the type of services covered under the Act. See Op. Atty. Gen. 2018-
1 (Jan. 24, 2018).
28
of the work Plaintiffs are paid to do in working as lactation care
providers involves direct observation of, and interaction with,
mothers and their nursing babies and includes one or more of the
activities specifically enumerated as “lactation care and services.”
Moreover, the trial court’s determination and the Secretary’s
argument ignore the plain meaning of “clinical” as working directly
with patients as well as the inclusion of “lactation education to
parents” within the Act’s definition of lactation care and services.
See OCGA § 43-22A-3 (5) (E). Furthermore, the undisputed evidence
establishes that the scope of the services that CLCs are trained to
perform includes comprehensive assessment of mothers and their
babies related to breastfeeding; the development of an evidence-
based care plan specific to the needs identified in the assessment;
implementation of that care plan; and an evaluation of the
effectiveness of breastfeeding and milk transfer. Each of these
services falls within the statutory definition of lactation care and
services enumerated in OCGA § 43-22A-3 (5) (A)-(F).
And while the record indicates that the scope of practice of
29
individuals trained by ROSE is not as comprehensive as the scope of
practice of a CLC or an IBCLC, the record does establish that
lactation care providers trained by ROSE work directly with
mothers to provide education about breastfeeding and how to be
successful in breastfeeding their babies.
Finally, while the evidence shows that there are significant
differences in the training required to receive certification as an
IBCLC or CLC or to be trained as a lactation care provider by ROSE,
these differences are not dispositive. The real question is whether
Plaintiffs’ professional activities meet the Act’s definition of
“lactation care and services” as including the application of
“scientific principles and a multidisciplinary body of evidence for
evaluation, problem identification, treatment, education, and
consultation . . . regarding lactation care and services.” OCGA § 43-
22A-3 (5). And Plaintiffs’ professional activities do meet that
definition. Indeed, the evidence shows that the training provided by
the Healthy Children Project (for certification as a CLC) and by
ROSE includes, at a minimum, education in “scientific principles
30
and a multidisciplinary body of evidence” to equip them to provide
lactation education directly to mothers. Accordingly, we conclude
that (even in the light most favorable to the Secretary) Plaintiffs
have met their burden of showing that the Act in fact imposes
significant burdens on them in providing lactation care and services
for remuneration.
5. We must next consider whether the State has a sufficient
interest in restricting the provision of lactation care and services for
compensation only to individuals who have attained certification as
an IBCLC.
(a). The Act’s stated purpose is “to protect the health, safety,
and welfare of the public,” OCGA § 43-22A-2, which is, at least on
its face, a well-recognized basis for legislative enactments dealing
with the ability to pursue a lawful occupation.17 See, e.g., Bramley,
187 Ga. at 834-835 (recognizing that there “are many occupations
17 As noted above, another well-recognized basis for occupational
licensing schemes exists where occupations “afford peculiar opportunity for
imposition and fraud.” Bazemore, 121 Ga. at 619. The Secretary makes no
argument that the occupation of lactation care provider is one that offers a
peculiar opportunity for fraud.
31
which may be regulated for the promotion of the public welfare”).
But Georgia’s Due Process Clause requires more than a talismanic
recitation of an important public interest. Moreover, as discussed
above, our cases make clear that a challenger need not negate every
conceivable basis for an occupational licensing scheme. Therefore,
we focus our analysis on the Secretary’s proffered rationale for the
Act – promoting access to quality care. 18
As Bramley makes clear, a generic interest in promoting access
to quality services — at least in the absence of a unique tie to the
provision of lactation care and services — is not a sufficient interest
for these purposes. In Bramley, this Court considered a
constitutional challenge to a statute requiring that photographers
obtain a license to engage in commercial photography and
photofinishing. To obtain the license, a photographer was required
to pass a written examination given by a newly formed State Board
of Photographic Examiners and to “qualify as to competency, ability,
18The Secretary’s focus on “quality” care is consistent with the Act’s
statement that the “rendering of sound lactation care and services . . . requires
trained and competent professionals.” OCGA § 43-22A-2.
32
and integrity.” Id. at 833. Bramley, whose work involved soliciting
orders for the enlargement and tinting of photographs by his
employer, was prosecuted for violating the statute because neither
he nor his employer were licensed under the statute. Id. at 833-834.
Bramley challenged the constitutionality of the statute, and we
concluded that there was no “basis affecting the public interest for
the requirement of examination ‘as to competency, ability, and
integrity.’” Id. at 834. We expressly rejected the notion that the
statute might be upheld under the theory that an unskilled
photographer producing inferior quality prints might cause some
injury to the public or that a dishonest photographer might commit
fraud. Id. at 838; see also Richardson, 188 Ga. at 174-175 (the police
power did not allow the government to subject an electrician “to the
judgment of a board . . . for the purpose of determining whether he
may be reasonably expected to satisfactorily complete any contracts
he enters into” (cleaned up)).
In contrast, where this Court has upheld regulatory laws
intended to further public health, safety, and welfare, the regulation
33
has been reasonably necessary to advance a specific health, safety,
or welfare concern. For example in City of Lilburn v. Sanchez, 268
Ga. 520, 522-524 (491 SE2d 353) (1997), we upheld a municipal
ordinance forbidding the keeping of a pot-bellied pig as a pet on a lot
of less than one acre where direct and expert evidence showed
distinct harm to the health and welfare of neighbors and the public
from keeping a pet pig on smaller lots. See also Bazemore, 121 Ga.
at 620-621 (“When stolen from the field of the owner, [seed-cotton]
is almost impossible to be identified. It is therefore especially
difficult to make laws relating to larceny or receiving stolen goods
effective in preventing the crime [of stealing it] by punishing the
thief,” making a law requiring the written consent of the owner of
land a valid exercise of the police power.).
In summary, the question is (at a minimum) whether the
particular trade is peculiarly “infected with some quality that might
render it dangerous to the morals, the health, the comfort[,] or the
welfare of . . . the public.” Bramley, 187 Ga. at 836. Thus, it may well
be true that regulations promoting quality care are desirable as a
34
policy matter, but that is not a sufficient interest to justify an
unreasonable burden on the ability to pursue a lawful occupation.
(b). Applying the above principles to the evidence presented
below, we conclude that the Secretary’s proffered interest in the
restrictions imposed by the Act — promoting access to quality care
— is an insufficient basis upon which to authorize only IBCLCs to
provide lactation care and services for compensation given our
consistent and definitive understanding of the scope of the due
process right to practice one’s chosen profession free from
unreasonable government restrictions. The Secretary does not
contend that the Act is inherently a health and safety regulation —
that, say, unlicensed lactation consultants would do affirmative
harm (in the way a surgeon might), as opposed to merely failing to
help, their patients. Certainly, there is nothing inherently harmful
in the practice of lactation care, and there is no evidence of harm to
the public from the provision of lactation care and services by
individuals who lack an IBCLC license. Compare Coker, 188 Ga. at
174 (acknowledging obvious risk of fire from defectively installed
35
electrical wiring and so authorizing regulation of installation of
electrical wiring for safety of public).
Moreover, the record supports the trial court’s conclusion that
CLCs and the individuals educated by ROSE are trained to provide
safe and competent lactation care and services within their
respective scopes of practice. The Secretary admitted that he is not
aware of any evidence of harm from a person providing lactation
care and services either prior to or after the passage of the Act and
that the advisory group set up under the Act, see OCGA § 43-22A-4,
has not received any complaints regarding untrained or incompetent
providers of lactation care and services. And careful review of the
affidavits and depositions of experts and lactation care providers
entered into the record fails to reveal any injury to mothers or babies
caused by lactation care providers of any type. Finally, we note that
the record contains the Review Council’s report of the 2013 version
of the Act. That report concludes that there is evidence that having
access to proper lactation support has many benefits; that in its
review, which included hearings, there was “no substantive evidence
36
of harm identified” that flowed from the unregulated provision of
lactation care; and that prohibiting CLCs from providing lactation
care may cause “a greater risk of harm because the majority of
lactation consultant providers would no longer be able to provide
care.”
In the absence of evidence of harm, the Secretary relies on
speculation to suggest that there is a danger to breastfeeding
mothers and nursing babies from “unqualified and untrained”
lactation care providers. At oral argument, the Secretary contended
that a lactation care provider without the IBCLC certification might
lead to the premature cessation of breastfeeding, which would result
in the baby and mother not receiving the benefits of breastfeeding 19
or to the continuance of breastfeeding that is inadequate for a baby’s
nutritional needs. Such speculation, in the face of substantial
19 The rationale that regulation of a legal occupation is needed because
incompetent practitioners could lead to a reduction in the public having access
to the occupation could be used to justify any licensing regime. See Bramley,
187 Ga. at 838 (reasoning that if licensing requirement for photographers were
determined to be valid “it would seem that there is scarcely any kind of
business, however innocent and harmless, to which similar regulations might
not be applied”).
37
evidence that the provision of lactation care and services by non-
IBCLC providers is safe for and beneficial to nursing mothers and
babies, is insufficient to authorize the regulatory scheme adopted,
which greatly restricts those able to be employed as lactation care
providers. 20
For the foregoing reasons, we conclude that the Act violates
Plaintiffs’ due process rights under the Georgia Constitution to
practice the chosen profession of lactation care provider.
Accordingly, we reverse the trial court’s rulings on the due process
claim. Because we have determined that the Act is unconstitutional
20 We note that while statutes in other states provide for the licensing of
lactation care providers, no other state has enacted a statutory scheme that
categorically prohibits a CLC from providing lactation care services for
compensation, contrary to the Secretary’s assertion. See Or. Rev. Stat. §
676.681 (2) (c) (Lactation Consultant Act does not prohibit any “person whose
training and national certification attest to the person’s preparation and
ability to practice their profession or occupation from practicing the profession
or occupation in which the person is certified, if the person does not represent
that the person is a lactation consultant”); N.M. Stat. Ann. § 61-3B-1 et seq.
(establishing licensing of lactation care providers, including for persons
certified “by a certification program accredited by any nationally or
internationally recognized accrediting agency” if approved by state’s board of
nursing, and providing that Lactation Care Provider Act shall not prevent
practice of lactation care and services by unlicensed persons so long as they do
not represent themselves as licensed providers).
38
on one of the grounds asserted, we need not address Plaintiffs’
arguments that the trial court erred in ruling that the Act does not
violate their equal protection rights under the Georgia Constitution.
Accordingly, we vacate the trial court’s ruling in S23A0017.
Judgment reversed in Case No. S23X0018. Judgment vacated
in Case No. S23A0017. All the Justices concur, except Pinson, J.,
disqualified.
39