Chandler, Arizona

News Flash: As of two days ago, the City of Chandler has suspended the "administrative directive" referred to below and "formed a committee to study the issue". However, it is an interesting legal question, even if it appears to be now moot.

Despite the recent trend of states and foreign countries (i.e. Ohio, Illinois, Scotland) to pass legislation protecting the right of mothers to breastfeed in public, the City of Chandler, Arizona, has decided to swim against the current:

Mothers who breast-feed on Chandler city property must cover up, go to a private spot or leave if someone complains. Refuse and they could face criminal trespassing charges.

The rule takes effect this week after the City Council made no objections to an "administrative directive" released Monday by Community Services Director Mark Eynatten.

...

Eynatten said Arizona law doesn't exclude nursing mothers who expose their breasts from "indecent exposure" prohibitions, and his directive conforms to that law.

It's also designed to give city employees a uniform policy on how to handle complaints without confrontation, Eynatten said.

He said city employees must now refer complaints about public breast-feeding to their supervisors. A supervisor will determine if the complaint is valid and if the woman's exposure is "unreasonably disturbing other members of the public."

The supervisor should "respectfully" ask the mother to cover herself or offer her a private place to feed the child. If she refuses, she will be asked to leave the building or grounds. Failure to leave could result in criminal trespassing charges, Eynatten said.

Source: Breast-feeding moms told to cover up or be cited

Additional News Links:
Breast-feeding debate rages in Chandler
Debate puts breast-feeding in the spotlight
Rule on nursing babies canceled

Hawthor the Cow Goddess responds with a series of cartoons (1, 2, 3, 4)

The legal implications of this are twofold. First, federal law prohibits discrimination of this sort on federal property ("Notwithstanding any other provision of law, a woman may breastfeed her child at any location in a Federal building or on Federal property, if the woman and her child are otherwise authorized to be present at the location." Sec. 630, Consolidated Appropriations Act, 2005, apparently not codified). This is not a Starbucks or a Walmart, whose corporate policies are shaped to a great extent by public opinion. This is a governmental entity creating regulations regarding governmental property. Yes, I know there is no federal preemption issue here, but surely someone could think up a bona fide legal argument. Is the city receiving federal funds? Parks & recreation grants? If a private business' purchasing a bottle of catsup can invoke the commerce clause, and the first amendment (despite the fact that it clearly states "Congress shall pass no law") is applied to state and local governments, surely someone can get creative with this one. Ok, you all know I have barely thought about constitutional law since the first year of law school, so go easy on me here.

Second, many breastfeeding law experts and advocates maintain that breastfeeding in public is always legal, and legislation "allowing" breastfeeding in public places merely clarifies the right, rather than creating it:

It is important to remember that women have a right to breastfeed in public whether there is a law or not. The purpose of legislation is NOT to legalize it, but to clarify the fact the fact that women have the right to breastfeed in public, or that it is not a criminal offense, such as indecent exposure. Thus, if you are in a state that does not have legislation, you still have the right to feed your baby where you go. Breastfeeding legislation often exempts breastfeeding from any criminal statutes, such as amending an indecent exposure or nudity law. More progressive legislation creates a new law that sets forth a woman's right to breastfeed. Some of the laws provide mothers with legal recourse if they are told to stop breastfeeding, such as New York, which has the strongest law in the nation, where a right to breastfeed as one of a person's civil rights was created.

Elizabeth N. Baldwin, Esq. and Kenneth A. Friedman, Esq., A Current Summary of Breastfeeding Legislation in the U.S.

Although breastfeeding is a woman'’s intrinsic right, which should not have to be declared, in our bottlefeeding society, it becomes protective for state legislation to assert that the act of breastfeeding is both permissible and the entitlement of a mother.

State Legislation that Protects, Promotes, and Supports Breastfeeding: An inventory and analysis of state breastfeeding and maternity leave legislation, United States Breastfeeding Committee (PDF)

What many people do not know is that breastfeeding in public is legal in every state. A mother does not need to "cover up" or go somewhere more private. More than half of states have laws specifically protecting this right, but even in those that do not, it is still legal to breastfeed in public.

Breastfeeding laws fall generally into two categories. Some states simply exclude breastfeeding in public from the state's criminal laws regarding indecent exposure or obscenity, so that a woman cannot be charged criminally for nursing in public. In these states, a woman who is harassed for breastfeeding in public can sue under other laws, such as those prohibiting sex discrimination in places of public accommodation.

Nancy M. Solomon, Breastfeeding in Public Is a Basic Civil Right

On the other hand, Douglas Reid Weimer, Legislative Attorney and author of Summary of State Breastfeeding Laws and Related Issues, Congressional Research Service Report for Congress (PDF), gives a much more conservative interpretation:

Nursing mothers have asserted rights in a variety of lawsuits –under a number of legal theories, some successful -- but the centrality of state breastfeeding laws in defining legal protection is evident.
...
It should be considered that if a state does not have specific legislation authorizing or affirming breastfeeding in public, it does not mean that breastfeeding in public is necessarily prohibited. Local ordinances, which are not considered in this report, may deal with the issue. Likewise, an exemption from jury duty by a nursing mother which in some states may be covered by state statute, may also be covered in other states by court rules, local practices, or regulations.

Some courts, interpreting state law in states where there is no specific right to breastfeed in public, have rejected arguments based on constitutional rights, civil rights, equal protection, etc. However, all these cases, as far as I know (and I haven't really looked at the case law) involved businesses and not governmental entities.

I suspect, however, that just as public pressure has convinced the City of Chandler to back down, at least for now, legislation will be proposed and likely passed by the Arizona state legislature at the earliest available opportunity. Too bad. Sounded like a good test case.

Related resources:
Rep. Carolyn Maloney's Breastfeeding Legislation Website
50 States Summary of Breastfeeding Laws, National Conference of State Legislatures
Are your breasts bound by law? by Virginia L. Marchant, Mothering Magazine (Jan.-Feb. 2005)