Litigation Update: Jackson v. Raffensperger

[Music]

 

Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I’m an assistant director of practice groups with The Federalist Society. Today we’re excited to host a litigation update on Jackson v. Raffensperger featuring Renée Flaherty. Renée is a senior attorney with the Institute for Justice. She has been with IJ since 2013 where she litigates cases concerning property rights, economic liberty, and school choice at the federal and state levels.

 

Our moderator today is Jaimie Cavanaugh. Jaimie is an attorney and legislative counsel for the Institute for Justice where her practice focuses on economic liberty and private property. Jaimie’s views on legal matters have appeared in The Wall Street Journal, NBC News, Bloomberg, and other media outlets. If you’d like to learn more about today’s speakers, their full bios can be viewed on our website, fedsoc.org.

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we’ll do our best to answer as many questions as we can. Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society. With that, Jaimie, thank you very much for joining us today, and the floor is yours.

 

Jaimie Cavanaugh:  Thanks, Sam. Welcome, everyone. Thanks for joining us today. Renée and I are both attorneys at the Institute for Justice, and we’re both the case team for the case that we’ll be talking about today. This case started five years ago -- more than five years ago now. So we’ve had plenty of time to learn everything about it. And we’re really excited to get to share a huge victory with everyone.

 

Before we start, I’m going to define what a lactation consultant is because I realize sometimes we talk about this and some people aren’t really sure. So we challenged a license for lactation consultants in this case, and lactation consultants are women who help other women learn how to breastfeed. They work in doctors’ offices, hospitals, private practice. They see moms on Zoom, over the phone, stuff like that. And I hear that new moms find them very, very helpful, and we need to keep increasing access to these kinds of services. So with that, Renée, I wanted to ask you -- to let you start by just telling us what the license would have done.

 

Renée Flaherty:  Sure. Thank you so much, Jaimie, and thank you, Sam, for having us on here to discuss this really exciting case. As Jaimie said, we’ve been litigating it for five years, so we’ve got plenty to say. But in answer to her question, Georgia was one of the first states in the country to license lactation consultants, and it was really actually quite an onerous license.

 

And from Jaimie’s description, this is not something that really needs a license. This is practical advice that lots of different people with lots of different levels of training can give. But when you look at lactation consultants, there are a lot of women who do this for a living. And there are a lot of private certifications that you can get. And one of those private certifications is called an International Board Certified Lactation Consultant, or an IBCLC.

 

And in order to become an IBCLC, you have to go to college. You have to have hundreds of hours of supervised clinical experience, and you have to take an exam. And as you can imagine, this is a really expensive and time-consuming process. And not a lot of people can become IBCLCs.

 

But they’ve got a very powerful kind of network across the country where they started pushing for licensing laws all over the country. And in a lot of places it failed, but in Georgia back in 2016 it actually passed. And it was supposed to go into effect in 2018, but at that point IJ stepped in. And we challenged it.

 

Jaimie Cavanaugh:  Yeah. So tell us about our plaintiffs and who we represented and why they cared about this license.

 

Renée Flaherty:  Sure. So our plaintiffs were a woman named Mary Jackson and her nonprofit called Reaching Our Sisters Everywhere, or ROSE. And Mary has over three decades of experience as a lactation consultant. She is someone who teaches doctors and nurses and medical students how to help families breastfeed. And she’s kind of one of the undisputed masters of breastfeeding skills and knowledge in Georgia.

 

And you can immediately tell that something’s wrong with a licensing law when someone like Mary Jackson doesn’t qualify for the license because she’s not an IBCLC. She’s a CLC, which is a certified lactation counselor. And that is a 45 hour course which is perfectly sufficient to give you all the knowledge that you need to do your job. But Mary works in a hospital. She works with women all over Georgia and really even all across the country through her nonprofit ROSE, which she formed with a dear friend of hers back in 2011 to help women of color learn to breastfeed.

 

So ROSE goes out in those communities and uses volunteers and its employees to go out in those communities and help them breastfeed. And they don’t actually have a lot of IBCLCs working for ROSE. They have mostly CLCs and people with no certification at all. But they’re all perfectly qualified to do what they do and just like Mary have a lot to offer. But this licensing law stood to really endanger what ROSE was doing.

 

Jaimie Cavanaugh:  Yeah. And just to kind of highlight that fact, to emphasize that fact, these women could continue doing their work in any other state. There are three other states that license lactation consultants. That’s Rhode Island, Oregon, and New Mexico. But none of those licenses actually restrict or completely prohibit people from practicing lactation care. They just can’t call themselves licensed. They might not be eligible for a license unless they have a certain type of training in those states. But they can keep working. They can keep getting paid. Renée, can you tell us about the exceptions to the license in the law?

 

Renée Flaherty:  Sure. So this license was actually kind of like Swiss cheese. It was riddled with exemptions, but most of them didn’t make any sense. The biggest one was that if you were doing it for free, if you weren’t making a living providing lactation advice, then you weren’t subject to the license at all. So only people who were paid to give advice were subject to the licensing law.

 

And then also exempted were people like doctors and nurses and other medical professionals, which intuitively may sound like it makes sense, but it actually doesn’t because as we learned through discovery in this case a lot of doctors and nurses know absolutely nothing about breastfeeding. And someone like Mary is much more qualified to be giving breastfeeding advice than these people who are exempt from the law. And also government employees were exempt from the licensure law.

 

Jaimie Cavanaugh:  Right. So it’s good enough for government work but not for anyone else.

 

Renée Flaherty:  Exactly. Right, right.

 

Jaimie Cavanaugh:  So in Georgia when you bring constitutional claims, on appeal you can skip the intermediate appellate court and go straight to the Georgia Supreme Court, which we actually did twice in this case. Talk about the first time we went up to the Georgia Supreme Court.

 

Renée Flaherty:  The first time was on a motion to dismiss. That was way back in -- we filed the case in 2018, so we’re talking 2019, 2020. We were dismissed in the trial court, both of our claims. We had a substantive due process claim and an equal protection claim, and the trial court actually said that on our due process claim that there was no right to economic liberty or right to earn a living in Georgia, which is just flat out wrong, completely contrary to black letter law in Georgia.

 

And so we went up on both claims, and the Georgia Supreme Court unanimously reversed and said no, actually there is a right to economic liberty in Georgia. And you stated an equal protection claim, and so we’re going to send you back down to actually go through discovery and actually be able to prove your claims and determine what kind of legal test applies to these claims.

 

Jaimie Cavanaugh:  Yeah. So even that, even though it’s just winning on the motion to dismiss, was a really important ruling. We at IJ were very excited that the Supreme Court of Georgia took the opportunity to explicitly say the right to earn an honest living free from unreasonable government regulation is absolutely protected by the Georgia constitution. That isn’t always clear in other states and even federal judges aren’t really sure if that’s the case under the federal Constitution. So to have something as explicit as this was really exciting for us, and then obviously the case moved on.

 

And so at that point you mentioned that we learned some facts during discovery earlier, and we’re trying to kind of prove sort of a novel claim at this point. And so we did a lot of discovery. Can you tell us about some of the facts that were important in the record and what we found in discovery?

 

Renée Flaherty:  Right. I think the record was significant not so much for what it did show as what it didn’t show. We were able to demonstrate that there was just a complete lack of evidence that any lactation consultant had ever harmed any mother or baby in Georgia because of being unlicensed. The government wasn’t able to come forward with any evidence that licensure was necessary because there were actually people running around harming mothers and babies in Georgia.

 

And so not only did we bring forward expert testimony from a doctor and a breastfeeding expert to kind of lay out for the court exactly what lactation consultants do and to show why it is safe, practical on the ground advice, show that they’re not diagnosing or treating medical conditions or anything like that. Really the record was special because it didn’t show that there were any of those dangers present with lactation consulting.

 

Jaimie Cavanaugh:  Yeah. That’s a great point. It didn’t show that there would be more dangers associated with payment for these services either. And yeah, it was really important, I think, to have a doctor, a pediatrician, to say that she relies on certified lactation consultants like Mary and ROSE as an organization. We heard from other people who have used ROSE that it was really important for them to find a lactation consultant who looked like them and talked like them, so increasing access and making sure that there’s culturally appropriate care is also something that ROSE is trying to do and would’ve been stopped if this license were to take effect.

 

Okay. So we built the record, and now we’re at the motion for summary judgment. Can you talk about that?

 

Renée Flaherty:  Sure. So we ended up winning the case on summary judgment just on our equal protection claim actually and not on the due process claim. And so I think the trial court was very kind of worried by the exemptions to the law. The trial court saw that, well, if this is safe for someone to do for free, why isn’t it safe to do for payment? And if this is something that doctors and nurses, even if they have no training which we were able to show through the record -- if it’s safe for them to do this, then why isn’t it safe for someone like Mary?

 

The trial court was really kind of focused on those exemptions to the law, and so we won on our equal protection claim. But we did not win on our due process claim, which we found a little bit strange because usually very similar tests apply to due process and equal protection claims. And so the government appealed on the equal protection claim, and we cross appealed to the Georgia Supreme Court on the due process. And it went up for a second time on both of those claims.

 

Jaimie Cavanaugh:  Yeah. And what happened there?

 

Renée Flaherty:  Yet again we unanimously prevailed this time just on due process, and the court actually didn’t address our equal protection claim because the Georgia Supreme Court looked back to its previous opinion and said yes, we said very emphatically the last time this case was before us that there is a right to economic liberty in Georgia. And now that the case has gone through discovery, built a record, we’re going to articulate a legal test that can apply not only in this case involving lactation consultants but to future cases involving economic regulations in Georgia.

 

Jaimie Cavanaugh:  Yeah. So that’s really a huge accomplishment, and the court, I think, went out of its way a little bit to make sure that its holding would be generally applicable to other types of occupational licenses and perhaps other types of economic regulations. It could have been written a little bit more narrowly, but the court said things like economic protectionism isn’t a legitimate reason for the government to regulate an occupation. And that wasn’t an argument that we had raised explicitly. And so there were a few things like that in the opinion that we were really excited about and excited to see that this court cares about this issue.

 

Do you want to take -- there’s a question in the chat. Maybe you can talk a little bit about the difference between substantive due process under the federal Constitution and under the Georgia constitution?

 

Renée Flaherty:  Sure. That’s great. That’s one of the reasons why this case is so special is because the court went out of its way to distinguish the Georgia constitution from the federal Constitution. These cases are really pretty difficult to win, especially in federal court, because of something called the rational basis test. And that is essentially if the government has an economic regulation, the lowest possible level of judicial scrutiny applies.

 

Sometimes in federal court it’s good enough that there’s a hypothetical or theoretical justification for a law even if there’s no practical evidence that the law’s actually connected to that purpose or actually furthers that purpose. Maybe it’s not the real purpose. It doesn’t matter. So in federal court, generally, they’re very permissive when the government wants to regulate the right to earn a living. But no longer in Georgia.

 

In Georgia now there has to be an actual reason behind a law restricting the right to earn a living, and it has to be a good reason. There were two specific things that the court said is not good enough. One Jaimie already mentioned which is economic protectionism, protecting one group from economic competition with another. In this case it was the IBCLCs that had pushed so hard for these licensing laws so that they were the only ones allowed to work. The court said that that standing by itself isn’t going to be a good enough reason to restrict the right to earn a living.

 

The court also said—and this is kind of more interesting in a way—that just generally calling to an increase in quality like, oh, if you license something, then quality is automatically going to go up, right? No. You can’t just assert that. You have to actually be able to draw a connection between this is what the law is doing and this is the increase in quality or increase in safety. You can’t just call on generic assurances of quality in order to license a profession.

 

Jaimie Cavanaugh:  Did the court come up with this test on its own, or did it rely on anything from other courts?

 

Renée Flaherty:  So I think that this test was already there in the case law. It just had never really been pulled and pieced together. And the court hadn’t recently really come up with a strong statement that this is the test that applies. So there were actually a lot of cases, prior cases about occupational licensing in Georgia.

 

Several of them involved plumbers of all professions, which I think is really interesting because I can maybe think of a few reasons to license plumbers off the top of my head. But the court -- several times the Georgia Supreme Court in the past has said, well, this particular license isn’t good enough because it’s got this Swiss cheese holes of exemptions just like this lactation consultant law. So the test was there. It just was never strongly articulated by the court. And that is what this case gave it an opportunity to do.

 

Jaimie Cavanaugh:  Yeah, yeah. Good point. And I think there were some cases where the Georgia Supreme Court had also just applied the federal rational basis test, which a lot of state courts do. A lot of litigants argue under the federal state court test, even if they’re bringing a state constitutional claim. And that’s something that at IJ we’re always trying to distinguish.

 

We’re always trying to remind courts and lawyers and judges that your state has a constitution, and it has probably been interpreted differently than the U.S. Constitution and probably has provisions in there that don’t exist in the U.S. Constitution. Do you want to talk about some other IJ cases where we tried to get rulings on state constitutional claims?

 

Renée Flaherty:  Sure. So the two where we’ve gotten really strong statements from state supreme courts are in Texas, the Patel case back in I think it was 2013 involving licensing of eyebrow threaders. So that is people who remove hair from eyebrows just using a cotton thread. So it’s a really simple, really easy process where you don’t need a full cosmetology license in order to thread eyebrows. And back in 2013 the Texas Supreme Court struck down the cosmetology licensing law as applied to eyebrow threading and came up with a test that’s very similar to Georgia’s.

 

And so we were looking to that. We were looking to Patel in litigating this case. And a bit more recent in Pennsylvania, the Pennsylvania Supreme Court held that they use a similar test in a case involving real estate brokers. And a woman who is just doing simple managing of Airbnbs, property management, and Pennsylvania wanted her to get a full broker’s license, which is very burdensome. And so those are two examples of cases where we got a really strong statement from state supreme courts.

 

And right now, we’re litigating several more. I’m litigating a case in North Carolina which is a challenge to a certificate of need law, which is a medical certificate of need where your competitors actually get to veto you going into business. It’s absolutely crazy, and we’re challenging it not only under the rational basis test but the North Carolina constitution’s anti-monopoly provision.

 

And actually, just this past Friday -- that case has also been going on for five years, and it’s still on a motion to dismiss I might add -- but we learned that the North Carolina Supreme Court is going to take the case. So that’s very exciting. It’s actually going to go up. These issues that we care a lot about, the rational basis claim and the antimonopoly claim, will be going up to the North Carolina Supreme Court. And we’ve got a licensing case about hair braiding in Louisiana and a licensing case in Indiana as well about eyeglasses, so lots of exciting state constitutional cases going on.

 

Jaimie Cavanaugh:  Absolutely. I mean, hair braiding, most of the time when we tell people that you need a full cosmetology license in 20 plus states to braid hair, they’re shocked. But IJ has been working on this issue since our founding in 1991, and there continue to be lawsuits in multiple states. And we continue to work on legislative fixes. So again, something that is so safe that people learn it as children the government still finds a way to say no, you should go to school for 2,000 hours and pay $15,000 for cosmetology school where you won’t learn one minute of hair braiding to get this license to be able to work legally.

 

Okay. We have another question about whether this violates the separation of powers with judges deciding what is a good regulation. But that is the traditional role of the judiciary; right? So we have the -- so these are actually statutes, not regulations. But we have the Legislative Branch making the laws, and their backstop is, well, the courts will tell us if we make a law that’s unconstitutional. We’ll find out because the court will tell us.

 

And this is where these different levels of scrutiny come into play because courts have wanted a consistent way to review statutes and have said how can we apply scrutiny in a consistent manner? And so like Renée already said, when a challenger is challenging an economic regulation like an occupational license or a certificate of need law, the courts are usually giving this very little scrutiny. That means they’re deferring a lot to what the government said and deferring to what the legislature could have thought when they passed the law and even if circumstances on the ground have changed since the law was passed.

 

Courts often don’t consider that, so part of what we’re trying to do at IJ isn’t only getting the state supreme courts to articulate that their state constitutions are more protective than the federal Constitution, but we’re also trying to get the courts to articulate their different standards or whether they follow the federal rational basis test or not. The big problem with the years and decades we’ve had of judicial deference to the legislature is that the legislature’s backstop is supposed to be the courts, but if the courts are going to defer every time and say hey, the legislature studied this; they know better than me, then there’s no constitutional backstop. There’s no constitutional remedy for people who are harmed.

 

Obviously, yes, you can try and get the laws changed. You can try and vote for new legislators. But both things are hard, so this is part of what we’re trying to do with our cases as well.

 

There’s another question about whether the state argued that the due process clause or equal protection clauses of the Georgia constitution were not self-executing. No, we didn’t get those arguments. Were there any arguments that surprised you, Renée, from the state?

 

Renée Flaherty:  I was always amused by how they tried to make lactation consulting sound very scary. They were always trying to make it sound like this very complicated, very sort of medical procedure when if you actually talk to a lactation consultant about what they do, you’ll find that it’s just such simple, practical advice like you’re telling women how to get a good latch, how to tell when their baby is hungry.

 

This is not rocket science. It’s not complicated. It's not dangerous. And the other side was just always tripping over themselves to make it look as scary as possible. But I think the court saw right through that whenever we presented it with our summary judgment record.

 

Jaimie Cavanaugh:  Yeah. You’re right about that. One of our, I think, favorite admissions that we pointed to in our briefs was what the government’s expert said that we need more of all types of lactation consultants so people with all different types of training. We needed more of them, and that evidence showed, data showed that regardless of the type of training a lactation consultant had, any type of provider that can help a mom increases the chance of positive odds. So again, just supporting this argument that there is no evidence of harm.

 

All these other states have done this with no license. Georgia has done it since Georgia was a state with no license, and, again, there’s no evidence of harm. And it sounds really straightforward, but in federal court that probably wouldn’t save the day; right?

 

Renée Flaherty:  Yeah. That’s right. I think that if legislators actually want to address real, practical problems in this case the only thing that our record showed that was a problem was a shortage of lactation care. So the legislature was looking at a field where there’s a shortage of providers. And they licensed it, which is going to automatically decrease access to care. And so hopefully moving forward -- I think the court was very clear that it wasn’t imposing any kind of concrete burdens on the legislature, even to come forward with evidence when they want to license a profession. But they need to be thinking moving forward that somebody’s going to look at this after I do it. And so I hope there’s a consciousness there moving forward that somebody is going to examine this. If this turns out to be a problem in real life on the ground, then there’s going to be a backstop like Jaimie was talking about in the courts.

 

Jaimie Cavanaugh:  And another interesting fact is that Georgia actually had a licensing review committee, what we call a sunrise committee, where any time that the legislature proposes a new occupational license this committee reviews it and actually looks to see whether there’s any data to support the need for the license. And the committee came out with a report that said it did not recommend passage of the licensing law. It specifically said it would reduce access to care if the legislature enacted the lactation consultant license.

 

But the legislature also didn’t follow the advice of the sunrise committee. So that’s kind of an interesting push right now in the legislative world where a lot of states that are interested in occupational licensing reform look at things like sunrise and sunset committees to either review licenses every five or seven years or sunrise to review them before they are enacted. But the hard part then is of course getting the legislature to follow the advice of the committees.

 

So that’s too bad that that didn’t happen in Georgia, and then also this year we found out the sunrise committee was not continued by the state I think during the budget process. So it doesn’t really exist in Georgia anymore unfortunately. Okay. So you’ve probably touched on this a little bit, but what do you think this case means going forward in Georgia?

 

Renée Flaherty:  I think it means that the legislators will have to have it in the back of their minds that their work is going to get checked, and hopefully that will lead to wiser laws, perhaps fewer laws moving forward. But moving outside of Georgia I think this can be an example to other state supreme courts that have state constitutions that are more protective of individual rights than the federal Constitution. It can be another example alongside Texas and Pennsylvania of this is the way that you can articulate the test. This is the way that you can have something different than the federal test. And so I think that there are probably a lot of justices out there who are interested in their own state constitutions and their own jurisprudence. And hopefully they can look to this case as a guide moving forward.

 

Jaimie Cavanaugh:  Yeah. I agree. Another interesting thing about state constitutions is that they’ve often been revised or readopted much more frequently than obviously the federal Constitution. So Georgia has had several iterations of its constitution. The most recent was 1983, I think.

 

Renée Flaherty:  Yeah.

 

Jaimie Cavanaugh:  Yeah. And luckily the due process provision that we used for this lawsuit had stayed consistent for a long time so we could point backwards to all these cases that had upheld the right to economic liberty. But that’s something else interesting about state constitutions and something you have to pay attention to if you want to litigate under state constitutions is how have these provisions changed over time and what was the intent for any of those changes because like Renée said earlier we had this long history of Georgia protecting the right to earn a living from cases like licensing photographers or limiting the size of trucks that could drive on the road and things like that saying there has to be a good reason to regulate all these things that affect people’s ability to earn a living.

 

And it would’ve been really hard for us if we couldn’t have relied on all these cases. This court happened to really care a lot about the history of the case law surrounding this part of the constitution. Sorry, I think my computer froze. Okay. Do you have any plans moving forward in Georgia?

 

Renée Flaherty:  I’m litigating a big eminent domain case in Georgia, but that’s an entirely separate area, property rights as opposed to economic liberty. But I’m actually hoping that I don’t have to come back in Georgia. I’m hoping that moving forward there are much fewer irrational laws on the books because of this case and hopefully can move along to different states.

 

I’m really excited about litigating the case in North Carolina because it’s a chance to get North Carolina to say that it uses a different test than the federal rational basis test and then also their antimonopoly provision, which is very exciting. And so I plan on bringing more cases under state constitutions but also under the federal Constitution as well. I definitely don’t have any plans on giving up those kinds of cases. IJ recently had success under the federal Constitution in an economic liberty case in California. So the story continues to unfold there as well.

 

Jaimie Cavanaugh:  Yeah. Exactly. There’s still ground to be made in federal courts, so it’s important to use both tools. We have a party planned with our clients coming up later this month to thank them really for all the hard work that they went through as well being part of this case. Poor Mary worked at a hospital in Atlanta and was being threatened all the time that she was going to be fired because she wasn’t licensed even though the licenses wasn’t actually being enforced during the entire time that the lawsuit was pending. So there’s challenges for our clients as well when litigation stretches on for so long.

 

Renée Flaherty:  Yeah. And hopefully we won’t see any more of these lactation consultant laws -- licensing laws in particular popping up in different parts of the country. I’m pretty much hoping that nobody tries this again. They haven’t been super successful anyway. Like you said, the other states that license lactation consultants aren’t nearly as onerous as Georgia’s, so I think that everybody is kind of getting the message that everybody who can do this kind of work should be allowed to do this work.

 

Jaimie Cavanaugh:  Yeah. So I think the last thing I want to say is just that the defendant in this case is the Georgia secretary of state. Right now that’s Brad Raffensperger. And the day the decision came out Secretary Raffensperger actually issued a press release saying that, hey, the court decided the case the right way. He agrees that there should probably be fewer licenses or he wants to take a close look at that. And he has, I think, a couple of committees going on this summer to study occupational licensing.

 

He said he was disappointed that this case took so long to resolve. Well, he and his office could’ve done something about that if they didn’t want to litigate for so long, but we’re really happy they did so that we have the precedent moving forward. Is there anything else you want to add, Renée?

 

Renée Flaherty:  No, I think we’ve covered it. This has been a really great opportunity to litigate exciting issues on behalf of excellent clients, and the kind of people who are IJ clients and who are willing to stand up and challenge a law like in Georgia really should be applauded. It’s all about our clients, Mary and ROSE.

 

Jaimie Cavanaugh:  Thanks. I’ll pass it back to you, Sam.

 

Sam Fendler:  Wonderful. Well, on behalf of The Federalist Society, Jaimie and Renée, I want to thank you very much for being here with us today. Thank you for sharing your time and your expertise. I want to thank our audience as well. We greatly appreciate your participation. Please, check out our website, fedsoc.org, or follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.