Georgia Supreme Court Carves Its Own Path on Due Process to Strike Down Occupational Licensing Law

A unanimous Georgia Supreme Court held in Raffensperger v. Jackson that an occupational licensing law requiring maternal lactation consultants to acquire state-approved certification was a violation of due process under the Georgia Constitution.[1] 

In 2016, Georgia’s legislature passed the Georgia Lactation Consultant Practice Act, which required persons providing “treatment, education, and consultation to childbearing families regarding lactation care and services” to obtain a license from the Secretary of State.[2] To qualify for the license, applicants needed to be certified by the International Board of Lactation Consultant Examiners, a private organization that offers a multi-year certification program consisting of coursework and testing requirements.[3]

In 2018, co-plaintiffs Mary Jackson and her lactation consultant organization Reaching Our Sisters Everywhere (ROSE) filed a lawsuit against Georgia’s Secretary of State (the now-Governor Brian Kemp) asserting due process and equal protection challenges to the licensing law under the state constitution. When the trial court granted the Secretary’s motion to dismiss, Jackson and ROSE appealed to Georgia’s Supreme Court, which reversed the trial court’s decision and remanded the case for reconsideration of the motion to dismiss.[4] 

On remand, the new Secretary of State, Brad Raffensperger, continued to defend the law but withdrew the State’s motion to dismiss, allowing both sides to engage in discovery. After discovery, both sides moved for summary judgment. The trial court granted summary judgment to plaintiffs on their equal protection claim and to the Secretary on the due process claim. Both sides cross appealed.

Confronted with the case a second time, the Georgia Supreme Court chose to focus solely on the due process issue. Plaintiffs’ due process claim rested on their contention that Georgia’s licensing law “preclude[d] them from practicing their lawful, chosen profession as providers of lactation care and services.”[5] The Secretary maintained that the restriction on lactation care was rationally related to the law’s stated purpose of “‘protect[ing] the health, safety, and welfare of the public.’”[6]

Chief Justice Michael Boggs, writing for the unanimous court, began by looking to the history of Georgia’s Due Process Clause.[7] First added in 1861, that clause is phrased in language similar to its counterparts in the Fifth and Fourteenth Amendments of the federal Constitution: “No person shall be deprived of life, liberty, or property except by due process of law.”[8] But Boggs cautioned that Georgia had not “adopted the federal due process test, which generally gives extraordinary deference to the legislature in determining whether a stated interest is legitimate.”[9]

Boggs determined that Georgia’s Due Process Clause had consistently been interpreted to protect Georgians’ right “to pursue a lawful occupation of their choosing free from unreasonable government interference.”[10] Thus, to comport with due process, the legislature may burden lawful employment only if that burden is reasonably “necessary for the public good.”[11]

Boggs acknowledged that the court had yet to provide a clear framework for due process claims premised on the right to one’s occupation. Thus, he announced that a plaintiff pursuing such a claim has the burden of showing that (1) the chosen occupation is lawful and (2) “a regulation unreasonably burdens the ability to pursue it.”[12] Once the plaintiff has made this prima facie showing, the government then must offer a legitimate interest—“health, safety, or public morals”—justifying the interference.[13] Boggs explained that Georgia courts would not assess whether the state’s purported reason was, in fact, the real reason. Nevertheless, some interests, such as a generic interest in promoting quality, would be categorically insufficient. He further clarified that the burden remains with the plaintiff to prove that the interference is unreasonable by showing that the regulation “does not advance the articulated public purpose by means that are reasonably necessary for that purpose.”[14]

Applying the new framework to the claim at hand, Boggs found that the lawfulness of plaintiffs’ occupation was uncontested.[15] He also found support in the record for the conclusion that plaintiffs’ counseling and certification activities were covered by Georgia’s law and thus burdened by it because plaintiffs would need to complete the state-approved certification or cease working in their chosen profession.[16] 

Finally, Boggs determined that the law’s burden was excessive in relation to its purpose. Although the Secretary justified the law as a public health measure, he did not contend that the practice of lactation consulting presented inherent risks to the public.[17] Here, the court relied in part on a negative inference from the summary judgment record; Chief Justice Boggs noted that the Secretary cited no evidence of harm resulting from a person providing lactation care.[18] This led the court to reason that there is nothing “inherently harmful” in unlicensed lactation consulting, and thus an unlicensed lactation consultant could, at most, fail to help, rather than affirmatively harm, a patient.[19] Given the speculative nature of the public harm and the considerable restriction on entry to the profession, plaintiffs had met their burden of demonstrating an unreasonable interference with their right to work as lactation consultants.

By departing from the rational basis test of the federal Constitution’s Due Process Clause, the Georgia Supreme Court construed the state’s constitution to afford greater protection to the right to engage in lawful employment than does the federal Constitution. Still, plaintiffs in Raffensperger v. Jackson benefitted from the Secretary’s decision to withdraw the motion to dismiss and the consequent ability to compile a record through discovery. Thus, whether and to what extent the Georgia framework proves more demanding than rational basis review on a motion to dismiss remains to be worked out in future cases.

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