A Georgia trial court recently held that the state constitution “does not recognize a right to work in one’s chosen profession.”[1] In Jackson v. Raffensperger, the Georgia Supreme Court reversed that decision and reaffirmed the state constitution’s role in protecting people’s ability to pursue a livelihood without unreasonable state interference.[2]

The plaintiffs in the case, Mary Jackson and her non-profit organization, Reaching Our Sisters Everywhere, Inc. (ROSE), challenged the constitutionality of the Georgia Lactation Consultant Practice Act.  Lactation care providers, or “LCs,” provide breastfeeding support in clinical settings and at home, and for decades they were able to work in Georgia free of a licensure requirement. But in 2016, the legislature passed a law that not only mandated licensure, but also limited eligibility to individuals who are privately credentialed as International Board Certified Lactation Consultants (IBCLCs).[3] The law thus excluded consultants who were certified by other prominent organizations, including Certified Lactation Counselors (CLCs). Mary Jackson, who is certified as a CLC, alleged in her lawsuit that the law deprived her of due process and equal protection under the state constitution because it unfairly prohibited her from working as a lactation consultant even though she and other members of ROSE were just as competent as IBCLCs to provide lactation care.

Though the statute banned CLCs from getting a license, it contained a multitude of exceptions for other professionals, including, “[p]ersons licensed to practice the professions of dentistry, medicine, osteopathy, chiropractic, nursing, physician assistant, or dietetics;” “doulas and perinatal and childbirth educators;” “students, interns, or persons preparing for the practice of lactation care and services” (with supervision); certain federal, state, county, and local employees; and anyone who does it for free.[4]

The trial court ruled that the plaintiffs failed to state a legal claim under the state constitution’s due process clause because the Georgia Constitution doesn’t recognize a right to work in one’s chosen profession. It further ruled that that they failed to state a claim that the Act violates the equal protection clause because CLCs and IBCLCs are not similarly situated.[5]

In a relatively short opinion, the Georgia Supreme Court reversed and remanded, citing a long line of cases establishing that the state constitution does, in fact, protect “the right to pursue an occupation of one’s choosing free from unreasonable government interference.”[6]  It ruled that the lower court’s decision was based on an erroneous interpretation of a prior case which merely stood “for the unremarkable proposition that an individual’s due process right to practice a . . . profession is subject to reasonable regulation by the State.”[7] That case did not, however, mean that there was no right to practice a profession at all.  It therefore remanded so that the due process claim could proceed to the merits.

The court also ruled that the plaintiffs had adequately alleged that CLCs and IBCLCs were similarly situated for purposes of an equal protection challenge.[8] The complaint alleged that the two perform similar work and that both groups were equally competent to do that work. (That allegation was bolstered by the fact that the legislature had previously rejected a nearly identical bill after the Georgia Occupational Regulation Review Council determined that CLCs and IBCLCs were equally qualified. The legislature went on to pass a later iteration of the bill despite objections.[9]) The Court ruled that, accepting these facts as true, the groups were similarly situated for purposes of an equal protection challenge regardless of the fact that the prerequisites for obtaining the two credentials differed.

On remand, the plaintiffs will now have the chance to make their case on the merits.

 

Note from the Editor:

This article was updated on February 9, 2021 to clarify the nature of the Court's decision with respect to whether CLCs and IBCLCs are similarly situated.

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at [email protected].

[1] Jackson v. Raffensperger, 2020 WL 2516517, at *1

[2] Id. at *3.

[3] Id. at *2-3.

[4] Id. at *3. While permitted to practice lactation care, many of these groups were prohibited from holding themselves out as licensed lactation consultants.

[5] Id. at *1.

[6] Id. at *3.

[7] Id. at *4.

[8] Id. at *5.

[9] Id. at *2.