The recently passed Michigan Senate Bill 464 received a warm but somewhat confused reception from local media. The voices of the internet – not surprisingly – jumped at this new opportunity to sermonize on public breastfeeding. But what is the bill really about? What is it not about? What is its public policy basis?

What it is

The bill amends Michigan’s Elliott-Larsen Civil Rights Act to include breastfeeding as a right whose exercise may not be prohibited by discriminatory practices. Such rights currently consist of religion, race, color, national origin, age, sex, and marital status. The Elliott-Larsen Act, like the federal Civil Rights Act of 1964, prohibits discrimination by private actors in the context of public accommodation. These federal and state laws were originally enacted to address race-based discrimination in public accommodation.

Michigan S.B. 464 and its companion House Bill 4733 do the same for breastfeeding. The act of breastfeeding in public is already protected by statutes that prevent breastfeeding women from being charged under indecent exposure laws. However, this constrains the behavior only of law enforcement and fails to forbid privately-owned establishments from refusing to accommodate breastfeeding women. The new legislation, if enacted, would permit breastfeeding in all places the mother herself has the right to be.

What it is NOT

Nursing mothers vs. formula-feeding mothers

This is not an opportunity for media flame wars on whether mothers should breastfeed or formula-feed. Although science has established breastfeeding to be largely beneficial to mothers and children, there are women who should not or cannot breastfeed. Before we start throwing stones, it would be prudent to review the minimal accommodations for women who want to, but cannot, breastfeed. We have no national policy on parental leave, save the very limited, unpaid leave available under the Family Medical Leave Act. It was  only under the Affordable Care Act that the federal government granted women working outside the home the right to take unpaid time to pump breast milk in a private place that is not a bathroom – but as breastfeeding legal expert Jake Marcus points out, these provisions may be less effective than they appear. In any case, the ACA provision covers only the right to pump milk, not to the right to actually breastfeed.

Breastfeeding also comes with real costs. While the milk itself bears no price tag, that very fact obscures the considerable costs in time and labor to the mother. Until we can support and subsidize these costs, we must affirm the decision of the mother who weans a child in order to take care of other responsibilities, not least of which may be getting an education, caring for other children, or making a living.

Every mother’s experience of breastfeeding is unique; indeed, one mother’s experiences can vary from pregnancy to pregnancy. We can continue to improve circumstances for mothers who wish to breastfeed and make sure that unbiased information about risks and benefits is available to them, but we must trust mothers to make the right decision for themselves and their children.

The sexy breast vs. the nursing breast

Likewise, this should not be our cue to reopen the quarrel about whether breasts are for sexual partners’ gaze or for nursing our children. This line of argument makes it sound as if breasts were pets kept on leashes rather than being actual attached body parts. Our breasts are “for” whatever we say they are for –  and they are far from having only two functions.

The fact that sexualized breasts are frequently visible in public is often used to suggest that these sexy breasts somehow contaminate nursing breasts with sexiness, thus making nursing breasts in public unacceptably sexual. However, following the thinking of sociologist Linda M. Blum, I believe it is the other way around: In our society, the chief acceptable public use of breasts or other female body parts is for sexual display. Nursing breasts in public are transgressive, because they are used for the non-sexual purpose of nourishing children. Urging nursing women to be “discreet” by covering up their nursing breasts aims to banish the offensively non-sexy breast from public view.

Again, each woman must make her own decision about the manner in which she wishes to nurse in public, if at all. Some women follow religious guidelines about display of the body in public; others may suspect that such a display may put their personal safety at risk; still others may be embedded in our country’s racist history in which some women’s bodies and reproductive capacities were used by others against their will. We must respect every woman’s capacity to decide what is best for her.

Policy basis

Public health policy and law, at least according to some authorities, seek not to badger people into behaviors that some privileged segment of the population thinks everyone should adopt, regardless of other priorities. Rather, their role is to move obstacles out of the way for the benefit of those people who wish to adopt practices that are widely held to be beneficial to the public health.

Breastfeeding is one of those practices. In order to make a path for people who wish to breastfeed their children in public, the bill gives a right and a remedy. The right is the liberty to breastfeed children in public any place the breastfeeding woman herself is entitled to be. Remedies (as already outlined in the Elliott-Larsen Act), should this right be denied, are the ability to seek a judicial injunction against the offending party, to pursue legal action through the state Civil Rights Commission, or to bring suit against the offending party in a civil suit.

What happens next and how to help

Now that S.B. 464 has passed the state Senate, its companion bill must also be given a committee hearing, receive a favorable vote, and be voted upon on the House floor. Should that happen, once the governor signs the bill, it will become law.

If you wish to support these bills and this cause, you can follow through with these actions:

1. Thank Senator Rebekah Warren for sponsoring S.B. 464. I am very proud to be her constituent – thank you, Sen. Warren!
2. Encourage the chair of the House Judiciary Committee, Rep. Kevin Cotter, to schedule a hearing on H.B. 4733.
3. Especially if your representative is a member of the House Judiciary Committee, encourage him or her to support H.B. 4733. You can identify your representative here.

Finally, easiest of all, we can help mothers to breastfeed in public simply by speaking out on the spot. If someone asks a mother to cover up, or to leave, we can object. When I was a new mother nursing my first child in public, strangers would occasionally come up to me and murmur approvingly, “I nursed my child for three years, or “I nursed two children.” I can’t tell you how supported this made me feel! Now I try to carry on this tradition by telling women how nostalgic I feel when I see their beautiful little nurslings. But a simple smile and a nod also does the trick.

Resources

• Jake Marcus, J.D., Breastfeeding Law: Know Your Legal Rights.
• National Council of State Legislators, Breastfeeding Laws  (out of date, but well organized).