It’s 2021; Let’s Talk About Breastfeeding

(Source)

It’s no secret that women’s participation in the labor force increased dramatically in the second half of the twentieth century. In the past five years, women have held more than half of all management occupations and earn more than half of all bachelor’s, master’s and doctorate degrees. Perhaps most notably, a record number of women now serve in the 117^th Congress—still only about a quarter of all members, but a record nonetheless. So, with women holding fast at about 47% of the labor force in 2020[1] and occupying more positions of power than ever before, why do some women still struggle to breastfeed successfully, especially while working?

Let’s start with a quick primer on breastfeeding to get everyone up to speed. Breastfeeding promotes positive outcomes in children and mothers. Breastfed babies are better protected from diarrhea, pneumonia, and certain      infections, less likely to develop asthma, at a reduced risk of sudden infant death syndrome (“SIDS”), and less likely to become obese. Mothers who breastfeed also have a decreased risk of breast and ovarian cancers and experience more rapid weight loss after birth. The World Health Organization (“WHO”) and the American Academy of Pediatrics (“AAP”) both recommend exclusive breastfeeding for the first six months of an infant’s life, and continued breastfeeding for one year or longer. Moreover, Healthy People 2030 (a set of data-driven objectives designed to improve health in the United States over the next decade), lists as objectives both increasing the proportion of infants breastfed exclusively through six months and infants who are still breastfed at one year.

Few parents are lucky enough to receive substantial paid family leave for more than a few weeks, let alone six months. As such, working moms who wish to continue their breastfeeding relationship typically turn to expressing or pumping breastmilk in the workplace. This is no small task—infants need anywhere from nineteen to thirty ounces of breastmilk per day. Pumping enough milk to satiate an unpredictable newborn can be a demanding science experiment for new mothers. For example, if baby nurses eight times a day, taking in about three ounces per feeding, and mom misses three feedings while working, mom has to come home with nine ounces of milk each day from work or risk falling behind. Different moms will have wildly different experiences in how much milk they can produce, but typically a mom away from her baby for ten hours a day will need to pump about three times for fifteen to twenty minutes to keep up. Even women with supportive employers face any number of technical and physical challenges as they try to maintain a breastfeeding relationship while working.

The good news is that the United States has seen improvement in breastfeeding outcomes over the last fifteen years. For babies born in 2006, only 43.4 percent of mothers continued breastfeeding for at least six months postpartum, and only 13.6 percent were exclusively breastfeeding at six months postpartum. By 2020, 58.3 percent of babies were still breastfeeding at six months postpartum, and 25.6 percent were exclusively breastfed. It’s progress, but we’re only a quarter of the way there.

Federal health reform in the last decade may have played a role in these improvements. Until 2010, federal law provided essentially no support for working mothers. The passage of the Patient Protection and Affordable Care Act in 2010, however, included a provision amending the Fair Labor Standards Act (“FLSA”). The amendment, captured in Section 4207 of the FLSA, requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child” for one year after the child’s birth, “each time such employee has need to express the milk.” The employer must also provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” for the employee to use to express milk.

State law may provide additional protections to breastfeeding mothers. All fifty states, the District of Columbia, Puerto Rico, and the Virgin Islands have laws allowing women to breastfeed in any public or private place. Twenty states exempt breastfeeding mothers from jury duty or allow their service to be postponed. New Jersey, Maryland, and Louisiana exempt certain breastfeeding items from their sales tax. New York created a Breastfeeding Mothers’ Bill of Rights, and New York Correction Law Section 611 allows mothers of nursing babies to be accompanied by their babies if they are sentenced to a correctional facility while breastfeeding.

Despite the great strides the United States has made in breaking down breastfeeding barriers, however, gaps in the law remain. Most notably, workers exempted from the FLSA do not have federally-protected breastfeeding rights. Section 4207(2) and (3) also provide that an employer is not required to compensate an employee for the breaks they take to pump. This means that some women who need to take three twenty-minute pump breaks a day are losing an hour of pay—a significant loss, especially for workers already struggling to get by on less than a living wage. Further, employers with less than fifty employees are exempt “if such requirements would impose an undue hardship by causing the employer significant difficulty or expense.” 

Oddly, only thirty-one states (plus the District of Columbia, Puerto Rico, and the Virgin Islands) specifically exempt breastfeeding from public indecency laws. And, awkwardly, some laws like North Dakota’s Century Code Section 23-12-16,  still require women to breastfeed “in a discreet and modest manner” when in public. (The wording of this particular code recently inspired a bill to remove the language, and would add a fine for prohibiting a mother from breastfeeding). Perhaps it’s time we drag our breastfeeding laws into the twenty-first century.

Even when all the right legal protections are in place, employees may face antagonistic workplace cultures that discourage taking more breaks than absolutely necessary. Workplace power dynamics will also, undoubtedly, contribute to an individual employee’s ability to advocate for her own needs. In an effort to assist those tasked with educating their own employers, I’ve compiled the following list of resources:

• Take a look at the Department of Labor’s Fact Sheet on Break Time for Nursing Mothers under the FLSA, and the accompanying FAQ.
• Find your state-specific breastfeeding laws listed here.
• Seek out local and virtual support from La Leche League, an organization committed to supporting breastfeeding mothers.
• Check out the CDC’s Breastfeeding Resources Library, including fact sheets and infographics.
• Explore the WHO’s Breastfeeding Website, which provides insight on global breastfeeding goals.

As a nation, we’re making progress, but that progress is nascent. If we want to truly support breastfeeding families, we need to demystify and destigmatize breastfeeding and generate meaningful policy that reaches all mothers, without exemptions. Let’s stop being “discreet and modest.”

[1] Calculations done by the author based on data from the hyperlinked source.

About the Author: Nola Booth is currently a 2L at Cornell Law School. She grew up in Ithaca, NY and holds a Bachelor of Science in Biology and Society from Cornell University. During her 1L summer, Nola interned for the United States District Court for the Northern District of New York. She spends her free time with her partner, her daughter, and her toddler.

Suggested Citation: Nola Booth, It’s 2021; Let’s Talk About Breastfeeding, Cornell J.L. & Pub. Pol’y: The Issue Spotter, (Apr. 23, 2021), https://live-journal-of-law-and-public-policy.pantheonsite.io/its-2021-lets-talk-about-breastfeeding/.