Licensed Consultants Are Resisting Rational-Basis Review in Court

People suffer when lawmakers invent new restrictions on normal activities. Lactation consultant Mary Jackson almost lost her career in Georgia.

Her supervisor at the Atlanta hospital where she works told her she no longer could help nursing mothers and their babies if she failed to comply with an occupational licensing requirement before it took effect on July 1, 2018. The clock was ticking.

To avoid unemployment, Jackson and hundreds of other lactation consultants across Georgia would have had to pause their careers and navigate an onerous licensing process involving roughly two years of college and more than 300 hours of supervised clinical work. Anyone caught ignoring the mandate would have faced fines of up to $500 per day. No excuses.

Lawmakers didn’t care that Jackson had decades of experience as a lactation consultant with zero complaints. Nor did they care that she had trained doctors and nurses, given medical school lectures, and co-founded a charity to promote breastfeeding services in Black communities. None of her expertise mattered.

Rather than accept the infringement on her right to earn an honest living—doing something that women have done safely for thousands of years without government permission—Jackson decided to challenge the law in court.

That’s how checks and balances work. If duly elected representatives pass unconstitutional laws that regulators vow to enforce, victims have nowhere else to go.

Yet the US Supreme Court disagrees. For decades it has told people like Jackson to stay away from the third branch of government. “For protection against abuses by legislatures the people must resort to the polls, not to the courts,” Justice William Douglas wrote for the majority in Williamson v. Lee Optical, a 1955 decision upholding state authority to ban opticians from cheaply replacing broken eyeglasses.

In other words, if a bad law hurts you, just keep voting. And if you happen to find yourself in the minority, vote harder.

Despite the misguided opinion and dozens of similar rulings that have piled up in state and federal courts since 1938, Jackson and her charity moved forward with their case and scored an important win in the Supreme Court of Georgia on May 31, 2023. My public interest law firm, the Institute for Justice, represented them pro bono.

Georgia lactation consultants now join an eclectic group that includes casket makers in Louisiana, eyebrow threaders in Texas, property managers in Pennsylvania, and end-of-life doulas in California. All these people have earned underdog victories against a judicial test called “rational basis review.”

All the government has to do to survive rational basis review is articulate a legitimate state interest for their meddling. No evidence is necessary that laws actually achieve their purpose. Judges accept speculation, good intentions, and after-the-fact rationalizations. The result can be “unjust,” “unfair,” “unwise,” and “foolish” laws. The Supreme Court even allows “stupid laws.”

The reason has to do with the messy nature of democracy. Courts want to give lawmakers space to experiment with policy—sometimes through an iterative process of trial and error—without intervening too soon and shutting down debate.

The Supreme Court lays out the principle in Lee Optical. “The Oklahoma law may exact a needless, wasteful requirement in many cases,” the majority held. “But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.”

The problem is that this hands-off approach dooms nearly all challenges to legislative overreach. “Traditionally, rational-basis scrutiny is extremely deferential and rarely invalidates legislation under the Equal Protection Clause,” one scholar concludes.

Put simply, the test is rigged. Yet judges don’t always abdicate their duty to the Constitution. When they encounter statutes that restrict “fundamental” rights like freedom of speech, religion, and voting, they apply a higher level of review called “strict scrutiny.” Another option, one notch down, is “intermediate scrutiny,” which courts can use to evaluate laws that potentially discriminate against protected classes. Both standards give citizens reasonable opportunities to present evidence and prevail.

Courts tend to reserve rational basis reviews for rights not specifically spelled out in the Constitution. Judges acknowledge that these rights exist, but treat them as less important—like unwanted stepchildren.

The right to earn an honest living falls into this category. The Georgia Constitution guarantees “due process,” a catchall for a variety of rights. But the document doesn’t explicitly mention lactation consulting or occupational licensing.

The Supreme Court of Georgia engaged with the facts anyway, ruling that people like Jackson can pursue a lawful occupation of their choosing free from unreasonable government interference. “Georgia’s Due Process Clause requires more than a talismanic recitation of an important public interest,” the justices held.

The case represents a crack in the rational-basis wall, which casket makers, eyebrow threaders, property managers, and end-of-life doulas have helped to widen. None of these cases are binding outside the various jurisdictions, but aggrieved parties anywhere in the US can cite the rulings and argue that their state constitutions provide similar protections.

In legal terms, this is called “persuasive authority.” It can give courts confidence to push back against out-of-control regulation. If enough momentum builds, lawmakers might start to take notice and think twice before criminalizing normal activities.

The US Constitution might also make a comeback. Unenumerated rights often get left behind, but they are fundamental to people like Jackson.

The case is Raffensperger v. Jackson, Ga., No. S23A0017, 5/31/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Renée Flaherty is a senior attorney at the Institute for Justice.

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