In the Supreme Court of Georgia

Decided: May 31, 2023

S23A0017. RAFFENSPERGER v. JACKSON et al.

S23X0018. JACKSON et al. v. RAFFENSPERGER.

 BOGGS, Chief Justice.

In 2018, Mary Jackson and a nonprofit organization, Reaching 

Our Sisters Everywhere, Inc. (“ROSE”), filed a complaint against the 

Secretary of State (“the Secretary”),1 challenging the 

constitutionality of the Georgia Lactation Consultant Practice Act 

(“the Act”), OCGA §§ 43-22A-1 to 43-22A-13. Under the Act, the 

Secretary issues licenses authorizing lactation care providers to 

provide lactation care and services for compensation. Only lactation 

care providers who obtain a privately issued certification as an 

 1 At the time the suit was filed, Brian Kemp was Secretary of State, and 

he agreed to stay enforcement of the Act during the pendency of the suit. After 

Kemp was elected Governor, the parties agreed to substitute current Secretary 

of State Brad Raffensperger as the defendant, and Secretary Raffensperger 

also agreed to stay enforcement of the Act until the conclusion of the case, 

including any appeals.
2

International Board Certified Lactation Consultant (“IBCLC”) are 

eligible to obtain a license. Jackson and ROSE (collectively 

“Plaintiffs”) allege that their work includes the provision of lactation 

care and services and that the Act is irrational and lacks any real 

and substantial connection to the public health, safety, or welfare 

because there is no evidence that non-IBCLC providers of lactation 

care and services have ever harmed the public. They also contended 

that the Act will require them to cease practicing their chosen 

profession, thus violating their rights to due process and equal 

protection under the Georgia Constitution. See Ga. Const. 1983, Art. 

I, Sec. I, Pars. I and II. In the first round of this litigation, the trial 

court granted the Secretary’s motion to dismiss for failure to state a 

claim, but this Court reversed and remanded with direction. See 

Jackson v. Raffensperger, 308 Ga. 736 (843 SE2d 576) (2020) 

(“Jackson I”). 

Following remand, the Secretary withdrew his motion to 

dismiss, and the parties engaged in discovery and filed crossmotions for summary judgment. On the due process claim, the trial 
3

court granted the Secretary’s motion for summary judgment, and on 

the equal protection claim, the trial court granted Plaintiffs’ motion 

for summary judgment. The Secretary appealed, and Plaintiffs filed 

a cross-appeal. For the reasons detailed below, we conclude in the 

cross-appeal that the Act is unconstitutional on due process grounds 

and that the trial court therefore erred in granting summary 

judgment to the Secretary and denying it to Plaintiffs. Accordingly, 

we reverse the trial court on the due process claim and do not reach 

the equal protection claim raised in the main appeal.2

1. The background facts are undisputed. Lactation care 

providers provide direct support to mothers in breastfeeding their 

babies. While lactation care providers can make a living providing 

their services, some volunteers also provide such support. Lactation 

care providers may obtain certification from various private 

accrediting entities, including the International Board of Lactation 

 2 The Court thanks Drs. Kleiner, Plemmons, and Timmons, Occupational 

Licensing Scholars; Healthy Children Project, Inc.; Mom2Mom Global; 

National Lactation Consultant Alliance, Inc. and Georgia Perinatal 

Association; Pacific Legal Foundation and The Goldwater Institute; and 

Southeastern Lactation Consultants Association for their briefs amicus curiae.
4

Consultant Examiners, which began granting the IBCLC 

certification in 1985, and the Healthy Children Project, Inc., which 

began granting certification as a Certified Lactation Counselor 

(“CLC”) in 1992. IBCLC certification may be obtained in three 

different pathways, each of which requires that a person pass a 

written examination and complete 14 courses in health sciences, 

eight of which must be college-level courses;3 95 hours of lactationspecific education, including five focused on communication skills; 

and at least 300 supervised clinical hours. The IBCLC examination 

costs approximately $600-$700. The IBCLC program is accredited 

by the National Commission for Certifying Agencies. There are 

approximately 470 IBCLCs in Georgia, only 162 of whom have 

obtained licenses under the Act.

 3 According to the affidavit of the Secretary’s expert, the eight required 

college-level courses are biology; human anatomy; human physiology; infant 

and child growth and development; introduction to clinical research; nutrition, 

psychology, counseling skills, or communication skills; and sociology, cultural 

sensitivity, or cultural anthropology. The other six courses, which may be 

completed as continuing education courses, are basic life support, medical 

documentation, medical terminology, occupational safety and security for 

health professionals, professional ethics for health professionals, and universal 

safety precautions and infection control.
5

To earn CLC accreditation, one must complete a 52-hour 

course; demonstrate competency in breastfeeding assessments, 

counseling, teaching, infant weight gain, contraindications, and the 

CLC Code of Ethics; and pass a written examination, which costs 

approximately $120.4 The CLC course is accredited by the National 

College Credit Recommendation Service, and its examination is 

accredited by the American National Standards Institute. There are 

currently approximately 735 CLCs in Georgia.

Lactation care providers can also receive education from 

organizations such as ROSE. ROSE, which was founded in 2011,

trains individuals to provide breastfeeding education and support to 

 4 According to the affidavit of Plaintiffs’ expert, 

The CLC course covers breastfeeding management and the 

underlying knowledge of anatomy and physiology that supports 

the clinical skills needed for breastfeeding management. Topics 

include, but are not limited to, theoretical foundations of milk 

composition and milk production; health outcomes associated with 

infant feeding choices; hand expression; milk storage and 

handling; milk banking; contraindications to feeding human milk; 

counseling; maternity care practices that influence breastfeeding 

outcomes; assessing the breastfeed; breast problems; working

[while breastfeeding]; family planning; special challenges; effect of 

foods and drugs; ages and stages of child development and infant 

feeding; ethics; disparity in outcomes; and the Baby-Friendly 

Hospital Initiative.
6

mothers, primarily in African-American communities, through a 

research and evidence-based curriculum in a free 16-hour course.

Approximately 1000 individuals have participated in ROSE’s 

training course.

In 2013, the General Assembly first considered a bill that 

would require lactation care providers to be licensed through the 

Secretary. See House Bill 363 (2013). Pursuant to OCGA § 43-1A-5 

(a) (1), the Georgia Occupational Regulation Review Council 

(“Review Council”) reviewed the proposal and unanimously 

recommended against passage, and the 2013 bill did not become 

law.5

In 2016, the General Assembly passed the Act, which is

substantially similar to the 2013 bill. The Review Council did not 

review the Act prior to its passage. The General Assembly included 

the following statement of purpose in the Act:

The General Assembly acknowledges that the application

of specific knowledge and skills relating to breastfeeding

is important to the health of mothers and babies and

 5 The law establishing the Review Council, see OCGA § 43-1A-1 et seq., 

has been repealed. See 2023 Ga. Laws Act 57 (HB 76) (May 1, 2023).
7

acknowledges further that the rendering of sound

lactation care and services in hospitals, physician

practices, private homes, and other settings requires

trained and competent professionals. It is declared,

therefore, to be the purpose of this chapter to protect the

health, safety, and welfare of the public by providing for

the licensure and regulation of the activities of persons

engaged in lactation care and services.

OCGA § 43-22-2A. The Act defines “lactation care and services” as 

“the clinical application of scientific principles and a 

multidisciplinary body of evidence for evaluation, problem 

identification, treatment, education, and consultation to 

childbearing families regarding lactation care and services,” OCGA 

§ 43-22A-3 (5), and provides a nonexhaustive list of lactation care 

and services. Under the Act, “[l]actation care and services shall 

include, but not be limited to:”6

(A) Lactation assessment through the systematic

 collection of subjective and objective data;

(B) Analysis of data and creation of a lactation care plan;

(C) Implementation of a lactation care plan with

 demonstration and instruction to parents and 

 6 By specifying that the named services “shall include, but not be limited 

to,” the list is not exhaustive. Compare Premier Health Care Investments, LLC 

v. UHS of Anchor, L.P., 310 Ga. 32, 45 (849 SE2d 441) (2020) (concluding that 

General Assembly’s use of “including but not limited to” in a statute introduced 

a list of illustrative examples rather than an exhaustive list).
8

 communication to the primary health care provider;

(D) Evaluation of outcomes;

(E) Provision of lactation education to parents and 

 health care providers; and

(F) The recommendation and use of assistive devices.

Id. Under OCGA §§ 43-22A-3 (6), 43-22A-6, and 43-22A-7, the 

Secretary may grant a license as a “lactation consultant” only to a 

person who has obtained an IBCLC certification or who holds a 

license issued by another jurisdiction if the requirements for that 

license are equal to or greater than the requirements of the Act. And 

under OCGA § 43-22A-11, “no person without a license as a lactation 

consultant issued pursuant to this chapter shall . . . practice 

lactation care and services,” unless one of the exemptions set forth 

in OCGA § 43-22A-13 applies.7 Anyone who provides lactation care 

and services for compensation without a license may be subjected to 

injunction proceedings in superior court. See OCGA § 43-1-20.8

 7 See n.12, below. 8 The general provisions of Title 43, which governs professions and 

businesses, authorizes professional licensing boards to enter cease-and-desist 

orders against the unlicensed practice of a profession without a license and to 

impose a fine of up to $500 for the violation of a cease-and-desist order. See 

OCGA § 43-1-20.1 (b). The Act authorizes the Secretary to impose sanctions on 

licensed lactation consultants. See OCGA §§ 43-22A-10, -12.
9

Jackson is a CLC and is employed by a hospital, where her job 

duties include providing services that fall within the Act’s definition 

of “lactation care and services,” including counseling mothers about 

breastfeeding, assessing breastfeeding challenges, creating and 

implementing lactation care plans, evaluating breastfeeding 

outcomes, assisting mothers with babies in the neonatal intensive 

care unit with breastfeeding help, and helping mothers use various 

tools, such as breast pumps. After the Act was passed, she was 

informed by her supervisor that she would not be permitted to 

continue doing the same job duties. 

ROSE employs CLCs and also trains individuals to provide 

lactation care services directly to mothers, including breastfeeding 

assessment, education, and support. ROSE offers lactation care and 

services to mothers without cost, and while some of the individuals 

trained by ROSE work as volunteers, others are paid for their work 

by ROSE.

2. In considering Plaintiffs’ challenges to the Act, we begin with 

the standard of review. Our review of the trial court’s order is de 
10

novo because this appeal is from a ruling on cross motions for 

summary judgment and raises a legal question as to the 

constitutionality of a law. See Polo Golf & Country Club 

Homeowners Assn. v. Cunard, 310 Ga. 804, 809 (854 SE2d 732) 

(2021) (“Our review of the grant or denial of a motion for summary 

judgment is de novo.”); State v. Holland, 308 Ga. 412, 414 (841 SE2d 

723) (2020) (“[W]e review de novo the trial court’s conclusion 

regarding the constitutionality [of a statute]”). 

But the issues presented are not wholly legal, as the parties 

presented evidence for the trial court’s consideration on the motions 

for summary judgment. Therefore, in considering the propriety of 

the trial court’s ruling on either motion, we view the evidence in the 

light most favorable to the nonmovants. Because we conclude that 

the trial court erred not only in granting summary judgment for the 

Secretary on the due process claim, but in denying it to Jackson and 

ROSE, we apply the same standard to Plaintiffs’ motion, and view 

the evidence in the light most favorable to the Secretary. See 

Chandler v. Robinson, 269 Ga. 881, 882-883 (506 SE2d 121) (1998) 
11

(concluding on review of cross-motions for summary judgment “that 

the undisputed facts, even when viewed in a light most favorable to 

[the losing party], show an absence of genuine issue as to any 

material fact, and [therefore the prevailing party was] entitled to 

summary judgment as a matter of law”), disapproved of on other 

grounds by Shearin v. Wayne Davis & Co. 281 Ga. 385 (637 SE2d 

679) (2006).

S23X0018

3. We now turn to the issues presented in the cross-appeal. 

Plaintiffs contend that the trial court erred in granting the 

Secretary’s motion for summary judgment on their due process 

claim. They assert that the Act violates their due process rights 

because it precludes them from practicing their lawful, chosen 

profession as providers of lactation care and services. The Secretary, 

for his part, contends that the Act does not preclude Plaintiffs from 

pursuing their profession and that, regardless, the General 

Assembly’s choice to license only ICBLCs to provide lactation care 

and services is rationally related to the Act’s stated purpose of 
12

“protect[ing] the health, safety, and welfare of the public,” OCGA 

§ 43-22A-2, and by promoting access to quality care. 

The Georgia Constitution’s Due Process Clause provides that 

“[n]o person shall be deprived of life, liberty, or property except by 

due process of law.” Ga. Const. of 1983, Art. I, Sec. I, Par. I.9

We have “long recognized” that this provision “entitles Georgians to 

pursue a lawful occupation of their choosing free from unreasonable 

government interference.” Jackson I, 308 Ga. at 740. We discerned 

this right not merely from precedent, but also as a “consistent and 

definitive” understanding of Georgia’s Due Process Clause. See 

Elliott v. State, 305 Ga. 179, 184 (II) (B) (824 SE2d 265) (2019) (“A 

constitutional clause that is readopted into a new constitution and 

that has received a consistent and definitive construction is 

presumed to carry the same meaning as that consistent 

construction.”). Across each successive Constitution following the 

 9 The language of the Due Process Clause has remained materially the 

same for these purposes since it first appeared in the Georgia Constitution of 

1861. See State v. Turnquest, 305 Ga. 758, 769 (827 SE2d 865) (2019) (tracing 

language of Due Process Clause through Constitutions of 1861, 1868, 1877, 

1945, 1976, and 1983).
13

addition of the Due Process Clause in 1861, we articulated a 

consistent and definitive understanding of how the Due Process 

Clause applied to occupational licensing and the ability to pursue a 

lawful occupation. This understanding begins as far back as 1896, 

Odell v. City of Atlanta, 97 Ga. 670 (25 SE 173) (1896), past the turn 

of the century, Bazemore v. State, 121 Ga. 619, 620 (49 SE2d 701) 

(1905), through the 1930s, Southeastern Elec. Co. v. City of Atlanta, 

179 Ga. 514 (1934) and Bramley v. State, 187 Ga. 826, 832 (2 SE2d 

647) (1939), the 1950s and 1960s, Jenkins v. Manry, 216 Ga. 538, 

541-546 (1) (118 SE2d 91) (1961), all the way up to the middle of the 

committee meetings to revise Article 1 of the Constitution, Rockdale 

County v. Mitchell’s Used Auto Parts, Inc., 243 Ga. 465, 465 (254 

SE2d 846) (1979); Transcripts of Mtgs., Committee to Revise Article 

I, Vol., 1 (Meetings 1977-1981). Our cases, in sum, display a 

consistent and definitive understanding of the Constitution’s Due 

Process Clause, reaffirmed at least once under the 1945 

Constitution’s Due Process Clause, and referenced approvingly 
14

under the short-lived 1976 Constitution.10 Thus, “[the] history 

reveal[s] a consistent and definitive construction” of the Due Process 

Clause, “whose words remain materially unchanged since [they] 

first appeared” in their present form, and (since we have been 

offered no evidence to the contrary) “we presume[] that construction 

was carried forward into the 1983 constitution.” Elliott, 305 Ga. at 

 10 We have also decided a number of strikingly similar cases in this 

stretch that either did not directly tie themselves to the Due Process Clause, 

or cited the Equal Protection Clause instead. See, e.g., Cooper v. Rollins, 152 

Ga. 588, 590-591 (110 SE 726) (1922) (a law requiring barbers, not other 

professionals in “trades involving manual labor,” to get a license, was not 

irrational and therefore did not violate equal protection; the state had the 

“police power” to require a license for barbers, and “[t]he health of the citizens 

as affected by diseases spread from barber shops conducted by unclean and 

incompetent barbers is justification for such laws,” so the legislature could do 

that “without requiring the members of all other trades or occupations to be so 

examined and licensed.”); Gregory v. Quarles, 172 Ga. 45, 47-48 (157 SE2d 306) 

(1931) (a law requiring plumbers to obtain a license before working on new 

plumbing, but not existing plumbing, violated equal protection: “there is 

respectable authority for saying that, since a city may easily protect itself 

against the consequences of bad plumbing by a system of inspecting the work 

itself, rather than by limiting the number of persons who shall engage in it, 

those statutes and ordinances which provide that none but examined and 

licensed persons shall engage in plumbing skirt pretty closely that border line 

beyond which legislation ceases to be within the powers conferred by the people 

of the state upon its legislative bodies.” (cleaned up)).

That is significant because, at the time, our cases also suggested that the 

related equal protection attack on occupational licensing was “so intimately 

connected” with the due process inquiry as to “not require separate 

consideration.” Bramley, 187 Ga. at 832; see also Southeastern Elec., 179 Ga. 

at 514 (concluding that the same examination requirement for electrical 

contractors violated both due process and equal protection).
15

185 (II) (B).

The contours of the right we reaffirmed in Jackson I, as shown 

by this consistent and definitive understanding, are as follows. It is 

“the common inherent right of every citizen to engage in any honest 

employment he may choose, subject only to such restrictions as are 

necessary for the public good.” Bramley, 187 Ga. at 834-835. “The 

[constitutional] regulation of a lawful business . . . is dependent upon 

some reasonable necessity for the protection of [1] public health, [2] 

safety, [3] morality, [4] or other phase of the general welfare; and 

unless an act restricting the ordinary occupations of life can be said 

to bear some reasonable relation to one or more of these general 

objects of the police power, it is repugnant to constitutional 

guarantees and void.” Id. at 835. So, for example, “an unjust 

discrimination between classes of persons” will often violate the 

disfavored class’s rights, particularly if “the actions of one class in 

following the vocation . . . would affect the [government’s interests] 

as materially as the actions of the other class.” Jenkins, 216 Ga. at 

541-546. 
16

To be clear, this does not mean the right is concerned with 

invidious discrimination along the lines of modern equal protection 

analysis. Instead, it is concerned with the imposition of arbitrary 

(i.e., not reasonably necessary) burdens on the ability to pursue a 

lawful occupation. Disparate treatment is not the violation itself; it 

is evidence of the violation — if a similarly situated person is able to 

pursue the occupation competently, then the burden imposed on the 

person who is prohibited from pursuing the occupation is likely not 

reasonably necessary to the State’s interest in health and safety. See 

Jenkins, 216 Ga. at 545-546. (“There is no reasonable basis for 

requiring the examination and licensing of plumbers and steam 

fitters who are not employees of public utility corporations, and 

exempting employees of public-utility corporations operating in the 

territory covered by the act”); Southeastern Elec., 179 Ga. at 514 (an 

ordinance regulating electrical contractors and requiring them to 

pass examinations depending on whether they performed their work 

in new buildings versus existing buildings was so arbitrary and so 

standardless that it violated due process and equal protection). 
17

Although we have previously considered a number of 

constitutional challenges to occupational licensing schemes, we have 

not identified a specific framework to apply in considering such 

challenges under the Georgia Constitution. And our early case law 

addressing such challenges often failed to carefully distinguish the 

constitutional claims asserted. See, e.g., Bramley, 187 Ga. at 832 

(state and federal due process and equal protection challenges to 

statute requiring licensure of photographers presented 

“substantially a single question”). Nevertheless, this case law, which 

we discuss further below, and case law addressing due process 

challenges to statutes in other contexts, provides helpful guidance 

and allows us to establish a framework for considering the challenge 

here.

First, in order to establish that the Act violates their due 

process rights under the Georgia Constitution to pursue their chosen 

occupation free from unreasonable government interference, 

challengers bear the burden of establishing that the Act “manifestly 

infringes upon a constitutional provision or violates the rights of the 
18

people.” Brodie v. Champion, 281 Ga. 105, 106 (636 SE2d 511) 

(2006); see also Zarate-Martinez v. Echemendia, 299 Ga. 301, 305 

(788 SE2d 405) (2016) (burden is on the party challenging the 

constitutionality of statute). In the context of a challenge to an 

occupational licensing scheme, this first step requires the challenger 

to establish two things.

The challenger must show that the occupation sought is, at a 

minimum, lawful but for the challenged restriction. Jackson I, 308 

Ga. at 740 (2) (collecting cases describing the right as pursuing a 

lawful occupation free from unreasonable government interference); 

see also Odell, 97 Ga. at 671 (“[T]he keeping of an establishment for 

the purpose of enabling persons to bet upon horse-races is not a 

useful or necessary occupation which any citizen has either a 

common law or constitutional right to carry on.”); Schlesinger v. City 

of Atlanta, 161 Ga. 148, 159 (129 SE 861, 866) (1925) (the right to 

pursue a lawful occupation “has no application to the inhibition of 

that which the individual has no natural or inherent right to do. If 

the individual has no such inherent right to conduct the business of 
19

a common carrier by jitneys or busses upon the streets of the city, 

his case does not fall within this principle.”).

And the challenger must also show that the regulation 

“unreasonabl[y] . . . interfere[s]” with the ability “to pursue a lawful 

occupation of their choosing free from unreasonable government 

interference[.]” Jackson I, 308 Ga. at 740 (2) (emphasis added); see 

also Bramley, 187 Ga. at 832 (the defendant in a criminal 

prosecution for violating occupational licensing restrictions on 

photographers successfully argued that “the statute on which the 

accusation was based [was] unconstitutional and void” because it 

was “an arbitrary and unreasonable interference with a lawful and 

harmless business”).

These two showings — that an occupation is otherwise lawful 

and that a regulation unreasonably burdens the ability to pursue it 

— are the indispensable elements of a claim that a given law violates 

the right to pursue a lawful occupation free from unreasonable 

government interference.

In the second step in the framework, the government must 
20

offer a legitimate interest behind the regulation justifying some 

interference with the ability to pursue the occupation. This is not an 

open-ended exercise in interest-balancing — our consistent and 

definitive understanding of the Due Process Clause shows wellsettled limits on what government interests are sufficient for these 

purposes: a burden on the ability to practice a lawful occupation is 

only constitutional if it is reasonably necessary to advance an 

interest in health, safety, or public morals. See Bramley, 187 Ga. at 

835-836 (listing government interests as “health, safety, morality, 

or other phase of the general welfare”); Jenkins, 216 Ga. at 540 (“The 

right to work and make a living . . . . may be abridged to the extent, 

and only to the extent, that is necessary reasonably to insure the 

public peace, safety, health, and like words of the police power.” 

(emphasis added) (quoting Richardson v. Coker, 188 Ga. 170, 175 (3 

SE2d 636) (1939)). And while this same understanding does not 

require the challenger to disprove “any reasonably conceivable state 

of facts that could provide a rational basis for the classification,” as 

the rational basis test does under federal law, see FCC v. Beach 
21

Comms., Inc. 508 U.S. 307, 313 (II) (113 SCt 2096, 124 LE2d 211) 

(1993), neither does it call on courts to analyze whether a 

justification offered in litigation is the “real” one. See, e.g., Cooper v. 

Rollins, 152 Ga. 588, 593-594 (110 SE 726) (1922); Bramley, 187 Ga. 

at 838-839; Jenkins, 216 Ga. at 540. There is no requirement that 

the government must compile or offer evidence in the course of 

enacting such a regulation, nor that the government defend such an 

act solely by reference to some purported legislative intent. 

Conversely, this same consistent and definitive understanding 

makes clear that certain interests are decidedly not sufficient to 

justify a burden on the ability to practice a lawful profession. These 

include (1) protectionism and (2) generic interests of quality or 

honesty of goods and services, especially when this latter sort of 

interest is unmoored from the particular profession — i.e., when the 

given profession does not create special need to deal with the quality 

or honesty of goods and services, but shares those risks on the same 

terms as some other business not so regulated. See, e.g., Bramley, 

187 Ga. at 836 (speaking of licensing photographers: “No business, 
22

however innocent and harmless, is entirely free from the possibility 

of becoming, under improper or dishonest management, in some 

degree inimical to the public interest . . . . If this should be held to 

be a sound argument[,] the police power could be used to lay upon 

any business, however unrelated to the general welfare, [and 

however] burdensome and unreasonable [the] restrictions.” (cleaned 

up)); see also Moultrie Milk Shed v. City of Cairo, 206 Ga. 348, 352 

(57 SE2d 199) (1950) (“[O]ne engaged in a lawful business injurious 

to no one must not be arbitrarily prevented from the legitimate 

prosecution of his business by city ordinances which set up trade 

barriers solely for the purpose of protecting a resident against 

proper competition.”). In short, once the challenger has made a 

prima facie case, the government must offer (but not necessarily 

prove the veracity or efficacy of) a specific interest in health, safety, 

or public morals. If the government fails to offer such an interest, or 

offers only an illegitimate interest, the regulation violates the right 

to pursue an occupation free from unreasonable government 
23

interference. See Bramley, 187 Ga. at 834, 838.11

Third, and finally, the challenger has the ultimate burden to 

prove that the regulation unreasonably interferes with her right to 

practice the occupation of her choosing. Because statutes are 

presumed to be constitutional, this burden starts and remains with 

the challenger throughout. See, e.g., Cooper, 152 Ga. at 591 (“What 

such regulation shall be, and to what particular trade or business 

such regulation shall apply, are questions for the state to determine, 

and their determination comes within the proper exercise of the 

police power of the state”; there must be “clear and palpable” conflict 

before “an act of the legislature will be declared unconstitutional”); 

Bramley, 187 Ga. at 832 (referencing the “duty of sustaining [an] act 

 11 None of our prior cases resolving state due process challenges to 

occupational licensing statutes expressly adopted the federal due process test, 

which generally gives extraordinary deference to the legislature in 

determining whether a stated interest is legitimate. Therefore, our prior cases 

applying that test to state due process challenges in other contexts are not 

controlling here. See, e.g., Women’s Surgical Ctr., LLC v. Berry, 302 Ga. 349, 

354-355 (806 SE2d 606) (2017) (applying federal due process test to state 

constitutional due process challenge to statute requiring certificate of need for 

new healthcare facility); Quiller v. Bowman, 262 Ga. 769, 770-771 (425 SE2d 

641) (1993) (applying federal due process test to state constitutional due 

process challenge to state statute requiring suspension of driver’s license upon 

conviction for possession of controlled substance or marijuana).
24

unless its invalidity is clear and palpable”); see also Richardson, 188 

Ga. at 175 (“Reasonableness as such is not a primary matter of 

inquiry . . . . [T]he violation of the constitution may arise from 

unreasonableness if it extends to the point of arbitrariness or 

consists in unlawful discriminations.”).

Indeed, not every burden on the ability to pursue a lawful 

occupation will be unconstitutional — sometimes a regulation will 

be “rational” in the sense that it is reasonably necessary (either 

actually or because of the failure of the challenger to meet her

burden). See, e.g., Cooper, 152 Ga. at 593-594 (rejecting a challenge 

to an occupational regulation of barbers to prevent “[t]he spread of 

disease by unsanitary . . . barber shops”). But if the challenger can 

establish that a regulation imposing restrictions on a lawful 

occupation does not advance the articulated public purpose by 

means that are reasonably necessary for that purpose, then the 

regulation cannot stand. See Bramley, 187 Ga. at 834 (“The 

regulation of a lawful business . . . is dependent upon some 

reasonable necessity for the protection of the public health, safety, 
25

morality, or other phase of the general welfare . . . .”); Cooper, 152 

Ga. at 591 (regulation of trades is general within the police power of 

the legislature unless the ability to pursue an occupation is 

“unnecessarily and in the main arbitrarily interfered with”). 

4. With this framework in mind, we begin with the first step, 

which requires answering two questions: (a) whether Plaintiffs have 

established that they are engaged in a lawful profession as lactation 

care providers; and (b) whether the Act actually burdens them in 

their practicing of a lawful profession.

(a). The Secretary makes no argument that the profession of 

lactation consultant is not a legal occupation, and indeed the 

General Assembly has specifically “acknowledge[d] that the 

application of specific knowledge and skills relating to breastfeeding 

is important to the health of mothers and babies.” OCGA § 43-22A2. We thus conclude that Plaintiffs have met their burden of showing 

that there is no genuine issue of material fact as to that issue. 

(b). We next address Plaintiffs’ contention that the Act imposes 

burdens on practicing their chosen profession as lactation care 
26

providers. As noted above, only lactation care providers who hold an 

IBCLC license are permitted to practice “lactation care and 

services,” under the Act,12 and “[l]actation care and services” are

defined as “the clinical application of scientific principles and a 

multidisciplinary body of evidence for evaluation, problem 

identification, treatment, education, and consultation to 

childbearing families regarding lactation care and services.” OCGA 

§ 43-22A-3 (5). Additionally, the Act sets forth a nonexhaustive list

of activities that constitute lactation care and services. See above at 

7-8; OCGA § 43-22A-3 (5) (A)-(F).13

 12 OCGA § 43-22A-11 provides that a person who falls within one of the 

exemptions set forth in OCGA § 43-22A-13 is not prohibited from practicing 

lactation care and services. Those exemptions cover individuals licensed to 

practice other healthcare professions, such as dentistry and medicine, when 

incidental to the practice of their profession; doulas and perinatal and 

childbirth educators, when performing education functions consistent with the 

standards of their professions; students under the supervision of an ICBLC or 

other licensed healthcare professional; certain state and federal government 

employees when in the discharge of their official duties; volunteers; 

nonresident ICBLCs; and other healthcare professionals seeking licensure for 

their professions. It is undisputed that Plaintiffs do not fall within one of the 

exemptions. 

13 Because “lactation care and services” is defined, circularly, as the 

provision of “lactation care and services,” the enumeration of specific activities 

is helpful to an understanding of the contours of the Act.
27

In considering whether the language of the Act covers 

Plaintiffs’ professional activities, we begin with the statutory text 

and read it “in its most natural and reasonable way, as an ordinary 

speaker of the English language would.” Zaldivar v. Prickett, 297 

Ga. 589, 591 (774 SE2d 688) (2015). Here, although “clinical” is not 

defined in the Act, it has a common and well-understood meaning as 

“of, relating to, or conducted in or as if in a clinic: such as (a)

involving direct observation of the patient [or] (b) based on or 

characterized by observable and diagnosable symptoms.” MerriamWebster Dictionary (7th paperback ed. 2016).14 And this definition 

is consistent with the definition applicable in the healthcare setting

as well. See Dorland’s Illustrated Medical Dictionary (28th ed. 1994) 

(defining “clinical” as “pertaining to a clinic or to the bedside; 

pertaining to or founded on actual observation and treatment of 

patients, as distinguished from theoretical or basic sciences”). Thus,

 14 When looking for the commonly understood meaning of a word in 

statutory text, we generally look to dictionaries and, if relevant, legal 

dictionaries from the time the statute was passed. See State v. Henry, 312 Ga. 

632, 637 (864 SE2d 415) (2021).
28

“clinical application” in the context of the provision of lactation care 

means services that are provided directly by a care provider to 

breastfeeding mothers.

The trial court did not determine whether the Act burdens

Plaintiffs in the practice of their profession, but it did conclude that 

“not all lactation care providers are providing care that rises to the 

statutory definition of ‘lactation care and services,’”15 based on its 

conclusion that the phrase “clinical application” excludes 

breastfeeding education from the scope of “lactation care and 

services.” Similarly, the Secretary argues that Plaintiffs may 

continue their work as “lactation peers and counselors” because such 

work is not a clinical service.16

However, the record indisputably shows that the vast majority 

 15 This conclusion appears to be inconsistent with the trial court’s

determination in ruling on the equal protection claim that “all non-IBCLC 

providers are similarly situated to IBCLC providers because they perform the 

same type of work.”

16 The Secretary’s argument contradicts, without explanation, the official 

opinion of Georgia’s Attorney General that a person who is certified as a CLC

and who does not fall within one of the Act’s exemptions is prohibited from 

performing the type of services covered under the Act. See Op. Atty. Gen. 2018-

1 (Jan. 24, 2018).
29

of the work Plaintiffs are paid to do in working as lactation care 

providers involves direct observation of, and interaction with, 

mothers and their nursing babies and includes one or more of the 

activities specifically enumerated as “lactation care and services.” 

Moreover, the trial court’s determination and the Secretary’s

argument ignore the plain meaning of “clinical” as working directly 

with patients as well as the inclusion of “lactation education to 

parents” within the Act’s definition of lactation care and services. 

See OCGA § 43-22A-3 (5) (E). Furthermore, the undisputed evidence 

establishes that the scope of the services that CLCs are trained to 

perform includes comprehensive assessment of mothers and their 

babies related to breastfeeding; the development of an evidencebased care plan specific to the needs identified in the assessment; 

implementation of that care plan; and an evaluation of the 

effectiveness of breastfeeding and milk transfer. Each of these 

services falls within the statutory definition of lactation care and 

services enumerated in OCGA § 43-22A-3 (5) (A)-(F). 

And while the record indicates that the scope of practice of 
30

individuals trained by ROSE is not as comprehensive as the scope of 

practice of a CLC or an IBCLC, the record does establish that 

lactation care providers trained by ROSE work directly with 

mothers to provide education about breastfeeding and how to be 

successful in breastfeeding their babies. 

Finally, while the evidence shows that there are significant 

differences in the training required to receive certification as an 

IBCLC or CLC or to be trained as a lactation care provider by ROSE, 

these differences are not dispositive. The real question is whether 

Plaintiffs’ professional activities meet the Act’s definition of 

“lactation care and services” as including the application of 

“scientific principles and a multidisciplinary body of evidence for 

evaluation, problem identification, treatment, education, and 

consultation . . . regarding lactation care and services.” OCGA § 43-

22A-3 (5). And Plaintiffs’ professional activities do meet that 

definition. Indeed, the evidence shows that the training provided by 

the Healthy Children Project (for certification as a CLC) and by 

ROSE includes, at a minimum, education in “scientific principles 
31

and a multidisciplinary body of evidence” to equip them to provide 

lactation education directly to mothers. Accordingly, we conclude 

that (even in the light most favorable to the Secretary) Plaintiffs 

have met their burden of showing that the Act in fact imposes

significant burdens on them in providing lactation care and services

for remuneration. 

5. We must next consider whether the State has a sufficient 

interest in restricting the provision of lactation care and services for 

compensation only to individuals who have attained certification as 

an IBCLC. 

(a). The Act’s stated purpose is “to protect the health, safety, 

and welfare of the public,” OCGA § 43-22A-2, which is, at least on 

its face, a well-recognized basis for legislative enactments dealing 

with the ability to pursue a lawful occupation.17 See, e.g., Bramley, 

187 Ga. at 834-835 (recognizing that there “are many occupations 

 17 As noted above, another well-recognized basis for occupational 

licensing schemes exists where occupations “afford peculiar opportunity for 

imposition and fraud.” Bazemore, 121 Ga. at 619. The Secretary makes no 

argument that the occupation of lactation care provider is one that offers a 

peculiar opportunity for fraud.
32

which may be regulated for the promotion of the public welfare”).

But Georgia’s Due Process Clause requires more than a talismanic 

recitation of an important public interest. Moreover, as discussed 

above, our cases make clear that a challenger need not negate every 

conceivable basis for an occupational licensing scheme. Therefore,

we focus our analysis on the Secretary’s proffered rationale for the 

Act – promoting access to quality care.18

As Bramley makes clear, a generic interest in promoting access 

to quality services — at least in the absence of a unique tie to the 

provision of lactation care and services — is not a sufficient interest 

for these purposes. In Bramley, this Court considered a 

constitutional challenge to a statute requiring that photographers

obtain a license to engage in commercial photography and 

photofinishing. To obtain the license, a photographer was required 

to pass a written examination given by a newly formed State Board 

of Photographic Examiners and to “qualify as to competency, ability, 

 18 The Secretary’s focus on “quality” care is consistent with the Act’s 

statement that the “rendering of sound lactation care and services . . . requires 

trained and competent professionals.” OCGA § 43-22A-2.
33

and integrity.” Id. at 833. Bramley, whose work involved soliciting 

orders for the enlargement and tinting of photographs by his 

employer, was prosecuted for violating the statute because neither 

he nor his employer were licensed under the statute. Id. at 833-834. 

Bramley challenged the constitutionality of the statute, and we 

concluded that there was no “basis affecting the public interest for 

the requirement of examination ‘as to competency, ability, and 

integrity.’” Id. at 834. We expressly rejected the notion that the 

statute might be upheld under the theory that an unskilled 

photographer producing inferior quality prints might cause some 

injury to the public or that a dishonest photographer might commit 

fraud. Id. at 838; see also Richardson, 188 Ga. at 174-175 (the police 

power did not allow the government to subject an electrician “to the 

judgment of a board . . . for the purpose of determining whether he 

may be reasonably expected to satisfactorily complete any contracts 

he enters into” (cleaned up)). 

In contrast, where this Court has upheld regulatory laws 

intended to further public health, safety, and welfare, the regulation 
34

has been reasonably necessary to advance a specific health, safety, 

or welfare concern. For example in City of Lilburn v. Sanchez, 268 

Ga. 520, 522-524 (491 SE2d 353) (1997), we upheld a municipal 

ordinance forbidding the keeping of a pot-bellied pig as a pet on a lot 

of less than one acre where direct and expert evidence showed 

distinct harm to the health and welfare of neighbors and the public 

from keeping a pet pig on smaller lots. See also Bazemore, 121 Ga. 

at 620-621 (“When stolen from the field of the owner, [seed-cotton] 

is almost impossible to be identified. It is therefore especially 

difficult to make laws relating to larceny or receiving stolen goods 

effective in preventing the crime [of stealing it] by punishing the 

thief,” making a law requiring the written consent of the owner of 

land a valid exercise of the police power.).

In summary, the question is (at a minimum) whether the 

particular trade is peculiarly “infected with some quality that might 

render it dangerous to the morals, the health, the comfort[,] or the 

welfare of . . . the public.” Bramley, 187 Ga. at 836. Thus, it may well 

be true that regulations promoting quality care are desirable as a 
35

policy matter, but that is not a sufficient interest to justify an 

unreasonable burden on the ability to pursue a lawful occupation. 

(b). Applying the above principles to the evidence presented 

below, we conclude that the Secretary’s proffered interest in the 

restrictions imposed by the Act — promoting access to quality care 

— is an insufficient basis upon which to authorize only IBCLCs to 

provide lactation care and services for compensation given our 

consistent and definitive understanding of the scope of the due 

process right to practice one’s chosen profession free from 

unreasonable government restrictions. The Secretary does not 

contend that the Act is inherently a health and safety regulation —

that, say, unlicensed lactation consultants would do affirmative 

harm (in the way a surgeon might), as opposed to merely failing to 

help, their patients. Certainly, there is nothing inherently harmful 

in the practice of lactation care, and there is no evidence of harm to 

the public from the provision of lactation care and services by 

individuals who lack an IBCLC license. Compare Coker, 188 Ga. at

174 (acknowledging obvious risk of fire from defectively installed 
36

electrical wiring and so authorizing regulation of installation of 

electrical wiring for safety of public).

Moreover, the record supports the trial court’s conclusion that 

CLCs and the individuals educated by ROSE are trained to provide 

safe and competent lactation care and services within their 

respective scopes of practice. The Secretary admitted that he is not 

aware of any evidence of harm from a person providing lactation 

care and services either prior to or after the passage of the Act and 

that the advisory group set up under the Act, see OCGA § 43-22A-4, 

has not received any complaints regarding untrained or incompetent 

providers of lactation care and services. And careful review of the 

affidavits and depositions of experts and lactation care providers

entered into the record fails to reveal any injury to mothers or babies 

caused by lactation care providers of any type. Finally, we note that 

the record contains the Review Council’s report of the 2013 version 

of the Act. That report concludes that there is evidence that having 

access to proper lactation support has many benefits; that in its 

review, which included hearings, there was “no substantive evidence 
37

of harm identified” that flowed from the unregulated provision of 

lactation care; and that prohibiting CLCs from providing lactation 

care may cause “a greater risk of harm because the majority of 

lactation consultant providers would no longer be able to provide 

care.” 

In the absence of evidence of harm, the Secretary relies on 

speculation to suggest that there is a danger to breastfeeding 

mothers and nursing babies from “unqualified and untrained” 

lactation care providers. At oral argument, the Secretary contended 

that a lactation care provider without the IBCLC certification might 

lead to the premature cessation of breastfeeding, which would result 

in the baby and mother not receiving the benefits of breastfeeding19

or to the continuance of breastfeeding that is inadequate for a baby’s 

nutritional needs. Such speculation, in the face of substantial 

 19 The rationale that regulation of a legal occupation is needed because 

incompetent practitioners could lead to a reduction in the public having access 

to the occupation could be used to justify any licensing regime. See Bramley, 

187 Ga. at 838 (reasoning that if licensing requirement for photographers were 

determined to be valid “it would seem that there is scarcely any kind of 

business, however innocent and harmless, to which similar regulations might 

not be applied”).
38

evidence that the provision of lactation care and services by nonIBCLC providers is safe for and beneficial to nursing mothers and 

babies, is insufficient to authorize the regulatory scheme adopted, 

which greatly restricts those able to be employed as lactation care 

providers.20

For the foregoing reasons, we conclude that the Act violates 

Plaintiffs’ due process rights under the Georgia Constitution to 

practice the chosen profession of lactation care provider. 

Accordingly, we reverse the trial court’s rulings on the due process 

claim. Because we have determined that the Act is unconstitutional 

 20 We note that while statutes in other states provide for the licensing of 

lactation care providers, no other state has enacted a statutory scheme that 

categorically prohibits a CLC from providing lactation care services for 

compensation, contrary to the Secretary’s assertion. See Or. Rev. Stat. § 

676.681 (2) (c) (Lactation Consultant Act does not prohibit any “person whose 

training and national certification attest to the person’s preparation and 

ability to practice their profession or occupation from practicing the profession 

or occupation in which the person is certified, if the person does not represent 

that the person is a lactation consultant”); N.M. Stat. Ann. § 61-3B-1 et seq. 

(establishing licensing of lactation care providers, including for persons 

certified “by a certification program accredited by any nationally or 

internationally recognized accrediting agency” if approved by state’s board of 

nursing, and providing that Lactation Care Provider Act shall not prevent 

practice of lactation care and services by unlicensed persons so long as they do 

not represent themselves as licensed providers).
39

on one of the grounds asserted, we need not address Plaintiffs’ 

arguments that the trial court erred in ruling that the Act does not 

violate their equal protection rights under the Georgia Constitution. 

Accordingly, we vacate the trial court’s ruling in S23A0017.

Judgment reversed in Case No. S23X0018. Judgment vacated 

in Case No. S23A0017. All the Justices concur, except Pinson, J., 

disqualified.