Breastfeeding 1-2-3

Texas Law Loophole Explained

by Angela White, J.D., breastfeeding counselor on November 19th, 2006

When a mother in Texas was asked to leave a movie theater for refusing to cover up while nursing, I wondered about the status of the Texas law. It was not clear whether the police officer called to the scene was correct in stating that the law protecting a mother’s right “to breast-feed her baby in any location in which the mother is authorized to be” cannot be enforced on private property. It seemed that the breastfeeding law conflicted with the trespassing law which allows a private property owner to ask someone to leave the property.

A discussion on the Mothering magazine lactivist message board clarified the conflict that creates a loophole in the law:

Also, Texas police enforce the penal code. Our breastfeeding laws are in the health and safety codes. The trespassing law is in the penal code, so what we need is to have our law re-written to take out the loophole and put it in the penal code so the police can enforce it. They also won’t enforce something until a judge defines it. So, if a woman were to be arrested for breastfeeding and the judge issued a ruling stating that our law pertains to private property, too, then the loophole is removed and I *think* police could enforce the law without it being in the penal code. Not 100% sure on that.

Obviously I’m not an expert in Texas law and anyone with questions about her legal rights should consult a lawyer, but this explanation makes perfect sense to me (thanks Mothering lactivists!) The breastfeeding law is in Chapter 165 of the Texas Health and Safety Code, while the criminal trespass law is in Chapter 30 of the Texas Penal Code. I see two ways in which the conflict could be resolved definitively and the loophole closed: (1) a breastfeeding mother could sue a private property owner who asked her to leave, or (2) a mother could refuse to leave the property, be arrested for criminal trespass, and cite the breastfeeding law in her defense (I’m not recommending this by the way!) There are two other less likely ways: (3) the law could be revised to close the loophole, or (4) a Texas state official could request an Attorney General Opinion for a written clarification of the law.

Unfortunately it looks like this particular incident did not bring about a clarification in the law. According to blogger Jayme Lynn Blaschke, the nurse-in was cancelled:

It’d be more than a little anti-climactic at this point, and none of the breastfeeding mothers who’d planned to participate (of which my wife is one) have any desire to give this Jerkwad any money. Ultimately, I suppose this is a victory for the forces of light, since Jerkwad has backpedaled furiously and it’s doubtful he’ll harass any breastfeeding mothers again any time soon. It’s just disheartening, though, that’s he’s been able to play the media so effectively.

For the local television news coverage, see this story.

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POSTED IN: activism, law, nursing in public