A Massachusetts appeals court judge has ordered the National Board of Medical Examiners to “respect and adequately accommodate” a Harvard student's right to breastfeed by giving her extra time to pump milk during a licensing exam.
“In order to put the petitioner on equal footing [with] the male and non-lactating examinees, she must be provided with sufficient time to pump breast milk and to address the same physiological and other functions to which those other examinees are able to attend,” Justice Gary S. Katzmann ruled.
One blogger called the decision “an incredible victory for lactating moms everywhere.” But Sophie Currier, who is breastfeeding her 4-month-old daughter, isn't in the clear yet to take an additional hour's break on each of the two days she sits her exam next week.
“Our position remains that the exam’s sponsors have in no way violated Ms. Currier’s rights,” the NBME's attorney said in announcing that the board will appeal to a three-judge panel.
Examinees are normally allotted 45 minutes of rest periods during the nine-hour test and some have suggested Currier is gaming the system -- the NBME had accommodated her dyslexia and attention deficit disorder by giving her an extra day to complete the exam.
“She’s already getting an extra day and she wants even MORE time? Outrageous,” fumed a Wall Street Journal reader.
But Katzmann focused only on whether the board's refusal to provide Currier with additional break time amounted to a “knowing, and therefore, intentional interference with her right to breastfeed.” And he gave the issue a much more thorough review than the trial judge who denied her motion for injunctive relief last week.
Nursing mothers who do not express their milk at least once every three hours can suffer painful breast engorgement or mastitis, an infection caused by blocked milk ducts. Noting that a pumping session takes 25 to 30 minutes, Katzmann said a 45-minute break is “patently insufficient to allow [Currier] to express the requisite breast milk, let alone satisfy her other bodily functions.”
Without the additional hour's rest period, he continued,
the petitioner must make a significant Hobbesian choice: use her break time to incompletely express breast milk and ignore her bodily functions, or abnegate her decision to express breast milk, resulting in significant pain.
In ruling for the NBME, Norfolk Superior Court Judge Patrick F. Brady stressed that it had offered to provide Currier with, among other things, a private room equipped with a power outlet so she can pump her milk in private.
Those accommodations, Katzmann said, “are entirely insufficient to permit the petitioner a full opportunity to express milk during the course of the exam and thereby place her on a common footing with her peers.”
|
UPDATES
Currier has postponed taking the exam pending the outcome of the board's appeal. A three-judge panel heard the case Oct. 2 and stayed Katzmann's order.
A three-judge panel affirmed Katzmann's decision Oct. 5, finding no abuse of discretion or clear error of law. The board says it will appeal to the Massachusetts Supreme Judicial Court.
Currier was scheduled to take the test Oct. 11-12 after the Supreme Judicial Court denied the board's request for expedited review.
|
By Matthew Heller
9/27/07 
