As Republican members of Congress consider how to make good on their promise to overhaul Obamacare—Repeal, then replace? Repeal and replace at the same time?—millions of Americans face the prospect of losing health insurance or seeing their coverage under the Affordable Care Act change.
But health care coverage isn’t the only protection at risk if President Barack Obama’s signature law is rolled back. Part of the law guarantees women the time and space to breastfeed at work, and that too could disappear if Obamacare is fully repealed. The provision is a minuscule part of the sweeping law, but for nursing women who were previously relegated to pumping in office bathroom stalls and storage closets, it was a welcome change—and the early research indicates that its accommodations are increasing women’s likelihood to breastfeed exclusively months after giving birth.
Congressional Republicans last week passed the initial steps needed for a process known as reconciliation—a tactic that could gut parts of the health care law by a simple majority vote in the Senate. Since Republicans occupy 52 seats in the chamber that approach is easier than the typical path for legislation, which requires the filibuster-proof 60 votes. But the reconciliation process is limiting. It dictates that only aspects of Obamacare that affect the budget can be touched by a potential repeal and replacement. The breastfeeding protections don’t fall into that category. So will the accommodations for women survive into the next iteration of the ACA? At this point in time, says Timothy Jost, emeritus professor at Washington and Lee University School of Law, “I think it is very hard to predict what Congress might do.”
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The problem that the breastfeeding provision sought to solve is uniquely American. Since the United States is the only industrialized nation in the world without paid maternity leave, many new mothers are forced to return to work shortly after giving birth. In fact, 59% of first-time mothers return to paid work in the first three months postpartum. At the same time, the American Academy of Pediatrics urges them to exclusively breastfeed their newborns for six months, since breastfeeding is shown to benefit the health of both babies and new moms. That leaves many women with an agonizing choice: Stop breastfeeding, take unpaid time off work, or figure out a way to nurse or pump milk on-the-job.
This plight entered the 2009 debate on health care reform when Representative Carolyn Maloney (D-NY) and Senator Jeff Merkley (D-OR) championed a protective measure that requires employers with at least 50 workers to give eligible employees “reasonable” break time to express breast milk for at least a year after their baby’s birth. The law also requires employers to provide a clean, private, non-bathroom space for nursing or pumping.
Support for the ACA overall fell starkly along partisan lines with Republicans vehemently opposing the bill. But the breastfeeding provision was a rare spot of agreement, and it passed unanimously through Senate committee before Obama signed it into law as an amendment to the ACA in 2010.
At the time, Democrats touted the measure as a way to up breastfeeding rates, which could subsequently lower health care costs. “More than 70% of mothers in this country work full time,” Merkley said in a press release. “To me, it makes sense to help them provide every advantage in caring for and nourishing their young children, including the time and opportunity to breastfeed.”
Nearly seven years after Obama signed the Affordable Care Act into law there is evidence that the provision—when its protections are implemented—is encouraging more women to breastfeed.
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A 2015 study of women who gave birth in 2011 and 2012 by researchers at the University of Minnesota found that of those who returned to work after giving birth, 40% said they had access to both break time for nursing or pumping and a private place to express milk. (There was no similar study done before the law went into effect.)
That figure “was still markedly low given that the law is in place,” says Katy Kozhimannil, an associate professor of health policy and management at Minnesota’s school of public health, who is an author of the report. She notes the 60% of women without those resources likely included new mothers employed in exempt workplaces.
But the study revealed good news too: Workplace accommodations for breastfeeding significantly predict breastfeeding outcomes six months after a child’s birth. New moms with access to both time and space for nursing or pumping at work were twice as likely to be breastfeeding exclusively six months postpartum.
But, like all parts of Obamacare, the future of the amendment that provides those accommodations is now in question as Congressional Republicans consider dismantling the ACA and putting an alternative in place.
If Congressional Republicans stay on their current path of repealing parts of the law through reconciliation, the provision is safe because it does not affect the federal government revenues or the deficit “more than incidentally,” says Jost. Republicans can also replace parts of Obamacare tied to the budget through the same reconciliation process, but for various reasons, addressing only budget-related aspects of the law “would not produce a complete and workable replacement bill,” says Robert Laszewski, a health policy consultant. “There would be too many gaps.”
A full replacement of Obamacare must go through the typical legislative process and receive at least 60 votes in the Senate, meaning some Democrats would have to support it. “[T]he workplace accommodations for nursing mothers would certainly be vulnerable to change through that process, especially in a Congress that is focused on de-regulation,” says Kozhimannil.
If the federal breastfeeding provision lands on the chopping block, it would be up to states to protect the rights of breastfeeding women in the workplace. As of August, 28 states, Washington, D.C., and Puerto Rico had laws similar to the Obamacare provision, according to the National Conference of State Legislatures. (As of now, the federal measure preempts any state law affording less protection.) Analysis shows that states’ urgency to pass more workplace protections for nursing mothers diminished following the passage of Obamacare, perhaps because health experts are waiting to see if the law brings about change in breastfeeding initiation and duration rates.
Laszewski is more optimistic about the provision’s future. “My sense is that many Senators—Republicans and Democrats—will be willing to keep this,” he said.
While early research gives lawmakers good reason to maintain Obamacare’s workplace protections for nursing mothers, the current provision is not without shortcomings.
It carves out exemptions that significantly limit the number of women who are eligible for its protections. Small businesses with fewer than 50 employees can get a pass if they can demonstrate that providing new moms with the time and space to nurse or pump is too logistically difficult. The provision also only covers hourly workers who fall under the Fair Labor Standards Act—the same population who are eligible for minimum wage and overtime protections—which leaves out many salaried workers.
Then there’s the question of enforcement. The Department of Labor’s wage and hour division is responsible for ensuring workplaces abide by the provision, says Kozhimannil, but “the amendment doesn’t have any penalties for noncompliance that are explicit.”
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Alina Salganicoff, vice president and director of women’s health policy at the Kaiser Family Foundation, makes the case for why the workplace breastfeeding protections should be included in the next version of the health care law: “There is a very strong supported body of research that indicates that breastfeeding is really beneficial to women and babies,” she says. “To the extent that we have more and more women going back to work after they have a child, we want to do whatever we can to make sure they [have] workplaces that support them [in breastfeeding]. If they don’t have that, they’re going to stop.”
But the existing provision should not be seen as an endpoint, says Kozhimannil. “Only 40% of [working] women are getting access to what they need,” she says. Workplace breastfeeding protections are still “not guaranteed for all women.”
