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Can Moms Breastfeed During the Bar Exam?

By William Vogeler, Esq. on July 17, 2017 | Last updated on March 21, 2019

Women have gained more accommodations to breastfeed in public, and now one state supreme court has ordered those accommodations at the bar exam.

The Montana Supreme Court has ordered bar administrators to accommodate breastfeeding mothers "in a manner consistent with public policy and law." The interim order is effective for the July exam, as the examiners' board considers public comments for a permanent order.

The new rules include 15-minute breaks every three hours for the mothers, but do not answer one question: where will their babies be during the exam?

"Semi-Private Location"

The issue came up during the last bar exam in Montana, when an applicant applied for breastfeeding accommodations. The board and the court denied the application because it was made too close to test time.

Upon the board's recommendation, the court then issued the interim order to accommodate breastfeeding. The court adopted the board's proposed rule change, which included permission for breastfeeding supplies, "stop-the-clock" breaks, and private or semi-private locations to breastfeed.

The ABA Journal reported that the Montana Supreme Court is the only one in the nation to order the accommodations. According to a survey in 2015, the journal reported, 18 states have allowed test-takers to breastfeed on a case-by-case basis.

Montana's rules require women to provide documentation of the child's birth date or expected date of birth. The board will have discretion over what accommodations will be provided, including where breastfeeding children will be allowed.

Battle to Breastfeed

Although more states have allowed mothers to breastfeed during exams, it has been a battle. Krisin Pagano, a California attorney who applied to take the Illinois exam, met some resistance.

The Illinois Board of Admissions denied her request for accommodations because breastfeeding was "not a physical disability and therefore not covered under the Americans with Disabilities Act."

"This caught me off guard," she wrote for the American Civil Liberties Union.

Pagano appealed the decision and won. She also reported that Illinois and Texas changed policies that had discouraged breastfeeding applicants as part of a nationwide campaign by the ACLU and Law Students for Reproductive Justice.

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