ACLU-NJ Urges Court to Strike Provision that Punishes Children

July 28, 2004

Newark — Arguments will be heard Wednesday, August 30 in Sojourner A. v. The New Jersey Department of Human Services, a lawsuit challenging the Child Exclusion provision of New Jersey's welfare law. Lawyers for NOW Legal Defense and Education Fund and the American Civil Liberties Union of New Jersey Foundation maintain that the provision violates the equal protection and privacy guarantees of the New Jersey Constitution. Both sides have asked the court for summary judgment. The case is expected to be decided soon.

“The Child Exclusion provision of New Jersey's welfare law punishes the child because the state disapproves of the behavior of the mother,” said Sherry Leiwant, Senior Staff Attorney for NOW Legal Defense and Education Fund. “As a result, some needy children are denied basic necessities of life. All of New Jersey's poor children deserve equal protection under the law.”

Originally passed in 1992, the Child Exclusion provision, also known as the “family cap,” denies public assistance benefits to a child born into a family already receiving welfare assistance. Under the program, any child born to a mother who already has one child while on welfare is denied the $102 per month that was provided prior to August 1993. Babies born to mothers with two children are denied the $64 per month that would have been provided to them before the Child Exclusion was passed.

NOW Legal Defense and Education Fund and the American Civil Liberties Union of New Jersey Foundation represent a class of at least 25,000 poor children, their mothers, and women who terminated their pregnancies because of the exclusion. The Newark, New Jersey law firm of Gibbons, Del Deo, Griffinger and Vecchione is also co-counsel for the plaintiffs.

“While the provision is aimed at women receiving public benefits, the Child Exclusion strikes directly at poor children,” said Risa Kaufman, Staff Attorney for NOW Legal Defense and Education Fund. “Even in a family in which all children receive benefits, those benefits are less than what the State's own studies show a family needs to maintain a safe and decent life.”

Lawyers for the plaintiffs will also argue that the program violates a woman's fundamental right to privacy by coercing her decisions about childbearing.

In November 1998, a Rutgers University study found that the abortion rate among welfare recipients increased in the period after implementation of the Child Exclusion despite a general decline in the abortion rate among the general population. The study also found that the provision had no positive impact on recipients finding employment or increasing earnings, and that the birth rate dropped.

Lenora M. Lapidus, Legal Director of the American Civil Liberties Union of New Jersey, said: “The New Jersey Supreme Court has clearly stated that the State may not attempt to influence a woman's procreative decisions through its power of the purse.”

“We are encouraged by the New Jersey Supreme Court's recent ruling striking down the state's parental notification law for minors seeking abortion. That decision said clearly that the New Jersey Constitution recognizes a woman's personal, private right to make decisions about childbearing, without governmental interference,” Lapidus said. “And it made clear that the New Jersey Constitution provides privacy guarantees above and beyond those afforded by the federal Constitution.”

The plaintiffs named in the lawsuit are Sojourner A. and Angela B., who represent a class of women with children subject to the Child Exclusion. Sojourner A is a Newark woman with two children. Until April 1998 she received $322 per month in Work First New Jersey benefits for herself and her older son. She was denied additional benefits for a second son born in May 1998. As a result, she and her children suffered, court papers say, because she did not have enough money to properly feed, clothe and house both of her children. In early 1997 and again in 1998 she had abortions because she felt unable to support another child excluded from subsistence benefits. Angela B., of Elizabeth, New Jersey, does not have enough money to adequately feed, house, and clothe herself and her four children on a grant meant for two.

“Housing for poor families in New Jersey is such that any minor setback — such as the birth of a child excluded from benefits by the Child Exclusion — can push a family over the edge, increasing the risk of homelessness or the risk that housing will be inadequate, unsafe, or overcrowded,” said Lori Outzs Borgen of Gibbons, Del Deo, Dolan, Griffinger and Vecchione.

In arguing that the Child Exclusion provision harms excluded children and their families, plaintiffs' lawyers will present expert testimony explaining how insufficient benefits lead to hunger and undernutrition, homelessness, utility shut-offs, lack of adequate winter clothing, and lack of medical care among poor families.

For example, Dr. John Cook, now an Assistant Professor at Boston University School of Medicine's Department of Pediatrics and an expert on child poverty, said in a sworn statement: “...A policy such as New Jersey's which [excludes] children from basic subsistence benefits due solely to the timing of their conception or birth, when coupled with the extremely low income of their household, will result in increased hunger among those children and may lead to serious and possibly permanent damage to their health, cognitive impairments, physical weakness, anemia, stunting and growth failure.”

Another expert, Dr. Deborah Frank, Associate Professor of Pediatrics and Assistant Professor of Public Health at the Boston University Schools of Medicine and Public Health, said: “The Child Exclusion will lead to more acute infectious illnesses among low-income children requiring increased utilization of health care, and, in turn, leading to greater secondary disability.”

Oral arguments will be heard at 10:30 a.m. August 30 in the courtroom of New Jersey Superior Court Judge Anthony J. Iuliani, Essex County Superior Court, Hall of Records, 465 Dr. Martin Luther King, Jr. Blvd., Newark, New Jersey.

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