ACLU Urges NJ Court to Strike 'Family Cap' Provision for Welfare Recipients

Affiliate: ACLU of New Jersey
August 30, 2000 12:00 am

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NEWARK, NJ–The American Civil Liberties Union of New Jersey along with the lawyers from NOW Legal Defense entered court today in their challenge to the Child Exclusion provision of New Jersey’s welfare 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.

“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,” said Lenora M. Lapidus, Legal Director of the ACLU of New Jersey.

The ACLU and the NOW Legal Defense and Education Fund Foundation represent a class of at least 25,000 poor children, their mothers, and women who terminated their pregnancies because of the ‘family cap.

In legal papers filed in the case, Sojourner A. v. The New Jersey Department of Human Services, the ACLU and NOW maintain that the provision violates the equal protection and privacy guarantees of the New Jersey Constitution.

“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.”

In arguing that the Child Exclusion provision harms excluded children and their families, attorneys for the ACLU and NOW said they 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.

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

According to court papers, “Sojourner A.” was denied additional benefits for a second son born to her in May 1998. As a result, 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.

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.

Lapidus of the ACLU noted that a recent New Jersey Supreme Court ruling striking down the state’s parental notification law for minors seeking abortion clearly said found that the state Constitution recognizes a woman’s personal, private right to make decisions about childbearing without governmental interference. The challenge to that law was brought by the ACLU as well.

“The court made clear that the New Jersey Constitution provides privacy guarantees above and beyond those afforded by the federal Constitution,” Lapidus said.

The Newark law firm of Gibbons, Del Deo, Griffinger and Vecchione will provide co-counsel for the plaintiffs.

The ACLU’s news release in the parental notification case is online at

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