Long Legal Challenges to Family Cap Laws Underway

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NEWARK, N.J.–The stage was set here August 30 for another round in a protracted legal battle over welfare laws that deny cash assistance to children born to women on welfare.

After an all-day hearing, Superior Court Judge Anthony Iuliani ruled that New Jersey’s law was constitutional and did not violate the mother’s right of privacy.

Attorneys representing the women said they would probably appeal the judge’s ruling.

New Jersey was a leader among states in what is called a “child exclusion” law, adopting in 1992 what would become a model for 21 other states.

Since the law was passed in New Jersey roughly 36,000 of the state’s children have been denied benefits.

Now, this state’s courts are the staging area for advocates’ challenges who claim such laws are an illegal and misguided attempt to interfere with the decisions made by pregnant women of little means.

Adding significance to the court battle here, New Jersey’s highest court is widely respected and often followed by other states.

Attorneys for NOW Legal Defense and Education Fund and the American Civil Liberties Union, representing women and children affected by the law, say the law is unconstitutional because it violates a woman’s right of privacy–essentially fining her for becoming pregnant–and the equal protection clause of the constitution. (Note: NOW Legal Defense is the publisher of Women’s Enews.)

The equal protection claim rests on the fact that mothers and children in similar situations receive different treatment. For example, a mother with two children born prior to her seeking welfare receives more monthly cash benefits for her family than another mother with two children–if one child was born after she sought assistance. The law makes an exception for rape and incest victims.

Under the law, families that receive welfare benefits are not eligible for additional cash benefits, roughly $64, when a new child arrives.

Attorneys representing the families said the child exclusion provision has caused malnutrition and, in some cases, homelessness.

They cite in court documents a survey of welfare recipients by Legal Services of New Jersey that found:

  • 78 percent of the families whose welfare benefits were reduced or eliminated were unable to support themselves and their families after the reduction;

  • More than 16 percent said as a result of the reduced benefits they and their families did not receive proper health care and more than 36 percent said they could not sufficiently clothe themselves or their families;

  • Nearly 16 percent said they lost their housing and more than 10 percent said they were forced to place their children outside of their homes;

  • Finally, nearly 10 percent said their exposure to violence or abuse was increased.

In addition, the attorneys cited a 1998 study by the Rutgers School of Social Work that found that the loss of additional benefits has resulted in an increase in the percentage of New Jersey pregnant women on welfare having abortions.

Attorneys representing the state did not address the number of abortions on August 30. They did, however, emphasize the positive impact of the child exclusion law.

Dennis J. Conklin, senior deputy attorney general, said the number of New Jersey children under the age of 6 living in poverty has dropped by 26 percent. Nationwide that number has increased by 12 percent, he said.

The number of people on welfare has also decreased. More than one in three clients are off welfare and working. “Something good is going on in New Jersey,” Conklin argued.

In upholding the law’s validity, Judge Anthony Iuliani acknowledged that it placed a burden on families receiving public assistance.

“Who is the world is not faced with some slight burden? That’s what life is all about,” Iuliani said, in ruling from the bench. “The interest here of the legislature is to represent all of us in promoting self-sufficient citizens. The greater good outweighs any slight imposition or mere burden in plaintiffs’ right to privacy.”

Lenora Lapidus, legal director for the American Civil Liberties Union of New Jersey said the judge ruled as if the case were challenging all the elements of the state’s welfare reform law, not the just the portion of the law that denies additional money for children born to mothers on welfare.

“The New Jersey Supreme Court just two weeks ago in Planned Parenthood versus Farmer said the state may not seek to tip the scales,” Lapidus said. “The state may not seek to influence, even indirectly, a woman’s decision whether to bear a child or have an abortion.”

Conklin, although the day’s victor, clearly knew it was not definitive.

“This is just another day’s work for the [New Jersey] attorney general’s office,” Conklin said. “This case has a long way to go. This is only the first phase. There is no rejoicing here.”

Constance Johnson is a free-lance journalist based in New York City.


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