The ACLU opposes the "child exclusion" (or "family cap") provisions that have appeared in many state and federal welfare reform proposals. Child exclusions would deny public assistance to: 1) children born while their families are already receiving public assistance; 2) children born to single mothers or mothers under the age of eighteen; 3) children whose mothers are under eighteen and are not residing with their parents; or 4) children for whom paternity has not been established. For the following reasons, the child exclusion is bad social policy and bad law.
1. The child exclusion denies poor women the constitutional right to reproductive freedom.
Child exclusions infringe upon the constitutional right of privacy in reproductive decision-making. This right, enunciated in the Supreme Court's 1973 decision in Roe v. Wade, and reiterated in Planned Parenthood v. Casey, means that every woman, regardless of her socioeconomic status, has a fundamental right to decide whether and when to bear children. Child exclusion policies not only discourage women from conceiving children, but also may pressure them into terminating their pregnancies. Conditioning the receipt of benefits necessary for subsistence on the relinquishment of reproductive choice renders the Constitution meaningless for society's most vulnerable women.
2. The child exclusion irrationally penalizes children for their parents' behavior.
Child exclusions also violate the constitutional guarantee of equal protection under the law. These provisions irrationally penalize poor children for the behavior of their parents. In Plyler v. Doe, the Supreme Court stated that "legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice." Moreover, equal protection problems are raised when similarly situated children are treated differently based upon the circumstances of their birth.
3. The child exclusion victimizes children.
More than two-thirds of all welfare recipients are children. Not one state in the nation, however, provides families receiving welfare with income sufficient to meet their basic needs for food, health care, and housing. Under the joint federal-state welfare program that operated until 1996, Aid to Families with Dependent Children (AFDC), the grants in every state were far below the federal poverty line of $991 per month for a family of three. In 1994, the median state AFDC benefit for a family of three was a shockingly low $366 per month. Denying needs-based cash assistance to poor children will make them more vulnerable to homelessness and will threaten their physical and mental well-being. Further, denying welfare benefits to mothers and their children during the bureaucratic process of establishing paternity unfairly penalizes poor children by conditioning benefits not on need, but on the state's ability or inability to determine paternity. In addition, excluding the children of unmarried mothers under eighteen will coerce young women to remain in abusive and often violent homes and relationships. Ultimately, the long-term economic and social costs of child exclusion laws would far exceed any minimal short-term savings by the government.
4. Families receiving welfare are not larger than those in the general population.
The stereotype driving the legislative push for child exclusions -- the public image of the irresponsible welfare mother with many children -- is based on a myth. In reality, families receiving welfare are no larger than those in the general population. In 1992, the average AFDC family had 2.9 members (including adults). Of all families on AFDC that year, 72.5% had only one or two children, and almost 90% had three or fewer children. In fact, the size of families receiving welfare has declined substantially in recent years.
5. The promise of increased welfare benefits does not cause women to bear additional children.
Empirical studies have consistently demonstrated that very little or no correlation exists between the receipt of welfare benefits and the childbearing decisions of unmarried women. It is preposterous to assume that women are persuaded to bear a child for an average incremental benefit increase of $50 to $60, a figure that hardly covers diapers and infant formula. One who accepts the faulty logic that poor women have children simply to receive an increase in welfare benefits would also have to accept the equally flawed argument that middle-class women plan pregnancies in order to receive a tax deduction.
Like those of middle-class women, poor women's childbearing decisions are not based solely on economics. Indeed, social science analysts and researchers consistently find that the great majority of pregnancies among women receiving public assistance are unintended. Unintended pregnancies cannot be eliminated by denying poor families welfare benefits. On the contrary, studies have shown that decreasing benefits did not decrease the birth rate, as evidenced by the fact that families that received AFDC were not larger in states with higher AFDC grants.
6. Women are not solely responsible for additional births.
The premise underlying child exclusion provisions is that women are solely responsible for procreation and solely "at fault" for additional births. Child exclusion provisions therefore deny additional needs-based benefits to parents who receive welfare (approximately 90% of whom are women) and their children, while not penalizing non-custodial parents (approximately 90% of whom are men). Child exclusion provisions reflect little understanding that the majority of additional births to women on welfare are unintended, resulting from their inability to obtain safe, reliable contraceptives or from contraceptive failure.