The question posed by this case is whether a statute that imposes severe financial penalties on poor women and the children they bear, with the purpose and effect of influencing poor women’s decisions about whether and when to have children, violates the New Jersey constitutional guarantees of privacy and equal protection.
Plaintiffs challenge a single statutory provision, N.J.S.A. 44:10-61, known as the “Child Exclusion,” which denies cash benefits to poor children conceived and born while their mothers were receiving public assistance. Equally poor children whose mothers were not receiving public assistance at the time of their conception and birth are provided full cash benefits.
The Child Exclusion is a single, discrete provision in Work First New Jersey, the state welfare law. This challenge has nothing to do with other welfare provisions that have come to be known as hallmarks of welfare reform—work requirements, time limits, and child support enforcement requirements. This lawsuit challenges the one and only provision of the New Jersey law aimed at controlling poor women’s reproductive choices. In addition, although many of the provisions of New Jersey’s welfare law are required by federal statute, the Child Exclusion is not so required. It is a creature of the New Jersey Legislature applicable only to poor women in New Jersey. Thus, this state constitutional challenge to a provision of state law must be judged by the standards of the New Jersey Constitution, as interpreted by this Court.
This Court has consistently interpreted the right to privacy guaranteed by the New Jersey Constitution to grant the highest protection to a woman’s right to make decisions about whether and when to bear a child. The majority of cases involving the right to privacy have dealt with the right of women to decide NOT to have a child. That right has been appropriately well protected by the decisions of this Court. The Court should grant no less protection to women who exercise their right to HAVE a child. Applying the standards articulated in Right to Choose v. Byrne, 91 N.J. 287 (1982) and Planned Parenthood v. Farmer, 165 N.J. 287 (2000), there can be no question that the Child Exclusion is an unconstitutional attempt to interfere with the childbearing decisions of poor women by severely penalizing their innocent children and their families.
The Appellate Division failed to apply the clear standards set forth by this Court for evaluating a statute that infringes the rights to privacy and equal protection. Sojourner A. v. New Jersey Dep't of Human Services, 350 N.J. Super. 152 (App. Div. 2002). The court below erred in (1) applying a lenient and toothless federal rational basis standard of review to Plaintiffs’ privacy and equal protection claims,(2) failing to apply the standards that control in challenges to legislative classifications infringing the right to privacy under the New Jersey Constitution—specifically, failing to properly balance the infringement on the right to privacy against the governmental interest served by it, and (3) in evaluating the governmental interest, failing to conduct the requisite searching inquiry into the alleged purpose of the provision at issue to determine if the government has demonstrated a nexus between its alleged interest and the provision. Further, the Appellate Division failed even to address Plaintiffs’ argument that Child Exclusion unconstitutionally discriminates on the basis of birth status. The decision of the Appellate Division in this case must therefore be reversed, and the Child Exclusion struck down as unconstitutional.