5. ARGUMENT

This case involves a question of law under the New Jersey State Constitution.  Matters of law are subject to de novo review.  Wheaton v. Smith, 160 N.J. 383, 398 (1999).

I. The Child Exclusion Violates Article I, Paragraph 1 of the New Jersey Constitution.

A. The New Jersey Constitution Protects the Rights to Privacy and Equal Protection, Including the Right to Autonomy in Procreative Choices, and Demands the Most Exacting Scrutiny of Any State Infringement of Those Rights.

Article I, paragraph 1 of the New Jersey Constitution protects New Jersey citizens’ fundamental right to privacy and guarantees that it will not be discriminatorily abridged.  It does so in language “’more expansive’” than that of the federal Constitution, Planned Parenthood v. Farmer, 165 N.J. 609, 629 (2000) (quoting Right to Choose v. Byrne, 91 N.J. 287, 303 (1982)), providing,

All persons are by nature free and independent, and have certain natural and inalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

“By declaring the right to life, liberty and the pursuit of happiness, Art. I, par. 1 protects the right of privacy.”  Right to Choose, 91 N.J. at 303.

Article I, paragraph 1, of the New Jersey Constitution not only protects the right of freedom of reproductive choice, it also guarantees equal protection for New Jersey citizens, Right to Choose 91 N.J. at 304-05, Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 79 (1978), thus ensuring that privacy rights will not be discriminatorily infringed.  Accordingly, Article I, paragraph 1, requires the government to proceed “in a neutral manner” and “impartially” in regard to a woman’s intimate and personal choice whether or not to have a child, penalizing neither those who choose to procreate nor those who choose not to do so.  Right to Choose, 91 N.J. at 307, 307 n.5; see also Planned Parenthood, 165 N.J. at 613 (“Simply, the effect of declaring the notification statute unconstitutional is to maintain the State’s neutrality in respect of a minor’s childbearing decisions and a parent’s interest in those decisions”).  “In effect, the State may not affirmatively tip the scale [for or] against the right to choose an abortion absent compelling reasons to do so.”  Planned Parenthood, 165 N.J. at 613.  “In that constitutionally protected zone, the State may be an umpire, but not a contestant.”  Right to Choose, 91 N.J. at 307 n.5.  

The right to privacy and autonomy in reproductive decisions protected by the New Jersey Constitution is broader than the correlate federal right and thus the requirement of state neutrality is applied more rigorously under the New Jersey Constitution.  “[S]tate Constitutions are separate sources of individual freedoms and restrictions on the exercise of power by the Legislature. . . .  Thus, in appropriate cases, the individual states may accord greater respect than the federal government to certain fundamental rights.”  Right to Choose, 91 N.J. at 300.  Accordingly, this Court frequently has held that the New Jersey Constitution “afford[s] our citizens broader protection of certain fundamental rights than that afforded by analogous or identical provisions of the federal constitution.”  State v. Novembrino, 105 N.J. 95, 145 (1987).  See also Planned Parenthood, 165 N.J. at 631; State v. Norman, 151 N.J. 5, 25 (1997); Right to Choose, 91 N.J. at 300-310; State v. Baker, 81 N.J. 99, 112-14, 114 n.10 (1979); State v. Saunders, 75 N.J. 200, 216-17; Taxpayers Ass’n of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 43 (1976); Southern Burlington County NAACP v. Mt. Laurel Tp., 67 N.J. 151, 174-75 (1975). 

In particular, in examining state infringements upon women’s procreative autonomy, this Court has closely adhered to its own admonition that “[w]hen the United States Constitution affords our citizens less protection than does the New Jersey Constitution, we have not merely the authority to give full effect to the State protection, we have the duty to do so.”  State v. Hempele, 120 N.J. 182, 196 (1990). Thus, in the context of privacy rights protected by Article I, paragraph 1, this Court has noted, “[T]he lack of constraints imposed by considerations of federalism permits this Court to demand stronger and more persuasive showings of a public interest in allowing the State [to infringe on privacy rights] than would be required by the United States Supreme Court.”  Saunders, 75 N.J. at 217. 

This demand of a close nexus between a persuasively and amply demonstrated government interest and any infringement of privacy rights is part of “the most exacting scrutiny” that this Court applies to legislation that burdens the right to privacy for some individuals and thus potentially violates the state Constitution’s privacy and equal protection guarantees.  Planned Parenthood, 165 N.J. at 632.  Under this demanding standard, the New Jersey Constitution has been held to prohibit the state from denying Medicaid funding for medically necessary abortions while providing Medicaid funding for medically necessary pregnancy and childbirth expenses, despite the United States Supreme Court’s holding in Harris v. McRae, 448 U.S. 297 (1980), that such a funding scheme does not violate the federal Constitution.  Right to Choose, 91 N.J. at 310.  Similarly, this Court found a parental notification and judicial bypass provision for minors seeking abortions to violate the New Jersey Constitution’s privacy guarantee, despite the United States Supreme Court’s repeated holdings that the federal Constitution does not prohibit states from imposing such requirements.  Planned Parenthood, 165 N.J. at 642.  Additionally, even after the United States Supreme Court decided that the federal Constitution permitted states to ban elective abortions in city-owned hospitals, Poelker v. Doe, 432 U.S. 519 (1977), New Jersey courts continued to hold that quasi-public hospitals receiving financial support from local governments must provide elective first-trimester abortions.  Doe v. Bridgeton Hosp. Ass’n, Inc., 160 N.J. Super. 266, 271 (Law Div. 1978) (holding Poelker irrelevant to earlier New Jersey Supreme Court decision in Doe v. Bridgeton Hospital Association, Inc., 71 N.J. 478 (1976), which prohibited ban of elective first-trimester abortions by quasi-public hospitals).

In contrast to the federal Constitution, the New Jersey Constitution not only protects against direct infringements of the fundamental right to procreative autonomy, but also demands the most exacting scrutiny of indirect infringements of this right.  While federal constitutional analysis generally requires a compelling state interest to justify direct infringements on a fundamental right, but analyzes indirect infringements under rational basis review, asking simply whether the challenged legislative provision has a rational relationship to a legitimate state interest,¹⁶ New Jersey constitutional analysis rejects this rigid two-tiered structure.  See Right to Choose, 91 N.J. at 308-09.  This is because “in cases involving a classification that ‘indirectly infringes on a fundamental right,’ the inflexibility of the tiered framework prevents a full understanding of the clash between individual and governmental interests.”  Id. at 630 (quoting Right to Choose, 91 N.J. at 310) 

Indeed, this Court has expressly warned that under the New Jersey Constitution it is improper to “use[] the degree of interference with the [fundamental] right as the basis for choosing the level of scrutiny to apply.”  Planned Parenthood, 165 N.J. at 631 n.6.  When confronted with a classification that either directly or indirectly burdens a class of individuals’ right to privacy, New Jersey constitutional analysis replaces the rigid two-tiered test with a balancing test that “weigh[s] the governmental interest in the classification against the interests of the affected class.”  Id.  In striking the balance, courts must consider “‘the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction.’”  Id. (quoting Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985)).  As this Court has stated, the balancing test required under New Jersey constitutional analysis “is particularly appropriate when . . . the statutory classification indirectly infringes on a fundamental right.”  Right to Choose, 91 N.J. at 310.  As a result of this balancing test, “where an important personal right is affected by government action this Court often requires the public authority to demonstrate a greater public need than is traditionally required in construing the federal constitution.’”  Id. (quoting Abbott v. Burke, 100 N.J. 269, 295 (1985) (internal quotations omitted)). 

The Appellate Division ignored this body of law.  While acknowledging the Child Exclusion affected women’s procreative decision-making, Sojourner A., 350 N.J. Super. at 173-74, it applied rational basis review to the provision, based on its conclusion that the effect on procreative decision-making was indirect.  Incorrectly relying on the lenient federal standard explicitly rejected by this Court, the Appellate Division concluded that the Child Exclusion had a rational relation to a legitimate state interest. Id.  This analysis was in clear legal error under this Court’s precedents. 

B. The Child Exclusion Implicates Poor Women’s Fundamental Right to Privacy in Making the Intimate Decision Whether or Not to Bear a Child.

In analyzing the constitutionality of the Child Exclusion, this Court must consider the nature of the affected right.  Planned Parenthood, 165 N.J. at 630.  Past decisions of this Court make amply clear that the right to freedom from state interference in deciding whether or not to have a child is central to the privacy rights protected by Article I, paragraph 1, of the New Jersey Constitution and deserving of the highest level of protection.

The privacy rights the state constitution protects from government interference are those “choice[s] that bear[] so vitally upon a matter of deep personal privacy [that they] may . . . be considered an integral aspect of the ‘natural and unalienable right’ of all people to enjoy and pursue their individual well-being and happiness.”  In re Grady, 85 N.J. 235, 250 (1981).  Thus, “[a]ny discussion of the right of privacy must focus on the ultimate interest which protection the Constitution seeks to ensure: the freedom of personal development.”  Saunders, 75 N.J. at 213 (1977).

As this Court has repeatedly recognized, a critical component of the privacy rights central to citizens’ pursuit of individual happiness and free personal development is the right to make autonomous procreative decisions, including the right to make the life-altering and intimate decision whether to become a parent.  By incorporation of the right to privacy, the New Jersey Constitution protects “concomitant rights, including a woman’s right to make certain fundamental choices.”  Planned Parenthood, 165 N.J. at 628.  Thus, a “fundamental concept” in privacy analysis is “the right of every person to make a free choice about his [or her] reproductive capacity.”  Grady, at 482 n.9.  In particular, in the context of procreative choice, this Court has observed that “a woman’s right to control her body and her future” is “fundamental to individual liberty.”  Planned Parenthood, 165 N.J. at 631-32.  Thus, the privacy rights protected by Article I, paragraph 1 include the right of procreation, In re Baby M, 109 N.J. 396, 447-48 (1988), “the right to choose among procreation, sterilization and other methods of contraception,” Grady, 85 N.J. at 263, and the necessary correlate to the right to choose to have a child, a woman’s right to obtain an abortion, Right to Choose, 91 N.J. at 303-04.¹⁷ 

In Planned Parenthood, this Court stated that it was “keenly aware of the principle of individual autonomy that lies at the heart of a woman’s right to make reproductive decisions and of the strength of that principle as embodied in our own Constitution.”  165 N.J. at 632.  As the Appellate Division acknowledged, the Child Exclusion “affects a welfare recipient’s decision whether to have another child.”  350 N.J. Super. at 171.  It thus strikes at the fundamental principle of individual autonomy in reproductive choice and requires this Court’s closest scrutiny.   

C. The Child Exclusion Imposes a Heavy Burden on Poor Women’s Fundamental Right to Procreate by Harshly Penalizing and Deterring the Exercise of That Right.

The Child Exclusion unconstitutionally infringes on the right of poor women to choose whether and when to conceive and bear children by having both the purpose and effect of influencing women’s reproductive choices by harshly penalizing the decision to give birth.  The constitutional analysis laid out by this Court in Planned Parenthood requires an examination of the effect of the governmental restriction on the fundamental right. 165 N.J. at 630 (citing Greenberg, 99 N.J. at 567).  This examination demonstrates that the effect of the Child Exclusion on the exercise of procreative rights is significant. 

As set out, supra, at 9-11, the primary purpose of the Child Exclusion is to coerce poor women in their exercise of their right to procreate.  In fact, the provision has succeeded in deterring exercise of the right for many poor women receiving public assistance in New Jersey.  A provision that successfully deters the exercise of a constitutional right amounts to an infringement of that right. See Sanchez v. Department of Social Services, 314 N.J. Super. 11, 21-22 (App. Div. 1998).  As discussed, supra, at 12-15, according to the state-hired Rutgers research team, the Child Exclusion led to an increase in the rate of abortions and a decrease in the birth rate.  Pa724-58.  In response to federal and state requests, the Rutgers researchers refined their methodology and added different analyses of the data in various reports.  The results remained consistent: as a result of the Child Exclusion, the abortion rate for women on welfare increased at a time when the abortion rate for the general population decreased.  Pa742; Pa754.  The researchers concluded that the Child Exclusion was the most likely cause of this increase in the abortion rate.  Pa745.  This evidence was undisputed by Defendants.  Thus, by means of the Child Exclusion the State has affirmatively tipped the scale toward abortion for many poor pregnant women in New Jersey, exercising a real and significant influence over their reproductive decisions.  See Planned Parenthood, 165 N.J. at 613 (“[T]he State may not affirmatively tip the scale [for or] against the right to choose an abortion absent compelling reasons to do so.”). 

Women receiving welfare in New Jersey are more likely to seek abortions because of the significant and real penalties the Child Exclusion levies on the exercise of the right to procreate.  When a statute penalizes the exercise of a fundamental right, it is unconstitutional absent a compelling state interest directly served by the statute.  See Sanchez, 314 N.J. Super. at 21-24.  The reduced per capita benefits mandated by the Child Exclusion work just such a penalty on women exercising the right to give birth.  In Sanchez v. Department of Social Services, the only other state constitutional challenge to a provision of WFNJ, the Appellate Division examined the constitutionality of the State’s payment of reduced benefits to individuals who moved to New Jersey from a state that provided lower welfare benefits than did New Jersey.  For many of those affected by this policy, the actual reduction in benefits was less than the reduction caused by the Child Exclusion.  The Appellate Division nevertheless found that while the reduction “does not entirely deprive plaintiff of the basic necessities of life,” the lower grant paid to new residents “would leave plaintiff [and her three children] with significantly less funds than other poor parents receive for subsistence for a family of four” and thus would unconstitutionally penalize the exercise of the right to travel without serving any compelling state interest.  Sanchez, 314 N.J. Super. at 23.  The Child Exclusion operates in exactly the same way as the provision challenged in Sanchez.  While not completely cutting off assistance, the Child Exclusion mandates that lower benefits be paid to a family in which a child is born while the family is receiving welfare than would be paid if the child were born when the family was not receiving benefits.  As a matter of law, according to Sanchez, this is a penalty, in this case on the exercise of the right to decide whether and when to bear a child, and thus unconstitutional in the absence of a sufficiently compelling state interest.  Id. at 24 (“Providing a reduced level of assistance, rather than no assistance at all, is no less a penalty or burden . . . than [a] total denial.”).  The lower courts wholly ignored the Sanchez analysis in finding only a slight intrusion caused by a denial of benefits to the excluded child and in concluding that this intrusion did not constitute a penalty.  See Sojourner A., 350 N.J. Super at 169.

This legal conclusion is based on the recognition that even a small per capita reduction in welfare benefits works a harsh penalty on poor women and their families as a factual matter.  This Court has previously relied heavily on factual and expert evidence demonstrating that a statute impinging on the right to privacy imposed a heavy burden on individuals’ right to procreative liberty in actual practice and penalized the exercise of that right.  Planned Parenthood, 165 N.J. at 632-36.  In this case, Plaintiffs have presented extensive evidence—-also unrefuted by the government—of the very real hardship to welfare-reliant women and their children that ensues from denial of benefits to children born into a family receiving welfare. 

As demonstrated by Plaintiffs and their experts, denial of benefits designed to meet the needs of an additional child causes real and significant harm.  The payment of reduced benefits to the named Plaintiffs under the Child Exclusion has caused them periods of homelessness and hunger, Pa539-41; Pa549; Pa570; Pa574, and has impeded their ability to feed and clothe their families.  See discussion, supra, at 20, 23-25.  As shown by the LSNJ study , reductions in benefits (the effective result of the Child Exclusion) leave the majority of affected families unable to support themselves and facing significant hardships.  Pa368. 

Hunger and undernutrition are inevitable results of the denial of benefits that occurs upon the birth of a new child as parents attempt to feed additional children with grants that do not provide for their needs.  Pa580; Pa638; Pa645; Pa648; Pa624-25; Pa653.  And as a result of the Child Exclusion, families are more likely to face utility shut-offs, to be unable to buy winter clothes, and to be forced to forgo over-the-counter medications.  See id.  Reduction in welfare benefits also increases the risk of housing crises and homelessness.  See supra, at 23; Pa506-07; Pa536; Pa580; Pa608-09.

In Planned Parenthood, this Court engaged in a fact-sensitive, detailed analysis of what a statute requiring parental notification for minors seeking abortion would actually mean for a young woman in New Jersey who wanted to terminate her pregnancy.  This Court was sensitive to the actual effect of seemingly minor obstacles, such as the fact that even making a phone call to a court or an attorney would be difficult for a minor, and, considering all the problems entailed in complying with the law’s procedures, this Court concluded that the parental notification requirement impermissibly burdened the minor’s right to reproductive choice.  Planned Parenthood, 165 N.J. at 635-36.  An equally sensitive and detailed analysis of what the Child Exclusion actually means to a family dependent on public assistance establishes that the Child Exclusion impermissibly burdens a welfare-dependent woman’s choice whether to give birth to a child while receiving benefits.  As explained above, in New Jersey, if a woman with three children is forced to turn to WFNJ for assistance, she will receive a monthly grant of $488 to care for her family.  N.J.A.C. 10:90-3.1 to 10:90-3.3.  In contrast, if a woman with two children has a third child while receiving WFNJ benefits, her family will have to subsist on $424 per month.  N.J.A.C. 10:69-10.2(a); 10:90-3.3, Schedule II.  For a family in which every dollar counts, that difference of $64 dollars a month can easily mean the difference between treating an infant’s fever or not, between a week’s worth of groceries and a week of hunger, or between having a place to live and crowding into a friend’s apartment or relying on a homeless shelter.  See Pa580 (declaration of Kathryn Edin, stating that her analysis showed each additional $100 available to a family per month decreased material hardship by approximately 10%).  When the actual effect of the Child Exclusion on affected families is considered, it is not surprising that many recipients felt they had no choice but to terminate their pregnancies rather than suffer under such penalties.

Nor does the State’s effectuation of such penalties through funding choices, rather than through direct fiat, insulate those choices from constitutional review.  This Court has made clear that the government may not attempt to influence a woman’s procreative choices through its power of the purse.  Right to Choose, 91 N.J. at 306.  In Right to Choose, the Court invalidated New Jersey’s ban on Medicaid funding for medically necessary abortions, holding that the State’s refusal to provide funding for medically necessary services associated with one reproductive decision—abortion—while providing funding for medically necessary services associated with the alternative decision—childbirth—constituted impermissible governmental interference with a poor woman’s constitutional right to decide whether to carry a pregnancy to term.  Id.  Recognizing the fiscal power of the State—including its control over the welfare system—this Court in Right to Choose held that the government could not use the power of the purse to coerce women to forgo exercising a constitutional right any more than it could directly prohibit them from exercising it.  As Right to Choose explicitly states, the state cannot use funding choices “to achieve with carrots what [it] is forbidden to achieve with sticks.”  Id.  In that case, this meant that just as the State could not forbid poor women from having medically necessary abortions, so it could not attempt to coerce them to forgo abortions by providing funds for medically necessary prenatal and childbirth services but not for abortions.  As the Court concluded, “[T]he State may not use its treasury to persuade a poor woman to sacrifice her health by remaining pregnant.”  Id. at 308.  In the same way, in the instant case, the state cannot forbid poor women from having children while receiving government benefits.  Therefore, it also cannot attempt to coerce them to avoid pregnancy or to have abortions by denying benefits to children born into a family receiving welfare while providing full benefits to families who do not have additional children. 

Right to Choose makes clear that the State may not use its power of the purse to reward women who make procreative choices with which the State agrees, and punish women who make procreative choices with which the State disagrees.  91 N.J. at 308.  Evidence showing that the Child Exclusion has, in fact, had the effect of influencing decisions about childbirth makes it even clearer that with this provision, the government has tipped the scale in women’s decisions whether or not to have a child by deterring and punishing childbearing.  That the coercion of these fundamental choices is accomplished indirectly through state funding decisions in no way alters the analysis of the nature and significance of the burdens imposed.  In the instant case, the burdens are severe—and, indeed, effectively deter exercise of women’s most fundamental rights.

D. Defendants Have Failed to Demonstrate a Close Nexus Between Their Purported Justification for the Child Exclusion and the State’s Infringement on the Right to Privacy.

When legislation burdens a fundamental right, as does the Child Exclusion, the New Jersey Constitution requires reviewing courts to scrutinize the State’s purported justification for the legislation closely to determine whether it outweighs the burden on the fundamental right.  Planned Parenthood, 165 N.J. at 619-20.  For such legislation to be constitutional, the State must “demonstrate a real and significant relationship between the statutory classification and the ends asserted.”  Id. at 613; See also Taxpayers Ass’n, 80 N.J. at 42-43 (“It must be shown that there is an appropriate governmental interest suitably furthered by the differential treatment. . . . New Jersey has always required a real and substantial purpose between the classification and the governmental purpose which it purportedly serves”).  In making this determination, this Court must “carefully examine the factual bases” for the claim that a challenged provision “in fact serve[s] those specific ends” proffered.”  State v. Miller, 83 N.J. 402, 414-15 (1980).  “And care must be exercised that the efficacy of . . . constitutional guaranties shall not be whittled away by indulging in unwarranted presumptions of a factual basis for the legislation.”  Washington Nat’l Ins. Co. v. Bd. of Review, 1 N.J. 545, 554 (1949). 

The Appellate Division failed to hold Defendants to their burden of demonstrating the requisite “real and significant” relationship between means and ends.  Sojourner A., 350 N.J. Super. at 172-173.  It thus ignored the clear mandate of this Court to look closely at purposes offered by the State to justify infringements on a fundamental right.  The court accepted Defendants’ claim that the Child Exclusion promotes work and responsibility at face value, making no attempt to determine whether Defendants actually demonstrated any relationship between the legislation and the asserted goals.  Id.  Defendants have utterly failed to show any relationship between the Child Exclusion and the state interests they assert, any factual basis for assuming that the Child Exclusion will serve these interests, or any evidence that these interests can be realized through the challenged provision.  The burden of making such a showing lies squarely on Defendants.  See Planned Parenthood, 165 N.J. at 643. 

Indeed, the evidence presented by Plaintiffs clearly demonstrates that the Child Exclusion does not further the interests Defendants assert.  While defendants assert that the Child Exclusion promotes work, and thus self-sufficiency, among welfare recipients, they provide no evidence that this is the actual effect of the Child Exclusion.  Even assuming that the promotion of work among welfare recipients is a compelling state interest, this Court made clear in State v. Saunders that when a proffered interest will not actually be served by a provision that infringes privacy rights, the provision is unconstitutional, regardless of how compelling the proffered interest is.  75 N.J. at 218; see also Miller, 83 N.J. at 415 (holding that the State must not only articulate a legitimate interest in support of a provision that impinges on constitutional rights, but must also demonstrate how the particular restriction relates to that interest).  In Sanchez, the Appellate Division held that while the State’s goal of promoting work among welfare recipients may be “salutary,” there is no rational relationship between that goal and the provision of reduced welfare benefits to a particular class of recipients—in that case, welfare recipients who exercised their constitutionally protected right to travel.  Sanchez, 314 N.J. Super. at 26-28.  Similarly, the effect of the Child Exclusion is to provide a lower level of benefits to a class of welfare recipients exercising a constitutionally protected right—the right to procreate—and just as in Sanchez, there is no evident relationship between this penalizing of the exercise of a fundamental right and the promotion of work.

The Rutgers study demonstrates that the Child Exclusion has not led to an increase in employment or earnings among welfare recipients and in fact seems to be associated with a slight decrease in earnings from employment.  Indeed, Defendants’ own expert conceded that the Child Exclusion has played no role in bringing about whatever positive effects in recipients’ employment and earnings that have flowed from welfare reform in New Jersey.  Pa856-57, Pa860.  Characterizing the Child Exclusion as primarily “symbolic,” he attributed declines in the welfare rolls and increased work participation among recipients to other WFNJ policies, such as time limits on benefits.  Id.¹⁸ 

In proffering the goal of encouraging work and self-sufficiency, Defendants refuse to acknowledge that in the instant lawsuit, Plaintiffs are challenging only a single provision of WFNJ—the Child Exclusion—not New Jersey’s implementation of welfare reform as a whole.  Thus, in demonstrating the requisite close nexus between a government interest and the challenged provision, Defendants must show what interests are furthered by the Child Exclusion specifically, not those furthered by WFNJ as a whole.  Defendants’ articulation of the interests served by work participation requirements, time limits, child support enforcement requirements—as well as the arguable success of these provisions in furthering such interests—is simply irrelevant to the question presented by Plaintiffs’ challenge: what governmental interest is actually furthered by the Child Exclusion?

A review of the record demonstrates that the only interest actually served by the Child Exclusion is an impermissible one: by burdening poor women’s right of procreation, the State has sought to pressure poor women not to have children and to coerce poor pregnant women to seek abortions rather than carry their pregnancies to term.  Decisions of this Court and other New Jersey courts clearly demonstrate that such interests in influencing the intimate choices protected by the right to privacy do not justify infringement of fundamental rights under the New Jersey Constitution.  Planned Parenthood, 165 N.J. at 613; Right to Choose, 91 N.J. at 307 n.5; Saunders, 75 N.J. at 219; Sanchez, 314 N.J. Super. at 22-23. 

According to its sponsor, the intent behind the Child Exclusion is to influence poor women’s childbearing decisions by discouraging them from giving birth.  Such a goal is simply impermissible under the New Jersey Constitution, which mandates state neutrality in women’s decisions whether to have a child.  Planned Parenthood, 165 N.J. at 613; Right to Choose, 91 N.J. at 307 n.5.  If the right to privacy protects against anything, it protects against burdensome legislation motivated by nothing more than a bare desire to influence those most intimate choices central to personhood that are protected by Article I, paragraph 1 of the New Jersey Constitution.  See Saunders, 75 N.J. at 219 (“If we were to hold that the State could attempt to coerce people into marriage, we would undermine the very independent choice which lies at the core of the right of privacy. . . . [W]e can only reiterate that decisions such as whether to marry are of a highly personal nature; they neither lend themselves to official coercion or sanction, nor fall within the regulatory power of those who are elected to govern.”); see also Sanchez, 314 N.J. Super. at 21 (holding that law impinges on fundamental right when impeding fundamental right is its primary objective).

To the extent the State’s assertion that having a child while on welfare is “irresponsible and not socially desirable,” may be interpreted as articulating a belief that poor women’s choices to give birth are immoral in their irresponsibility and thus ought to be discouraged, it has voiced a second goal insufficient to justify infringing the right to privacy under the New Jersey Constitution—namely, that of regulating personal morality.  Saunders, 75 N.J. at 219.  Legislation that merely serves as “official sanction of certain conceptions of desirable lifestyles, social mores or individualized beliefs . . . is not an appropriate exercise of the police power.”  Id. 

The Child Exclusion is made even more offensive to the New Jersey Constitution by its success in furthering these impermissible goals.  Not only was the Child Exclusion intended to coerce poor women’s procreative decisions, it has actually done so, see supra, at 15, while failing to actually further any state interest that might justify an infringement on constitutionally protected rights.  A provision that so burdens the exercise of the right of procreation for women on welfare, without furthering any real and significant state interest, runs afoul of the privacy and equal protection guarantees of Article I, paragraph 1.

In summary, application of the balancing test set out in Planned Parenthood and Right to Choose demonstrates that the Child Exclusion coerces and penalizes welfare-reliant women’s exercise of their most fundamental right to procreative choice and in doing so fails to further any legitimate state interest whatsoever.  It thus violates the rights to privacy and equal protection guaranteed by the New Jersey Constitution.

II. The Child Exclusion Unconstitutionally Punishes Children for the Behavior of Their Parents.

The Child Exclusion creates two classes of children and discriminates against one of them by denying them subsistence benefits based on their status at birth.  This is done in an attempt to control the behavior of the parents of the affected children.  New Jersey courts have repeatedly held that the state constitution prohibits such discrimination against children based on the circumstances of their birth, over which they have no control.  This Court has specifically disapproved such discrimination against children when aimed at influencing their parents’ sexual conduct and moral choices.  Schmoll v. Creecy, 54 N.J. 194, 202 (1969); see also State v. Clark, 58 N.J. 72, 88 (1971).  By denying benefits to children born while their parents—or someone in their family—receive welfare, the Child Exclusion creates just such impermissible discrimination.  The Appellate Division and the trial court failed to address Plaintiffs’ claim that the Child Exclusion unconstitutionally discriminates against poor children based on their status at birth in violation of the New Jersey constitutional guarantee of equal protection.

New Jersey courts have refused to tolerate laws that discriminate against children due to their birth status or their parents’ conduct.  This Court has thus refused to allow birth status discrimination against out-of-wedlock children who wished to recover for the wrongful death of their father.  See Schmoll, 54 N.J. 202; see also In re Adoption of V.B., 152 N.J. Super. 546, 549, 552 (Prob. Div. 1977); E. v. T., 124 N.J. Super. 535, 543 (Ch. Div. 1973) (holding birth status discrimination is unconstitutional).  

These holdings naturally follow from this Court’s conclusion in State v. Clark, that it was impermissible for the State to “use the innocent children as pawns in a design to punish the parents, the mother particularly, for past moral aberrations and to discourage other women of like weaknesses and inclinations from further pregnancies.”  58 N.J. at 88.  In that case, the Court reversed convictions obtained when an applicant for public assistance was forced to seek child support from the father of her children in order to receive benefits.  Because that filing was an admission that the mother had violated New Jersey’s fornication statute, she was prosecuted and convicted.  Clark stands for the proposition that the State cannot punish children for the actions of their parents in giving birth to them, particularly when critical subsistence benefits are at stake.  As the Court in Clark stated:

If the threat of criminal prosecution results in the mother withholding her plea for welfare aid, who are the sufferers?  Obviously the innocent children who are punished for the moral laxity of their parents.  Thus society forces a continuance of their impoverishment upon them in order to make possible imposition of criminal sanctions upon their erring mothers and fathers.  Such a course in effect denies to needy illegitimate children the benefit which it grants to needy legitimate children.  It makes the test for aid the morality of the parents and, consequently, subverts the true statutory test, i.e., the impoverished condition of all children without regard to status.  The law should not allow constitutional rights of the parents to be sacrificed as a condition to gaining public assistance for the children . . . Society's interests in its future citizens are not protected when children grow up in need. 

58 N.J. at 87-88.

In New Jersey, most birth status cases have involved discrimination against children born out-of-wedlock.  But the rationale underlying rejection of less favorable treatment for non-marital as opposed to marital children is the same when considering discrimination against children born into welfare families.  In both cases, children are discriminated against because of their particular status at birth.  In both cases, the State punishes the child for the purpose of controlling the parents’ behavior.  Whether the discrimination arises from the parents’ marital status or their welfare status, birth status, the condition of a child at birth, is an immutable characteristic (like race or gender) over which the child herself has no control, and punishing children for the conduct of their parents in conceiving and giving birth to them is illogical, unjust, and unconstitutional.  See Karen A. Hauser, Inheritance Rights for Extramarital Children:  New Science Plus Old Intermediate Scrutiny Add Up to the Need for Change, 65 U. Cin. L. Rev. 891, 901-02 (1997).  On the basis of these principles, this Court has required a clear state interest to be demonstrated when statutes discriminate against children based on their status at birth.  In both Schmoll and Clark, this Court found the State’s interest in insuring moral behavior of parents insufficient to support the punishment of a child for her parent’s conduct.  Similarly, in the instant case the State has failed to demonstrate an interest sufficient to support the irrational punishment of certain poor children through denial of benefits based on the conduct of their mothers in conceiving and bearing them during a period of welfare receipt. 

Discrimination on the basis of birth status is recognized as impermissible not only by New Jersey courts, but also by federal courts and by international covenants.¹⁹  The United States Supreme Court has consistently prohibited discrimination against children on the basis of their status at birth.  Beginning with Levy v. Louisiana, 391 U.S. 68 (1968), a case striking a statute prohibiting out-of-wedlock children from recovering wrongful death damages for the death of their mother, the United States Supreme Court has repeatedly struck down statutes that penalize children due to their birth status.  See Trimble v. Gordon, 430 U.S. 762 (1977) (striking statute prohibiting non-marital children from inheriting from fathers); Gomez v. Perez, 409 U.S. 535 (1973) (striking bar to non-marital child’s right to paternal support); Weber v. Aetna Cas. and Ins. Co., 406 U.S. 164 (1973) (right of non-marital children to workman’s compensation award can’t be denied); Glona v. American Guarantee & Liab. Ins. Co., 391 U.S. 73 (1968) (striking bar to mother recovering for death of out-of-wedlock child).  As Justice Powell wrote in Weber v. Aetna Casualty and Insurance Company:

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons. . . But visiting this condemnation on the head of an infant is illogical and unjust.  Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.  Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual – as well as unjust – way of deterring the parent. . . .[T]he Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where. . . the classification is justified by no legitimate state interest, compelling or otherwise.

406 U.S. at 175-76 (cited with approval in New Jersey Welfare Rights Org., 411 U.S. at 620). 

     Significantly, in New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619 (1973), the United States Supreme Court held that New Jersey could not constitutionally restrict welfare payments to families in which the parents were ceremonially married.  The Supreme Court squarely rejected the rationale the lower court had accepted—to “preserve and strengthen family life”—finding that this did not justify discrimination against needy children on the basis of the situation of their birth over which they had no control.  New Jersey Welfare Rights Org., 411 U.S. at 619.  The Court thus struck down the distinction, reasoning that “there can be no doubt that the benefits extended under the challenged program are as indispensable to the health and well-being of illegitimate children as to those who are legitimate.”  Id. at 621.  In the same way, there can be no doubt that basic subsistence benefits are as indispensable to children born into families receiving welfare as they are to equally poor children born when their families were not receiving welfare, and thus that New Jersey’s Child Exclusion violates the State’s equal protection clause.