3. PROCEDURAL HISTORY
On March 24, 1997, New Jersey enacted Work First New Jersey (“WFNJ”) as a response to the repeal of the federal Aid to Families with Dependent Children (“AFDC”) program and its replacement with a block grant to the states under the Temporary Assistance for Needy Families (“TANF”) program. 42 U.S.C. §§ 601.-608. Included in WFNJ was a Child Exclusion provision. N.J.S.A. 44:10-61. It states: “The level of cash assistance benefits payable to an assistance unit with dependent children shall not increase as a result of the birth of a child during the period in which the assistance unit is eligible for benefits.” N.J.S.A. 44:10-61(a).1
On September 5, 1997, Plaintiffs Sojourner A., Angela B., Rosa C., and Crystal D., filed the Complaint in this matter on behalf of themselves, their minor children, and a class of similarly situated individuals, seeking to enjoin the Child Exclusion provision on grounds that it violates the New Jersey Constitution. Pa1-22.2 Plaintiffs alleged that: (1) the Child Exclusion violates state constitutional guarantees of the right to privacy, including the right to make procreative and childbearing decisions, by seeking to coerce those choices and by penalizing Plaintiffs for the exercise of their fundamental right to bear children; and (2) the Child Exclusion violates state constitutional guarantees of equal protection by treating otherwise similarly situated children differently based on their parents’ reproductive choices and the timing of a child’s conception and birth. Pa19. On July 17, 2000, the trial court granted Plaintiffs’ Motion for Class Certification, certifying the following class of Plaintiffs:
all women who have conceived or will conceive a child while they or someone in their family received welfare benefits (or within a year of such receipt) under the former AFDC program or under the Work First program any time after October 1, 1992, and all children born to such women after August 1, 1993 who have been or will be subject to N.J.S.A. 44:10-61 and N.J.A.C. 10:90-2.18 or their predecessor statute and regulations, N.J.S.A. 44:10-3.5 and N.J.A.C. 10:81-3.8 and 10:81-1.11.
Pa74-76.
On December 18, 2000, the Court entered an Order denying Plaintiffs’ Motion for Summary Judgment and granting Defendants’ Cross-Motion for Summary Judgment. Pa79-81. On January 25, 2001, Plaintiffs filed their Notice of Appeal to the Appellate Division. Pa82-88.
In a decision dated April 5, 2002, the Appellate Division affirmed the trial court's decision, holding that the Child Exclusion does not violate the right to privacy or equal protection under the state constitution. Sojourner A., 350 N.J. Super at 156. In reaching its decision, the Appellate Division acknowledged that the right to privacy is fundamental under the New Jersey Constitution. Id. at 168. The court also found that the Child Exclusion creates hardship, conceding that “it cannot be denied that the less money a poor woman has available the more difficult it will be for her to house and feed her children.” Id. at 174. It found, further, that the hardships imposed by the Child Exclusion influence the intimate procreative decisions protected by the right to privacy, stating that the provision “to some degree, affects a welfare recipient's decision whether to have another child.” Id. at 171. However, citing federal equal protection cases and incorrectly applying a lenient federal standard of review rather than the demanding review required by the New Jersey Constitution, the Appellate Division held that the Child Exclusion does not violate state constitutional guarantees of privacy and equal protection because it “has a rational basis,” id. at 174, and does not "directly [a]ffect a woman's fundamental right to become pregnant." Id. at 173. Furthermore, in balancing the infringement of the privacy right against the government’s need for the provision, the Appellate Division failed to determine whether, under the standards articulated in Planned Parenthood, 165 N.J. at 619-20, the state had “demonstrate[d] a real and significant relationship” between the alleged governmental purpose and the statutory provision at issue.
Plaintiffs filed their Notice of Petition for Certification on April 19, 2002, and this Court granted certification on July 13, 2002. On September 6, 2002, this Court granted Plaintiffs’ motion for leave to file a supplemental brief.
1 Previously, in January 1992, the New Jersey Legislature amended the Family Development Program (“FDP”), which was the State’s welfare program under the former federal AFDC program, to add a Child Exclusion provision. N.J.S.A. 44:10-3.5. The WFNJ Child Exclusion provision operates as it did under the FDP.
2 The Court granted Defendants’ unopposed Motion to remove two of the original four Plaintiffs by Order dated August 26, 1999. Pa66. Citations to "Pa" refer to Plaintiffs’ Appendix filed in support of their appeal in the Appellate Division.
