4. STATEMENT OF FACTS

I. THE CHILD EXCLUSION AND WORK FIRST NEW JERSEY

Work First New Jersey (“WFNJ”) exists to assist to those in desperate need; the benefits it provides are a last resort.  Under WFNJ, “benefits shallbe provided . . . when other means of support and maintenance are not present.”  N.J.S.A. 44:10-59(a) (emphasis supplied).  The Child Exclusion is a discrete provision within New Jersey's welfare law that denies subsistence benefits to poor children based solely on the timing of their conception and birth.  Without question, this denial of assistance provided to other equally needy children imposes an extreme hardship on both the excluded child and her parent and siblings. 

Generally, eligibility for cash benefits under WFNJ is determined under the need and benefit schedule set forth in regulations issued by the New Jersey Department of Human Services (“DHS”).  N.J.A.C. 10:90-3.3, Schedules I and II.  Under the regulations, eligibility is determined by comparing a family’s income to the State’s eligibility threshold.  N.J.A.C. 10:90-3.1.  The amount of benefits an eligible family receives is determined according to its size: for each child, the family’s grant increases by an incremental amount.  N.J.A.C. 10:69-10.2(a); 10:90-3.3, Schedule II.

The Child Exclusion is the exception to this scheme.  The law provides that, with limited exceptions, each child born into a family in which any family member receiving welfare is excluded from receiving cash benefits.  N.J.S.A.  44:10-61; N.J.A.C.  10:90-2.18.³  This is true if a child is born because of failed contraception or because the mother did not use birth control because she believed she had been sterilized. The Child Exclusion applies if anyone in the household is receiving welfare benefits, even if the mother of the child receives no benefits and is not considered part of “the assistance unit” by law.⁴  All children of a multiple birth (such as twins or triplets) will be excluded if they are born into a household receiving welfare benefits.  N.J.A.C.  10:90-2.18.  In addition, an excluded child will not receive benefits even if he or she is sent to live with another family as long as the original family was receiving welfare when the child was born.  Id.  A child is excluded even if she or he is born after the family has ceased to receive assistance if the birth of the baby occurs within a year of any family member’s receipt of welfare and the family later re-applies for public assistance.  N.J.A.C. 10:90-2.18(a)(8).

Under WFNJ, if a woman with two children who is not receiving benefits becomes pregnant and has a third child, she will receive a grant of 8 for herself and all three of her children if she becomes destitute and applies for WFNJ.  N.J.A.C.  10:90-3.1 to 10:90-3.3.  However, by operation of the Child Exclusion, if a woman with two children who is receiving benefits becomes pregnant, she will receive cash assistance only for herself and her first two children—not the newborn—and the family grant will remain 4.  N.J.A.C. 10:69-10.2(a); 10:90-3.3, Schedule II.  By denying additional benefits to support an additional child born into a family receiving welfare, the Child Exclusion harshly penalizes women who choose to bear children⁵  As discussed infra, this seemingly small reduction in benefits can mean the difference between having enough money to buy food at the end of the month, medicine if a child is sick, shoes and school clothing for one’s children, or simply leaving these basic needs unfulfilled. 

II. HISTORY AND PURPOSE OF THE CHILD EXCLUSION

The Child Exclusion was enacted by the New Jersey Legislature with the specific intention of influencing poor women’s childbearing decisions; its sponsor introduced the bill as an amendment to New Jersey's welfare law by stating that it “is intended to discourage AFDC recipients from having additional children during the period of their welfare dependence.”  Pa872.

Because the Child Exclusion provision, when first enacted, violated federal AFDC law by denying benefits to otherwise eligible needy children, New Jersey applied for a waiver of federal requirements.⁶  Pa95-113.  The Waiver Request further demonstrated the statute’s purpose, describing the Child Exclusion as “harsh” but seeking to justify it by stating that its purpose was to “encourage” women to “be responsible” in their “decision to have another child while receiving welfare.”  Pa104-06 (describing the choice to have a child while on AFDC as “irresponsible and not socially desirable”).

Despite objections to the Waiver Request, the federal government approved the waiver as a five-year research experiment.⁷  Pa114-34.  Because the Child Exclusion was an experiment, the approval imposed a series of “Terms and Conditions” on the State.  Specifically, New Jersey was required to evaluate the impact of the Child Exclusion on “marital status and birth rates,” thereby measuring whether the statute succeeded in deterring births by AFDC recipients.  Pa126.  Again, the purpose of the statute was clear; according to the DHS project liaison, the “real behavioral point of interest” of the Child Exclusion experiment was “conception or avoidance of conception.”  Pa198.

Consistent with the evaluation requirement, DHS retained the Rutgers University School of Social Work to evaluate the effects of the Child Exclusion, particularly its impact on welfare recipients’ childbearing decisions.  Pa135-44.  See also Pa188.  Rutgers University submitted a “Plan for Securing Survey Data,” stating that “[o]ne of the primary aims of the [Child Exclusion] . . . policy is to have an influence on the likelihood that AFDC recipients will continue to have children while receiving public cash benefits.”  Pa159. The Rutgers study sought to measure the success of the Child Exclusion in achieving this purpose by determining whether the FDP, including the Child Exclusion, had a marked effect on birth rates and abortion rates among women receiving welfare.  Pa279.  The DHS project liaison confirmed that DHS was not concerned with examining the effects of the Child Exclusion on the health, nutrition, or housing of the affected families.⁸  Pa183-84. 

In 1997, WFNJ replaced the former FDP, changing many provisions of New Jersey’s welfare program.  However, the Child Exclusion was retained without alteration and has continued to operate as it did under the former program.  N.J.S.A. 44:10-61; N.J.A.C. 10:90-2.18. 

III. EFFECT OF THE CHILD EXCLUSION

A. The Child Exclusion Affects Women’s Childbearing Decisions, Resulting in More Poor Women Having Abortions.

The Child Exclusion has had the effect intended by the Legislature—it has caused more poor women who need welfare to have abortions.  Plaintiffs Angela B. and Sojourner A. both considered abortions when they discovered they were pregnant.  Pa543; Pa551-52.  After having one child who was excluded from welfare benefits, Sojourner A. chose to terminate a subsequent pregnancy rather than give birth to a second child subject to the Child Exclusion.  She had already faced hardships trying to support two children with benefits meant for one and knew that with an additional child and no additional support, her family would suffer. Pa552; Pa556-57. 

Indeed, the study by the Rutgers School of Social Work shows that the denial of benefits to children born into families on welfare has resulted in an increased number of women who receive benefits obtaining abortions.  Pa135-44.  The Rutgers School of Social Work analyzed the Child Exclusion according to two different methodologies—an “experimental-control” design, and a “pre-post” analysis.⁹  The results of these analyses were submitted to DHS, Pa724-45; Pa746-58, and the findings were released to the public by then-Governor Christine Todd Whitman and DHS on November 2, 1998.  Pa759-66.

Both methodologies—experimental-control and pre-post—showed that the birth rate among welfare recipients dropped in the period after implementation of the Child Exclusion, and that the abortion rate for this group increased, despite a decline in the abortion rate among the general population.  Pa759-60.  The final report, with the findings from the pre-post analysis, stated: 

Between October 1992, the effective implementation of the FDP (and the family cap), and the end of 1996, we estimate that there were 14,057 fewer births among AFDC female payees of childbearing age than would have occurred in the absence of the FDP; [o]ver this same period, we estimate that there were 1,429 more abortions than would have occurred in the absence of the FDP.... Pa742. 

The final report on the experimental-control analysis concluded that “[t]he Family Development Program and the family cap did have a statistically significant impact on the birth, abortion and family planning decisions of cases in our study sample.”  Pa754.  Specifically, with respect to ongoing cases, welfare recipients subject to the Child Exclusion had birth rates about 9% lower than those not subject to the provision, and for new cases, those subject to the Child Exclusion had birth rates about 12% lower and abortion rates about 14% higher. Id. 

The Rutgers researchers' conclusions are all the more compelling because they were consistent using different methodologies.  Based on the outcomes of these studies, the Rutgers researchers concluded that the FDP and the Child Exclusion had a definite impact on the reproductive decisions of women on welfare in New Jersey: pregnant women whose children would be subject to the Child Exclusion were more likely to terminate their pregnancies.  Pa745.  Although the estimated magnitude of this impact varied somewhat based on differences in methodology, the outcome remained the same.  Pa205.  The principal investigator of the Rutgers study expressed confidence in the reliability of these findings.  Pa304.

So, too, did the DHS official coordinating the Rutgers study.  He stated that it is both credible and logical to conclude that the similarities in the reports support the reliability of their findings.  Pa205.  Indeed, although the State coordinator of the study had concerns with the evaluations, he stated that these concerns did not discredit the reports.  Pa209-10.  Rather, he felt that the results were credible, Pa211, and that the work of the researchers was valid.  Pa214.  The State’s expert, Ted Goertzel, also agreed that the similarity in findings between the two methodologies rendered the findings more reliable.  Pa854-55.

Thus, the results of the Rutgers studies were remarkably consistent: the Child Exclusion affects the reproductive decisions of welfare-reliant women in New Jersey, leading to increased abortions and decreased births among this population.  Indeed, Defendant DHS, in its own press release issued on November 2, 1998, concluded: “These findings indicate that the Family Cap may have been a factor in women’s reproductive decisions.” Pa759-60.

B. The Child Exclusion Harms Poor Women Who Bear a Child While on Welfare by Inflicting Extreme Hardship on the Excluded Child and Other Members of the Family.

Poor women who find it necessary to turn to welfare head families that are often on the edge of intense suffering due to hunger, homelessness, and the deprivation of basic necessities.  Pa577-82.  See also Pa509-10; Pa450.  Even with Food Stamps and child-care subsidies, two-thirds of New Jersey welfare recipients have income placing them below the federal poverty line, and one in four have income below 50% of the poverty line.  Pa436.  See also Pa337. The State’s own expert, Peter Rossi, agreed that welfare benefits, even when coupled with Food Stamps, do not provide sufficient income for most families with children.  Pa509-10. For these families, every dollar of income is critical, and denial of even seemingly small amounts of money can have a significant effect on a family’s well-being.

When a family is subject to the Child Exclusion, not only is the excluded child likely to suffer serious harm, but her mother and siblings are also likely to suffer considerable hardship as they attempt to make already meager ends meet in the face of increased family needs.  Pa580; Pa600-09; Pa624-25; Pa627; Pa637-41.  The denial of benefits for a child can drastically limit an already poor woman's ability to feed, care for, and house her children, and works to harshly penalize her decision to bear a child while receiving benefits. 

Plaintiffs have provided ample evidence showing that the Child Exclusion has caused extreme hardship to the named Plaintiffs, both of whom have inadequate housing and run out of money and Food Stamps to feed their families before the end of each month.  Plaintiffs have also provided extensive expert evidence explaining the harms to the Plaintiff class imposed by the Child Exclusion.  Throughout this litigation, the lower courts inappropriately have failed to recognize these harms and the realities of the past and present circumstances of named Plaintiffs and the Plaintiff class.  The experience of the named Plaintiffs, as well as the Plaintiff class, demonstrates the harsh penalty the Child Exclusion imposes on poor women’s reproductive choices.

First, the denial of cash benefits resulting from the Child Exclusion increases the risk of hunger and inadequate nutrition for the excluded child and her family.  Studies of nutritional deficiency, or undernutrition, among poor children show that the denial of incremental benefits to children born into families receiving welfare increases the prevalence of hunger, undernutrition, and decline in dietary quality.¹⁰  Pa624-25; Pa653-56; Pa637-38.  Even with the availability of Food Stamps and the Women, Infants and Children (“WIC”) program, families affected by the Child Exclusion often are unable to purchase food of adequate quality and quantity for the entire month.  Pa579; Pa646-47; see also Pa368.  For instance, Plaintiff Angela B. reported running out of Food Stamps by the middle of every month and relying on whatever she could collect from food pantries and other charities to feed herself and her children.  Pa541; Pa570.  Plaintiff Sojourner A. testified that even with WIC assistance, she ran out of milk for her infant by the end of the month and had no money to buy more.  Pa558-59. 

As proof that the Child Exclusion increases the risk of hunger and lack of adequate nutrition for an excluded child and his or her family, Plaintiffs presented the testimony of Dr. John Cook, an expert on food insecurity and hunger.  In Dr. Cook’s expert opinion, mild to moderate malnutrition is directly associated with insufficient household income. Pa625.  Based on his lifelong study and research concerning food insecurity and hunger in poor families, Dr. Cook concluded that when a family member is added to an already poor family without additional resources to support that child, the family copes by reducing first the quality of food available and then the actual quantity of food available. Psa9.¹¹

Plaintiffs also presented the testimony of Dr. Deborah Frank, an associate professor of pediatrics and an assistant professor of public health who has authored numerous articles on the impact of undernutrition on children’s development.  Dr. Frank is the Director of the Growth and Development Program at Boston Medical Center, working in the area of child nutrition and health since 1981 and focusing specifically on the epidemiology of nutritional deprivation in low-income populations.  Dr. Frank offered the expert opinion that families experiencing a per capita reduction in public assistance benefits, as is experienced by families subject to the Child Exclusion, suffer extreme hardship and deprivation: the children in these families are at an increased risk of nutritional deficit, with devastating long-term effects, including increased vulnerability to infection, decreased learning capacity, and increased vulnerability to lead poisoning.  Pa637.  In Dr. Frank’s expert opinion, even where families receive additional Food Stamps for an additional child excluded from cash income, many families experience inadequate food resources for nutritional health.  Pa647.  Thus, she believed a reduction in the cash income per individual results in hunger, adversely affecting the health and well-being of excluded children and their families.  Pa640.

A recently published study in which experts in pediatrics (including Plaintiffs’ experts Dr. Cook and Dr. Frank) surveyed the effects of welfare reductions in six United States cities only confirmed that reductions in benefits result in hunger.  Pa624-25; Pa653-56; Pa637-38.  This study found that children in families in which welfare benefits were reduced (i.e., families not receiving full grants for all family members) had a greater chance of facing food insecurity than children in welfare families where benefits had not been reduced.  These effects were not mitigated if the family received Food Stamps.¹²

Katherine Edin, an assistant professor in sociology at the University of Pennsylvania with extensive experience studying welfare-reliant families and the author of numerous books and scholarly articles concerning how single mothers survive on welfare, confirmed that the health and well-being of welfare-reliant families is jeopardized by the Child Exclusion.  Professor Edin offered the expert opinion that a reduction in per capita benefits has a potentially devastating impact in poor families where feeding, clothing, and housing one’s children is a constant and daily struggle.  Pa577.  In Professor Edin’s opinion, for such families, even a small setback in circumstances—such as results from the denial of benefits to a newborn child under the Child Exclusion—can lead to hunger or homelessness.  Pa578.  The denial of benefits to a child or children in the family also often results in utility shut-offs, lack of adequate winter clothing, and lack of medical care, especially with respect to over-the-counter medicine like aspirin and cold medications, which are not covered by Medicaid.  Pa579.  The experience of the named Plaintiffs illustrates this harsh reality.  Angela B. reported that the money she received from welfare, meant to cover her needs and the needs of only two of her four children, was insufficient to obtain the basic necessities for her family of five.  Pa540-42; Pa574.  Because of the Child Exclusion, she does not have enough money to pay for diapers for the baby, medicine, or public transportation to doctors’ appointments and elsewhere.  Pa541-42; Pa570; Pa574.  In short, because of the Child Exclusion, Angela B. simply cannot afford to adequately feed, house, and clothe herself and her children.  Pa544-45; Pa574-75.  Similarly, Sojourner A. testified that because of the Child Exclusion, she often does not have enough money for diapers, milk, or clothes for her baby.  Pa558-59. 

Professor Edin explained that most welfare-reliant mothers with an excluded newborn baby cannot ameliorate these hardships by working because of the high cost and limited availability of child care for young infants.  Pa581-82; Pa659; Pa713-15.  Work is also not an option for many welfare-reliant mothers with excluded newborns because, as Plaintiffs' expert Dr. Wendy Chavkin,  Professor of Clinical Public Health at the Columbia University School of Public Health specializing in issues affecting women, opined, engaging in paid employment immediately before or after childbirth can pose a health risk for poor women, given the jobs they hold.  Pa713.  Dr. Chavkin stated that lower skilled jobs, such as those most likely to be available to welfare recipients, often involve physical stress and are associated with pregnancy complications such as pre-term delivery.  Pa714-715.  She noted that WFNJ recognizes the obstacles to new mothers undertaking paid work in other contexts—for example, by exempting women from work requirements for three months after the birth of a new baby and longer if the mother cannot find child care for her infant.¹³  Id. 

Similarly, Dr. Gerson Weiss, Professor and Chair of the Department of Obstetrics and Gynecology at UMDNJ-New Jersey Medical School, as well as Chief of Service of the Department of Obstetrics and Gynecology at the UMDNJ-University Hospital, offered the expert opinion that the Child Exclusion creates identifiable health risks, to pregnant women, fetuses, infants, and children.  Pa657; Pa659.  These risks result primarily from the stress placed on a woman who must face the prospect of not being able either to care properly for her newborn child or to protect the health of her older children because of her inability to provide adequate food, clothing, medicine and housing at a critical, formative period of her children’s lives.  Pa659.  The declarations of named plaintiffs Angela B. and Sojourner A. vividly demonstrate the stress such knowledge places upon poor mothers.  Pa541; Pa544-45; Pa552.

The Child Exclusion compromises not only the mother’s health, but also that of the child’s.  The study of families in six cities who had their welfare benefits reduced as discussed, supra, at 19, demonstrated that children in these families suffered from repeated hospitalizations and longer, more severe illnesses than children in families that received full grants. Children in families with reduced benefits are also far more likely to be admitted to the hospital following an emergency room visit than children in families receiving full benefits.  Again, Food Stamps have no mitigating effect on the higher incidence of hospitalization.¹⁴

The Child Exclusion also makes it far more difficult for families with a new child to maintain adequate housing.  Most welfare families in New Jersey must spend far more than 30% of their income to secure housing—indeed, some pay nearly all of their income in rent—thus requiring the family to forgo other necessities.  Pa606-07.  Many families try to meet shelter costs by sharing living quarters, but these situations are unstable and families are often forced to move from them.  Pa578; Pa580; Pa607.  See also Pa539-41; Pa564-70.  Given this housing situation, any minor setback—such as the birth of a child denied benefits by the Child Exclusion—can push an already poor family over the edge, increasing the risk of homelessness or of inadequate, unsafe, or overcrowded housing.  Pa580; Pa608-09.  The consequences for the family are dire.  Homelessness impedes children’s ability to receive a decent education.  Pa605-06; Pa637-38; Pa640.  Poor housing is more likely to have unsafe, exposed lead paint and other conditions that harm children’s health. Pa605-06; Pa608-09.  Cushing Dolbeare, a consultant on housing and public policy and since 1952 an expert on issues regarding low-income housing, particularly on the housing needs and problems of welfare-reliant households, testified that “[w]ithout a safe and stable place to live, it becomes difficult for children to properly grow, physically and emotionally, and for adults to parent their children in an appropriate manner.”  Pa605-06. 

The experiences of Plaintiffs Angela B. and Sojourner A.  poignantly illustrate housing insecurity created by the Child Exclusion.  Angela B. and her children do not have stable housing.  They have lived in homeless shelters, in a relative’s basement, and with friends.  Pa538.  Although Angela B. is currently living in an apartment with her four children (two of whom are excluded from receiving benefits) and her boyfriend’s family, Pa561; Pa571, she constantly worries about being homeless again.  She knows that she cannot afford an apartment for five people with the benefits she receives for two children and herself.  Pa540-41.  Sojourner A. also has not had enough money to house her two children properly, as she tries to care for them both with benefits only meant for one.  She lives with relatives and shares a single bedroom with her two children.  She cannot afford to rent her own apartment.  Pa549-50.

Research conducted by Legal Services of New Jersey (“LSNJ”) only confirms the hardships that the Child Exclusion imposes on poor women struggling to care for their families.  The LSNJ Report revealed that nearly four out of five (79.8%) welfare-reliant families who experienced a reduction in benefits reported that they were not able to financially support themselves and their households after the reduction.  Pa355.  More than half reported at least one serious negative effect on their family as the result of the benefit reduction—inability to sufficiently clothe themselves or their families after the reduction; inability to sufficiently feed themselves or their families; inability to obtain necessary health care; loss of housing; need to place their children outside of their homes; and/or exposure to a greater risk of violence or abuse.  Pa367.  The Child Exclusion is in effect precisely such a reduction in benefits, with all its attendant harms.  As detailed, supra, the named Plaintiffs in this action have experienced many of these hardships, and it is clear that all poor families deprived of benefits for a child suffer significant harm. 

In summary, these findings, the experience of the Plaintiffs, and the findings of Plaintiffs’ experts make clear that the Child Exclusion causes significant material hardship for the welfare-reliant families to whom the policy applies.

C. The Child Exclusion Does Not Lead Women to Leave Welfare for Work. 

In addition to studying the impact of the FDP and the Child Exclusion on women’s birth and abortion rates, the Rutgers researchers also conducted a cost-benefit analysis of the program.  Pa287.  In October 1998, the Rutgers researchers issued findings revealing that the FDP and Child Exclusion did not lead recipients to move off welfare and into jobs or result in less dependence on welfare.  Pa811. 

Specifically, the Report found that the FDP and Child Exclusion did not result in women moving off welfare more quickly, staying off welfare longer, or earning more money after leaving welfare.  See Pa759-60; Pa288.  The report further found that the program had no systemic, positive impact on employment and employment stability or earnings among AFDC recipients.  Pa288; Pa304.  In fact, the Child Exclusion had a slightly negative impact on earnings when experimental and control groups were compared.  Pa287-88.¹⁵ 

While various provisions of New Jersey’s welfare law have been amended since the period studied by the researchers, the Child Exclusion is unchanged and there is no evidence suggesting that it somehow operates differently in WFNJ than it did in the FDP.  Indeed, the State’s expert, Ted Goertzel, conceded that the Child Exclusion has played no role in whatever positive effects have flowed from welfare reform in New Jersey.  Characterizing the Child Exclusion primarily as a “symbolic issue,” Professor Goertzel attributed a decline in the welfare rolls and former recipients’ increased work participation to policies other than the Child Exclusion, such as time limits on the receipt of benefits.  Pa856-57; Pa860.  He also noted that at least some of the decline in New Jersey’s welfare rolls is due to people being dropped from the rolls for failure to comply with work requirements or to show up for appointments.  Pa853.

Some WFNJ recipients have left welfare for work and are earning more income.  However, this has nothing to do with the Child Exclusion or with this lawsuit.  As the research and testimony presented above demonstrate, the Child Exclusion does not lead individuals to work.  It does not help anyone leave the rolls for work nor does it help those who remain on the rolls find or keep employment.

In sum, the hardships created by the Child Exclusion are imposed on poor women and their families solely in an attempt to coerce, and as punishment for, poor women’s reproductive choices.  Evidence in the record shows that the Child Exclusion has achieved this coercive effect.  As vividly illustrated by named Plaintiffs Angela B. and Sojourner A., and by the extensive testimony and declarations of Plaintiffs’ experts, the impact of the Child Exclusion is extraordinary hardship to poor women and their families in the form of hunger; harm to health and child development; increased homelessness or crowded, unstable housing arrangements; and the inability to obtain basic necessities.  At the same time, the Child Exclusion (as distinct from other provisions of WFNJ) does not lead to increased employment or earnings, or decreased reliance on welfare.