The child exclusion in a global context.

• Author: Davis, Martha F.

1. INTRODUCTION AND BACKGROUND

   Throughout its history, the United States' system for providing subsistence support to families with children has reflected mixed motives. Emerging from a patchwork of state "Mother's Pension" programs, the federal Aid to Families with Dependent Children (AFDC) program--part of the 1935 Social Security Act (1)--was originally intended to support widowed mothers caring for children in their homes. (2) The program was established as a state-federal partnership. (3) However, state implementation varied from the program's beginnings. In some states, the benefits were systematically adjusted to encourage (or coerce) welfare recipients to work in the fields during the harvest season. (4) In other instances, the subsistence welfare benefits were cut off in order to influence mothers' choices about family structure, such as whether or not to marry. (5) As early as 1970, the United States Supreme Court approved Maryland's program, which set an upper limit on welfare benefits regardless of family size with the express purpose of, among other things, "encouraging" low income people to engage in "family planning." (6) The Maryland law--literally, a "family cap"--capped benefits at the per capita level set for a family of six. (7) Under the previously accepted practice nationwide, even large families had been given an incremental benefit increase to reflect their greater subsistence needs as additional children were born. (8)

   The use of welfare benefits to discourage childbearing by low-income women gained new steam in the 1990s with the introduction in Wisconsin of the "child exclusion," a variation on the earlier family cap policy. (9) In contrast to the general cap based on family size, this scheme specifically targeted children born while their families were on welfare. Under the policy, a family's benefit levels were frozen based on its size at the time the household began receiving welfare; any additional children born while the household was receiving welfare benefits would not result in an incremental increase in benefits. (10) In effect, those after-born children would be "excluded" from the calculation of household size. Like the earlier family cap--and citing many of the same precedents--state laws of this type were generally upheld by both state and federal courts. (11)

   The child exclusion was a key source of controversy during the debate leading to the enactment of the 1996 welfare reform law, (12) the Personal Responsibility and Work Opportunities Reconciliation Act. (13) As finally adopted, the 1996 welfare reform law repealed the venerable Aid to Families with Dependent Children program, replacing it with a new program, Temporary Assistance to Needy Families (TANF). (14) The new approach to family welfare came with a new set of statutory purposes that emphasized the role of welfare in encouraging work, with mandatory work participation requirements for welfare recipients. (15) Yet even with these significant changes, the first-listed purpose of TANF remained providing support to children so that they could be raised in their own or a relative's home. (16)

   In tension with this longstanding legislative goal, conservative proponents of the child exclusion argued that the child exclusion scheme should be a mandatory component of federal welfare policy, with states required to adopt the approach in order to access federal funds. (17) An unlikely coalition of feminists and anti-choice religious groups succeeded in defeating that proposal; they united around a cluster of social justice issues, specifically their opposition to policies that would increase child poverty and their shared concern that the child exclusion scheme might unduly coerce low income women to have more abortions. (18)

   However, this federal victory was only half of the battle. Because the federal welfare reform law was ultimately silent on the child exclusion question, state legislatures were left to consider the policy state by state as they implemented their new welfare reform laws. Currently, twenty states utilize the child exclusion approach, with some minor variations. (19) In enacting these programs, state legislatures have consistently cited the desire to constrain welfare recipients' childbearing decisions. (20) For example, in support of the New Jersey child exclusion, chief sponsor Wayne Bryant stressed that by denying support, the measure "offer[s] parents a choice regarding their decision to have another child while receiving public assistance." (21) However, two states that originally adopted child exclusion legislation--Illinois and Maryland--have since abandoned the approach, finding it to be ineffective in achieving their state's welfare policy goals. (22)

   Many authors, both social scientists and legal scholars, have examined the efficacy and legality of child exclusion policies. (23) Legal challenges have raised questions about the laws' constitutionality under both state and federal constitutions, citing equal protection and due process provisions, but as noted above, these challenges have met with very limited Success. (24) Most courts considering the issue have found the child exclusion policy to be constitutionally sound, holding that the burden on women's childbearing decisions is minimal and that the policy itself is rational. (25)

   As a supplement to their constitutional claims, the petitioners challenging the state's child exclusion law before a New Jersey state court also included assertions of international human rights law violations, presented in an amicus brief submitted by the Center for Economic and Social Rights and other international advocacy groups. (26) Among other things, the amici argued that the child exclusion policy discriminated against children on the basis of birth status, in violation of the United States' obligations as a State Party to the International Covenant on Civil and Political Rights as well as principles of customary law. (27) The New Jersey Supreme Court, however, found that the child exclusion was consistent with both domestic and international legal standards. (28)

   This Article continues to mine this territory by putting the child exclusion, an American variation on population policies found around the world, into a broader comparative context. This preliminary survey indicates that while many nations, motivated by concerns about limited national resources, have population policies intended to support a woman's decision to forgo childbirth, a much smaller number of countries craft these policies to target a particular marginalized group. (29) Further, when identifiable groups are targeted, the programs are most often (though not always) shaped around incentives rather than punitive measures intended to influence behavior. (30) In those instances where disincentives are employed, the disincentives rarely, if ever, involve basic human needs such as food, clothing or shelter. (31)

   The distinction between disincentives and incentives is a distinction with a difference. Many believe that mild incentives are less morally problematic than disincentives. For example, the authors of the popular book Nudge describe many small incentives that, they argue, encourage "good" behavior without undermining individual autonomy. (32) Similarly, economists David Bloom and David Canning assert that while coercion should not be a part of a nation's family planning scheme, "[p]opulation policies that attempt to change fertility levels by incentives that affect desired fertility rather than coercion of actual fertility or fixed family size targets allow families to still achieve their goal by forgoing the incentive." (33)

   Significantly, an approach that rejects narrow programs in favor of policies with a population-wide impact is completely consistent with the underlying purposes of the international human rights regime. If nothing else, the modern human rights laws that emerged following World War II are intended to prevent a recurrence of the genocide of the Jews that marked the Nazi regime. (34) For that reason, international human rights law embodies a heightened concern regarding programs that single out identifiable subgroups for punitive population control measures. (35)

   Further, reflecting an emerging consensus concerning responsible population policies, in 1994 the nations attending the International Conference on Population and Development (ICPD) in Cairo explicitly condemned the reliance on incentives and disincentives to manipulate individual decisions concerning contraception and family planning. (36) According to the ICPD Programme of Action,

   The principle of informed free choice is essential to the long-term success of family-planning programmes. Any form of coercion has no part to play. In every society there are many social and economic incentives and disincentives that affect individual decisions about child-bearing and family size.... Governmental goals for family planning should be defined in terms of unmet needs for information and services. (37) In other words, instead of incentives and disincentives, governments are encouraged to utilize proactive educational measures to promote broad-based engagement in family planning. (38)

   When compared internationally with other population measures, the child exclusion is an outlier because of the combination of its narrow focus on a vulnerable population, its manipulation of subsistence benefits, and its use of disincentives rather than incentives. (39) Compounding this confluence of troubling factors, the child exclusion is a relatively ad-hoc, state-by-state program; it is not a measure that was debated and adopted in the context of the development of a more comprehensive national U.S. population policy, and, even at the state level, it has not been incorporated into a more general discussion of population policies.

   Rather than allow the child exclusion to drift into an accepted status quo of domestic...