virginity, respectability politics, moral panics

¥

Race, Reproduction, and the Meaning ot Linerty

'^ 'V

Dorothy Robert

FPT $26.00 U.S.A.

$36.00 Can.

In Ki'ling the Black Body, Dorothy Roberts gives

a powerful and authoritative account of the on-

going assault—both figurative and literal—waged

by the American government and our society on

the reproductive rights of Black women.

From an intersection of charged vectors

(race, gender, motherhood, abortion, welfare,

adoption, and the law), Roberts addresses in

her impassioned book such issues as: the no-

tion of prenatal property imposed upon slave

women by white masters; the unsavory associa-

tion between birth control champion Margaret

Sanger and the eugenics movement of the

1920s; the coercive sterilization of Black

women (many of whom were unaware that they

had undergone the procedure) under govern-

ment welfare programs as late as the 1970s;

the race and class implications of distributing

risky, long-acting contraceptives, such as Nor-

plant, through Medicaid; the rendering of re-

production as a crime by prosecuting women

who expose their fetuses to drugs; the contro-

versy over transracial adoption; the welfare de-

bate (who should pay for reproduction?); and

the promotion of the new birth technology {in

vitro fertilization and egg donation) to serve in-

fertile white couples.

Implicit in Roberts's argument is the sheer

irrelevance of white middle-class feminism to

the lives of most Black women. It also lays bare

the fallacy of proposals to solve social problems

by cutting fertility rates, and the weakness of re-

productive rights that are centered on individual

(coniinued on back flap)

Cr3

CO

DU BR ^^U I ix^rttfU

HQ766.5 .U5 R58 1997 P^l i

Roxbury.»wMo^i^dsiiiu«t.

t)

Copyright © 1997 by Dorothy Roberts

All rights reserved under International and Pan-American

Cop\right Conventions. Published in the United States by

Pantheon Books, a division of Random House, Inc., New York, and simultaneously in Canada by Random House of

Canada Limited, Toronto.

Grateful acknowledgment is made to the Sophia Smith

Collection, Smith College, for permission to reprint excerpts

from the Margaret Sanger Papers. Reprinted by permission

of the Sophia Smith Collection, Smith College, Northampton,

Massachusetts.

Librar)' of Congress Cataloging-in-Publication Data

Roberts, Dorothy, 1956-

Kilhng the black body : race, reproduction, and the meaning

of liberty / Dorothy Roberts.

p. cm.

Includes index.

ISBN 0-679-44226-X

I. Birth control — United States. 2. Afro-American women — Civil rights. 3. Welfare recipients — United States. 4. Race

discrimination — I Jnited States. I. Title.C HQ766.5.U5R58 1997

'

565.??D9/5-dc7r ' '^97-2383

Random House Web Address: http://www.randomhouse.com

Bon/c ()eji(jn hy Julie Duquet

Printed in the United States of America

First Edition

246897531

Contents

Acknowledgments ix

INTRODUCTION 3

Chapter 1

REPRODUCTION IN BONDAGE 22

Chapter 2

THE DARK SIDE OF BIRTH CONTROL 56

Chapter 3

FROM NORPLANT TO THE CONTRACEPTIVE VACCINE:

The New Frontier of Population Control 104

Chapter 4

MAKING REPRODUCTION A CRIME 150

Chapter 5

THE WELFARE DEBATE:

Who Pays for Procreation? 202

Chapter 6

RACE AND THE NEW REPRODUCTION 246

Chapter 7

THE MEANING OF LIBERTY 294

Notes 313

Index 358

Chapter 5

THE WELFARE DEBATE

Who Pays for Procreation?

'n August 22, 1996, President Bill Clinton signed into law the most

dramatic reform of his administration, perhaps of the last several

decades. The sweeping welfare reform law ended the New Deal fed-

eral guarantee of cash assistance for American children living in

poverty.^ For sixty years, since the passage of the Social Security Act

of 1935, all applicants who met federal eligibility criteria were entitled

to receive benefits under a relief system jointly funded by the states

and the federal government. The new law gives states vastly increased

authority to run AFDC, the major assistance program serving poor

families, with lump-sum federal grants. It also establishes a lifetime

limit of five years for payments to any family and requires family

heads to find a job within two years. In this way, Clinton fulfilled his

campaign pledge to "end w^elfare as we know^ it" in time for the 1996

presidential election.

During the preceding debate it quickly became clear that control of

^velfare would be shifted to the states and that welfare funding would be drastically cut — the question was, how much? When Senator

Daniel Patrick Moynihan stood up to attack the proposals, he found

himself alone, commenting, "the Senate floor is all but empty. "^ The exclusion from the mainstream debate of any consideration of enhanc-

ing public assistance to the poor signifies the resounding defeat of the

progressive ideal of a universal and dignified ^velfare system. Worse yet, welfare has taken on a ne^v social role: it is no longer seen as

charity but as a means of modifying poor people's behavior. Chief

among the pathologies to be curtailed by new^ regulations is the

birthrate of ^velfare mothers —mothers who are perceived to be

Black. Welfare reform has become the main arena for current

THEWELFAREDEBATE 203

schemes to restrict Black female fertility, raising broader questions

about state funding of reproduction.

THE RACIST ORIGINS OF THE WELFARE SYSTEM

It is important to remember that the system that Congress dismantled

was never intended to end poverty, let alone provide adequate subsis-

tence for the poor. The fight to salvage pieces of the existing Avelfare

system tended to overlook its serious fla^vs. It ^vas easy to forget that

America's Avelfare system already stood out among Western nations

for its stinginess and limited social programs. (Take, for example, the

defeat of Clinton's proposal for universal health care insurance, a pro-

gram that has been enacted as a matter of course in every other indus-

trialized country.) The system of poor relief liberals sought to save

^vas also designed to subordinate Blacks, devalue women's vv^ork, and mollify demands for economic justice.^

Although Americans now view^ welfare dependency as a Black cul-

tural trait, the welfare system systematically excluded Black people

for most of its history. Historian Linda Gordon traces the origins of

w^elfare's stratified structure to women's advocacy for maternalist leg-

islation during the Progressive Era.^ "Mothers' pensions," initially

provided through state and local programs, laid the ground^vork for

the modern federal welfare system and shaped the terms of the debate

about single motherhood that still govern welfare policy discussions

today. Through a crusade that identified exclusively ^vith ^vomen and children, the ^vomen reformers in the early part of this century con-

vinced the public that single motherhood was an urgent social prob-

lem that should be addressed through social w^elfare. The resulting

maternalist welfare policy provided government aid so that the female

victims of misfortune and male irresponsibility would not have to re-

linquish their maternal duties in the home in order to join the v^ork

force. Other progressive critics, such as Mimi Abramovitz, Frances

Fox Piven, and Richard Cloward, emphasize that while the govern-

ment has subsidized certain "deserving" mothers to enable them to

stay at home, its welfare policy has also ensured the availability of less

privileged women to do low^-w^age work.

While recognizing the reformers' monumental accomplishment,

Gordon criticizes the programs' gross inadequacy in meeting the

needs of female-headed families. Why did welfare programs designed

by feminists end up failing women so miserably? Gordon's ans^ver to

204 KILLINGTHEBLACKBODY

this paradox is the reformers' adherence to a patriarchal family norm that fostered a misguided faith in the "family wage." The women cru-

saders believed in the prevailing sexual division of labor that "pre-

scribes earnings as the sole responsibility of husbands and unpaid

domestic labor as the only proper long-term occupation for women. "^

Mothers were supposed to be economically dependent on men. They therefore advocated a living wage for each family that enabled the

husband to support a dependent, service-providing wife, rather than

programs that would facilitate female independence. The reformers

also limited the programs' generosity because they \vere afraid that

welfare might provide an incentive for dependency on public assis-

tance, accompanied by moral degeneracy and family breakdown.

Besides its misguided faith in the family wage, the Progressive w^el-

fare movement w^as flawed by the elitism of the privileged, white ac-

tivist network that led it. A defining aspect of its welfare vision was the social control of poor immigrant families and the neglect of Black

women. Worried about urban immigrants' threat to social order, the

reformers treated welfare as a means of supervising and disciplining

recipients as much as a means of providing charity. According to this

social work perspective, the cure for single mothers' poverty lay in so-

cializing foreign relief recipients to conform to "American" family

standards. Aid generally was conditioned on compliance with moral-

ity provisions and was often administered by juvenile court judges

who specialized in punitive and rehabilitative judgments.

Black mothers, on the other hand, were simply excluded. The first

maternalist welfare legislation was intended for white mothers only.

Administrators either failed to establish welfare programs in locations

with large Black populations or distributed benefits according to

standards that disqualified Black mothers.^ The racial exclusivity of

mothers' aid programs coincided with the passage of Jim Crow laws,

official disenfranchisement of Blacks, and the entrenchment of formal

racial segregation — also Progressive reforms intended to strengthen

social order. As legal scholar Michael McConnell has noted, "The progressive reform movement in the South, with few exceptions, was also the white supremacist movement."^ It must be remembered that

the first decades of this century also witnessed the virulent campaign to stem immigration of "inferior races" and imposition of eugenic ster-

ilization laws.

Even in the North, Blacks were excluded from cultural reform ef-

forts designed to assimilate European immigrants. To these liberal

THEWELFAREDEBATE 205

white do-gooders, Blacks simply seemed unassimilable. "For the

white northern reformers early in the century, " Gordon explains, "the

primary fact vv^as that they did not notice these minorities —did not

imagine them as indicated objects of reform. For the southerners, the

immigrants appeared reformable and integratable as blacks did not."^

Their maternalist legislation Avas intended to assimilate ^vomen who had the potential of becoming citizens, but Blacks stood entirely out-

side the elite white w^omen's paternalistic concept of the national com- munity. As a result, in 1931 the first national survey of mothers'

pensions broken down by race found that only 3 percent of recipients

-were Black.

Black \vomen ^vere also left out of the feminist welfare activist net-

work. Gordon demonstrates the ^velfare movement s resulting ideo-

logical anemia by contrasting the elite ^vhite reformers' programs with the ^velfare vision of Black women activists of the era.^ Although

Black women reformers also relied on motherhood as a political plat-

form, their approach to women's economic role differed dramatically

from that of their privileged white counterparts. Black ^vomen eschewed the viability of the family ^vage and women's economic dependence on men. Instead, they accepted married w^omen's employ-

ment as a necessity, advocating assistance for ^vorking mothers.

Moreover, \vhile white reformers relied largely on the romantic

rhetoric of moral motherhood. Black women's organizations stressed

the value of mothers' work in the home. According to historian Eileen

Boris, "black suffragists were redefining the political and demanding votes for women on the basis of their work as — rather than their

merely being— mothers. "^^ Black activist ^vomen sho^ved their re-

spect for housewives, for example, by making them eligible for mem- bership in the National Association of Wage Earners.

The New Deal incorporated the local mothers' pension programs

into a federal system of ^velfare. It also solidified welfare's stratifica-

tion along racial as ^vell as gender lines. The fate of mothers' aid w^as

sealed ^vhen it was assigned to a program separate from the govern-

ment's provision for men. Social insurance (Social Security and un-

employment insurance) provided a dignified entitlement to primarily

white, male wage earners and their wives; Aid to Dependent Children

(ADC) doled out humiliating relief to poor single mothers. While So-

cial Security laws obligated the federal government to pay beneficia-

ries a fixed amount, "ADC clients faced caseworkers, supervisors,

and administrators w^ith discretion regarding who got aid and \\Qrw

206 KILLINGTHEBLACKBOOY

much they got,"^^ These government bureaucrats required recipients

to meet not only means standards but also degrading morals, or "suit-

able home," tests that typically probed clients' sexual behavior.

ADC's inferiority was enhanced by its provision of aid exclusively

to the child, defeating the position that mothers' aid compensated w^omen's service to society as a principle of entitlement.^^ While re-

jecting this positive aspect of feminist reformers' vie\v of mothers' aid,

the male-dominated Ne^v Deal regime incorporated the most limiting

aspects of the earlier reformers' view—the reliance on male wages to

meet the needs of families and the moral supervision of recipients of

poor relief.

As the New Dealers set up the federal welfare system's stratified

structure, they also ensured that Blacks would be left out altogether.

Northern Democrats struck a deal w^ith their Southern brethren that

systematically denied Blacks eligibility for social insurance benefits.

Core programs allowed states to define eligibility standards and ex-

cluded agricultural workers and domestic servants in a deliberate ef-

fort to maintain a Black menial labor caste in the South. ^^ Whites

feared that Social Security would make both recipients and those

freed from the burden of supporting dependents less willing to accept

lo^v wages. In addition. New Deal public ^vorks programs blatantly

discriminated against Blacks, offering them the most menial jobs and paying them sometimes half of what white workers earned.

Even ADC was created primarily for white mothers, ^vho were not

expected to work. Black mothers, who had aWays been in the paid

labor force in far higher numbers than white mothers, were con-

sidered inappropriate clients of a system geared to unemployable

women. One Southern public assistance field supervisor reported that

[t]he number of Negro cases is few due to the unanimous feeling

on the part of the staff and the board that there are more work opportunities for Negro women and to their intense desire not to

interfere with local labor conditions. The attitude that they have always gotten along, and that "all they do is have more children,"

is definite. ^^

The relatively few Black recipients received smaller stipends on the

ground that "blacks needed less to live on than ^vhites."^^

The civil rights movement finally opened the welfare system to

Black citizens. It forced states for the first time to relax the welfare el-

igibility requirements that had excluded Blacks for decades. During

THEWELFAREDEBATE 207

the 1960s, the National Welfare Rights Organization (NWRO), a

grassroots movement composed of welfare mothers, joined forces

with neighborhood welfare rights centers and legal services lawyers

to agitate for major changes in the welfare system's eligibility and pro-

cedural rules. This ^velfare rights movement secured entitlements to

benefits, raised benefit levels, and increased availability of benefits to

families headed by ^vomen. As a result, says historian G^vendolyn Mink, "by 1967, a vv^elfare caseload that had once been 86 percent

white had become 46 percent non^vhite." ^^ The majority of Black ^vomen nevertheless continued to work at paid jobs and the majority

of welfare recipients remained white.

This expansion of federal ^velfare entitlements w^as bolstered by President Lyndon Johnson s War on Poverty, which attempted to

eliminate further the racial bias incorporated in the New Deal pro-

grams.^'' Under pressure from civil rights protests and international

scrutiny, the federal government set up a number of programs de-

signed to integrate more Blacks into the national political economy.

The Office of Economic Opportunity used federal funds to empo^ver community action groups run by local Black activists; federal affirm-

ative action and job-training programs broke long-standing racial

barriers to union jobs; the Department of Housing and Urban Devel-

opment gave housing subsidies to the poor.

But Black w^elfare activists had w^on a Pyrrhic victory. As Gordon notes, they got themselves included "not in social insurance but

mainly in public assistance programs, ^vhich by then had become even

stingier and more dishonorable than they had been originally." ^^ As AFDC became increasingly associated with Black mothers already

stereotyped as lazy, irresponsible, and overly fertile, it became in-

creasingly burdened with behavior modification rules, work require-

ments, and reduced effective benefit levels. ^^ Social Security, on the

other hand, effectively transferred income from Blacks to whites be-

cause Blacks have a lower life expectancy and pay a disproportionate

share of taxes on earnings.

Black mothers' inclusion in welfare programs once reserved for

white v^omen soon became stigmatized as dependency and proof of

Black people's lack of work ethic and social depravity. The image of

the welfare mother quickly changed from the worthy white widow to

the immoral Black Avelfare queen. The rhetoric of motherhood has

lost all of the persuasive force it wielded during the Progressive Era.

When in 1967 Black members of the NWRO demanded the same benefits vv^hite mothers were receiving, Senate Finance Committee

208 KILLINGTHEBLACKBODY

chairman Russell Long called them "Black Brood Mares, Inc.," sneer-

ing that "if they can find the time to march in the streets, picket, and sit all day in committee hearing rooms, they can find the time to do some useful work."^° Part of the reason that maternalist rhetoric can

no longer justify public financial support is that the public views this

support as benefitting primarily Black mothers.

Meanwhile, a white backlash decimated the War on Poverty pro-

grams within a decade. In The Color of Welfarey sociologist Jill

Ouadagno demonstrates that it was precisely the War on Poverty's

link to Black civil rights that doomed it: whites opposed its programs

as an infringement of their economic right to discriminate against

Blacks and a threat to white political power. President Richard Nixon abolished the Office of Economic Opportunity in 1973, nine years

after its creation, when its expansion of Blacks' political participa-

tion appeared to foment rebellion in cities such as Detroit and Newark. At a time when European trade unions were fighting for

full-employment policies and more comprehensive welfare provisions,

the AFL-CIO defended its "property right " to exclude Blacks from its

ranks and opposed the civil rights campaign for an open labor mar-

ket. Peaking in 1968, federal housing subsidies underwent a precipi-

tous decline w^hen white homeowners backed by the powerful real

estate lobby adamantly resisted residential integration. The NWRO charged that Congress was being "vindictive" when it enacted a series

of welfare limits following urban riots in the summer of 1967.^^ For

Ouadagno, our deficient welfare system is "the price the nation still

pays for failing to fully incorporate African Americans into the na-

tional community. "^^

THE END OF WELFARE AS WE KNEW IT

The new federal law^ threatens to roll back the meager gains won by the 1960s welfare rights movement, once again placing poor Black

mothers and their children at the mercy of state legislatures and local

bureaucrats. Under the Social Security Act of 1935, the federal

government reimbursed states for part of the AFDC benefits they dis-

bursed as long as the state plans comported with federal require-

ments. Among the most critical federal standards were criteria for

eligibility, ensuring that all applicants who met a standard of need

were entitled to benefits. Federal entitlements also represented a na-

THEWELFAREDEBATE 209

tional commitment to providing a safety net for poor families. Al-

though states remained free to determine a maximum assistance pay-

ment, even one that left families below the poverty level, they

nevertheless could not exclude eligible applicants.

The demise of federal eligibility standards began several years ago as states secured federal ^vaivers allo^ving them to implement experi-

mental welfare programs. Even before the federal la^v went into effect

in 1996, more than half of the nation s vv^elfare recipients were covered

by state rules that, without the v^aivers, would have violated federal

la^v.^^ Without a federally enforceable right to benefits, most states are

likely to cut back eligibility standards and procedural safeguards. Not only will behavior modification rules proliferate, but fiscal pressures

^vill drive reductions in benefit levels, job training, child care, and other service programs.

The nev^ law represents a disastrous turn in the way we think

about welfare. Numerous critics have noted that American welfare

policy, by differentiating between ^velfare and social insurance pro-

grams, has long branded AFDC recipients as immoral freeloaders

who are responsible for their own fate.^^ Mainstream politicians never

fully ackno^vledged that recipients' poverty resulted from economic

and social forces that prevented them from finding work. The welfare

system never included a serious effort at aggressive job-creation or

eradication of social barriers to employment. Yet until recently ^vel-

fare policy minimally sought to reduce poverty and improve the living

conditions of recipients. Welfare v^as stingy and humiliating, but at

least it responded to the needs of poor children. In the new era of wel-

fare, government assistance has become a tool of social control, a

means of improving the behavior of poor families. Under the new scheme, even the neediest children are cast deeper into poverty if

their mothers do not conform.

STOPPING WELFARE MOTHERS FROM HAVING BABIES

The major goal of some welfare reformers is to reduce the number of

children born to women receiving public assistance. A variety of av-

enues have been proposed to achieve this goal. We already saw in

Chapter 3 several suggestions involving long-acting contraceptives.

The most benign is to make Norplant and other long-acting contra-

ceptives available to poor women through Medicaid. Some measures

210 KILLINGTHEBLACKBODY

combine this approach with the added incentive of offering a cash

bonus to women on welfare for using Norplant. The most coercive

proposal is to mandate Norplant insertion as a condition for receiving

Avelfare benefits.

Another option is to deny additional payments for children born to

w^omen w^ho are already receiving AFDC. A number of states already

have enacted so-called ^velfare family caps, and others are considering

this type of legislation. Typically the birth of a new baby to a family

on welfare ^vill increase the total payment the family receives by a

prescribed increment. Family cap provisions generally deny this new^

birth benefit increase for children born or conceived while the mother

is receiving AFDC. New Jersey, Georgia, Arkansas, and Wisconsin

\vere the first states to enact family caps, between 1992 and 1994. In

the next two years, they were followed by sixteen others across the

country, including Arizona, Illinois, Maryland, Massachusetts, and Texas. Republican Speaker of the House Newt Gingrich proposed

legislation eliminating w^elfare payments for children born to w^elfare

mothers and unw^ed teens and diverting the money to programs that

would put their babies up for adoption or place them in orphanages.^^

While some of these birth-deterring provisions have been too con-

troversial to pass, family caps are a bipartisan favorite. The Clinton

administration routinely approved state requests for federal waivers

of AFDC eligibility requirements to put family cap programs in place.

Department of Health and Human Services secretary Donna Shalala

told reporters, "We're sending a clear message that we will pay for

your first kid for a short time while you get ready for the work force.

But we will not pay for the second kid."^^ At a congressional hearing

on welfare reform, however, Shalala conceded that there was no evi-

dence that family caps would reduce welfare rolls: "We have no evi-

dence that a family cap will deter the behavior of an individual who chooses to have a second child.

"^"^

"Family cap" is really a misnomer since the laws do not put an ab-

solute ceiling on the number of children who can receive benefits.

"Child exclusion" more accurately describes the denial of benefits for

certain children born to welfare families. Ordinarily, the state deter-

mines a standard of family need according to the number of family

members, sources of income, and other factors. Under the family cap,

a family's standard of need is not adjusted upward to accommodate the new child. These laws are premised on the assumption that the

promise of benefits entices women to have additional children. So the

THEWELFAREDEBATE 211

penalty applies only to children born or conceived after the mother began receiving public assistance. Families receive benefits for chil-

dren they already have when they enter the welfare rolls. This means that a mother receiving assistance for one child who has a second child cannot count the new baby for computing benefit levels, but a

mother with two children signing up for welfare for the first time can

count both. In New Jersey at the time its exclusion went into effect,

for example, the first mother ^vould continue to receive $322 per

month; the second mother w^ould get $424.

THE FIRST FAMILY CAP LAW

Ne^v Jersey was the first state to get a federal waiver for a child ex-

clusion law. The provision is part of a package of ^velfare reform bills

called the Family Development Act adopted in January 1992. The act's goal, according to the state of New Jersey, is "to attack head-on

the nation's urgent problems of long-term and intergenerational wel-

fare dependency." Among its provisions is Bill 4703, which eliminated

"the increment in benefits under the program for ^vhich that family

would otherwise be eligible as a result of the birth of a child during

the period in which the family is eligible for AFDC benefits." In Nevv^

Jersey, the eliminated increment amounts on average to $64 a month for a child born to a woman vv^ho already has two children.

Implementation of the New Jersey family cap required federal ap-

proval because the exclusion conflicted with federal AFDC eligibility

standards. The Social Security Act authorized the secretary of HHS to waive compliance ^vith federal guidelines for experimental or

demonstration projects that promote the act's objectives to care for

needy children and to strengthen their families. New Jersey filed a

lengthy proposal describing the family cap provision as a five-year ex-

perimental project designed to test whether the harsh measure could

break the cycle of poverty that ensnared welfare recipients. On July

20, 1992, then secretary of HHS, Louis Sullivan, granted the neces-

sary waiver. The family cap was implemented statewide the following

October.

The act softens the blow by allowing a working mother to keep her

earnings until they reach one-quarter of her monthly grant. New Jer-

sey argues that this financial incentive for parents to work has the po-

tential to offset the cash increment they would have received before

212 KILLINGTHEBLACKBODY

the exclusion. But Nina Perales of the Puerto Rican Legal Defense

and Exlucation Fund believes "it is unrealistic to think that women will benefit from this provision unless they begin work in the month the baby is born and they have no child care costs. '^^ Of course, even

that assumes that the mother will be able to find a job. Senator

Moynihan accused New Jersey la^vmakers of effectively ordering

six-week-old babies "to shape up or starve. "^^

The child exclusion makes no exceptions for births that could not

have been deterred, such as births resulting from rape, incest, or

failed contraception. Nor does it make an exception for multiple

births. What happens if a mother receiving AFDC for one child

gives birth to triplets? Under the family cap, this family of five

must now survive on a grant calculated to meet the needs of a family

of two.

Had there been any doubt about the purpose to deter childbirth,

the law's primary sponsor. Assemblyman Wayne Bryant, made it ex-

plicit. Bryant, the Black Democratic representative of New Jersey's

poorest city, Camden, was the Assembly's majority leader until Re-

publicans took control of the state legislature in 1992. In an intro-

ductory statement, he said, "This bill is intended to discourage

AFDC recipients from having additional children during the period

of their welfare dependence. "^^ For some women this would mean using fail-safe forms of birth control such as Norplant and steriliza-

tion. For those who got pregnant, it might mean getting an abortion.

New Jersey's right-to-life groups opposed the family cap on the

ground that it would increase the number of abortions in the state.

The New Jersey Human Services Commission reports that in the

eight months after the family cap's adoption, abortions increased by about 300 over the preceding year while the national abortion rate de-

creased slightly.^' Women say that the child exclusion has induced

them to get an abortion they did not want.^^ There have been conflict-

ing reports about the lasting effect of the New Jersey family cap.^^

New Jersey is evaluating the success of the Family Development Act

by measuring its impact on the fertility rate of affected welfare moth-

ers, compared to birthrates in a control group. In its first report, the

team of Rutgers University researchers concluded there w^as "no

reduction in the birthrate of welfare mothers attributable" to the

family cap.

Bryant, himself a wealthy attorney, claimed to be helping his

poorer brothers and sisters achieve self-sufficiency. Eliminating the

increment, argues Bryant, is not a denial of benefits but "another w^ay

THEWELFAREDEBATE 213

that folks could be responsible like the rest of us." Since working people s salaries are not increased when they have a baby, neither

should people on welfare receive an increase in AFDC benefits. He explained:

I don't understand why we believe that we should set up some sheltered kind of existence that makes them live in an unreal

^vorld. . . . Why would we ^vant to insulate, and to bring a group of people into a false existence like that, for some reason, ifyou're

in this spot, you have no obligations? Everything is going to be free, and good for you. . . . They can't think for themselves [and]

^ve have to worry about everything that happens in their life.^"^

To call the life of a mother struggling to take care of a baby on an extra $64 a month "sheltered" displayed an incredible blindness to the

facts of poverty. Bryant forgot that AFDC, unlike working people's

salaries, is geared toward a family's need. Families receiving AFDC are already living in poverty; all the new birth increment does is allows

them and the additional baby to survive. People ^vho have a job Avill

have to adjust their budget to cover the expenses of a new baby, but

most will not be rendered penniless by the birth.

Bryant also forgot that ^vorking families receive government bene-

fits, in the form of earned income tax credits, tax exemptions, and child care credit, that subsidize the cost of an additional child. For a

single mother with two dependent children in New^ Jersey earning

$20,000 a year, these tax benefits could amount to $2,873 (compared

to only $778 for a welfare mother).^^ The working mother does not

need the tax deduction as much as the welfare mother needs the in-

crease in her grant. In no way does the child exclusion equalize the sit-

uation of middle-class citizens and those on v^elfare. In fact, it sends

their ^vorlds spiraling even farther apart.

RACE AND FAMILY CAPS

In the past, legislators have felt no compunction about asserting the

racial motivation behind their proposals to limit the fertility of women on welfare. In 1958, Mississippi state representative David H. Glass

introduced a bill mandating sterilization for any unmarried mother who gave birth to another illegitimate child. Glass explained that his

objective \vas to reduce the number of Black children on ^velfare:

214 KILLINGTHEBLACKBODY

During the calendar year 1957, there were born out-of-^vecllock

in Mississippi more than 7,000 negro children, and about 200

white children. The negro woman, because of child Avelfare as-

sistance, [is] making it a business, in some cases of giving birth

to illegitimate children. . . . The purpose of my bill was to try to

stop, or slow doAvn, such traffic at its source.^^

With an increasingly mechanized economy, Mississippi found that

Blacks ^vere no longer as useful a source of cheap, unskilled labor. In-

stead, to many whites. Blacks had become an unwanted welfare bur-

den. The bill answered the question posed by the state welfare

commissioner: "how much longer will the white population of Missis-

sippi consent to be taxed and drained of its substance for the benefit

of a race, and a nation, which shows no appreciation for their sacri-

fice?"^'^ Glass's proposal was also viewed as a way of forcing Blacks to

migrate from Mississippi to the North. In a pamphlet entitled Genocide

in Mufdi^dippi, the Student Nonviolent Coordinating Committee quoted Representative Stone Barefield as saying during floor debate

on the bill, "When the cutting starts, they'll head for Chicago. "^^ Ac-

cording to Hodding Carter, editor of the Delta Democrat-Tuned, "the

measure Avas tabled but there is \videspread sentiment for some sort

of means for coping with the fantastically high number of illegitimate

Negro births. "^^ Bills denying additional AFDC benefits to women w^ho had more than two children or conditioning future welfare pay-

ments on their sterilization were introduced in several states during

the 1970s. Although these failed to pass, Alississippi and Louisiana

did enact laws making it a crime to bear a child out of wedlock, pun-

ishable by thirty to ninety days in jail.

Contemporary politicians decry welfare mothers' irresponsible re-

production, using rhetoric identical to that of Mississippi la\vmakers

three decades ago, except they have cleansed it of its express racial

terms. Perhaps because he is Black himself, Wayne Bryant did not

hide the fact that his law was aimed at New Jersey's Black communi- ties. Half of AFDC recipients in New Jersey are Black. Bryant fa-

vored himself as a great savior of his people. In public hearings on the

legislation, as well as in interviews with the media, he boldly declared

that he intended the family cap to transform Black people's lifestyle.

At an October 1991 hearing, for example, Bryant stated: "I am say-

ing, as an African American, I will not tolerate anyone having my people disproportionately in a system that is going to keep them per-

manently in poverty, ^vithout having some responsibility."^^ Explain-

THEWELFAREDEBATE 215

ing the impetus for his proposal, he told the Washington Fodt, "We can-

not survive if w^e have too many of our people locked in pov-

erty. ""^^ He often referred to the Ne^v Jersey welfare law as "a modern form of slavery.

"

Bryant's outspoken support for the family cap proved to be very

convenient for white legislators, who ^vere only too happy to let the

Black assemblyman play "front man" for the bill. As one white New Jersey senator confessed, "It ^vould be very difficult for a white to

raise [the subject of welfare dependency]. . . . [Wayne Bryant] is

doing us all a favor by focusing the debate."''^

Congress also indicated that its ^velfare reform efforts specifically

addressed problems in the Black community. The House Republi-

cans' proposed Personal Responsibility Act of 1995 —a key provision

of the Contract with America— explicitly cited statistics of Black be-

havior to explain the need for its measures. The act referred to the ris-

ing illegitimacy rate for Black Americans and stated that "the

likelihood that a young black man will engage in criminal activities

doubles if he is raised without a father and triples if he lives in a

neighborhood with a high concentration of single parent families. "^^

In promoting his Contract with America, House Speaker Newt Gin-

grich attributed Black people's poverty to their laziness.^^

As w^e have seen in previous chapters, race fuels the welfare debate

even ^vhen it is not mentioned. Although most families who receive

AFDC are not Black, Black w^omen disproportionately rely on this

form of government aid to support their children."^^ Moreover, the

American public associates AFDC \vith the image of the mythical

Black welfare queen or teenage girl who deliberately becomes preg-

nant to receive public assistance. It is fair to say, then, that welfare

policies designed to discourage childbearing ^vill disproportionately

affect Black women and have these very Avomen in mind.

Like birth control programs and reproductive punishments, con-

temporary ^velfare policies share features of eugenic thinking. Eu-

genicists framed their arguments not only in terms of improving the

race, but also in terms of reducing the cost of subsidizing the unfit. In

his celebrated study of a degenerate family. The Juked, Richard L.

Dugdale included detailed calculations of the amounts the Jukes had

cost New York State by 1877. He estimated the family's financial bur-

den to society at "over a million and a quarter dollars of loss in sev-

enty-five years, caused by a single family 1,200 strong, without

reckoning the cash paid for whiskey, or taking into account the entail-

ments of pauperism and crime of the survivors in succeeding genera-

216 KILLINGTHEBLACKBODY

tions, and the incurable disease, idiocy, and insanity growing out of

this debauchery, and reaching further than we can calculate. "^^ Later

Charles Davenport asserted, "It is a reproach to our intelligence that

we as a people, proud in other respects of our control of nature,

should have to support about half a million insane, feebleminded,

epileptic, blind and deaf, 80,000 prisoners and 100,000 paupers at a

cost of over 100 million dollars per year. "^^

In 1935, Dr. J. N. Baker, Alabama's health officer, praised the Nazi

sterilization law^ before the state legislature for its economic effi-

ciency: "With bated breath, the entire civilized world is w^atching the

bold experiment w^ith mass sterilization recently launched by Ger-

many. It is estimated that some 400,000 of the population will come within the scope of this la-w. ... It is estimated that, after several

decades, hundreds of millions of marks will be saved each year as a

result of the diminution of expenditures for patients w^ith hereditary

diseases. ""^^

During the 1930s some eugenicists proposed tying government payments to family size in order to encourage the breeding of "better

stock." We must recall that one of their greatest worries was that the

least fit appeared to have increased fertility while the socially desir-

able classes experienced a decline in their birthrate. British eugenicist

Ronald A. Fisher, author of the 1930 classic The Genetlcal Theory of

Natural Selection, proposed a plan to reverse this trend "by w^hich the

eugenically valuable qualities of the nation are being destroyed. ""^^

Fisher advocated a comprehensive scheme of family allow^ances from

the government. Fisher's plan w^as exactly the opposite of a w^elfare

program, such as AFDC, that provides benefits to poor families w^ith

children. Rather, "The government w^ould provide an allow^ance for

each child proportional not to the family's absolute need but to its

earned income; high-income families w^ould receive more per child

than low^-income families. "^^ The American Eugenics Society appar-

ently concurred in Fisher's idea, publishing in 1935 a pamphlet de-

claring: "It is hard to see how a perfect eugenic system can prevail

until every intelligent married couple is able to have as many children

as it Avishes without low^ering its economic status."^' For these eugeni-

cists, government welfare was not aimed at helping the needy partici-

pate fully as citizens; its purpose was to exclude them as members of

society.

Of course, the current welfare family caps are not premised on no-

tions of recipients' genetic inferiority. But, like eugenic programs of

the past, they are seen as a w^ay of ridding America of the burden poor

THEWELFAREDEBATE 217

people impose. Once again, curbing reproduction is touted as a solu-

tion to social injustice.

REFUTING THE MYTHS ABOUT WELFARE AND REPRODUCTION

Policies that discourage women on Avelfare from having children are

justified by a set of myths about the connections between family

structure, w^elfare, race, and poverty. These myths hold that the

promise of benefits induces childbirth, that welfare dependency causes poverty, and that marriage can solve the problem of children's

poverty. The contemporary perception of procreation by the poor as

costly and pathological was most notably promoted by Charles Mur- ray, w^ho, in 1984, argued that welfare induces poor women to have

babies;^^ in 1993, declared that "illegitimacy is the single most impor-

tant social problem of our time";^^ and in 1994, claimed that the

higher fertility rates of groups with lower average intelligence, ^vho

fall at the bottom of the economic ladder, help to perpetuate welfare

dependency.^^ The solution, Murray proposed, was to eliminate wel-

fare benefits for all ^vorking-age adults. This thinking leads to the

conclusion that, since reproduction by the poor perpetuates poverty

and other social ills, policies designed to reduce their fertility are an

efficient means of at once reducing poverty and cutting welfare costs.

The myths about welfare and reproduction have broad-based sup-

port, as evidenced by the bipartisan passage of the 1996 federal vs^el-

fare reform laAv. While his view^s were once considered on the political

fringe, Murray now "has a platform in respectable publications and is

welcomed as a savant by Republicans in Congress. "^^ These themes

run throughout the House Republicans' Personal Responsibility Act,

some of which survived in the new federal la^v. For ease of reference,

I ^vill attribute the myths to a conservative political philosophy while

acknowledging their growing acceptance by the general public.

Myth No. 1: Welfare Induces Childbirth

Welfare reform measures designed to discourage reproduction are

based on the belief that welfare encourages poor women to bear chil-

dren, combined ^vith taxpayer resentment for having to pay to sup-

port them. Poor people violate the middle-class norm of childbearing

that holds it is irresponsible to have children when one cannot afford

218 KILLINGTHEBLACKBODY

to support them. Senator Lauch Faircloth explained this reasoning

during recent hearings on welfare reform:

[M]iddle-class American families ^vho ^vant to have children

have to plan, prepare, and save money because they understand

the serious responsibility involved in bringing children into the

world. But ^velfare recipients do not have to prepare or save

money before having children because they know they will get

money from the Federal Government, and that the taxpayers of

the country will take care of their children.^^

Does this mean that procreation is a privilege of the middle and upper

classes alone? Sidestepping the question of whether the poor should

have children at all, conservatives rail against the burden that it im-

poses on hardworking taxpayers. As Representative Marge Roukema asked during the congressional debate on the Family Support Act,

"How much longer do you think the tw^o-w^orker couple vvdll tolerate

the welfare state and its cost to them in taxes to support that welfare

mother? . . . The ans\ver is that they should not have to. "^^

A number of conservative w^riters have argued that the promise of

increased AFDC payments creates a financial incentive for welfare

recipients to have more children.^^ This claim is refuted by empirical

research and plain common sense. Many studies have found no signif-

icant causal relationship between welfare benefits and childbearing.^^

The vast majority of welfare mothers have only one or two children;

in fact, the average number of children in a family receiving welfare is

somewhat smaller than in families that do not. According to Marian Wright Edelman of the Children's Defense Fund, the average number of children in a family receiving AFDC is just 1.9.^^ Furthermore,

AFDC family size has declined in the last twenty years: while 32.5

percent of AFDC families had four or more children in 1969, only 9.9

percent had that many in 1990.^^

Moreover, fertility rates do not correspond to the level of welfare

benefits provided by the states. The state with the highest percentage

of AFDC families with four or more children (Mississippi) pays the

lo^vest amounts — only $24 monthly for an additional child. The claim

that welfare induces childbearing ignores the social and emotional

reasons for having a baby. In any case, it w^ould be irrational for a

w^oman on ^velfare to assume the tremendous costs and burdens of

caring for an additional child given the meager increase in AFDC payments that results. In fact, the benefit structure already deters

THEWELFAREDEBATE 219

childbirth since "[t]he average per capita amount of a ^velfare grant

decreased as the number of persons in the household increases. "^^ As it

is, welfare mothers suffer a net financial loss every time a child is

added to the family. Child exclusion laws only push these families

deeper into poverty.

A more plausible claim is that, although poor women do not become pregnant deliberately in order to receive AFDC benefits, they are

more likely to become pregnant with the security of AFDC benefits to

rely on than without them. The availability of w^elfare lessens the fi-

nancial burden poor women w^ould otherwise have to bear in having

children and therefore reduces their incentive to take every possible

precaution against pregnancy. As conservative writer Mickey Kaus explained, "With AFDC in place, young girls look around them and recognize, perhaps unconsciously, that other girls in their neighbor-

hood ^vho have had babies on their own are surviving, however un-

comfortably."^^ In short, Kaus asserts, "Welfare may not have been

the main cause of the underclass, but it enabled the underclass to form."

Welfare may not induce childbearing by indigent women, but refusing

to provide welfare might discourage it. Basing public policy on this

claim still assumes a clientele that is prone to dependence and sloth,

and that needs state incentives to reproduce responsibly.

Myth No. 2: Welfare Causes Dependency

Conservatives also advocate AFDC cutbacks on the grounds that

long-term reliance on ^velfare is immoral and that the provision of

welfare itself causes ^velfare dependency. Welfare reform rhetoric de-

scribes childbearing by the poor as fueling a cycle of poverty by pro-

ducing children who ^vill inevitably depend on the government for

sustenance. Conservatives claim that the reliance of the poor on w^el-

fare (rather than poverty itself) causes social problems, including the

perpetuation of v^elfare dependency into the next generation. Moth- ers who receive w^elfare are thought to teach their children a life of de-

pendency by undermining their children's motivation to support

themselves.

This worry about the intergenerational transmission of welfare de-

pendency was reflected by Justice Clarence Thomas's condemnation

of his sister's reliance on welfare: "She gets mad vv^hen the mailman is

late with her welfare check. That's how dependent she is. What's

worse is that now her kids feel entitled to the check too. They have no

220 KILLINGTHEBLACKBODY

motivation for doing better or getting out of that situation."^ In fact,

Thomas's sister, Emma Mae Martin, "^vorked two minimum-^vage jobs ^vhile her brother attended law school, but stopped working [for

four or five years] to take care of an elderly aunt ^vho had suffered a

stroke. "^^ Both she and her eldest child were employed at the time of

Thomas's appointment to the Supreme Court.

Yet conservatives assert no similar condemnation of long-term de-

pendency on inherited wealth, life insurance proceeds, government agricultural subsidies, and Social Security benefits. Indeed, we do not

view this type of reliance on financial assistance as dependency at all.

A welfare rights activist and former recipient, Theresa Funiciello, ex-

plains the unfairness of the distinction made between children sup-

ported by Social Security and those supported by AFDC:

No one has suggested the mother on Social Security suffers from

"dependency, " yet everyone seems concerned about dependency w^hen it comes to vs^elfare. There is no rational public policy basis

for treating families in essentially identical circumstances in such

radically different ^vays. . . . The only real difference between "survivor" and "welfare " families ... is the imprimatur of the fa-

ther. The message: the needs and rights of women and children

are determined not by universal standards but by the nature of

their prior relationship to a man.^^

Another difference between "survivor" families, w^ho depend on So-

cial Security, and "welfare" families, who depend on AFDC is that

white children are more likely to belong to "survivor" families, while

Black children are more likely to be part of "welfare" families.

According to feminist scholars Nancy Fraser and Linda Gordon, "[d]ependency ... is an ideological term" which "carries strong emotive

and visual associations and a powerful pejorative charge. "^^ As a re-

sult, ^vhat is considered dependency has changed along with the

major social and economic transformations. It was only with the rise

of industrial capitalism that the meaning of economic independence

was expanded to include the white workingman's wage labor in addi-

tion to property ownership and self-employment. Paupers, slaves, and housewives, \vho w^ere excluded from wage labor, constituted the un-

derside of the workingman's independence and were kept economi-

cally and politically dependent. As major forms of dependency deemed proper in industrial usage became objectionable, "depen-

dency" became an increasingly negative term and was attributed with

THEWELFAREDEBATE 221

greater frequency to the fault of the individual rather than the social

structure.

This distinction in the moral outrage directed at different types of

dependency parallels the stratification of the American welfare sys-

tem into two basic categories: Social Security and what is commonly called ^velfare (mainly AFDC). Social Security retains its political

popularity because it is perceived as an insurance program despite its

strong redistributive effects and its dependent clients. ^^ Yet Social Se-

curity itself encourages some dependencies while discouraging others.

It "subvert[s] adults' sense of responsibility for their parents" while

promoting waives' dependence on their husbands' wa,ges.^^

Because Social Security's beneficiaries are thought to recoup what they contributed to the program, they are neither stigmatized nor su-

pervised. So taxpayers complain about supporting poor mothers on AFDC through their income taxes, but not about the transfer of their

Social Security payments to the wido^vs and children of deceased

workers, vv^ho may even be more affluent than the taxpayers who sup-

port them. In 1992, nearly four million children and caretaker parents

received Social Security benefits totaling about $14 billion. ^° The budget for AFDC was only 50 percent greater, even though its case-

load was three times larger.

The stratification of the American ^velfare system becomes even

more suspect if we consider an even broader meaning of vv^elfare that

extends beyond AFDC and Social Security. Linda Gordon suggests

that welfare "could . . . accurately refer to all of a government's contri-

butions to its citizens' well-being. "^^ This interpretation \vould in-

clude home mortgage deductions, the provision of public schools, and

corporate tax breaks, and v^ould reveal that most ^velfare helps Amer- icans Avho are not in fact poor. Of the $711 billion in federal entitle-

ment spending in 1992, AFDC accounted for less than $20 billion.^^

Less visible public income transfers structured through the income

tax system benefit higher-income groups the most. "At less than 4 per-

cent of total federal social welfare spending, AFDC is fiscally an in-

substantial part of the American welfare state, " conclude the authors

o^America d Midunderstood Welfare State7^

The myth of welfare dependency also includes the view that the

public would not have to support poor children if their parents would go to work. Congress, at least formally, has required mothers receiv-

ing AFDC to enroll in ^vork programs since 1971. Several states also

implemented their own programs that attempt to force welfare recipi-

ents to work by cutting off benefits after two years. A key element of

222 KILLINGTHEBLACKBOOY

the 1 996 federal reform law similarly requires adult welfare recipients

to find work within two years.

The underlying belief that people rely on welfare because they lack

incentive to ^vork (a condition to be cured by forcing them to get

jobs) is also a myth. It is refuted by the fact that most Avelfare recipi-

ents work while on welfare, either continuously or intermittently

w^hen they are able to get jobs."^^ Many w^omen ^vho w^ork full time

still live in poverty. Any Avork disincentive that exists is not caused

by overly generous welfare benefits, but by the miserable condi-

tions of available full-time jobs: poverty \vages, loss of ^velfare bene-

fits, and inadequate child care and health insurance. As an officer in a

California work program explained: "[A] single woman with three

children, who has to pay for child care, can't live off $6 an hour. That

is an economic reality that goes beyond the welfare cycle we ^vant to

break. "^^

Besides, there are simply not enough full-time jobs around to ab-

sorb the millions of current welfare recipients vv^ho will be forced to

find work.^^ Sociologist William Julius Wilson has warned time and time again, "The disappearance of work in the ghetto cannot be ig-

nored, isolated or played down."^^ Reducing the need for AFDC will

require dramatic economic and social changes, including aggressive

job creation, a higher minimum wage (or a guaranteed minimum in-

come), lower marginal tax rates on welfare recipients' earnings, better

schools and effective job training, subsidized child and health care,

and elimination of inequalities in the labor market— changes that con-

servatives are apparently unwilling to pursue.

Myth No. 3: Marriage Can End Children's Poverty

According to the conservative vision, single motherhood is especially

immoral and harmful, in part because conservatives believe out-of-

wedlock childbearing causes poverty. Contemporary welfare reform

rhetoric resurrects the early reformers' anxiety about single mother-

hood. The House Republicans' proposed Personal Responsibility Act

declared that "marriage is the foundation of a successful society " and "an essential social institution which promotes the interests of chil-

dren and society at large. " A list of "negative consequences of an out-

of-wedlock birth on the child, the mother, and society" followed. The act would have imposed a number of measures designed to penalize

un^ved mothers and their children. It prohibited, for example, moth-

THEWELFAREDEBATE 223

ers under the age of eighteen from receiving AFDC benefits for any child born out of Avedlock, regardless of when aid is sought for the

child, unless the mother marries the child's father or someone who adopts the child.

It is true that families headed by single females are disproportion-

ately poorer than families with an adult male present. The U.S. Cen- sus Bureau reported that the 1991 poverty rate was 12.1 percent

among married-couple households with children, compared to 59.0

percent in single-mother households. '^^ But this correlation does not

prove that single motherhood caused poverty. Nor can it predict that

marriage or paternal child support will ensure children's financial

well-being. Even researchers who find some causal connection be-

tween child poverty and family structure attribute only 10 to 20 per-

cent of poverty to the rise of female-headed households.^^ Rather,

children's poverty results from inadequate family income, due to the

declining ability of one parent— especially the mother—to earn

enough to stay above the poverty line. This problem is exacerbated by working conditions that make it virtually impossible for mothers to

combine low-^vage jobs v^ith child-raising.

There is no sound evidence that welfare is an incentive for women to create single-mother households. A 1984 study concluded that

"[t]he attractiveness of vv^elfare and Avelfare dependency exhibits no

effects on black female family heads. "^° Indeed, efforts to discourage

single motherhood by cutting welfare benefits have failed, vv^ith the

proportion of families headed by unmarried ^vomen rising even with

benefits falling.^^ True, AFDC gives some women w\\o might other-

wise be forced to depend on a husband's income the financial ability

to establish their own households. Battered women's advocates are

worried, for example, that ^velfare cuts w^ill compel victims to remain

in violent homes out of economic desperation.^^

The judgment that this type of independence is bad, ho^vever, is not

based on evidence that ^velfare causes poverty. Rather, this is a nor-

mative decision which prefers encouraging women's economic depen-

dence on husbands over providing aid for child care directly to

women or improving women's orwn economic opportunities in combi-

nation with state subsidies.^^ This judgment falls especially hard on

Black mothers: since the 1980s, over half of all Black families with

children have been headed by ^vomen who have never married.^"^ Pe-

nalizing single mothers will disproportionately harm Black children.

It is especially unlikely that marriage or child support will eradicate

the poverty of most Black children. Research suggests that there are

224 KILLINGTHEBLACKBODY

racial differences in paths to poverty for vv^omen. Whereas many white Avomen are left impoverished by divorce, Black single mothers

are more likely to be the victims of "reshuffled poverty," caused by the

dissolution of a poor two-parent household. While about half of poor

white single mothers became poor at the time they established a

single-mother household, only a quarter of Black women did—the

Black mothers were poor already^^ A study of children's poverty con-

cluded that "[fjamily structure patterns are more powerful determi-

nants of the economic fates of white than black children. "^^ Moreover,

Black children living with two parents are still more likely to be poor

than white children in female-headed households. Just as marital

breakdown is unlikely to be the cause of Black mothers' poverty, so

marriage is unlikely to be the solution.

Collecting child support from fathers will be no more successful

than marriage at ending children's poverty. Since 1975 Congress has

enacted increasingly tough measures designed to recoup welfare costs

by collecting child-support.^^ Yet intensified state and federal cam-

paigns to improve child support collection have failed either to lower

the poverty rate for children or to reduce significantly the number of

children on welfare. HHS projects that higher child-support pay-

ments w^ould enable less than 1 percent of families on ^velfare to rise

above the poverty level.^^

Of course, there are many affluent fathers whose financial support

could lift their children out of poverty. But, to use a ^vell-worn ex-

pression, it is impossible to squeeze blood from a stone. No matter

how vigorously enforced, a child-support order cannot raise the earn-

ings of a low-income or unemployed father. Again, relying on paternal

child-support penalizes Black children. Black mothers are less likely

to be poor because of separation from the father and Black fathers are

less likely to earn the ^vages necessary to ensure adequate support for

their children. The incarceration rate for young Black men is also

many times higher than for whites. Policies that replace welfare with

child-support collection, therefore, tend to benefit white children and disadvantage Black children. Researchers calculated, for example,

that under Wisconsin's percentage-of-income child-support formula,

white families obtained a $481 million annual gain whereas Black and Hispanic families suffered more than a $200 million loss.^^ In short,

Avhile the state should help mothers to go after child support from fa-

thers vvdth decent incomes, it is ludicrous to believe that child support

can relieve Black children's poverty.

THEWELFAREDEBATE 225

Even if marriage ^vould improve poor mothers' financial ^vell-

being, this result would not justify affirmatively linking their eco-

nomic options to marriage. But this is precisely the effect of

"bridefare" programs that give mothers monetary rewards for marry-

ing. The Ne^v Jersey Family Development Act, for example, allows

families to earn income up to 150 percent of the poverty-line income and still keep their AFDC benefits, Medicaid, and emergency hous-

ing assistance if, and only if, the mother marries.^° This means that a

woman with two children who marries can keep her children's AFDC benefits as well as up to $21,000 of earned income a year.^^ Its pri-

mary sponsor, Assemblyman Wayne Bryant, hoped to entice ^velfare

mothers into replicating a middle-class family structure. "We w^ant to

do . . . away with what I call the 'invisible man,' [vv^here Avelfare al-

lows] men and ^vomen [to] conjugate [t^ic] together and yet not en-

courage the family like w^e do in middle-class families," Bryant explained.

Mothers can get the best bridefare package only if they marry a

man other than the natural father of their children. Ne^v Jersey legis-

lators apparently had in mind women ^vho deliberately get pregnant

out of ^vedlock, apply for ^velfare, and then marry the father— all to

take advantage of the bridefare boon. But is that possibility any more unsavory than the prospect of desperate mothers bribing neighbor-

hood men to marry them in order to maximize their monthly grants?

The bridefare provision, however, denies this "income disregard " to

an unmarried woman who lives with the working father of her chil-

dren, to a working mother Avho does not have a husband, and to two mothers who decide to pool their resources to support their children

in a single household. Although Bryant claimed the law ^vas designed

to teach welfare mothers "to become successful, responsible, and self-

sufficient in our society, " he clearly ^vas more interested in w^omen's

marital status than their financial independence. In fact, bridefare fa-

vors non\vorking vv^elfare mothers who rely on a husband's salary

over independent, \vage-earning mothers on welfare. Measures like

the one in New^ Jersey do not tie welfare to marriage in order to end

children's poverty. They tie welfare to marriage in order to penalize

single, rebellious Black mothers.

226 KILLINGTHEBLACKBODY

WELFARE AS A WAIVER OF PRIVACY

The regulation of -welfare mothers' fertility is bolstered not only by these myths but also by a legacy of disrespect for the privacy of wel-

fare recipients. Public relief for single mothers is structured to permit

bureaucratic supervision of clients in order to determine their eligibil-

ity based on both means- and morals-testing. Middle-class Americans

avoid these impositions because they receive their benefits in the form

of entitlements and tax breaks that are not subject to the discretion of

caseworkers, supervisors, or administrators. While poor single moth-

ers must endure government surveillance for their paltry benefits,

"self-sufficient" traditional families receive huge public subsidies — Social Security, tax breaks, and government-backed mortgages, for

example —without any loss of privacy.^^

By regarding w^elfare benefits as an undeserved subsidy, the la\v al-

lows states to treat recipients as subjects whose behavior may be

modified to fit current social policy. The notion that receipt of welfare

benefits should be conditioned on prescribed improvements in recipi-

ents' lifestyle has recently gained favor across the country. Over the

last several years, the federal government has granted w^aivers to

more than thirty states allowing them to change their welfare pro-

grams to incorporate a form of behavior modification.^^ States are ex-

perimenting with schemes that cut off benefits if recipients fail to go

to work, stay on welfare past a set period of time, have babies out of

wedlock, or cannot stop their children from dropping out of school.

These new programs are based on the twin premises that paying w^el-

fare benefits entitles the government to regulate mothers' behavior

and that only mothers who conform to middle-class values deserve

government support.^^ Journalist Rosemary Bray, a former welfare

recipient herself, calls the social supervision of welfare clients "a con-

trol many Americans feel they have bought and paid for every April

]^5 "95 ^j-^g j^g^ federal la^v sets states free to experiment even more with these behaviorial conditions on welfare benefits.

Means- and morals-testing allows welfare bureaucrats to place re-

cipients under surveillance to check for cheating or lapses in eligibil-

ity. This probing forces recipients to assume a submissive stance lest

offended caseworkers throw them off the rolls. With the power to cut

a client's lifeline, bureaucrats often berate and degrade the mothers

w^ho pack the ^velfare office, adding to the humiliation of begging for

public assistance. "Think of the worst experience you've ever had

THEWELFAREDEBATE 227

with a clerk in some government service job —motor vehicles, hospi-

tal, whatever—and add the life-threatening condition of impending starvation or homelessness to the ^vaiting line, multiply the anxiety by an exponent of ten," writes Theresa Funiciello, "and you have some idea of what it's like in a welfare center. "^^ Clients are made to wait in

long lines, shuttled back and forth, and told to return another day.

Noncompliant recipients are sometimes arrested or beaten up by se-

curity guards.

The indignity does not end at the ^velfare office. Welfare mothers must also allow caseworkers to search their homes. A Black domes- tic's experience with poor relief in the 1930s remains typical of that of

welfare recipients today:

The investigators, they were like detectives, like I had committed

a crime. ... I had to tell them about my life, more than if I was on trial . . . the investigator searched my icebox. ... I ^vas

ashamed of my life . . . that's how you're made to feel when you're down and out like you're nothing better than a criminal.^^

A contemporary mother similarly described her experience with wel-

fare workers: "I know they be ^vanting to knou> everything. They are

so nosy. They control your life. I don't like it."^^ Plans to weed out

fraudulent claims by ^velfare cheats, like one instituted in 1995 by New^ York City mayor Rudolph Giuliani, have intensified harassment

of Avelfare recipients and thrown legitimate clients off the rolls. ^^ Al-

though we never hear about them, there are far more people entitled

to benefits ^vho do not receive them than welfare cheats.

Why do constitutional guarantees such as the right of privacy and the right against unla^vful searches and seizures not prevent these

government intrusions into citizens' personal lives? Privacy doctrine

does not shield people who receive w^elfare benefits. An individual's

acceptance of government benefits is deemed to constitute a waiver of

privacy. The Supreme Court has routinely allowed states to regulate

poor families by conditioning benefits on conformance to various

mandates. Because these families are not entitled to government sup-

port, the Supreme Court has reasoned, the government may force

them to open up for inspection, shrink, rearrange, or break up in

order to qualify for benefits. Although the Court sometimes finds an

egregious invasion of poor families' privacy to be unconstitutional,

most of the day-to-day decisions of family life remain vulnerable to

state regulation.

228 KILLINGTHEBLACKBODY

Over and over again, the Court has upheld welfare regulations that

determine eligibility for benefits based on household composition de-

spite their negative effects on families' chosen living arrangements. ^° °

In 1995, the Court held that states could group into a single "assis-

tance unit" all needy children living in the same household under the

care of one relative even though this rule results in a decrease in

AFDC benefits for each child. ^^^ All the government needs is a "ratio-

nal" reason for its regulation, which can include the goal of decreasing

welfare expenditures. One of Americans' most cherished freedoms is

the right to keep government agents out of our homes. The police

must obtain a search warrant to inspect even the homes of suspected

criminals. Yet the Court has ruled that welfare Avorkers can demand home entry as a condition of welfare eligibility; there is no need to

get judicial approval even when an applicant protests the home inspection. ^^^

This loss of privacy often entails state intrusion in welfare recipi-

ents' reproductive decisionmaking. Since welfare's inception, states

have conditioned payments on mothers' compliance with standards of

sexual and reproductive morality, such as "suitable home" or "man in

the house" rules. The ADC law passed in 1935 provided that the state

may "impose such other eligibility requirements — as to means, moral

character, etc.— as it sees fit." More recently, welfare mothers have

been required to undergo mandatory paternity proceedings involving

state scrutiny of their intimate lives. Under the Family Support Act of

1988, the states are required to meet federal standards to establish the

paternity of children born out of wedlock as a means of procuring

child support from absent fathers. The Supreme Court has approved

the federal requirement that welfare mothers cooperate in establish-

ing the paternity of their children and tracking down the father. ^^^

Mothers must submit to investigation that often delves into their sex-

ual activities, or else lose their benefits. In one case, a woman was de-

nied public assistance for refusing to turn over a calendar on which she had allegedly written the names of her sexual partners. ^^

Some family cap la\vs open up another area for government prying.

Arkansas allows recipients to avoid the exclusion if they prove that

the child was conceived by rape or that they were using a "reliable

"

method of contraception. Although this exception relieves some of the

hardship of undeterrable births, it also means having to reveal inti-

mate details of your sex life to government workers in order to get

benefits. In addition, the exception pressures women to use the most invasive means of birth control. Because the contraceptive must be 96

THEWELFAREDEBATE 229

percent reliable or better to qualify, welfare mothers have to use Nor- plant or lUDs to qualify for the exception. We have already seen the

problems associated ^vith long-lasting, provider-controlled devices.

GOVERNMENT FUNDING OF ABORTIONS

Why does the constitutional right to privacy, which protects a

woman's decision to terminate a pregnancy, not protect a Avelfare

mother's decision to have a baby? To explore this question, we must begin with Supreme Court cases deciding whether or not poor women have a right to government funding of an abortion. Roe v. Wade

and subsequent cases guaranteed ^vomen's freedom from government interference in their private reproductive decisions. But what about

vv^omen too poor to pay for private health care? If the facilities needed

to effectuate a reproductive decision cost money, poor and low-

income ^vomen—^vho are disproportionately Black—may not be able

to afford to take advantage of them. Prenatal care, abortion services,

reproduction-assisting technologies, fetal surgery, contraceptives, and family-planning counseling are some examples of the means to realize

reproductive choices that may be financially out of reach. ^^^ Institu-

tional, cultural, language, and educational barriers also deter poor

women of color from using the limited services that are available. ^^^

Poor women's inadequate access to reproductive health services is

bolstered by traditional constitutional jurisprudence. Current legal

doctrine fails to recognize these barriers as a constitutional issue at all

for two principal reasons. First, the prevailing view holds that the

Constitution protects only an individual's "negative " right to be free

from unjustified intrusion, rather than the "positive" right to actually

lead a free life. Second, this vie^v restricts constitutional protection to

interference by the state. The Constitution, then, does not obligate the

government to ensure the social conditions and resources necessary

for individual liberty or to protect the individual from degradation in-

flicted by social forces other than the state. This means that citizens

have no constitutional right to government benefits, even benefits

needed to subsist.

The ability to deny benefits, however, can give the government in-

tolerable pow^er over citizens' exercise of their constitutional rights.

That power expands the more we live on "government largess ";^^^ but

it is mightiest against those who depend on benefits for their very sur-

vival. The government could grant benefits only on the condition that

230 KILLINGTHEBLACKBOOY

recipients relinquish their protected Kberties. It could attach strings

to receiving a welfare check that would violate the Constitution if

commanded directly. Could a state, for example, deny unemployment compensation to a Seventh-Day Adventist who was fired for refusing

to work on her Sabbath? In a 1963 decision, the U.S. Supreme Court

held that this was unconstitutional.^^^ The state could not force the

vv^oman to choose betw^een her religious practices and receiving gov-

ernment assistance.

This reasoning is encompassed in the unconstitutional conditions

doctrine. This principle holds that the government may not condition

the conferral of a benefit on the beneficiary's surrender of a constitu-

tional right, although the government may choose not to provide the

benefit altogether. An unconstitutional condition exists w^hen the gov-

ernment penalizes individuals for exercising their constitutional rights

by denying benefits that would otherwise be available to them.

Only four years after Roe i>. Wade ensured women's constitutional

right to abortion, the Court had to decide whether the Constitution

also required the government to pay for the cost of abortions for poor

women. Although nothing in the Constitution obligated the govern-

ment to provide this benefit, without government support many indi-

gent women who wanted to terminate a pregnancy w^ould be unable

to exercise their newly established right. Laws denying government support for abortion services raise an unconstitutional conditions

problem. The Medicaid funding scheme explicitly excludes payment for a constitutionally protected activity. The government's refusal to

pay for abortion places a condition on the receipt of Medicaid funds:

pregnant ^vomen may receive medical benefits as long as they do not

use them to exercise their right to obtain an abortion.

Welfare recipients do not fare well under the unconstitutional con-

ditions doctrine, ho^vever. In Maher v. Roe, the Court upheld a Con- necticut statute that denied public funding of abortions that were not

medically necessary, even though the state paid for the expenses inci-

dental to childbirth. ^^^ Hov^ could Connecticut justify its allocation of

resources to one constitutionally protected activity and not the other?

This ^vas certainly not a cost-saving measure, since paying for abor-

tions would save the state the cost of prenatal care and delivery. Rec-

ognizing first that "[t]he Constitution imposes no obligation on the

states to pay the pregnancy-related medical expenses of indigent

^vomen, or indeed to pay any of the medical expenses of indigents, "

the majority reasoned further that states may make "a value judgment

THEWELFAREDEBATE 231

favoring childbirth over abortion and . . . implement that judgment by the allocation of public funds." ^^° Rather than impermissibly burden-

ing the decision to have an abortion, the Court said, the funding

scheme simply made it more attractive for indigent ^vomen to choose

to have the baby. It was perfectly permissible for Connecticut to allo-

cate benefits so as to encourage women to have babies and to dis-

courage them from having abortions, even though this was their

constitutional right.

The passage in 1977 of the Hyde Amendment, a yearly Medicaid rider, ended most federal involvement in subsidizing abortion services

and relegated that role to the states. The provision prohibited federal

reimbursement of Medicaid funds even for most therapeutic abor-

tions. Under the current version of the Hyde Amendment, Medicaid pays for abortions only when the w^oman s life is endangered by preg-

nancy or if the pregnancy is the result of rape or incest, an exemption

that draws a perpetual battle in Congress. The number of federally

funded abortions dropped from nearly 300,000 in 1977 to under 300

in 1992 as a result of the amendment. Most states have restrictive

policies similar to that of the federal government and pay for very few abortions. Consequently, state abortion funding has been the major

subject of litigation brought by pro-choice groups. As of 1994, only

seventeen states used their ov^n funds to subsidize abortions for poor

^vomen under most circumstances, owing either to legislation or court

order.

Three years after the Maher decision, the Court narrowly upheld

the Hyde Amendment in Harrld i>. McRae}^^ The Court again distin-

guished between the government s affirmative interference with abor-

tions and its failure to pay for them. "Although government may not

place obstacles in the path of a woman's choice, it need not remove

those not of its ow^n creation," the Court reiterated. "It simply does

not follo^v that a woman's freedom of choice carries ^vith it a constitu-

tional entitlement to the financial resources to avail herself of the full

range of protected choices."

The Court thus avoided the unconstitutional conditions problem by distinguishing between direct state interference with a protected ac-

tivity and the state's mere refusal to subsidize a protected activity. It is

one thing for the government affirmatively to interfere with women's

access to abortions and another to fail to pay for them. The former,

the Court concedes, raises a constitutional issue because it involves

state action, ^vhereas it characterizes the latter as a constitutionally in-

232 KILLINGTHEBLACKBODY

significant failure to act. Under this reasoning, a condition on benefits

becomes a constitutional nonsubsidy rather than an unconstitutional

penalty.

But the Court could only characterize the denial of abortion fund-

ing as a nonaction by taking as the baseline the lack of funds for any medical decisions. If, on the other hand, one takes as the baseline the

government's subsidy for all other medical care except abortion, it

looks as if "the state is singling out abortion for unfavorable treat-

ment." ^^^ More broadly, the Court measured government action and inaction against a baseline of the current arrangements of ^vealth and privilege. The refusal to pay for abortions did not disturb the prevail-

ing conditions of poverty and therefore seemed like no action at all.

The fact that many indigent woman could not exercise their repro-

ductive rights and the harm that resulted from this inability seemed irrelevant to the Court's analysis.

SILENCING POOR WOMEN'S DOCTORS

The Supreme Court's decision in Rujt ^. SuU'wan,^^^ upholding a ban

on abortion counseling in federally funded clinics, illustrates the par-

ticular perils of this approach for Black women. Congress enacted

Title X of the Public Health Service Act in 1970 to give millions of

poor and low^-income women access to reproductive health services

that they otherwise could not afford. In 1988, the HHS (under the

Reagan administration) issued regulations that prohibited family-

planning clinics receiving Title X funds from informing their patients

about abortion. The regulations, w^hich were soon dubbed "the Gag Rule, " banned clinics from counseling their pregnant patients about

abortion, from referring them to an abortion provider, and even from

telling them where this information could be obtained. The regula-

tions also required the clinics to give their pregnant patients a referral

list of health care providers that promoted "the w^elfare of mother and unborn child," but which did not include any health care providers

that offered abortion as their principal business. Newly elected Presi-

dent Clinton repealed the regulations on January 22, 1993 —the

twentieth anniversary of the Roe v. Wade decision. But the damage in-

flicted by the Supreme Court's endorsement could not be erased.

This stifling of medical information endangered the health and lives

of lo^v-income women. Under the Hyde Amendment, the federal gov-

ernment already refused to pay the cost of abortion for these women.

THEWELFAREDEBATE 233

Now it ^vas commanding their doctors to hide information about

abortion, as well. Doctors could neither tell patients of the availability

of abortion, nor discuss the possible risks and benefits. The govern-

ment's policy was plainly designed to discourage clinic patients from even considering abortion as an alternative. The mandated silence on abortion and referral only to providers not offering abortion threat-

ened to mislead women \vho had already decided to terminate a

pregnancy about the legality and availability of a safe abortion. The limitation on referrals typically left on the list only hospitals and pri-

vate physicians that were financially and geographically out of pa-

tients' reach.

Many women are unaware of their right to an abortion or where to

obtain a safe, inexpensive one. They often turn to newspaper ads that

steer them in a dangerous direction. Recent ne^vpaper stories reveal

horrible accounts of poor women who have suffered botched abor-

tions at the hands of unlicensed doctors practicing in unsafe abortion

mills. A clinic operating under the regulations would encourage some pregnant women to believe that abortion was not legal, available, and safe. This obfuscation of services could also mean dangerous delays in

the already difficult process of obtaining an abortion.

Moreover, the regulations posed a special threat to women suffer-

ing from certain serious medical conditions, such as heart disease,

hypertension, diabetes, sickle-cell anemia, and cancer, ^vhose progres-

sion might be accelerated by pregnancy. For example, a woman with

diabetic retinopathy Avho becomes pregnant may go blind. ^^^ The reg-

ulations prevented doctors from advising these women that abortion

might reduce the long-term risks to their health. The required support

of the pregnancy and recommendation of prenatal care vv^ould give

the false impression that pregnancy did not jeopardize their health.

Patients could not possibly have made an informed assessment of the

risk that pregnancy posed to their health without information about

abortion as well as prenatal care. Indeed, the doctors' ethical obliga-

tion of truth-telling required disclosure of this information.

The regulations' impact would have been most dramatic for Black

patients. These \vomen are more likely than white ^vomen to rely on

publicly funded clinics because they are less likely to have private

health insurance, sufficient income to pay a private physician, or a

continuing doctor-patient relationship.'^^ Fe^ver than half of Black

patients visit private doctors; they rely much more than white patients

on hospital emergency rooms for health care.'^^ Of the nearly 4 mil-

lion women in 1988 who used a Title X clinic for their last family-

234 KiLLINGTHEBLACKBODY

planning visit during the previous year, 28 percent were Black. ^^^ This

number represented over half of Black women, compared to less than

a third of ^vhite women. These figures sho^v not only that a large

number of Black women would be denied information, but also that

the Black community as a whole would feel the deprivation of health

services the most.

The lack of a continuing relationship ^vith a personal physician has

a profound impact on Black ^vomen's encounters \vith the medical

system. While most middle-class ^vhite women can negotiate health

services with the help of a personal physician who is socially like

them, most Black women must face complicated and impersonal med- ical institutions on their own. A Haitian woman's explanation of why she discontinued prenatal care at a public hospital illustrates ho^v

health care's structure repels many poor Black women:

My friend say go to doctor and get checked. . . . My friend be on phone much time before they make appointment. They no have

space for 30 days. When I go to hospital, it confusing. ... I go

early, and see doctor late in the afternoon. ... I wait on many long lines and take lots of tests. I no understand why so many tests every time. No one explain nothing. No one talk my lan-

guage. I be tired, feel sick from hospital. I go three times, but no

more. Too much trouble for nothing. ^^^

Black women are less likely to be aware of controversies surrounding

informed consent, sterilization, and the side effects of contraceptives

such as Norplant reported in the newspaper, consumer reports, and health publications. ^^^ But they know, as their rejection of Norplant

sho^vs, Avhen they are being abused.

At the same time, the regulations' medical consequences would be

gravest for Black women. Black women more often suffer from the

medical conditions aggravated by pregnancy. Black women have

higher rates of diabetes, cardiovascular disease, high blood pressure,

and cervical cancer. They are also three times more likely to die from

complications of pregnancy and childbirth. Although I have empha- sized the harm in policies that discourage poor Black ^vomen from

having babies, these ^vomen are also entitled to information about

abortion to make a considered decision about whether to carry the

pregnancy to term. In addition, Black women are more likely than

^vhite women to face barriers to obtaining abortion services such as

inability to afford an abortion or to locate a safe abortion provider in

THEWELFAREDEBATE 235

their neighborhood. Delays in learning the whereabouts of available

abortion services, therefore, can be especially devastating.

Why would lawmakers bent on reducing the birthrate of poor Black women deny these women funding for abortions? Would the

legislators enacting family caps not be eager to provide w^elfare moth- ers with information about abortions? In fact, why does my support

for government subsidies for abortion services not contradict my op-

position to state-induced birth control? On a theoretical level, family

caps and the denial of funding for abortion are not contradictory:

both limit indigent women's control over their own bodies by making it more difficult to realize their reproductive decisions. More con-

cretely, these policies work together to achieve a common end that is

against the interests of Black women. Faced Avith the untenable posi-

tion of having no money either to get an abortion or to raise a child,

poor Black women vv^ill be pressured into taking drastic steps to avoid

childbirth. More and more avlII turn to long-acting contraceptives and sterilization as a v\^ay out. Th'u reproductive decision, it is important to

note, is fully funded by the government.

Despite these serious risks to patient health and autonomy, a di-

vided Supreme Court concluded that "[tjhere is no question but that

the statutory prohibition ... is constitutional." ^^^ The Court's opinion

did not even mention the pain and confusion that ^vomen would expe-

rience because of the regulations. How did the Court make their suf-

fering invisible? And ho^v could it countenance the purposeful

Avithholding of critical medical information from patients? The Court

declined to give special protection to the medical communications at

issue because it concluded that the doctor-patient relationship in Title

X clinics was not worthy of protection: "[T]he doctor-patient rela-

tionship established by the Title X program [is not] sufficiently all-

encompassing so as to justify an expectation on the part of the patient

of comprehensive medical advice." ^^^

In fact, patients should be able to expect their physicians to provide

comprehensive advice in the patient's best interests. Disagreeing with

the majority's assumption. Justice Harry Blackmun stated that "[a]

woman seeking the services of a Title X clinic has every reason to ex-

pect, as do we all, that her physician will not withhold relevant infor-

mation regarding the very purpose of her visit." ^^^ In addition, the

Court wrongly assumed that Title X patients have the ability to seek

other medical advice. In fact, these women may encounter numerous obstacles in attempting to obtain reproductive health services else-

where. Title X clinics are often the only provider of medical services

236 KILLINGTHEBLACKBODY

and health information that their patients can afford. This, in turn, is

the unfortunate result of a federal policy more interested in making birth control appropriations for poor women than providing them with high-quality health care services.

But more significant is the w^ay the Court minimized the impor-

tance of open medical communication in physicians' encounters with

these particular patients. Relying on its earlier abortion-funding deci-

sions, the Court reasoned that the regulations were merely a gov-

ernment refusal to subsidize the delivery of abortion information.

Because the claimants depended on government aid, their claims be-

came constitutionally irrelevant. Were the regulations a government omission or an affirmative interference in the rights of indigent pa-

tients? The patients' lawyers argued that the regulations did consti-

tute government action: "Lured into Title X clinics by the apparent

promise of reliable health care, indigent women leave the clinic not

merely unenlightened but affirmatively misled. "^^^ More broadly, the

government actively protects the rights of private patients through

laws that require medical information, while deliberately promoting

ignorance of this same information among poor women. The Court's distinction between government action and inaction al-

lowed it unabashedly to impose separate standards of justice for the

rich and the poor. The Court probably would have applied far stricter

scrutiny had the regulations banned abortion advice given in a private

doctor's office. In upholding the regulations, one federal appellate

court explicitly acknowledged this distinction between public and pri-

vate patients, finding a potential problem with restricting abortion

advice given to private patients who used Title X clinics. ^^"^ The Supreme Court thus approved a system of truth-telling for patients

^vho can pay for their care and deception for those who cannot. Just

as the Court interpreted reliance on welfare as a waiver of privacy

rights, so it interpreted reliance on publicly funded health care as a

forfeiture of patient autonomy. The Court did not recognize any in-

jury in violating the autonomy of patients w^ho rely on public clinics,

patients w^ho are disproportionately Black women.

WHO SHOULD PAY FOR PROCREATION?

For decades the debate about government funding of reproductive de-

cisionmaking centered on abortion. Now new welfare la^vs raise the

question ^vhether the government is obligated to support the decision

THEWELFAREDEBATE 237

to have a child. As Florida Republican Rick Dantzler put it, "Does a

man have the right to impregnate a ^voman, and does that woman have

the right to bear a child knowing Uncle Sam will pick up all the re-

sponsibility? Do they have the constitutional right to do that and make us pay for it?" ^^^ A ISew Jersey federal judge has answered No.

In 1994, several New^ Jersey ^velfare recipients filed a federal class

action la^vsuit against HHS, challenging its waiver to New Jersey au-

thorizing implementation of the Family Development Act.^^^ Al-

though it ^vas the Bush administration that granted the ^vaiver, the

Clinton administration had replaced its Republican predecessor as

the courtroom adversary of the reproductive rights movement. The plaintiffs claimed that the w^aiver violated several federal regulations

governing the administrative process and experiments involving

human subjects. The HHS action also infringed their constitutional

rights to equal protection and due process, the plaintiffs contended.

Tavo of the plaintiffs had become pregnant as a result of rape and de-

cided to have the baby anyway. One was a mother of two when she

gave birth to triplets, and was now trying to raise five children on the

same monthly check. Another, a Roman Catholic, felt the family cap

pressured her to have an abortion in violation of her religious beliefs.

The plaintiffs were represented by a coterie of public interest orga-

nizations — New^ Jersey Legal Services, NOW Legal Defense and Exlucation Fund, the New^ Jersey ACLU—as ^vell as a prestigious

Newark la^v firm known for its pro bono assistance. Dozens of other

w^omen's and civil rights groups joined the cause as amici curiae. On the other side of the political spectrum, several right-to-life groups

also opposed the child exclusion out of concern that it ^vould pressure

women on \velfare to get abortions. The Clinton administration re-

sponded that its \vaiver grant reflected a reasoned judgment that the

New Jersey reforms ^vere likely to promote the objective of AFDC— "breaking the cycle of poverty for AFDC recipients, enhancing their

individual responsibility, and strengthening their family structure." ^^^

Judge Nicholas H. Politan was very receptive to New Jersey's ex-

periment at reforming the state's w^elfare system. In a May 1995 deci-

sion, C.K. i^. Shaiala, he dismissed the plaintiffs' complaint that the

HHS waiver process was too hasty, worrying that adding "another

layer of bureaucracy" would "prolong further the stranglehold of wel-

fare dependency" and "dissuade states from even attempting innova-

tive welfare reform." The judge was willing to sacrifice devotion to

administrative protections of welfare recipients for the sake of en-

couraging welfare reform. "The court will not impose a burden upon

238 KILLINGTHEBLACKBODY

the secretary to expend her department's finite resources simply to

dot every 'i' and cross every 't' with respect to good-faith efforts at re-

form, especially when the nation is crying out for w^elfare alternatives

w^hich genuinely promote economic self-sufficiency/' Politan stated. ^^^

Politan also rejected the plaintiffs' contention that the family cap

violated the Social Security Act by denying benefits to eligible chil-

dren. Politan found that additional children w^ere not excluded from re-

ceiving benefits; they simply had to dhare in the cash grant allotted to

their households. Since AFDC eligibility has aWays been premised

on the household as the basic unit of assistance and since there is no

set minimum benefit required per household, the New^ Jersey law^ did

not run afoul of federal mandates.

Judge Politan w^as no more solicitous of the plaintiffs' constitu-

tional challenges. The court turned to Supreme Court precedent,

w^hich had dealt with a different sort of family cap on w^elfare benefits

in a 1970 case. Dandridge v. WilLlanu involved a Maryland regulation

that placed an absolute ceiling of $250 monthly on each family, re-

gardless of the family's size or financial need.'^^ Familes with six chil-

dren received the same amount as families \vith only three children.

Recipients argued that this scheme violated the equal protection

rights of younger children, w^ho received less of the pie than older

children, and the rights of children in larger families, w^ho received

low^er per capita payments than children in smaller families.

Because Maryland had no duty to provide public assistance, let

alone a particular level of w^elfare payments, the Court held that its

plan ^vas an economic regulation subject to minimal judicial scrutiny.

All that the state w^as required to show was a rational basis for the

benefits cap. The Court found that the state's interest in encouraging

employment was a sufficiently rational reason to defeat recipients'

equal protection challenge. The Court rejected the objection that

some families had no employable member on the grounds that "the

Exjual Protection Clause does not require that a state must choose be-

tw^een attacking every aspect of a problem or not attacking the prob-

lem at all."^^° The Court did not consider whether the Maryland law^

violated recipients' right to reproductive liberty, and, because its deci-

sion came before Roe v. Wade, it is hard to tell how it might have ruled

on this issue.

The New Jersey plaintiffs argued, however, that no legitimate state

interest supported the family cap, because it "penalizes vulnerable

and needy children for their parents' behavior over w^hich they have

no control: the circumstances of their birth." In a number of cases, the

THEWELFAREDEBATE 239

Supreme Court had held that blameless children could not be denied

public education and other benefits because of their parents' miscon-

duct, such as being illegal immigrants or having children out of wed- lock. ^^^ Judge Politan failed to see how the family cap punished children for their parents' behavior, ho^vever. Instead, he reiterated

that the New Jersey provision "merely imposes a ceiling on the bene-

fits accorded an AFDC household." But Politan ^vas plainly wrong: the provision denies the nev^ birth increase on the basis of the

mother's AFDC status alone; it does not impose a maximum grant

level on families. This distinction separates the New Jersey child ex-

clusion from the Maryland family cap at issue in Dandridge.

Politan went on to find that the "ceiling" ^vas justified by the state's

legitimate interest in promoting individual responsibility and stabiliz-

ing family structure. He bought the argument that, far from imposing

any unfairness on ^velfare recipients, the family cap simply "puts the

welfare household in the same situation as that of a ^vorking family,

^vhich does not automatically receive a wage increase every time it

produces another child." ^^^

Because Politan did not see the cap as a penalty, he did not follow

the plaintiffs' argument that it violated recipients' procreative rights.

Quoting Harris i^. McCrae and Rudt i>. SuiUi^an, the court pointed out

that New Jersey was under no obligation to fund its citizens' repro-

ductive decisions. Besides, the plaintiffs were better off with the fam-

ily cap than they would be if Ne^v Jersey decided to eliminate its

AFDC program altogether (^vhich it vv^as constitutionally permitted to

do). He therefore dismissed the recipients' lawsuit ^vith prejudice.

Was Judge Politan correct that the abortion-funding decisions val-

idate family caps?

Family caps certainly raise an unconstitutional conditions problem.

Suppose New Jersey passed a la^v providing that women receiving

welfare vv^ould be fined $500 or sentenced to six months in jail for

each additional child that they had. Few would dispute that this law

would be unconstitutional. Yet child exclusion laws achieve the same effect by denying the standard new birth benefits to families on wel-

fare. As a result, welfare mothers who have another child receive less

aid per child than before the child was born. Family caps reduce wel-

fare benefits needed for survival to penalize protected reproductive

decisions the government disapproves. By discouraging childbirth

through welfare benefits schemes, then, the government is doing indi-

rectly ^vhat it could not do directly.

Additionally, family caps only inflict this penalty for childbearing

240 KILLINGTHEBLACKBODY

on Avelfare recipients. These laws only exclude children born or con-

ceived while their families are on welfare; families get full benefits for

children they already have when they join the welfare rolls. What is

more, child exclusions impose an absolute restriction no matter how^

fe^v children a welfare mother has. So, a welfare mother who already

has one child ^vill be denied benefits for a sole additional child, while a

family with five children ne^vly entering welfare will get benefits for

all of them. What is discouraged, then, is not having too many chil-

dren, but having any children at all while on welfare.

The Supreme Court rejected the unconstitutional conditions ap-

proach to the government's refusal to pay for abortions. Can child ex-

clusion laws be distinguished from the government's failure to fund

abortions? They can on several grounds. Because I believe that the

abortion-funding cases ^vere wrongly decided, I am reluctant to lay

out this argument. It entails the danger of minimizing the harm in-

flicted by the denial of abortion subsidies to make the harm of family

caps seem greater. I take the position that the denial of abortion fund-

ing and family caps are both impermissible government manipulations

of poor \vomen's reproductive decisionmaking. But distinguishing the

two might be necessary to convince the Supreme Court that family

caps are unconstitutional. It is important to give the Court a hook on which to hang its decision should it be moved by the suffering that

family caps are sure to inflict on poor children.

First, the government's professed interests supporting the two laws

are entirely different; indeed, they are contradictory. While the Court

approved the government's denial of abortion funding designed to en-

courage childbirth, it has never agreed that the government has an in-

terest in d'ucouraging childbirth. In its most recent abortion-rights

decision. Planned Parenthood v. Cadey, the Court stated that a state may not "restrict a woman's right ... to carry a pregnancy to term ... to

further state interests in population control." ^^^ Abortion politics

weakens support for family caps. As shown by right-to-life groups'

participation in the litigation opposing the New^ Jersey law, family

caps do not have the support of many people w^ho favor denial of

abortion funding. ^^'' Of course, there are many more conservatives,

like Newt Gingrich and Phil Gramm, who oppose government assis-

tance for both reproductive decisions.

Second, it is harder to characterize the government's denial of the

new birth benefit as inaction. ^^^ While the government stays out of the

business of subsidizing abortions so that it may encourage childbirth,

states continue to pay AFDC benefits to millions of families. Given

THEWELFAREDEBATE 241

this baseline of welfare funding, the refusal to pay the increment for

disfavored births alone looks much more like government action. See-

ing family caps as an affirmative intrusion in a welfare mother's deci-

sion to have children triggers heightened judicial scrutiny of these

laws, dramatically increasing the chances that they will be struck

dow^n.

Washington University law professor Susan Frelich Appleton pre-

dicts, however, that the Court is unlikely to reach this conclusion,

given its reluctance to apply strict scrutiny to anything less than re-

productive restrictions enforced by criminal punishment or civil sanc-

tions. ^^^ She proposes a middle ground in the undue-burden test,

formulated in Codcy, that asks ^vhether the law's purpose or effect

"places a substantial obstacle in the path" of reproductive choice. This

is not hard to prove: lawmakers freely boast that family caps are de-

signed to reduce the birthrate of welfare mothers.

Finally, the penalty imposed by family caps for the exercise of re-

productive rights is arguably more burdensome than that imposed by abortion funding lav^s. Maher and McRae upheld the government's re-

fusal to pay the medical costs of a single act of abortion. Family caps,

on the other hand, disqualify a child from subsistence benefits needed

indefinitely for food, clothing, and shelter. This is not to say that com- pelling a woman to carry an un^vanted pregnancy to term is not op-

pressive. This is a life-changing experience that often has devastating

consequences. It restricts women's abilities to control their own bod-

ies and their life prospects. Nevertheless, it is easier for an indigent

woman to come up ^vith the money for an abortion than for an indi-

gent family to support a child for years. The penalty is more burden-

some in another respect: w^hile the denial of abortion funding hurts

the vv^omen ^vhose reproductive decisions are at stake, family caps

harm not only women but their children as ^vell.

Judge Politan was completely oblivious to these consequences for

poor families. He blithely dismissed the struggle welfare mothers

would face trying to care for a new^ child on the same meager grant,

stating that the cap "simply requires her to find a way to pay for her

progeny's care." And he seemed to think this feat would be no more difficult for a family living in poverty than for middle-class house-

holds. "This is not discrimination," Politan asserted. "Rather this is

the reality knoAvn to so many working families -who provide for their

children without any expectation of outside assistance. "^^^

Like Judge Politan, many legislators and their constituents will

have a hard time seeing family caps and other laws discouraging pro-

242 KILLINGTHEBLACKBODY

creation as penalizing women on welfare for exercising their repro-

ductive rights. In their minds the proposals do not charge poor

women for having children; they simply decline to subsidize the activ-

ity. Although these measures impose a deterrent to childbearing that

Avealthier people do not face, their proponents see them as replacing

the constraints on poor ^vomen's reproductive decisions that would exist but for the state's generosity.

The response to an unconstitutional conditions argument is likely

to be, "Sure, poor women have a right to make reproductive deci-

sions, but why should government have to pay for them?" Roland Corning, the author of the South Carolina bill mandating Norplant

insertion, expressed this sentiment on national television when he de-

clared, "They can have all the children they ^vant. They just have to

pay for them."^^^ He added that his bill, if enacted, would save tax-

payers in his state $56 million in w^elfare and medical costs in the first

year. Never mind that an indigent or even low-paid woman cannot

support her children. That is the point: she should take steps to guar-

antee that she does not become pregnant. And bills like Coming's would provide the means.

Welfare rights advocates, then, will find it difficult to explain w^hy,

if the state has no affirmative obligation to subsidize citizens' activities

at all, taxpayers are nevertheless required to support a poor woman's decision to have a baby. This predicament arises from the unchal-

lenged assumption that the ability to exercise our constitutional rights

should depend on our wealth. Although welfare reformers avoid say-

ing it, their pohcies effectively impose a rule that poor people should

not have children. If the government were required to subsidize citi-

zens' reproductive decisions, and if reliance on public assistance

therefore did not constitute a ^vaiver of privacy, there would be no place for a special doctrine to prohibit government conditions that

pressure these constitutionally protected decisions. An affirmative

claim to public assistance for reproductive decisions is, of course, in-

comprehensible under current constitutional doctrine because of the

barrier it has erected between government action and inaction. Claim-

ing government assistance, then, requires challenging this wall of con-

stitutional thinking.

It also requires confronting Americans' particular resentment at

paying for poor ^vomen's reproductive decisions. The government al-

ready confiscates citizens' property in the form of taxes for a variety

of purposes. Tax money even goes to many redistributive programs,

such as Social Security, farm subsidies, and corporate bailouts. But

THEWELFAREDEBATE 243

taxpayers reserve a special condemnation for welfare that redistrib-

utes income to the poor—especially to support their children.

RACE AND THE LIMITS OF SOCIAL REFORM

Why do Americans cling to the myths that welfare breeds irresponsi-

ble childbirth, perpetuates poverty, and encourages dependency? Why have Americans disdained basic protections, such as national

health insurance, family allowances, and paid parental leave, that citi-

zens of other industrialized nations take for granted? Why do Ameri-

cans prefer a stingy \velfare system that leaves millions of children

living in ^vretched conditions belo^v the poverty line? The common explanation traces the American rejection of social legislation to lib-

eral culture that values individualism, reveres private property, and distrusts government po^ver. Gaston Rimlinger, for example, argued

that support for national welfare programs was w^eaker in America than in Europe because "in the United States the commitment to indi-

vidualism—^to individual achievement and self-help —w^as much stronger. . . . The survival of the liberal tradition, therefore, was . . .

stronger and the resistance to social protection more tenacious." ^^^

Pointing to liberal culture is too easy an explanation, ho^vever. Jill

Quadagno questions this prevailing theory of Americans' hostility to

vv^elfare:

The problem with explaining ^velfare state development in terms

of liberal values is that Americans have tolerated major excep-

tions to that antigovernment ethos —notably an extensive Civil

War pension system in the nineteenth century, numerous state-

level v^elfare programs in the "Progressive Era" and the 1920s,

and the persistent and ardent efforts by voluntary associations to

win both public and private benefits. If Americans are ideologi-

cally opposed to state intervention, then why have so many worked so steadfastly toward this end? ^^^

America's inadequate \velfare system stems less from noble liberal

ideals than from a racist unwillingness to include Blacks as full citi-

zens. White Americans have been perfectly willing to adopt "univer-

sal" social insurance programs as long as Blacks were formally or

effectively excluded from participation. New Deal reformers could

promote Social Security as a universal program designed to benefit all

244 KILLINGTHEBLACKBODY

classes only by first disqualifying Black workers. Today Avelfare pro-

grams such as AFDC that have increasingly become associated with

Black mothers and their children are vilified and being dismantled.

White Americans have resisted paying for subsidies perceived to ben-

efit primarily Blacks.

Privileged racial identity gives ^vhites a po^verfill incentive to leave

the existing social order intact. Many white Americans remain unin-

terested in advancing the welfare of Black Americans; many others

see helping everyone as contrary to their self-interest because they

perceive Black people's social position in opposition to their own.

Under American racist ideology, ^velfare programs that benefit

Blacks are antithetical to white interests because Blacks' social ad-

vancement diminishes ^vhite superiority. White Americans therefore

have been unwilling to create social programs that will facilitate

Blacks' full citizenship and economic well-being, ei>en when thoje pro-

grams would benefit whltej.

Race has proven to be a barrier to social reform in America. As economist Robert Heilbroner noted, the "merging of the racial issue

with that of [social] neglect serves as a rationalization for the policies

of inaction that have characterized so much of the American response

to need. "^^^ Even white workers' and feminist movements have com- promised their most radical dreams in order to strike political bar-

gains that sacrifice the rights of Blacks. W E. B. Du Bois explained

w^hite resistance to labor and education reform during Reconstruction

by the fact that poor and laboring w^hites preferred to be compensated

by the "public and psychological wage" of racial superiority.^''^ Legal

scholar Derrick Bell has similarly argued that whites in America— even those who lack wealth and power—believe that they gain from

continued economic disparities that leave Blacks at the bottom. In his

most recent exposition of this thesis, Bell dismally concludes, "Black

people will never gain full equality in this country." ^""^

The constraining impact of racism was brought home in a New York

Tinuj photograph of a poor white ^voman in Louisiana taken shortly

after the former KKK Grand Wizard David Duke lost the election for

governor.^'''' Duke had campaigned on a pledge to reduce the numbers of Blacks on w^elfare by cutting benefits and by offering female recipi-

ents a monetary bonus to use Norplant. In the caption beneath the

photograph the woman explained that, although she relied on welfare

herself, she voted for Duke because Blacks "just have those babies

and go on welfare." This woman was willing to decimate programs

THEWELFAREDEBATE 245

that benefitted her in order to ensure that Black people could not ben-

efit from them.

This is the dilemma Black citizenship poses for radical welfare re-

form: While a strong welfare state is required to make Blacks full par-

ticipants in the political economy, whites' refusal to extend full

citizenship rights to Blacks persistently blocks efforts to establish an inclusive ^velfare system. On the one hand, racial justice demands ag-

gressive government programs to relieve poverty and redress long-

standing barriers to housing, jobs, and political participation. Yet

^vhite Americans have resisted the expansion of welfare precisely be-

cause of its benefits to Blacks. Harold Cruses words in 1968 still ring

true today: "White America has inherited a racial crisis that it cannot

handle and is unable to create a solution for it that does not do vio-

lence to the collective vv^hite American racial ego."^^^ Black citizenship

is at once America's chief reason for and impediment to a strong w^el-

fare state.

With the passage of the new ^velfare la^v, America has once again

sacrificed Black people as its way out of the dilemma. But this renun-

ciation is even more insidious than those of the past. For this brand of

Avelfare reform does not simply exclude Black women; it penalizes

their reproduction. The la\v not only cuts off Black children from

benefits needed to survive but it blames their very birth for their dis-

advantaged status.

Racial injustice, then, has had a profound impact on our conception

of ^velfare: beyond denying Blacks benefits to ^vhich whites were enti-

tled, it limited the meaning of liberty for all Americans. Racism has

created a Avelfare system in America that throws poor children of all

races deeper into poverty and ultimately ^vorsens the living conditions

of all Americans. Racism has created a notion of social accountability

that leaves poor people to fend for themselves and conditions any

government charity on forfeiture of personal liberties. Part of this

constrained meaning of liberty is the view^ that reproductive freedom

depends on v^^ealth and social status. As I discuss in my concluding

chapter, just as racism has impaired our understanding of reproduc-

tive liberty, attention to race can also help us to redefine reproductive

liberty in a way that accounts for its importance to human dignity and

equality.