This Law Was Based on a Racist Stereotype. Now It Punishes Thousands of Families for Being Poor. 

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June 17 2014 11:47 PM

The Most Discriminatory Law in the Land

It was based on a racist stereotype of unfit black mothers. Today, family cap laws do nothing but punish the poor for being poor.   

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Given the extent to which welfare families—like their high-income counterparts—have a hard time planning their pregnancies, this is little more than punishment for being poor. After all, we don’t have family caps for the mortgage interest deduction.

And, for all the ways these laws disadvantage poor families, they also fail in their purported mission of reducing family size. Several studies—including a 2001 analysis from the Government Accounting Office—have found no substantial relationship between welfare caps and a reduction in births. “Despite the political attractiveness of caps,“ writes researcher Michael Wiseman in a 2000 study on welfare policy and children, “there is little empirical support for expecting them to do much beyond reducing costs. By far the dominant conclusion of the literature on welfare effects on fertility is that such influences, though present, are small and uncertain.” And while a 2004 paper from the National Bureau of Economic Research found that, in family cap states, “birth rates fell” and “abortion rates rose among high-risk women with at least one previous live birth,” this same pattern happened in states without a family cap, potentially reflecting the degree to which fertility declined among all American women in the later 1990s.

It’s an outrage, but it’s not a surprise. The case for welfare caps wasn’t built from a dispassionate look at outcomes for welfare families. It emerged from our beliefs and stereotypes around the kinds of women who receive government benefits: namely, low-income black women. In the popular imagination, writes legal scholar Laura M. Friedman in a 1995 paper, these women are “thoughtless child-making people” who get pregnant in order to collect money from the government. As such, childbirth by welfare mothers—then, as now—is seen as “undesirable, irresponsible behavior on the premise that people should not have additional children if they cannot afford to support them without governmental aid.”

The New Republic Cover.

Courtesy of the New Republic.

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With his stories of welfare cheats and abusers, Ronald Reagan maybe did more than any single individual to popularize this belief. But the best proof that this stereotype had purchase with nearly all corners of American society comes from the cover of the August 1996 issue of the New Republic. It offers a single image: A poor black woman, feeding a child while holding a cigarette, headlining an editorial titled “Sign the Welfare Bill Now.” The message is impossible to miss: Pass this bill before she breeds again.

Family caps, much more than welfare reform itself, are an extension of a racist stereotype. By ending the “incentive” of reproduction, goes the argument, caps would arrest the spiral of moral decline and pathology in poor black communities, and end the crime and poverty that presumably flows from black single motherhood.

As then-Oklahoma Sen. Don Nickles said in 1995, “Illegitimacy has been exploding in this country. As a result, we have increased crime, we have increased welfare, and we need to break that cycle.” Or, as conservative scholar Robert Rector put in more gentle terms, “A ‘reform’ of the federal welfare system which fails to send a clear moral signal, which remains agnostic on the question of illegitimacy, and which simply allows states to ‘do their own thing’ with federal taxpayers’ funds—or do nothing—would be a disaster.”

It’s hard to escape the eugenic tint of these arguments. Indeed, when you situate family caps in the broad history of American policy and reproductive rights, it’s easy to see the connective tissue between eugenics and benefit cuts to stop “illegitimacy.”

At the turn of the 19th century, several states—Michigan, Indiana, Pennsylvania, Washington, and California—all passed or attempted to pass forced sterilization laws. In 1929, North Carolina passed “An Act to Provide for the Sterilization of the Mentally Defective and Feeble-Minded Inmates of Charitable and Penal Institutions of the State of North Carolina,” which allowed sterilization for both “improvement of the mental, moral, or physical condition of any inmate” or “the public good.” Between 1929 and 1935, under the act, North Carolina sterilized 223 people. In 1935, following a challenge from the state supreme court, North Carolina established the Eugenics Board to provide due process for individuals condemned to sterilization.

Initially, the targets of sterilization were inmates and the mentally disabled. But over time policymakers and bureaucrats moved to the physically disabled and other groups. Wallace Kuralt served as welfare director in Mecklenberg County, North Carolina, from 1945 to 1972. During that time, Kuralt expanded the sterilization program to include the poor and destitute, with a particular focus on black Americans. In 1960, black Americans were 25 percent of the population in Mecklenberg. But between 1955 and 1966, noted the Charlotte Observer in a 2011 piece investigating Kuralt’s work, they made up more than 80 percent of those sterilized at the request of the Welfare Department.

Family Cap 4.
A family speaks with a CAMBA employee while waiting in line for CAMBA's Beyond Hunger Emergency Food Pantry on Feb. 18, 2014 in Brooklyn, New York. The nonprofit agency assists low-income residents and those affected by food stamp cuts.

Photo by Spencer Platt/Getty Images

“When we stop to reflect upon the thousands of physical, mental, and social misfits in our midst,” wrote Kuralt in 1964, “the thousands of families which are too large for the family to support, the one-tenth of our children born to an unmarried mother, the hoard of children rejected by parents, is there any doubt that health, welfare, and education agencies need to redouble their efforts to prevent these conditions which are so costly to society?” Sterilization, he believed, would save tax dollars by reducing poverty among the “low mentality-low income families, which tend to produce the largest number of children.” Or, as he wrote in an unsigned editorial the same year, “[A]t the bottom of many welfare problems is the illegitimate child, the unwanted child in his most extreme form.”

Proponents of family caps in the 1990s didn’t claim that welfare families were irredeemably “unfit” and “feeble,” nor did they profess to see poverty as a product of innate deficiency. But the preoccupation with the reproductive behavior of the poor, the unsubstantiated belief that they’re a drain on public coffers, the focus on black American women, the cries against “illegitimacy,” and the calls for action are all reminiscent of the not-too-distant past.

Consider that the only exception to the family cap in the CalWORKs program is for births resulting from a contraception failure under an approved method: A contraceptive shot, an intrauterine device, or sterilization.* Put another way, women in CalWORKs have to choose between long-term or permanent contraception or risk becoming pregnant with a child who won’t receive state aid. California, it should be said, also has a long and dark legacy of eugenics—more Americans were forcibly sterilized there than in any other state.

Some states have ended the failed family caps experiment. In the last decade, Maryland, Minnesota, Illinois, Wyoming, Nebraska, Oklahoma, and Kansas have repealed their caps, while other states have modified or revised their programs. And in January of this year, California state Sen. Holly Mitchell introduced a bill to repeal the state’s Maximum Family Grant. With wide support from groups like the ACLU, the Catholic Conference, and Planned Parenthood, it promised to end this discriminatory regulation and commit California to $200 million in additional benefits for poor families with children.

After passing the Senate Human Services Committee on a narrow 3–2 vote, it made its way to the Appropriations Committee, where it died, on account of its high cost. If it had been passed and signed into law, it would have reduced childhood poverty in the state by up to 7.4 percent. Supporters are crushed, but remain dogged. “The reproductive justice and anti-poverty advocates who have been working diligently to repeal this harmful and ineffective rule are sorely disappointed and surprised the bill didn’t make it out of committee, but we are not giving up,” said Shanelle Matthews, communications strategist for the ACLU of Northern California, in an email.

Given its size and influence, an end to family caps in California might prompt other states to re-evaluate their policies. And if nothing else, it would do a lot of good. As of April, nearly 250,000 families in the state are still subject to family caps. “One in six California children are living in poverty or something called deep poverty,” said Sen. Mitchell in a recent speech touting her bill, “Fifteen red states across the country have reversed their maximum family grant policy.” It’s time all states do the same.

Correction, June 18, 2014: This article originally misstated that NuvaRing is an intrauterine contraceptive. It is not. The reference has been removed. (Return.)

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