The Family Cap Faces Repeal in Massachusetts

In 2003, in Sojourner v. New Jersey Dep't of Human Services, the New Jersey Supreme Court upheld the "family cap," which denies welfare benefits to children born to mothers on welfare.  New Jersey's policy was part of a nationwide trend in the 1990s, with more than twenty states adopting similar policies.  In 2004, Illinois and Maryland repealed their family cap policies, leaving 19 states still holding on to a family cap law today.

In the New Jersey litigation, advocates filed an amicus brief addressing the human rights issues raised by a policy of denying benefits to desperately needy children.  But the court ignored the argument, asserting that the human rights issues need not be addressed because they were raised only at the appellate stage of the litigation.

The fight against the family cap goes on, however, in Massachusetts.  Last year, advocates came close to obtaining repeal of the policy.   Only a gubernatorial veto stopped the effort.  This year,  prospects look better.  Votes in the legislature this week have put the family cap repeal back on the governor's desk.  Just a few weeks ago, in January 2019,  Governor Baker himself proposed to revisit the issue.  If he again decides to veto because the legislature's proposal doesn't meet his criteria, there appear to be enough votes and enough time to override a veto.  Importantly for low income families, the legislature's proposal would make the missing benefits retroactive to January 2019.

For a generation, low income children have received extra financial punishment simply because of the circumstances of their birth.  It will be a human rights victory if the Massachusetts repeal effort is successful.  Hopefully, it will point the way for other states to repeal this punitive policy.