Twenty-two states now exclude children born to women on welfare from the calculation of families' welfare benefits. This program of subsistence benefit withholding is known as the “family cap” or the “child exclusion;” children denied benefits under the program are called “cap babies.” After reporting on the status and context of child exclusion policies in the U.S., including evidence of their disparate racial impact, this article examines child exclusion policies through a global lens. The United Nations has urged all countries to develop formal population policies and over the past two decades, most have. The U.S. has not done so, yet the child exclusion serves as a de facto population policy utilized in almost half of the states. Comparing this approach to other global approaches to population, the article surveys international human rights law as well as comparative case law and national population policies of India, China and several African countries. It concludes that the U.S. child exclusion policy is a uniquely harsh program in the global context, that manipulates subsistence support originally intended to assist children by focusing punitive measures on a impoverished, racially disparate population.
Case Western Reserve University School of Law
Case Western Reserve Law Review, Vol. 60, No. 4, pp. 1-27, 2010.