Equal Protection

S.F. "Basic Income" Program for Pregnant Women—But Women of the Wrong Races Need Not Apply

Only black and Pacific Islander women are eligible -- almost certainly a violation of the Equal Protection Clause.

|The Volokh Conspiracy |

See the S.F. Chronicle (Tessa McLean) and the S.F. Office of the Mayor press release:

Mayor London Breed Announces Launch of Pilot Program to Provide Basic Income to Black and Pacific Islander Women During Pregnancy …

Mayor London N. Breed, in partnership with Expecting Justice, today announced the launch of the Abundant Birth Project, a pilot program that provides targeted basic income to women during pregnancy and after giving birth. The pilot will provide an unconditional monthly income supplement of $1,000 to approximately 150 Black and Pacific Islander women in San Francisco for the duration of their pregnancy and for the first six months of their baby's life, with a goal of eventually providing a supplement for up to two years post-pregnancy. Expecting Justice, a collective impact initiative led by Dr. Zea Malawa at the San Francisco Department of Public Health and supported by the Hellman Foundation and the UCSF California Preterm Birth Initiative, will study the resulting health impacts of the pilot program, which is the first of its kind in the United States….

The project is a fully funded public-private partnership designed under the collaborative change model, a process which directly involves all impacted and interested parties in decision-making. The Abundant Birth Project entered its design phase after receiving a Hellman Collaborative Change Initiative grant from the Hellman Foundation, and has since gone on to also receive an award of $1.1 million from Jack Dorsey's #startsmall campaign, $200,000 from Genentech, and $200,000 from the San Francisco Department of Public Health. Additional funders include California Preterm Birth Initiative at UCSF, WKKF (Kellogg Foundation), San Francisco Health Plan, Tipping Point, Economic Security Project, Walter and Elise Haas, San Francisco Foundation, and Friedman Family Foundation….

But a partly public funding program limited to people of particular races or ethnic groups generally violates the Equal Protection Clause (see, e.g., City of Richmond v. J.A. Croson Co. (1989); Podberesky v. Kirwan (4th Cir. 1994)). And that is true  even when it is an attempt to remedy racial disparities (such as the higher premature birth rate, maternal death rate, or infant death rate, cited by the S.F. Mayor's office press release). If the government wants to provide benefits for poor mothers, or mothers who have other traits that directly put them at risk (e.g., certain health conditions), it can do so. But it can't use race as a proxy for special risk or special need.

The one possible exception would be if San Francisco can prove that its own discrimination (as a governmental entity) against blacks and Pacific Islanders has yielded specific problems that it is aiming to specifically compensate for. (The classic example of that would be if, say, a government employer had discriminated against some group in employment, and is now trying to compensate for that specific discrimination by deliberately hiring more members of that group.) But I very much doubt that San Francisco would be able to demonstrate that.

(Note that there's likely no sex discrimination problem here, at least under the federal Equal Protection Clause; pregnancy discrimination is not treated as presumptively unconstitutional sex discrimination under that Clause, see Geduldig v. Aiello (1974).)

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  1. “Basic Income to Black and Pacific Islander Women During Pregnancy”

    I spotted the error at once: They should have said “people,” not women, because after all men can get pregnant.

    1. Yup. Is there really no sex discrimination problem if they provide money to pregnant women but not pregnant men?

      1. There’s “sex discrimination”, but not a “sex discrimination problem, any more than if they provided money to treat prostate cancer.

    2. Need one actually be pregnant and of the ‘correct’ ethnicity? If one identifies as such, it should be enough.

  2. I wonder when San Francisco will implement black-only water fountains for Social Justice?

  3. 150 blacks in SF giving birth?

    In near all white and asian SF, that’s like two years of births.

  4. They’ve recently changed the definition of racism where you can literally do anything and everything under the old definition of racism. IE discrimination and treatment based solely on race, and not be racists as long as it is toward the correct groups.

    1. It’s just a spin-off of their Paradox of Tolerance.

      They have to BE racist in order to FIGHT racism.

  5. For this to be adjudicated, would someone with standing need to sue? Or could the Justice Department sue on its own?

    1. The United States, acting through the DOJ, always has standing to enforce its laws.
      Private people need to show an interest sufficient for standing.

  6. California already requires some corporations to have a woman on the board and is about to pass a law mandating racial quotas on boards. Maybe the 14th amendment doesn’t apply to them.

    The latter bill was introduced by an assembly-person accused of groping a staffer.

    1. Oh, like THAT narrows a list of Democrats.

  7. So easy to make this legal. You outsource the program to a faith-based non-profit. And they claim that their religion prohibits them from working with white people. Then the program is not only legal, but any attempt to enforce non-discrimination laws is a violation of freedom of religion.

    1. Yes yes you know how to brutalize Christians at least online. What I would suggest is you try that shtick with Hindus or Muslims. I suspect the reaction might be different.

    2. MollyGodiva: If this really were run by nonprofits (religious or otherwise), with no government participation — or if the government just had a generally available program in which all nonprofits could participate, and the discrimination were solely the nonprofit’s idea — then I wouldn’t have any objection to it, precisely because the discrimination would stem from private choice. If a Jewish group (religious or otherwise), for instance, wants to run a program for aiding Jews (including if the program defines Jews by ethnicity and not by religion), that would be fine; and I’d say the same about a program that aids blacks or whites or any other group. (I believe that IRS rules limit the tax-exempt status of racially discriminatory groups, but that’s a separate matter.)

      But here this is expressly set up as a public-private partnership, deliberately designed by the government to discriminate based on race. That is state action, subject to the Equal Protection Clause, and invalid under that Clause.

      1. Prof V, I find it unlikely that mg will be able to rise through the morass of in-group biases to appreciate your response. Her comment was most likely, as noted, simply an attack on groups she doesn’t like.

  8. This is why the so-called “White Supremacists” arise, and they aren’t “supremacists as much as “Me Too” activists that anyone with an IQ above 12 could understand.

    1. No, they’re white supremecists, and they are racists and kill people and of course you defend them.

      1. S0,
        Are you really defending the SF program. If so, explain why native Americans are overlooked yet again.

        1. Where in my comment do I say I support the program?

      2. “No, they’re white supremecists
        HOW do you logically conclude that those seeking equality think they are “supreme”?

        and they are racists
        No, the program is racist.

        “and kill people”

        The Bitchy Little Marxists have a far higher body count.

        and of course you defend them.

        Gotta have the ad hominem smear….

        1. Dude, I’m responding to your language about understanding why white supremacists arise.

      3. Just like Blake’s old man, eh?

    2. Dr. Ed, I suggest you use the term “race realists”. They are people who don’t necessarily think of whites as superior but want the same opportunities for XYZ (set asides, etc.) for whites as every other race.

  9. Everytime some government discriminates against specific races, its majority Democrat elected officials

    1. But see: voting rights.

  10. THE VOLOKH CONSPIRACY

    This white, male, conservative
    blog has operated for
    ONE (1) DAY
    without using a vile racial slur
    and has operated for
    508 DAYS
    without engaging in partisan,
    viewpoint-driven censorship.

    1. REV. ARTHUR L. KIRKLAND

      This white, male, leftist commenter has gone 2 hours and 55 minutes without making an insipid, impertinent comment.

      1. That we know about; we don’t know what kirkland does when it isn’t lowering the tone here.

  11. Under what (if any) circumstances would something like this be illegal under public accommodation laws even if entirely private? Presumably you can invite anyone you want to accept money, but if, suppose, a charity publicized that it would give you money or healthcare or something and all you had to do was apply, but rejected applications of certain races, would that still be legal?

  12. A corrupt government needs an underclass of people dependent on the government, so willing to vote to keep that corrupt government in power, to continue to exist. This is a perfect program for that, and sadly their are people willing to depend on the minor stipend the corrupt government will give them.

    1. Yeah, I remember when the New Deal kept anyone from voting for the GOP.

      Sometimes people do stuff to help people because they want to help people. Sometimes people that take help do so because they need help.

      1. Nice cherry picking. Now look up what Lyndon Johnson said about black people when he passed Great Society programs.

  13. If the liberals really want more blacks in this world, they would ban abortion. Most aborted babies are black.

    1. Shhhh….don’t tell them, too confusing for simple minds like artie poo.

    2. To be precise, it appears that a disproportionate share of abortions involve black women, but not a majority — see, e.g., the 2016 data:

      Among the 32 areas that reported cross-classified race/ethnicity data for 2016, non-Hispanic white women and non-Hispanic black women accounted for the largest percentages of all abortions (35.0% and 38.0%, respectively), and Hispanic women and non-Hispanic women in the other race category accounted for smaller percentages (18.8% and 8.2%, respectively) (Table 12). Non-Hispanic white women had the lowest abortion rate (6.6 abortions per 1,000 women aged 15–44 years) and ratio (109 abortions per 1,000 live births), and non-Hispanic black women had the highest abortion rate (25.1 abortions per 1,000 women aged 15–44 years) and ratio (401 abortions per 1,000 live births).

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