The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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.


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).)