ACR Project, for CFER and Its Members, Challenges California’s Black Infant Health Program

On behalf of CFER and its taxpaying members, the ACR Project has filed an action in Sacramento Superior Court. It seeks a declaration that California’s Black Infant Health program violates Title VI and the U.S. and California Constitutions. Consistent with its name, BIH provides maternal benefits solely to Black women who are pregnant or new mothers.

California has stood at the vanguard of efforts to prohibit, punish, and redress racial discrimination for decades. BIH does not redress actual, identified discrimination by the State or any health provider. California launched it in 1989 to equalize the health results of Black mothers and children, on the one hand, and Californian mothers and children of other races, on the other. 37 years later, the program’s discriminatory eligibility criteria remain, with no time horizon for a transition away from race-exclusion.

Undoubtedly, protecting the health of all pregnant women and newborns—of all races—is a worthy goal. Seeking to advance the health and safety of only pregnant women and newborns of a single race (excluding all others)? That’s something else.

Race-based governmental programs are only ever constitutional if they satisfy strict scrutiny. They must serve a sufficiently compelling purpose through a use of race narrowly tailored to meet it. Under modern precedents, BIH probably never qualified. Even if it had in the 1980s, the answer would be different 37 years into the program.

The action asks the Sacramento Court to declare the BIH program unconstitutional and illegal, issue a writ of mandamus commanding the state to cease using state resources or funds to support it so long as it continues to discriminate on the basis of race, and for related preliminary and permanent injunctive relief.

You can read our filed complaint below.