Lawsuit Challenges Constitutionality of California’s 'Black Infant Health' Program

A lawsuit filed on Tuesday argues that California’s “Black Infant Health” program violates the U.S. Constitution, the California state constitution, and the Civil Rights Act of 1964 by providing benefits exclusively to pregnant women, new mothers, or “birthing people” who are black.

“There is no question that protecting the health of all pregnant women and all newborns—of all races—is a worthy social goal,” reads the lawsuit. “As a matter of constitutional law, however, advancing the health and safety of only pregnant women and newborns of a single race to the exclusion of others is not sufficiently compelling to comply with the requirements of equal protection.”

The lawsuit was filed jointly by the Californians for Equal Rights Foundation and the American Civil Rights Project in Sacramento Superior Court against the director of the California Department of Public Health. The plaintiffs allege that California’s “health equity” BIH program violates the 14th Amendment of the U.S. Constitution, the state constitution’s equal protection guarantees, and Title VI of the Civil Rights Act of 1964.

The BIH program was created in 1989 through California Senate Bill 165. The program, which receives both state and federal funding, provides “free” services through 15 locations across the state. The California Department of Public Health allocated nearly $25 million to the BIH program in both 2024–25 and 2025–26, roughly $20 million of which was from state funding each year.

Eligibility to participate in the BIH program is limited to black women. On its website, the BIH initiative states that it serves “Black women who are 16 years or older, pregnant or up to six months postpartum at the time of enrollment,” without regard to income. The goal of the program is to “improve Black infant and maternal health as well as decrease health inequities in infant and maternal mortality rates.”

“Anti-Black Racism, as well as social and economic stressors, play a major role in poor birth outcomes—babies born too early and too small—for Black women,” says the BIH website. “Within a culturally supportive environment, and honoring the unique history of Black women, California Black Infant Health (BIH) aims to help women have healthy babies.”

The California Department of Public Health states on its website that the BIH program offers “culturally appropriate services” led by “culturally supportive staff,” such as “empowerment-focused” group or one-on-one sessions. Participants also receive individualized services, such as referrals for various medical treatments.

"Each group session includes activities designed to address internalized racism. For example, sessions include a discussion of a ‘Black icon,’ which is a Black person who has made significant contributions to society,” says the department’s website. “Participating in a group with other Black birthing people, with opportunities to appreciate each other's thoughts and feelings and form friendships, may also be an antidote to internalized racism and promote self-esteem.”

To justify its racially discriminatory BIH program in court, California would have to pass a strict-scrutiny test by showing that the program is narrowly tailored to advance a compelling government interest. To do so, California would have to demonstrate that the BIH program is designed to remedy an instance of discrimination that the state itself previously inflicted on a particular group.

The lawsuit argues that the program is instead aimed at addressing generalized or societal discrimination. As an example, the lawsuit cites the California Department of Public Health's statement that the BIH program was “created in recognition that anti-Black racism, social and economic stressors, and neighborhood conditions contribute to poor birth outcomes for Black mothers, birthing people, and infants.” The lawsuit further argues that the racially discriminatory eligibility criteria have been in place for several decades, noting that there is no explicit time frame for the program to become racially neutral.

“The U.S. Constitution forbids public entities from engaging in intentional racial discrimination,” states the lawsuit. “And yet by funding and supporting the BIH, the California Department of Public Health is engaging in precisely the kind of intentional racial discrimination the Constitution forbids.”

The lawsuit asks the court to declare that the BIH program is unconstitutional and further command the state to cease from using public funds or resources for the BIH program so long as the racially discriminatory eligibility criteria remain in place. It additionally asks for other preliminary and injunctive relief.

The California Department of Public Health told National Review that it does not comment on pending litigation. The Black Infant Health program referred National Review to the department for comment.

National Review previously noted that a study titled “Physician–patient racial concordance and disparities in birthing mortality for newborns,” which was cited by Justice Ketanji Brown Jackson in her Students for Fair Admissions v. Harvard dissent, suggested that the mortality rates for black newborns decline significantly if they are under the care of black physicians, an outcome potentially resulting from white physicians harboring “spontaneous bias.” Two researchers conducted a follow-up study in 2024 and found that accounting for very low infant weight as a variable invalidated the previous study’s claims; black infants with a very low birth weight are disproportionately more likely to be cared for by a white doctor, and those children are more likely to have a vulnerability closely linked to mortality.

FOIA requests submitted by the nonprofit organization Do No Harm produced evidence that an unpublished version of the original study had stated: “White newborns experience 80 deaths per 100,000 births more with a black physician than a white physician, implying a 22% fatality reduction from racial concordance.” But the study’s lead author left a comment in the margin stating, “I’d rather not focus on this” because “if we’re telling the story from the perspective of saving black infants this undermines the narrative.” The published version of the article espoused a different finding, specifically that “concordance appears to bring little benefit for White newborns but more than halves the penalty experienced by Black newborns.”

Editor’s note: This article was updated with the responses from the California Department of Public Health and Black Infant Health program.