Arlene L. Carver and Gloria Fowler, Individually and Onbehalf of Their Unborn Children, and on Behalf Ofall Others Similarly Situated, Appellees, v. Thomas L. Hooker, Individually and As Director of the Newhampshire Division of Welfare, Appellant, 501 F.2d 1244 (1st Cir. 1974)

Appellant appeals the decision of the district court, 369 F. Supp. 204 (D.N.H. 1973), that the state practice of denying benefits, under the Aid to Families with Dependent Children (AFDC) program of the Social Security Act, 42 U.S.C. 601 et seq., to pregnant women during the term of their pregnancy on behalf of their unborn children, conflicts with the provisions of the Social Security Act and is thus invalid under the Supremacy Clause.

For appellees to prevail in this action we first must find that unborn children are eligible for assistance under the AFDC program. See Townsend v. Swank, 404 U.S. 282, 286, 92 S. Ct. 502, 30 L. Ed. 2d 448 (1971); Wilson v. Weaver, 499 F.2d 155 (7th Cir. 1974); Alcala v. Burns, 494 F.2d 743 (8th Cir., 1974). If such eligibility is established, we must find secondly, either: (a) that there is insufficient evidence to demonstrate a congressional intention to permit the extension of AFDC benefits to the unborn only at the option of the states, see Townsend v. Swank, supra at 286, 92 S. Ct. 502; or (b) that having voluntarily extended AFDC benefits to the unborn, New Hampshire is required to do so in the manner prescribed by the Social Security Act. On the basis of either theory, the order of the district court must be affirmed.

We consider first the question of eligibility. Section 402(a) (10) of the Social Security Act, 42 U.S.C. 602(a) (10), directs that AFDC benefits be 'furnished with reasonable promptness to all eligible individuals.' Eligibility is generally defined under 406(a), 42 U.S.C. 606(a), which describes 'dependent child' in part as a needy child who has been deprived of parental support and who is living with one of several relatives.¹  We see no reason why a fetus may not be deprived of material and medical assistance as easily as a newborn infant, or any child for that matter, to the extent that deprivation of aid to the mother may deny the fetus adequate nutrition or medication. Nor does it appear anomalous that a fetus may be described as 'living' with the mother. Indeed, a child is 'living with' his mother more directly in utero than at any other time.²  Thus we find nothing in the language of 406 which precludes a determination that Congress intended to include the unborn within the meaning of 'dependent child'.

While the language of the Act is thus not inconsistent with a congressional intention to benefit the unborn, it is not sufficiently unambiguous to dispose of the eligibility question,³  and we turn to other indices of congressional intent. We agree with the district court that the legislative history of the Social Security Act 'bespeaks no specific intent on the part of Congress in respect of either the exclusion or the inclusion of the unborn child.' 369 F. Supp. at 212. It is true that isolated statements in the 1935 debate on the Act advert to the need to protect children 'from the time of birth',⁴  but there is no evidence that Congress as a body passed the Act with that limitation. It is also true that when Congress passed the AFDC proposal as Title IV of the Act, it enacted a separate program for maternal care in Title V, see 42 U.S.C. 701 et seq. But Titles IV and V are qualitatively different weapons against poverty and deprivation, the latter providing medical services while the former disburses cash for improvement of the home environment. Moreover, because the medical services provided under Title V extend to born as well as unborn children, it seems incongruous that Congress would not make similar provision under Title IV. Thus, the congressional concern evidenced by Title V with respect to pre-natal care does not militate against an intention to assist the unborn through AFDC payments as well. See Whitfield v. Minter, 368 F. Supp. 798 (D. Mass. 1973).

A final bit of evidence from the legislative history of the Social Security Act is Congress' recent⁵  failure to enact amendments to the Act which would have expressly excluded eligibility for the unborn.⁶  The fact that Congress thought it necessary to amend the Act to exclude the unborn suggests to us that the Act as written does make the unborn eligible for AFDC assistance, especially in light of the HEW interpretation to that effect, 45 C.F.R. 233.90(c) (2) (ii). See Wilson v. Weaver, supra; Alcala v. Burns, supra; Whitfield v. Minter, supra. That suggestion, if weakened by the statement of the House committee considering the amendments that the change would 'make clear' that the unborn child is ineligible,⁷  is strengthened by the opinion of the Senate committee that the amendments 'would make unborn children ineligible.'⁸ 

Absent dispositive indications from the legislative history of the Social Security Act, we turn to the record of its administration by the Department of Health, Education and Welfare, mindful that 'the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.' Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S. Ct. 1794, 1802, 23 L. Ed. 2d 371 (1969); see Wilson v. Weaver, supra, 499 F.2d 155; Doe v. Lukhard, 363 F. Supp. 823, 829 (E.D. Va. 1973), aff'd, 493 F.2d 54 (4th Cir. 1974). There can be no doubt that HEW's interpretation of the Act supports a finding of eligibility. HEW regulations explicitly provide federal funds to states extending AFDC benefits to the unborn, 45 C.F.R. 233.90(c) (2) (ii), and the Department has consistently followed that practice since 1941.⁹  See Wilson v. Weaver, supra. In other words, if unborn children are ineligible under the Act, HEW and its predecessors have illegally succored them for a third of a century.

Moreover, we think that a finding of eligibility for the unborn is consistent with the purposes and policies of the Social Security Act. The Supreme Court has declared the 'paramount goal' of the AFDC program to be the protection of needy children. King v. Smith, 392 U.S. 309, 325, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). Payments to the unborn are an appropriate, if not essential, means to that end, especially in light of the undisputed evidence, accepted by the district court, that pre-natal nutrition and medical care are important determinants of 'later susceptibility to disease, neurological problems and long-term learning capacity.' 369 F. Supp. at 208. See Wilson v. Weaver, supra, 499 F.2d 159, n. 3.¹⁰  And while various provisions of the Act suggest congressional purposes subordinate to this overall policy of protecting children, we find that none of them conflict with a finding of eligibility of the unborn.¹¹ 

A final support for a finding of eligibility is that such a construction may be necessary to forestall a successful equal protection challenge to the AFDC legislation, brought on behalf of unborn children or their mothers.¹²  The Supreme Court has concluded that 'any doubt must be resolved in favor of (a) construction to avoid the necessity of passing upon the equal protection issue', Townsend v. Swank, supra, 404 U.S. at 291, 92 S. Ct. at 508. There is at least some doubt whether the justifications proferred here by New Hampshire, see 369 F. Supp. at 215, unrelated as they are to a recipient's need for assistance, would survive even the 'loose review' of a 'rationality test'. Cf. Whitfield v. Minter, supra, 368 F. Supp. at 804.

In concert, the at least non-exclusionary language of the Act, the implicit congressional recognition of eligibility in consideration of amendments to exclude the unborn, the consistent administrative recognition of eligibility, the manifest purposes of the Act, and the significance of a constitutional challenge to a contrary interpretation, warrant our holding that unborn children are eligible for AFDC benefits under the Social Security Act, 42 U.S.C. 606(a).

A finding that the unborn are eligible for assistance does not end our inquiry. Though Congress may have intended to make eligible a class of recipients, it may also have intended to permit the exclusion of that class at the option of the states. See, e.g., 42 U.S.C. 607(b). The Supreme Court has made clear, however, that upon a finding of eligibility the states bear a heavy burden to demonstrate a congressional intention to permit exclusion. Townsend v. Swank, supra, 404 U.S. at 286, 92 S. Ct. 502. But here there is nothing in the language, legislative history, or purposes of the Act to sustain such a burden. We recognize the consistent and long standing practice of HEW, see 45 C.F.R. 233.90(c) (2) (ii), of permitting states the option to benefit the unborn, but this cannot substitute for 'clear' evidence of congressional approval.¹³  See Alcala v. Burns, supra; Doe v. Lukhard, 363 F. Supp. 823, 828-29 (E.D. Va. 1973), aff'd, 493 F.2d 54 (4th Cir. 1974). We, therefore, conclude that Congress has not 'clearly evidenced' an intention to permit the exclusion of the unborn.¹⁴ 

Alternatively, we find that even if such an optional policy exists, New Hampshire has exercised its option, though not in the manner prescribed by the Social Security Act. Appellants admit to a practice of making retroactive AFDC payments, covering the pre-natal period, under certain circumstances, after a child qualifying for AFDC benefits is born.¹⁵  New Hampshire permits a mother to bill the state for the costs of delivery of a child, and because of administrative difficulties in determining which portion of the total doctor bill reflects pre-natal and which post-natal costs, regularly pays the entire bill. Regardless of its reasons, New Hampshire, albeit retroactively, has recognized the eligibility of unborn children by making AFDC payments to such children. However, the Act specifically requires that AFDC payments 'shall be furnished with reasonable promptness to all eligible individuals.' 42 U.S.C. 602(a) (10). And the Supreme Court has indicated that the statute precludes the states 'from denying benefits, even temporarily, to a person who has been found fully qualified for aid.' Jefferson v. Hackney, 406 U.S. 535, 545, 92 S. Ct. 1724, 32 L. Ed. 2d 285 (1972). New Hampshire has made its decision to comply with the provisions of the Social Security Act permitting payments to unborn children. New it must do so fully.

The judgment of the District Court is affirmed.