Wilson v. Weaver

SWYGERT, Chief Judge.

The defendants, the States of Illinois and Indiana, appeal from separate decisions favorable to plaintiffs in Wilson v. Weaver, 358 F.Supp. 1147 (N.D.Ill.1972), and Green v. Stanton, 364 F.Supp. 123 (N.D.Ill.1973). Both cases raise identical issues for our disposal; accordingly, we have consolidated the appeals in the instant action.

Plaintiffs represent a class composed of women whose pregnancies have been medically determined and their unborn children. In the district courts plaintiffs sought injunctive and declaratory relief from the defendants’ denials of Aid to Families with Dependent Children (AFDC) benefits to the pregnant mother and her unborn child until the actual birth of the child. The denials were in accordance with the respective welfare policies of Illinois and Indiana.

The plaintiffs contend that the state policy involved is contrary to the requirements of the federal Social Security Act and, consequently, is invalid under the Supremacy Clause of the Constitution. Under section 402(a) (10) of the Social Security Act, 42 U.S.C. § 602(a) (10), it is required that “ . aid to families with dependent children shall be ‘ furnished with reasonable promptness to all eligible individuals .” Plaintiffs assert that an unborn child is a dependent child within the contemplation of section 402(a) (10) of the Social Security Act and that consequently the unborn child and mother are entitled to AFDC benefits. If it is established that an unborn child is eligible under the Act, then it necessarily follows that a state policy of denying AFDC benefits prior to birth is in conflict with the federal statute and therefore invalid. King v. Smith, 392 U.S. 309, 333, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Townsend v. Swank, 404 U.S. 282, 285, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Carleson v. Remillard, 406 U.S. 598, 600, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972) .

The basic issue is whether the term “dependent child” as utilized in section 402(a) (10) includes an unborn child. The district courts in these cases held that the term dependent child encompasses the unborn child. We are in agreement. In addition we must address as a related issue the question of the propriety of granting retroactive payment of AFDC benefits previously denied.

I

The Supreme Court has provided a guide for determining eligibility for AFDC benefits. That guideline announced in King v. Smith and amplified in Townsend v. Swank, supra, at 286; and Carleson v. Remillard, supra at 600, provides:

King v. Smith establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state. eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause. (Emphasis in original.) 406 U.S. at 600.

This test necéssitates two inquiries: (1) whether an unborn child is a person eligible for assistance under federal AFDC standards and, (2) whether this otherwise eligible class consisting of unborn children is expressly excluded by Congress from receiving AFDC benefits. Admittedly, the Social Security Act and its legislative history are barren of any clear congressional authorization to exclude unborn children from participating in the AFDC program. Our concern therefore centers exclusively on the first inquiry, namely, whether an unborn child is a “dependent child.”

Although the term “dependent child” is defined in section 406(a) of the Act, that section offers no assistance in determining whether an unborn child is within or without the coverage of the Act.¹ In a similar vein the legislative history of the Act is silent regarding the eligibility of an unborn child. Nor do we consider an analysis of the plain meaning of the statute particularly enlightening for arguably both appellants and appellees can maintain a steadfast position about the meaning and usage of the word “child” in the Act.

On balance we perceive no persuasive reasons or indications from the Social Security Act or its legislative history to assist our construction. Support for inclusion of the unborn child within the scope of the Act emanates however from two sources: we give great weight to the long-standing administrative interpretation by the Department of Health, Education and Welfare (HEW) and its predecessors that an unborn child is a dependent child within the contemplation of section 406(a); and, the grant of benefits to the unborn child is entirely consistent with and in furtherance of the purpose of the Act.

Since 1941 HEW and its predecessors have consistently interpreted the Act so as to provide benefits to unborn children who in all other aspects save birth qualify as needy dependent children. The rule of judicial deference to long-standing administrative interpretations needs no repetitious citation of authority for it is well-established

. . . that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction.²

As previously noted there are no persuasive indications — let alone those that attain the stature of compelling — that would indicate that HEW’s interpretation is wrong. Moreover, it is most noteworthy that no congressional steps were taken to reverse this administrative interpretation until 1972. Recognizing that HEW construed the Act to include the coverage of the unborn and that such a construction was not unreasonable, the 92d Congress set out to explicitly exclude the unborn from the coverage of the Act — a fact which was not implicit from the language of the Act or the legislative history surrounding its passage in 1935. The efforts of the 92d Congress however fell short of the mark with the result that the specific legislation intended to nullify HEW’s interpretation failed to pass. Consequently, the federal standard encompassing the unborn child continues to endure despite congressional efforts to the contrary.

It cannot be gainsaid that coverage of the unborn child is consistent with and in furtherance of the purposes of the Social Security Act. The granting of benefits to assist the development, care and nutritional needs of the unborn child is consonant with the Act’s underlying policy of “encouraging the care of dependent children.”³ The paramount goal of AFDC is protection of needy children. King v. Smith, 392 U.S. 309, 325, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). The providing of benefits to unborn needy children fully implements attainment of that goal.⁴ Accordingly, we hold that the state policies of Illinois and Indiana of denying AFDC benefits to unborn children and their mothers --are contrary to the prevailing federal standard for AFDC eligibility and thus invalid under the Supremacy Clause.

II

The named plaintiffs contend that they and the members of their class are entitled to the retroactive payment of AFDC benefits wrongfully withheld prior to the date of the orders of the district courts. The district court in Green v. Stanton, although recognizing that our decision in Jordan v. Weaver, 472 F.2d 985 (7th Cir. 1973), granted it the discretionary power to order retroactive payment of welfare benefits, held the equitable grant of such restitutionary relief to be inappropriate with respect' to the class as a whole and directed that retroactive relief be awarded solely to the named plaintiffs. The district court’s order in Wilson v. Weaver, however, directed the retroactive payment of AFDC benefits to all members of the class as well as the named plaintiffs.

Subsequent to argument in the instant appeal the Supreme Court reversed our decision in Jordan v. Weaver stating that we were “wrong in holding that the Eleventh Amendment did not constitute a bar to that portion of the District Court decree which ordered retroactive payments of benefits found to have been wrongfully withheld.” Edelman v. Jordan, 42 U.S.L.W. 4419, 4427, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974). Accordingly, in view of the Court’s holding we reverse the orders of the district courts to the extent that they grant retroactive relief.⁵

The judgments of the district courts are affirmed in part and reversed in part.

1 . The term “dependent child” as defined in section 406(a) of the Social Security Act, 42 U.S.C. § 606(a), means:

[A] needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a jjlace of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course pf vocational or technical training designed to fit him for gainful employment

2 . Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969).

3 . Medical opinion points to the critical need for proper care and treatment of the fetus during the prenatal period and emphasizes that the needs of the unborn child during this period must be adequately met to ensure the soundness and healthfulness of the child’s later development.

4 . It is difficult to discern a rational basis for denying pregnant women the same assistance during pregnancy as is accorded mothers subsequent to the birth of their children. Indeed, a woman may be in need of more assistance during her pregnancy than after the birth of her child. While she is pregnant a woman may be prevented due to her physical condition from maintaining any form of employment. After birth the status of her health does not handicap her ability to obtain a meaningful source of income.

5 . Plaintiffs in Wilson v. Weaver contend that the State of Illinois waived the Eleventh Amendment defense by failing to raise it in the district court and asserting it for the first time on appeal. A similar contention of waiver was raised by the respondent in Edelman v. Jordan. The Court approved of the practice of resolving the Eleventh Amendment defense for the first time on appeal holding “that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” 42 U.S.L.W. 4427 [94 S.Ct. 1363].