Green v. Stanton, Civ. No. 73 F 19.

• Decision Date: 02 July 1973
• Docket Number: Civ. No. 73 F 19.
• Parties: Sally GREEN et al., Plaintiffs, v. Wayne STANTON et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

364 F. Supp. 123

Sally GREEN et al., Plaintiffs, v. Wayne STANTON et al., Defendants.

Civ. No. 73 F 19.

United States District Court, N. D. Indiana, Fort Wayne Division.

July 2, 1973.

William Rastetter, Legal Services Program, Fort Wayne, Ind., Ivan E. Bodensteiner, Valparaiso, Ind., Seymour Moskowitz, Project Justice and Equality, Gary, Ind., for plaintiff.

Philip H. Larmore, Fort Wayne, Ind., for defendant Heiny-Allen Co. Welfare.

Gary L. Thompson, Deputy Atty. Gen., Elizabeth Hamacher, Deputy Atty. Gen., Indianapolis, Ind., for defendant State.

John P. Segovia, Gary, Ind., for defendant Lake Co. Dept. Pub. Welfare.

MEMORANDUM OF DECISION AND JUDGMENT ORDER

ESCHBACH, District Judge.

This class action under 42 U.S.C. § 1983 seeks declaratory and injunctive relief against the policy of the Indiana Department of Public Welfare which denies benefits claimed on behalf of an unborn child under the Aid to Families with Dependent Children (AFDC) program. Jurisdiction is founded upon 28 U.S.C. §§ 1331, 1343(3) and (4), 2201 and 2202. The named plaintiffs are members of a class composed of all women in the State of Indiana whose pregnancies have been medically determined, and their unborn children, who are otherwise eligible to receive AFDC but are denied benefits until the actual birth of the child. Plaintiffs claim that the policy violates their rights under the equal protection clause of the Fourteenth Amendment and conflicts with the Social Security Act and regulations issued pursuant thereto. This court's conclusion that the challenged policy is inconsistent with the federal statute and therefore invalid under the supremacy clause makes it unnecessary to reach plaintiffs' equal protection claims.

On February 26, 1973, this court denied plaintiffs' requests for a temporary restraining order and the convening of a three-judge court. The latter request was denied on the ground that plaintiffs here seek to enjoin a state "policy" rather than a state statute or administrative order as provided in 28 U.S.C. § 2281. On April 25, 1973, the hearing on plaintiffs' application for preliminary injunction was consolidated with the trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure and the case was submitted for decision on the basis of stipulated facts. This memorandum constitutes the court's findings of fact and conclusions of law pursuant to Rule 52(a). Of defendants' pre-trial motions, all were abandoned at trial except for their insistence that the Department of Health, Education and Welfare (HEW) be made a defendant in the action. That motion will be denied for the reasons stated at the conclusion of this opinion.

This court finds the prerequisites to a valid class action have been met pursuant to Rule 23(a) and (b)(2), Fed.R.Civ.P. Wilson v. Weaver, 358 F. Supp. 1147, (N.D.Ill., supplemental opinion filed May 23, 1973); see also Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972); Gaither v. Sterrett, 346 F.Supp. 1095, 1099 (N.D. Ind.1972).

Under § 402(a)(10) of the Social Security Act, 42 U.S.C. § 602(a)(10), state AFDC programs must provide benefits to "all eligible individuals." The State of Indiana has agreed by statute to follow the provisions of the Social Security Act and the regulations issued thereunder in administering the AFDC program. See IC 1971, §§ 12-1-2-12, 12-1-2-13, Ind.Ann.Stat. §§ 52-1113, 52-1113a (Burns 1964 Repl.). In Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505, 30 L.Ed.2d 448 (1971), the Supreme Court stated:

Thus, King v. Smith 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968) 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.

The King-Townsend test was most recently applied in Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972), in which the Court held invalid a California regulation that denied AFDC benefits to needy families where the "continued absence" of a parent from the home was due to military service. The same test must be applied in the instant case to determine whether Indiana may deny assistance to unborn children.

The term "dependent child" is defined in 42 U.S.C. § 606(a), but that section is silent on the question of aid to the unborn. In accordance with the King-Townsend test, as applied in Remillard, supra, the question to be decided here is whether congressional authorization for the exclusion of unborn children from eligibility for AFDC under the definition of "dependent child" is "clearly evidenced from the Social Security Act or its legislative history." This court finds no evidence of such authority for Indiana's exclusion of unborn children from AFDC.

In Wilson v. Weaver, No. 72C 1960 (N.D.Ill., December 26, 1972), the Illinois policy of denying aid to unborn children was declared invalid. The court subsequently filed a supplemental opinion denying the defendants' motion to vacate, alter or amend its original decision. Wilson v. Weaver, 358 F.Supp. 1147, (N.D.Ill., 1973). HEW filed an amicus brief in the reconsideration of that case, to which the court directed much of its attention in discussing the issue now before this court. This court is in agreement with the conclusion reached in Wilson and will rely in part herein upon its analysis of the arguments presented by HEW, since those same arguments have been presented in this case.

The real issue in this case, as the court in Wilson observed, is "whether the statute itself requires that aid be furnished to unborn children and not whether HEW's own regulations require such aid." Wilson v. Weaver, supra at 1153. Pursuant to 45 C.F.R. § 233.90(c)(2)(ii) and (c)(3) (1972), it has been HEW's practice to provide federal financial participation in state programs which include payments on behalf of unborn children. However, HEW has treated such programs as optional, approving state plans which provide such aid and approving others which do not. The Supreme Court in Townsend, and again in Remillard, expressly disapproved the "HEW policy which permits States to vary eligibility requirements from the federal standards without express or clearly implied congressional authorization." Carleson v. Remillard, supra, 92 S.Ct. at 1934; Townsend v. Swank, supra, 404 U.S. at 286, 92 S.Ct. 502. In support of their contention that HEW may treat aid to the unborn as an optional program under its regulations, defendants attempt to distinguish the unborn child provisions of § 233.90 from the provision thereof defining "continued absence" (subsection (c)(1)(iii)) in Remillard. The same argument, presented by HEW in its amicus brief, failed to convince the court in Wilson, and this court finds it no more persuasive.

However, even if this court agreed with HEW's analysis of its own regulations, Remillard would still be controlling here. While the opinion in Remillard referred to the regulation interpreting "continued absence" to mean continued absence "for any reason," the Court looked independently to the Act and its legislative history to determine the meaning of "continued absence" in 42 U.S.C. § 606(a). Similarly, the question before this court with respect to the meaning of the term "dependent child" is a question of statutory interpretation. Although HEW's regulations are relevant to this inquiry, "the principle that accords substantial weight to interpretation of a statute by the department entrusted with its administration is inapplicable insofar as those regulations are inconsistent with the requirement of § 402(a)(10) that aid be furnished to `all eligible individuals.'" Townsend v. Swank, supra, 404 U.S. at 286, 92 S.Ct. at 505. See Wilson v. Weaver, supra, 358 F.Supp. at 1152.

In Wilson v. Weaver, supra, HEW attempted to distinguish King and Remillard by comparing the statutory language involved in those cases from the term "dependent child" involved here. The court responded as follows:

In support of defendants' position that the AFDC program does not require the payment of benefits to unborn children, HEW contends that unlike the terms "parent" in King v. Smith, supra, and "continued absence" in Carleson v. Remillard, supra, the meaning of the term "dependent child" in this case is unclear, that it cannot unequivocally be said to include unborn children, and that it therefore should not be so construed. The United States unsuccessfully raised identical arguments at pages 5-7 of its amicus brief in Carleson v. Remillard, supra, and there is no reason to give them any greater weight here than in the Supreme Court. Simply stated, this argument amounts to a reversal of the King v. Smith test of eligibility and would authorize the states to exclude persons from AFDC unless the statute or its legislative history clearly made coverage mandatory. That is clearly not the law.

358 F.Supp. 1153.

The dictionary definition of the word "child" is "an unborn or recently born human being." Webster's Third New International Dictionary (1969). There is nothing in the Act or its legislative history to indicate an intent to exclude or to authorize the exclusion of unborn children from the class of all dependent "children" as so defined. As the court in Wilson stated:

. . . Any uncertainty about the meaning of the word child should be resolved in light of the broad remedial goals of the AFDC program. . . . Thus, defendants' analogies to the status of unborn children for purposes of inheritance, federal taxation, abortion, or actions to recover for wrongful death or pre-natal injuries are simply inapposite.

Defendants here do not contend that the unborn child is any less "needy" or "dependent" than a child who has been born — indeed, the...