Parks v. Harden

• Decision Date: 02 December 1974
• Docket Number: Nos. 73-1855 and 73-3220,s. 73-1855 and 73-3220
• Parties: Ruth PARKS, Individually and for all others similarly situated, Plaintiff-Appellant, v. Richard HARDEN, Individually and as the Commissioner of the Department ofHuman Resources, Defendant-Appellee. Mrs. Alice L. HARRIS and Mrs. Mary E. Hood, Individually, on behalf of theirunborn children, and on behalf of all others similarly situated, Plaintiffs-Appellees, v. MISSISSIPPI STATE DEPARTMENT OF PUBLIC WELFARE et al., etc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 861

504 F.2d 861

Ruth PARKS, Individually and for all others similarly

situated, Plaintiff-Appellant, v. Richard HARDEN, Individually and as the Commissioner of the

Department ofHuman Resources, Defendant-Appellee.

Mrs. Alice L. HARRIS and Mrs. Mary E. Hood, Individually, on behalf of theirunborn children, and on behalf of all others similarly situated, Plaintiffs-Appellees, v. MISSISSIPPI STATE DEPARTMENT OF PUBLIC WELFARE et al., etc.,

Defendants-Appellants.

Nos. 73-1855 and 73-3220.

United States Court of Appeals, Fifth Circuit.

Dec. 2, 1974, Rehearing and Rehearing En Banc Denied March 4, 1975.

Steven Gottlieb, Alfred C. Kammer, II, Jay E. Loeb, Atlanta, Ga., for plaintiff-appellant.

Dorothy Y. Kirkley, Asst. Atty. Gen., of Ga., Arthur K. Bolton, Atty. Gen., of Ga., Harold N. Hill, Jr., Deputy Asst. Atty. Gen., Robert J. Castellani, Asst. Atty. Gen., Atlanta, Ga., for defendant-appellee.

A. F. Summer, Atty. Gen., William A. Allain, 1st Asst. Atty. Gen., Jack S. Parker, P. Roger Googe, Jr., Sp. Asst. Attys. Gen., Jackson, Miss., for defendants-appellants.

Mark H. Shenfield, West Point, Miss., Stanley L. Taylor, No. Miss. Rural Legal Services, Oxford, Miss., Barry H. Powell, Community Legal Services, Jackson, Miss., for plaintiffs-appellees.

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

WISDOM, Circuit Judge:

These two class actions involving federal-state aid to mothers of unborn children require this Court to consider for the first time issues litigated in a number of other federal courts during the past two years: Does the failure of a state to provide benefits to mothers of unborn children under the joint federal and state Aid to Families with Dependent Children (AFDC) program contravene provisions of the Social Security Act? Does the Act deny to unborn children or their mothers the equal protection of the laws? The plaintiffs ¹ would, of course, have us answer in the affirmative. They cite a series of decisions by the United States Supreme Court, ² as well as the language of the Act itself, to demonstrate that unborn children are eligible individuals under the Act, and that to fail to provide benefits to them in the face of such statutory eligibility violates the Supremacy Clause. Straining at the traces imposed by Roe v. Wade, 1973, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, Plaintiff Parks also urges that the denial of AFDC benefits to unborn children simply on the basis of their fetal status denies them the equal protection of the laws, or, at minimum, violates the right to equal protection of the plaintiff mothers.

The Attorneys General of Georgia and Mississippi, defendants in the two actions, respond in kind: there is nothing either in the language of the Social Security Act or its legislative history to indicate a Congressional intent to include unborn children in the AFDC program. Although the Department of Health, Education and Welfare (HEW) permits a state to make AFDC payments to expectant mothers, they argue, such benefits are clearly optional. In dismissing the constitutional argument, the State of Georgia cites Roe v. Wade and concludes that since an unborn child is not a person within the meaning of the Fourteenth Amendment, 'the State has created no classification which is subject to judicial scrutiny.'

In these two cases the district courts reached opposite conclusions. In Parks v. Harden, the District Court for the Northern District of Georgia, concluding that an unborn child simply was not a child within the meaning of the Act, dismissed the cause of action and dissolved the temporary restraining order it had entered orally pending its decision on the merits. ³ 354 F.Supp. 620. On the other hand, the District Court for the Northern District of Mississippi held that unborn children were 'eligible individuals' under the Act, and that Mississippi could not, therefore, deny them AFDC benefits. 363 F.Supp. 1293. Concurring as we do with the latter reading of the applicable law, we affirm the judgment in No. 73-3220, Harris v. Mississippi State Department of Public Welfare, and reverse the judgment in No. 73-1855, Parks v. Harden.

I.

Before we address the substantive issues raised by these appeals, we consider several questions, 'jurisdictional' in a broad sense, which are not directly raised by the parties here, but have concerned other district or circuit courts confronting the same issue we address today. ⁴ The first is an outgrowth of the holding in Roe v. Wade that 'the word 'person,' as used in the Fourteenth Amendment, does not include the unborn.' 410 U.S. at 158, 93 S.Ct. at 729, 35 L.Ed.2d at 180. Since we conclude that the plaintiffs are entitled to AFDC benefits under the Social Security Act, we need not reach the equal protection argument advanced by Parks on appeal. Yet Roe's denial of fetal personhood nonetheless must be taken into account.

An unborn child's lack of status as a 'person' for Fourteenth Amendment purposes does not affect the status of an unborn child as a 'child' within the language of the Act; ⁵ that a fetus is not constitutionally entitled as a person to claim certain benefits in no way affects the right or power of Congress to extend benefits to unborn children by appropriate legislation. The question for resolution here is whether Congress did so. See Carver v. Hooker, D.N.H.1973, 369 F.Supp. 204, 210, n. 23, aff'd 1974, 501 F.2d 1244; Alcala v. Burns, S.D.Iowa, 1973, 362 F.Supp. 180, 186, aff'd, 1974, 494 F.2d 743, petition for cert. filed, 42 U.S.L.W. 3642 (U.S. May 15, 1974). Yet, at first blush, Roe might be thought to preclude even the statutory claim advanced by the plaintiffs under 42 U.S.C. 1983, since Section 1983 requires that the 'rights, privileges or immunities' of a 'citizen of the United States or other person within the jurisdiction thereof' be abridged before there is a basis of liability for the deprivation. ⁶

Reading the quoted passage from Roe together with the language cited above, at least one district court has concluded that 'if an unborn is not a person under the Fourteenth Amendment(,) an unborn has no right of action under Section 1983 and (the) claim must fall.' Poole v. Endsley, N.D.Fla.1974, 371 F.Supp. 1379, 1382. Whatever the merits of extending Roe's reach to Section 1983 actions, it is not necessary to reach that question here, for it is the rights of the expectant mother, rather than those of the fetus, which are at issue. Alcala v. Burns, 362 F.Supp. at 186.

The references to the AFDC program in the history of the Act make it clear that the Congressional objective is to furnish aid to needy mothers. Originally known as 'Aid to Dependent Children', 49 Stat. 627, the program's name was altered by a 1962 Social Security Act amendment to 'Aid and Services to Needy Families with Children'. Pub.L. 87-543, 42 U.S.C. 601 (1970); see King v. Smith, 1968, 392 U.S. 309, 311 n. 1, 88 S.Ct. 2128, 2130, 20 L.Ed.2d 1118, 1122. And, currently, Part A of Title IV of the Act, which erects the AFDC structure and procedures, simply denominates its subject as 'Aid to Families with Dependent Children'. 42 U.S.C. 601. One district court has evaded the clear import of this language, although in a constitutional rather than statutory context, by holding that the mother's rights under the AFDC program 'are incidental to, and derived from, the statutory benefits conferred upon the children.' Since the unborn child is not a person, the court reasoned, no benefits can be derived on its behalf by its mother, Murrow v. Clifford, D.N.J. (Civ.Act.No. 114-74) (letter memorandum, June 12, 1973, at 3), vacated and remanded for assignment to a three-judge court, 502 F.2d 1066 (3 Cir. 1974). Thus, the court concluded, Roe v. Wade precludes even the mother's benefits on equal protection grounds.

We do not find such reasoning persuasive, nor do we believe that Roe v. Wade can be used to support the view that the mother of an unborn child should be denied a cause of action under Section 1983. The definition in the Act of 'aid to families with dependent children' makes it evident that Congress contemplated payments of AFDC benefits directly to the relative with whom a dependent child is living, to meet the relative's own needs:

The term 'aid to families with dependent children' means money payments with respect to . . . a dependent child or dependent children, and includes (1) money payments or medical care or any type of remedial care recognized under State law to meet the needs of the relative with whom any dependent child is living . . ..

42 U.S.C. 606(b)(1). Under this language the rights of the mother are not derivative but direct. Although it is necessary for a relative to have an eligible dependent child living in the home for the relative to acquire eligibility, the existence of such a condition precedent cannot render the relative's rights 'incidental' in the face of statutory language to the contrary. If AFDC payments must be made with respect to unborn as well as post-partum children, then, the expectant mother herself has a right to receive them and standing to assert that right under Section 1983. See Carver v. Hooker, 369 F.Supp. at 210; Murrow v. Clifford, 3 Cir. 1974, 502 F.2d 1066.

The second jurisdictional difficulty is raised by the Third Circuit's treatment of Murrow v. Clifford in which the Court of Appeals was presented with a determination that expectant mothers are not entitled to AFDC benefits under the Act. In Murrow, the class action plaintiffs brought their action for declaratory and injunctive relief on statutory and constitutional grounds, alleging first, that New Jersey's failure to authorize AFDC benefits with respect to unborn children conflicted with the Social Security Act and was therefore invalid under the Supremacy Clause, and second, that the state's refusal to provide the payments violated the mother's rights to the equal protection of the laws. Finding the Supremacy Clause claim to be...