Appeal from an order of the District Court for the District of Connecticut, Hon. Robert C. Zampano, Judge, granting plaintiffs a declaratory judgment and enjoining the State of Connecticut from failing to furnish benefits under the Aid to Families with Dependent Children provisions of the Social Security Act, 42 U.S.C. section 601 et seq., to plaintiffs for their unborn children. Reversed.
Moore and Feinberg, Circuit Judges, Weinfeld,*fn* District Judge.
WEINFELD, District Judge:
This appeal presents the question whether an unborn child is eligible for assistance under the Aid to Families with Dependent Children ("AFDC") provisions of Title IV of the Social Security Act of 1935, as amended,*fn1 and if so, whether the policy of the State of Connecticut of denying such assistance to the unborn child and its pregnant mother is in conflict with the Act and thus invalid under the Supremacy Clause of the United States Constitution.*fn2 Appellees, plaintiffs in the courts below, commenced this action seeking declaratory and injunctive relief on behalf of themselves and all others similarly situated with regard to the State of Connecticut's policy denying AFDC benefits for unborn children to otherwise eligible pregnant women. In substance, the complaint alleges that this policy violates the equal protection clause of the Fourteenth Amendment of the United States Constitution, as well as the Social Security Act and regulations promulgated thereunder, and thus is invalid under the Supremacy Clause.*fn3 When this suit was instituted, one of the three named plaintiffs was receiving AFDC assistance on the basis of her two children who were living with her, but was denied AFDC benefits for her unborn child; the other two named plaintiffs were not receiving any AFDC assistance. The defendants are the Commissioner of Welfare for the State of Connecticut and the Director of Eligibility Services for the Welfare Department.
The district court consolidated plaintiffs' motion for a preliminary injunction with the trial on the merits,*fn4 and after hearing testimony and ruling that the prerequisites of a valid class action had been met pursuant to sections (a) and (b)(2) of Rule 23 of the Federal Rules of Civil Procedure, granted judgment for the plaintiffs.*fn5 The district court stayed its judgment and order pending a decision on appeal by this court.
Section 402(a)(10) of the Act requires that ". . . aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals."*fn6 Section 406(a) of the Act provides, inter alia, that AFDC benefits shall be paid to a needy "'dependent child' . . . 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"*fn7 any one of several listed persons. The Act is silent as to aid to an unborn child. However, the Department of Health, Education and Welfare adopted an administrative practice first under an audit policy*fn8 and later promulgated a regulation whereby the federal government reimbursed a state, which at its option extended such benefits to "an unborn child when the fact of pregnancy has been determined by medical diagnosis."*fn9 Connecticut, as have thirty-four other jurisdictions, has elected not to pay benefits to unborn children; nineteen jurisdictions have opted to do so. The basic issue, however, centers about the Act and not the regulation.
The district court held the state policy at issue here invalid under the Supremacy Clause of the United States Constitution because it is inconsistent with the eligibility provisions of the Social Security Act.*fn10 Since states cannot vary the eligibility requirements of AFDC and exclude from its benefits individuals intended to be covered,*fn11 our inquiry must focus on whether an unborn child is a "dependent child" within the meaning of the Act and therefore entitled to AFDC benefits.
Neither section 406(a) nor any other provision of the Act explicitly includes or excludes an unborn child. As has been cogently argued elsewhere,*fn12 the language of various sections of Title IV makes sense only if the term "child" is limited to those who are born. The statutory scheme supports the view that Congress did not intend to confer welfare benefits to children until they were born. For example, section 401 states the purpose of the AFDC program as "encouraging the care of dependent children in their own homes or in the homes of relatives . . . ."*fn13 Clearly it is impossible to encourage the care of an unborn child in the home of a relative. So, too, sections 402(a)(7) and (8) of the Act require consideration of a child's income and resources in establishing the amount of assistance.*fn14 A fetus, of course, has no income. The foregoing, as well as other provisions of the Act -- for example, sections 402(a)(11), 402(a)(13) through (15), 402(a)(16),*fn15 all of which concern living children, give strong support to the view that the "dependent child" referred to in section 406(a) was intended to apply only to one that was born. Appellees' counter argument that where identical words are used in a statute with quite different meanings*fn16 it is the duty of the courts to give the words different meanings, is quite unpersuasive in light of the overall purpose of Title IV, as reflected by the sections referred to above.
Appellees, however, citing definitions in several dictionaries, argue that the ordinary meaning of "child" includes an unborn child.*fn17 Appellants argue contrariwise, citing other dictionaries in support of their contention that under ordinary definitions the word "child" does not mean an "unborn child."*fn18
This battle of dictionaries appears to be a stalemate. Nevertheless, application of the "ordinary meaning"*fn19 rule in this case would seem to bear against appellees' position. "Legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him."*fn20 We are of the view that the word "child" is commonly and ordinarily understood to mean a born child and not a fetus. Indeed, when it is intended to refer to a fetus it is usually modified by another word such as "unborn child." Another example -- when enumerating one's off-spring it is common to say, where appropriate, "I have two children and one on the way," not "I have three children." Common usage permits the conclusion that while a fetus is more than a non-child, it is something less than a child -- a view which finds support in the Supreme Court's ruling in Roe v. Wade,*fn21 which refused to recognize that a fetus prior to the final trimester of pregnancy has rights separate from those of its mother.
We will assume, however, that the various dictionary definitions of "child" create sufficient ambiguity as to the meaning of that word as used in the AFDC provisions to justify turning to the legislative history of the Social Security Act for guidance. Appellees urge that inclusion of the unborn within the definition of "dependent child" furthers the underlying purpose of the Act of "encouraging the care of dependent children." This is hardly open to dispute -- indeed, many other provisions could be read into the Act which would further that underlying policy. However desirable such additions might be, they involve legislative policy considerations and are beyond the scope of the judicial function. The issue is whether Congress intended to extend the benefits of the Act to an unborn child. The entire thrust of Title IV is in furtherance of the interests of living and dependent children. Congress manifested no concern at the time the statute was enacted or in subsequent amendments with making funds available for the benefit of unborn children.
When the Social Security Act was discussed and debated prior to its enactment, what was to become the AFDC program was viewed as a counterpart to, and a federally funded extension of, state statutes known as "mothers' aid" or "mothers' pension" laws. These laws were described as follows:
"These are not primarily aids to mothers but defense measures for children. They are designed to release from the wage-earning role the person whose natural function is to give her children the physical and affectionate guardianship necessary, not alone to keep them from falling into social misfortune, but more ...