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Court of Appeal, Third District, California.

CALIFORNIA WELFARE RIGHTS ORGANIZATION et al., Petitioners, v. Dr. Earl W. BRIAN, M.D., Secretary, Human Relations Agency, Robert B. Carleson, Director, Department of Social Welfare, State of California, Respondents.

Jacklyn Jo SHELTON, Individually, and on behalf of all others similarly situated, Petitioners, v. SUPERIOR COURT OF the State of California, COUNTY OF SHASTA, Respondent; Marian BABIARZ, Director, Shasta County Welfare Department, et al., Real Parties in interest.

Civ. 13628.

Decided: March 23, 1973

Rosalyn M. Chapman, Los Angeles, Arthur L. Meader, III, Redding, Ralph Santiago Abascal, Jay-Allen Eisen, Edmund S. Schaffer, by jay-Allen Eisen, San Francisco, for petitioners. Evelle J. Younger, Atty. Gen., by Raymond Momboisse, Deputy Atty. Gen., Sacramento, for respondents and real part in interest.

Petitioners, California Welfare Rights Organization (CWRO), an unincorporated association, and its president, Catherine Jermany, on behalf of its members (many of whom are recipients under the Aid to Families with Dependent Children (AFDC) program), seek mandamus against respondents, Brian, Secretary of the Health and Welfare Agency, and Carleson, Director of the Department of Social Welfare, State of California. Petitioner Shelton, a resident of Shasta County and recipient under the AFDC program, individually, and on behalf others similarly situated, brought an action in that county against Babiarz, Director of the Shasta County Welfare Department and respondent, Carleson, seeking a temporary stay order and writ of prohibition against said respondents.

Both CWRO and Shelton challenge the validity of Eligibility and Assistance Standard (EAS 44–115.95) promulgated by the Department of Social Welfare at the direction of respondents Brian and Carleson. Respondent court in which the Shelton action was filed, while denying the motion of respondents Brian and Carleson to dismiss, likewise denied petitioner Shelton's motion for a preliminary injunction. injunction. We issued an order to show cause and, because of the identity of the issues presented, consolidated for hearing and decision both the original mandamus proceeding initiated with us by CWRO and the prohibition proceeding which followed the trial court's determination in Shelton.


These companion proceedings present a relatively narrow issue, namely, are respondents prohibited by either federal or state law from adopting regulations under which an AFDC family will receive for an unborn child an amount less than the full increment of ‘maximum aid’ payable to an ‘eligible needy’ person as ‘aid’ is calculated in Welfare and Institutions Code section 11450, subdivision (a)? Stated another way, must the State of California, for aid purposes, treat an unborn child in the same manner as it treats a child after birth?


Petitioner Shelton is a resident of Shasta County, living with her unemployed husband and one child. In May 1972 she was advised by the Shasta County Welfare Department that the Shelton family AFDC grant, effective June 1072, would be reduced from $280 per month to $213 per month because she had been certified as pregnant. This initial reduction was authorized by new regulation EAS 44–115.95 of the Department of Social Welfare promulgated by respondent Carleson which required a deduction from the AFDC grant for ‘in-kind income’ received by the unborn child. The amount of income deduction was based upon a formula for the housing and utilities expenses of a one member family unity. The argument advanced in support of respondent's action and of the regulation in question in that the mother's body before birth satisfied certain needs of the unborn and accordingly there should be deducted from the additional grant an allowance for housing and utilities otherwise provided. The aggregate of such services provided by the mother in the case before us was computed as $67 of ‘in-kind’ income, which sum respondent subtracted from the $280 aid normally allowed for a family of four on AFDC, leaving a resultant grant of $213 per month, or $22 per month less than the family received before pregnancy.

Recognizing the anomaly, respondents subsequently directed preparation of an amendment to their regulations to provide that pregnancy in an AFDC family would not result in a reduction in the aggregate aid received by the family. Respondents thereupon moved to dismiss the Shasta County complaint on the ground that the new amended regulations corrected such error. On July 25, 1972, the motion was denied on the ground that the new regulations had not yet actually issued, and defendant Carleson, as director, was ordered to amend his regulations so as to permit ‘an appropriate grant for additional nutritional needs of the mother resulting from the pregnancy.’ Plaintiffs's motion for a preliminary injunction was denied, the court holding that to afford the unborn child full status as an additional member of an AFDC family ‘defies common sense.’


Petitioners contend that the regulation in question (EAS 44–114.95), thereafter adopted as an emergency provision on August 16, 1972, is invalid for two principal reasons: Federal law requires that AFDC aid be afforded unborn children, and California laws require the unborn child be considered as a child eligible for full AFDC benefits.

The argument of petitioners that federal law mandates inclusion of unborn children as full recipients of AFDC payments may be summarized as follows: The Social Security Act (42 U.S.C., § 601 et seq.) authorized federal appropriation to assist states in making aid an services available to ‘needy dependent children’ pursuant to title 42 United States Code, section 602, subdivision (a)(10), and requires that states assist all dependent children eligible for aid under section 406, subdivision (a), of the Act (42 U.S.C. § 606, subd. (a)).1 Eligibility must be measured by federal standards. (Carleson v. Remillard (1972) 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352.) Health, Education and Welfare (HEW) regulations (45 C.F.R., § 233.90, subd. (c)(2)(ii)) include the unborn child within the definition of ‘dependent child.’ Such an interpretation by a federal agency charged with the enforcement of the federal statutes is binding upon the states and upon the respondents who are obligated to grant assistance to those federally defined as ‘eligible individuals' under 42 United States Code section 602, subdivision (a)(10).

There are two facets to petitioners' argument that California law requires inclusion of the unborn as a full member of the family unit under AFDC. First, it is urged that California Department of Social Welfare by virtue of its regulation EAS 44–213.31 has, since 1949, interpreted ‘child’ to include the unborn. Frequent attempts to change the interpretation by statutory amendment having failed, the department's interpretation has become embodied in the statute. Secondly, it is said the adoption of the Welfare Reform Act of 1971 (Stats.1971, ch. 578) changed the system of aid based upon need to a ‘flatgrant method,’ under which individual need and a family's actual expenditures no longer are to be considered. Thus respondents' powers to adjust individual figures are limited to changes in the standard of living. (Welf. & Inst.Code, § 11453.) The needs of all AFDC recipients, including the unborn, having been ‘fairly averaged’ in determining the mathematical fixed formula for aid based solely on the number of members of the family, respondents may not alter the formula by ‘double counting’ the presumed lesser need of the unborn, and to do so constitutes illegal ‘tampering’ with the level of benefits. We are told that ‘irremedial harmful nutritional effects' both upon the pregnant mother and the fetus will follow from the action of the trial court and from the enforcement of the regulations in question.

Respondents, on the other hand, contend that federal law does not require inclusion of the unborn in the AFDC family unit. The Department of Social Welfare, which, through its regulations, has elected to include the unborn, is under federal mandate to ascertain the existence of and evaluate the amount of ‘in-kind’ income and resources received by and available to AFDC recipients. The respondents have adopted valid standards for evaluating ‘in-kind’ income The regulation is not in conflict either with the provisions of the Welfare and Institutions Code defining the minimum basic standards of adequate care (Welf. & Inst.Code, § 11452), or with the level of benefits payable under Welfare and Institutions Code section 11450.

More specifically, respondents assert that their action is mandated by a series of federal and state procedural requirements, among them, that they ‘in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children’ (42 U.S.C., § 602, subd. (a)(7)); that federal regulations require ‘A State Plan for . . . AFDC . . . must . . . [p]rovide that, in establishing financial eligibility and the amount of the assistance payment . . . [a]ll income and resources . . . will be considered in relation to the State's standard of assistance, and will be applied to maintenance costs' (45 C.F.R., § 233.20, subd. (a)(3)(ii)(a)); that they are required to comply with the provisions of the Act in implementing regulations (King v. Smith, 302 U.S. 309, 316–317, 88 S.Ct. 2128, 20 L. Ed.2d 1118, 1125–1126; Villa v. Hall (1971) 6 Cal.3d 227, 98 Cal.Rptr. 460, 490 P.2d 1148; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 97 Cal.Rptr. 385, 488 P.2d 953); respondent director is authorized ‘to adopt regulations, orders or standards of general application to implement, interpret, or make specific the law enforced by the department’ (Welf. & Inst.Code, § 10554); and Welfare and Institutions Code section 11008 provides that ‘In computing the amount of income determined to be available to support a recipient, the value of currently used resources shall be included . . ..’

Respondent director, considering himself under a mandatory duty to take into account any ‘resources' available to the unborn child, adopted section 44–115.95 of the Public Social Services Manual, providing: ‘When an unborn child is included in the FBU [AFDC Family Budget Unit], the in-kind deduction shall be the total of the amounts by which the above in-kind values for housing, utilities, food and clothing are increased as a result of including the unborn in the FBU.’ Such values are spelled out in regulation EAS 44–115.95.

Respondent contends finally that the additional allowance provided to the family by the amended regulations for the nutritional needs of the mother because of her pregnancy exceeds the amounts specified by both federal and state authorities as constituting a good nutritional diet, and that no ‘harmful nutritional effects' upon either mother or the unborn will ensue.


The resolution of the issue herein presented and consideration of the foregoing contentions require close scrutiny of a body of federal and state statutory and decisional laws, as well as the particular regulation attacked.

The Social Security Act (42 U.S.C. § 602, subd. (a)) provides: ‘A State plan for aid and services to needy families with children must provide that . . . aid to families with dependent children shall be furnished . . . to all eligible individuals.’ Section 601 of the Act authorizes and directs federal appropriations of funds ‘shall be used for making payments to States which have submitted, and had approved by the secretary [of HEW], State plans for aid and services to needy families with children.’

‘Dependent child’ is defined by section 606 (42 U.S.C.) as '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 place 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 of vocational or technical training designed to fit him for gainful employment . . ..' (See Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448.)

It will be seen that the Social Security Act is silent on the matter of inclusion or exclusion of the unborn. Code of Federal Regulations (45 C.F.R., § 233.90, subd. (c)(1)(2)(ii)) provides, however, that ‘Federal financial participation under . . . the Social Security Act in payments with respect to a ‘dependent child,’ as defined in section 406(a) of the Act, is available in . . . [p]ayments with respect to an unborn child when the fact of pregnancy has been determined by medical diagnosis . . ..'

HEW, in language interpretive of and clarifying the above definition of 406 has focused on two eligibility factors, ‘need’ and deprivation of ‘parental support or care.’ It has also provided that ‘[w]hen the mother's pregnancy has been determined by medical diagnosis, Federal participation in payments on behalf of an unborn child may be claimed on the basis of the same eligibility conditions as apply to other children.’ (Handbook of Public Assistance Administration (1946) part IV, § 3412.6.) This leads to the conclusion that both the regulations and the departmental interpretations indicate that federal aid may be given to states which elect to include the unborn as AFDC recipients.2

Very recently the United States Supreme Court in Carleson v. Remillard, supra, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352, 355, rejected a contention by the State of California that children whose fathers were absent on military service were excluded from the AFDC program. The court held: ‘Section 402(a)(10) of the Social Security Act, 42 U.S.C. § 602(a)(10), places on each State participating in the AFDC program the requirement that ‘aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.’ ‘Eligibility,’ so defined, must be measured by federal standards. King v. Smith, 392 U.S. 309, 88 S.Ct 2128, 20 L.Ed.2d 1118. There, we are faced with an Alabama regulation which defined a mother's paramour as a ‘parent’ for § 606(a)(1) purposes, thus permitting the State to deny AFDC benefits to needy dependent children on the theory that there was no parent who was continually absent from the home. We held that Congress had defined ‘parent’ as a breadwinner who was legally obligated to support his children, and that Alabama was precluded from altering that federal standard. The importance of our holding was stressed in Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448, 453: ‘. . . 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 supplied.)

‘In Townsend, we also expressly disapproved the HEW policy which permitted States to vary eligibility requirements from the federal standards without express or clearly implied congressional authorization. 404 U.S. at 286, 92 S.Ct. at 505, 30 L.Ed.2d at 543.’

Federal interpretation of the term ‘dependent child’ has included the unborn. (42 U.S.C., § 606, subd. (a); 45 C.F.R., § 233.90, subd. (c)(2)(ii).) This ling-standing and consistent interpretation is entitled to great weight. (United States v. Leslie Salt Co. (1956) 350 U.S. 383, 396–397, 76 S.Ct. 416, 100 L.Ed. 441, 451–452; Udall v. Tallman (1965) 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616, 625.)

California statutes are silent on the eligibility of the unborn to AFDC benefits. Welfare and Institutions Code section 11202 defines a ‘needy child’ as a child who is under 18 and who needs and lacks parental support because of some impairment of parental status such as incapacity, desertion, death, divorce or unemployment, or who needs and lacks parental support and who previously having received assistance has either been relinquished for adoption and found unplaceable or has been placed in foster care.

California has, however, in conformity with federal requirements that it fix both standards of adequate care and an assistance grant or level of benefits, established a legislatively declared pattern of financial assistance to AFDC recipients. Under Welfare and Institutions Code section 11452 minimum basic standards of adequate care are established. The basic standards enumerated by this section, as relevant to the matter before us, are $255 for a family of three and $314 for a family of four. Section 11450, establishing a level of benefits, creates a formula for aid to families with needy children which is less than the basic standards of adequate care above described. The amount fixed for benefits, as pertaining to the matter before us, is an amount which, when added to income of the recipient, will total $235 for a family of three and $280 for a family of four. Nowhere in the Welfare and Institutions Code is there reference to aid payments to the unborn. However, in regulations adopted by the Department of Social Welfare the unborn are recognized: ‘Needy Persons Living In The Home Who Shall Be Included As ‘Recipients' In The Same Family Budget Unit, Unless EXCLUDED By Section 44–213.5.’ (EAS 44–213.3.) ‘Children—all related eligible unmarried children, including the unborn child, for whom aid is requested by the child's parent or relative caretaker.’ (EAS 44–213.31.) (Emphasis added.)

Amendatory regulations were enacted as an emergency measure and effective on August 16, 1972, and added EAS section 44–115.62 and EAS section 44–115.95 and revised existing EAS sections 43–113.1, 44–265.212 and 44–315.412.

These changes and additions altered the manner in which the in-kind income of the unborn child was to be calculated for the purpose of deducting its value from the grant to the Family Budget Unit (FBU) of which it is a member. New EAS section 44–115.95 (specified in EAS § 44–115.62 as applicable to evaluation income in kind for an unborn) resulted in two significant changes: (1) The values attributable to the food and clothing furnished the unborn are added to the items of income inkind for which deduction must be made; and (2) the evaluation is to be based on the incremental values set forth in EAS section 44–115 rather than on the allowances for a one member FBU.

Applying the current regulations to the case of petitioner Shelton would result in a valuation of her unborn's income in kind in the amount of $35. Since the maximum grant for her four-member FBU, before deduction of income in kind, is $280 (as compared with $235 for her previous threemember FBU), the net grant to her is $245. (Welf. & Inst.Code, § 11450, subd. (a).) This grant may under certain circumstances be augmented in the amount of $9 to provide a therapeutic diet during pregnancy. (EAS § 44–265.212.) By reference to EAS section 44–115.95 and to Welfare and Institutions Code section 11450, subdivision (a), it appears that computation of deductions under the present regulations results, in most cases, in an increase of $10 in the maximum net assistance grant to an AFDC FBU enlarged one member in size because of the mother's pregnancy.

The exceptions to this result, not pertinent to the matter before us, occur (1) where the unborn is the sole member of the FBU, as conceivably could occur where the pregnant mother is herself a dependent in a separate AFDC FBU (see EAS § 43–113.1); or (2) where the unborn increases the FBU size from seven to eight or to more than ten. In the first of these exceptional situations, the grant to the unborn is completely cancelled by the deduction of in-kind income. Where the FBU increases from seven to eight, the net increase is $11 rather than $10. Where the FBU already contains 10 members, the maximum grant cannot exceed $500 and there are no incremental values to be deducted for housing, utilities and food. Deducting the only remaining item of in-kind income having a value, $9 per person for clothing, results in a maximum net grant of $491, which is necessarily less than that available before pregnancy and is similar in result to that following the earlier, May 1972, administrative interpretation in Shelton.

Acknowledging the existence of both federal and state interpretations pointing to the inclusion of the unborn as eligible under AFDC, and bearing in mind the direction of Carleson v. Remillard, supra, (496 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352) that state eligibility standards which conflict with federal AFDC standards are violative of the Social Security Act and invalid under the supremacy clause, we accordingly hold that the unborn must be recognized in determining the AFDC grant.

Having so concluded, we consider the remaining unresolved but pivotal question: To what extent and in what amount must respondents contribute to the unborn as a member of the family unit? Petitioners urge that in taking the first step of accepting the unborn as eligible, the second step of full incremental payment inevitably follows. In our view, such result is not inevitable; whether or not it is required depends upon a careful examination of the permissible scope of administrative discretion and authority in the welfare field.

Petitioners urge that once an unborn child is recognized as a child eligible to receive AFDC, then Welfare and Institutions Code sections 11450, subdivision (a), and 11452 require a computation based solely on the ‘number of eligible needy persons' in the same household, and the income and resources actually available to them. The rationale for such position is that before 1971 respondent director was under legislative mandate to determine the differing needs of different families of the same size, based on variations of age, sex and geographic location. Under the then provisions of section 11452 respondents could and did provide a lesser amount for the needs of unborn children than for the children in being. (EAS § 44–212.62.) Since 1971 section 11452 provides that the needs ‘are hereby determined on the basis of the schedule set forth in this section.’ As noted, it is urged that since the previous direction to fix individual needs is removed and an arbitrary ‘flat-grant’ system of computation has been adopted, any inquiry into the individual needs of persons and families is irrelevant and a simple mathematical formula is automatically applied: Three ‘eligible needy persons' $235, four such persons $280. The Legislature having fixed the needs, the director has no further discretion. He simply counts members. Therefore, add an unborn to a family of three, result $280.

Such an argument, while having the surface appeal of simplicity, must yield to logic, reason and common sense. The postulated result, we also note, is not totally free of practical problems of interpretation; for example, if the prenatal medical examination confirms the pregnant mother can expect twins, are two additional full units to be added to the family for aid purposes, and if the examination confirms triplets, are three units to be added?

It is admitted by petitioners, as it must be, that the needs of the unborn are substantially less than those of children in being. To ask the question, what are the identifiable housing, food, utility and clothing requirements of an unborn child, is to suggest the answer. Petitioners insist, however, that the adoption of the flat-grant system precludes such inquiry. State welfare officials in the administration of programs and the disbursement of public resources, it is urged, are permitted neither to raise such common sense questions nor to suggest common sense answers. It is claimed, in effect, that respondents have no other recourse than to allocate public monies for purposes in excess of existing physical needs; in short, they must expend public funds for a fiction.

The acceptance of such a wooden and mechanical contention, in our view, would handcuff the administrators of public welfare systems and constrict their actions well beyond the clearly expressed legislative intent. It would add a mask blinding them to reality. No valid public purpose can be served by such an approach, nor is it dictated by any legislative or judicial expression. We note particularly the representation of counsel for respondents, which is not disputed, that in computing the minimum basic standards of adequate care (Welf. & Inst.Code, § 11452) and the maximum aid limitations (Welf. & Inst.Code, § 11450) no reports were submitted to, or discussion had with, the Legislature or its appropriate committees regarding aid treatment of the unborn.

In this connection a reference to the administrative history of California treatment of aid to the unborn is revealing. Before the adoption of the Welfare Reform Act of 1971, California utilized an old schedule of coded AFDC costs which added to the total need amount of FBU ‘$21 effective the month verification of pregnancy is obtained and continuing until termination of the pregnancy,’ in addition to an augmented food allowance for the pregnant mother. (EAS § 44–212.62.)

After the Welfare Reform Act, a new formula was applied (§ 44–213.31) under which an unborn child was to be counted in determining family size but ‘in-kind’ income of the unborn was to be deducted from the amount of the family grant in the manner we have previously noted. Section 11450 of the Welfare and Institutions Code relating to the payment schedule as amended by the Welfare Reform Act was to become effective October 1, 1971, but its operation as to subdivision (a) was stayed by the California Supreme Court on September 30, 1971, in Villa v. Hall, supra, 6 Cal.3d 227, 98 Cal.Rptr. 460, 490 P.2d 1148. Pending further order, subdivision (a) of section 11450 remained in effect as modified by California Welfare Rights Organization v. Carleson, 4 Cal.3d 445, 93 Cal.Rptr. 758, 482 P.2d 670. Carleson dealt with the effect of the requirement of section 402, subdivision (a)(23), of the Social Security Act on cost of living adjustments.

On January 10, 1972, the California Supreme Court issued a peremptory writ of mandate directing computation and payment of AFDC grants consistent with its decision in Villa v. Hall, supra, in which the court invalidated a proposed regulation which would have required the deduction of income of the recipient from the payment (Welf. & Inst.Code, § 11450) rather than from the larger schedule of need values (Welf. & Inst.Code, § 11452). On April 11, 1972, the United States Supreme Court issued an order staying the holding in Villa v. Hall, and on June 7, 1972, granted a petition for a writ of certiorari and filed its order vacating the judgment and remanding the cause to the Supreme Court for further consideration in light of Jefferson v. Hackney (1972) 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285. On September 14, 1972, the California Supreme Court in Villa v. Hall, 7 Cal.3d 926, 929, 103 Cal.Rptr. 863, 500 P.2d 887, vacated its order staying the operation of section 28 of the Welfare Reform Act. The effect of the foregoing was to require implementation of section 11450 as amended by the Welfare Reform Act.

In Jefferson v. Hackney, supra, the United States Supreme Court established the guidelines and standards by which courts are to measure state administrative action in the welfare field, and we will quote extensively from its opinion because its language is controlling. The court was presented with a class action brought by various recipients of AFDC challenging the system whereby Texas applied a percentage reduction factor to arrive at a reduced need standard, the factor being lower for AFDC recipients than for others who participated in the other categorical assistance programs under the Social Security Act. It was urged that the method adopted by Texas in applying the reduction factor to recipients with outside income violated section 402, subdivision (a)(23), of the Social Security Act (Aid to Needy Families) requiring each state to make cost of living adjustment in its standard of need. The Texas plan first applied a percentage reduction factor to the recipient's standard of need, thus arriving at a reduced standard, after which nonexempt income is deducted to determine the level of benefits given. The court discussed the systems adopted by various states in determining and adjusting standards of need, and in the computation and credit for outside income. It noted that in Rosado v. Wyman (1970) 397 U.S. 397, 414, 90 S.Ct. 1207, 25 L.Ed.2d 442, 456, it had reviewed the AFDC program, and in King v. Smith (1968) 392 U.S. 309, 316, 88 S.Ct. 2128, 20 L.Ed.2d 1118, 1125,3 had referred to it as a ‘scheme of cooperative federalism.’

The Jefferson court, in dealing with a contention that the Texas plan of percentage reduction factor applied to the recipient's standard of need violated section 402, subdivision (a)(10), of the Social Security Act, stated that, while such section forbids a state from creating certain exceptions to standards established in the Act, ‘It does not, however, enact by implication a generalized federal criterion to which States must adhere in their computation of standards of need, income, and benefits. Such an interpretation would be an intrusion into an area in which Congress has given the States broad discretion, and we cannot accept appellants' invitation to change this longstanding statutory scheme simply for policy consideration reasons of which we are not the arbiter.’ (Jefferson v. Hackney, 406 U.S. at p. 545, 92 S.Ct. at p. 1731, 32 L.Ed.2d at p. 295.)

The Jefferson court, 406 U.S. at page 546, 92 S.Ct. at page 1731, 32 L.Ed.2d at page 296, addressing itself to the contention that the Texas plan violated the Fourteenth Amendment, used the following language: ‘[I]n ‘the area of economics and social welfare, a States does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.’ [Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491, 501.] A legislature may address a problem ‘one step at a time,’ or even ‘select one phase of one field and apply a remedy there, neglecting the others.’ Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563, 573 (1955).' The court then added the following general expression referring to the constitutional challenge: ‘So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket. The very complexity of the problems suggests that there will be more than one constitutionally permissible method of solving them.’

In comparing different state approaches to the deduction of outside income of the recipient, the Jefferson court states (406 U.S. at p. 541, 92 S.Ct. at p. 1729, 32 L.Ed.2d at p. 293): ‘Striking the proper balance between these competing policy considerations is of course not the function of this Court. ‘There is no question that States have considerable latitude in allocating their AFDC resources, since each State if free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.’ King v. Smith, 392 U.S. 309, 318–319, 88 S.Ct. 2128, 20 L.Ed.2d 1118, 1126 (1968) (footnotes omitted). So long as the State's actions are not in violation of any specific provision of the Constitution or the Social Security Act, appellants' policy arguments must be addressed to a different forum.' Although responsive to a Fourteenth Amendment challenge to the Texas procedure, its further language has broader implications (406 U.S. p. 549, 92 S.Ct. p. 1733, 32 L.Ed.2d p. 297): ‘Applying the traditional standard of review under that amendment, we cannot say that Texas' decision to provide somewhat lower welfare benefits for AFDC recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them.’ In Jefferson the contention was made and supported by the dissent that the 1950 amendment to the Social Security Act required equal aid levels in each of the principal welfare categories. The majority rejected such contention, holding that the ‘proponents of the 1950 amendments explicitly recognized and endorsed the longstanding policy that the Federal Government sets only minimum AFDC standards, while leaving the States ‘wide discretion both in determining policies and in setting standards of need.’' (406 U.S. p. 551, 92 S.Ct. p. 1734, 32 L.Ed.2d Fn. 20, p. 298) Such language suggests the wide latitude and flexibility afforded welfare administrators and the permissibly variable treatment allowed the states in their handling of complex welfare problems. A discretion permitting dissimilar practices for the young and the aged is sufficiently broad to permit differential treatment of the born and the unborn.

The United States Supreme Court then concludes (406 U.S. at p. 551, 92 S.Ct. at p. 1734, 32 L.Ed.2d at pp. 298–299) with its familiar language from Dandridge v. Williams, supra, 397 U.S. at 487, 90 S.Ct. at 1162, 25 L.Ed.2d at 503: “We do not decide today that the [state law] is wise, that it best fulfills the relevant social and economic objectives that [the State] might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. . . . [T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.”

Similarly in the matter before us we do not review the economic wisdom, the social effect, or the moral implications, if any, behind the regulations herein challenged. Such considerations are properly addressed to the Legislature. We go no further than to measure the action taken against the legal tests above enumerated.

We find no legislative requirement of identical treatment of the born and the unborn as recipients under the flat-grant program. The administrator of the program, while recognizing the eligibility of the unborn, has elected by regulation to treat the born and the unborn differently by increasing the family allowance for the latter in an amount less than the full increment of an additional person in being. In doing so, he has recognized the mother's physical contribution to the unborn during pregnancy in the form of resources or ‘income in kind.’ We see nothing capricious in such action. Accepting the latitude afforded the administrator of a complex welfare program within limits imposed by the Constitution and federal and state laws, we conclude that he has such discretion.

The petitions are denied and the order to show cause is discharged.


1.  In this connection we note recent conflicting United States District Court opinions on the matter. (Cf. Wilson v. Weaver, No. 72 C 1960 (N.D.Ill.) filed Dec. 26, 1972, and Parks v. Harden, 354 F.Supp. 620, filed Jan. 4, 1973).

2.  We have further noted the decision in Wilson v. Weaver, No. 72 C 1960, supra, holding that the supremacy clause invalidates a policy of the Illinois Department of Public Aid denying eligibility and benefits to the unborn under AFDC as violative of the Social Security Act. We also note that 31 states do not include the unborn under their plans, whereas 19 states do so include them with varying degrees of assistance.

3.  For a helpful discussion of the legislative and litigation history of section 402, subdivision (a), of the Social Security Act and the AFDC program see ‘Implementation of the Cost-of-Living Adjustment for AFDC Recipients: A Case Study in Welfare Administration,’ 118 University of Pa.L.R., page 1143. See also ‘AFDC Eligibility Requirement Unrelated to Need: The Impact of King v. Smith,’ 118 University of Pa.L.R., page 1919.

RICHARDSON, Presiding Justice.

JANES and MORONY, JJ.,* concur.

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