Warren E. Burger: We'll hear arguments first today in number 73-1708, Burns against Alcala. Mr. Attorney General, you may proceed whenever you're ready.
Richard C. Turner: Mr. Chief Justice, may it please the Court. Burns, the Commissioner of the Department of Social Services of the State of Iowa against Linda Alcala, Jane Doe and Joan Roe, is here on cert from the Eighth Circuit which upheld the decision of Judge Hanson in the Southern District of Iowa in a case of statutory construction of the Social Welfare Act that an unborn child or a mother of an unborn child is entitled to AFDC, Aid to Families with Dependent Children. It involves Titles IV and V of the Social Security Act passed by the 74th Congress in 1935. Title IV being -- pertaining to ADC or later AFDC and Title V pertaining to Maternal and Child Health Care. I would first like to quote to the Court part of the relevant statutes 602, Title 42 of the U.S. Code Section 602 (a) (10) which says that aid in a -- if a state has ADC and of course a states does not have to have a program as I understand of Aid to the Dependent Children but all including Iowa do, it must furnish with reasonable promptness. It says that Aid to Families with Dependent Children shall be furnished with reasonable promptness to all eligible individuals. In this case, the plaintiffs were three unmarried pregnant women without children and otherwise qualified for ADC. They have no employment. They were without any savings. They made application for AFDC for their unborn children. Then if I may state the issues which I think are present here. First, the question is, is a pregnant woman a mother before her child is born? Second, is she prior to birth a parent within the meaning of the statute? If she has no obligation to support her child in regard to diet, nutrition and things to that kind --
Warren E. Burger: When you say obligation, do you mean legal obligation?
Richard C. Turner: Yes, sir. A legal obligation or duty if she has none, King versus Smith which pertains to a substitute father without a legal obligation and still another decision of this Court which pertained to a stepfather who had not adopted his child and was held to have no legal obligation was held not to be a parent. Following that logic and been perhaps that stretching logic to extremes, the mother is not a parent if she has no duty to support the fetus. Now, Judge Pell's dissent in a case of Wilson versus Weaver which I believe was out of the Third Circuit involving cases from Illinois and Indiana indicated that neither a parent, neither mother or father is a parent before birth and that even the real father has no duty to support the unborn child before it's born. So, one of the questions here is whether perhaps if a woman has a right to abort her child she can be said to have a duty to support her fetus. But let's assume for that the pregnant woman is a parent before birth, are the woman and her fetus together a family? I submit not. Not in the ordinary sense of the meaning of that word and it is families which are to be furnished this aid with reasonable promptness. Does it need the pregnant woman derive a right to ADC from a fetus and the ultimate question then here before us? Is a fetus a dependent child? Now, dependent child in the AFDC law is a defined term. In Section 606 for what would be 406 of the Act but 606 of the United States Code when used in this part the term “dependent child” means a needy child one who has been deprived of parental support or 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 and a whole series of relatives. In other words, if the child is not living with one of those relatives including the father and mother in a residence maintained by one or more of such relatives as his or their own home. Then, under the statutory definition enacted by Congress it would appear that it's not a child. Now, there's a far cry between a home and a womb. It seems to me and unless the child is actually in the home according to all intense and purpose of the statute it would appear that it's not a child. Now, in 1971 for the first time in February 1971 and I believe this is for the first time that HEW or any social -- federal social welfare agency actually published a rule which made it optional for states to grant payments to allow payments or to make federal -- “federal financial participation” is available in payments with respect to an unborn child with the fact -- when the fact of pregnancy has been determined by medical diagnosis. That I contend is the first time the public ever really realize that. The first time it was really published for general circulation. Now, there is some evidence herein or some indication in the briefs that in that ADC handbook as far back as 1946. The handbook which is of limited circulation given only to local agencies but from the federal government as far back as 1946 they recognized the states optional right and its option to pay ADC for an unborn child. And it appears that as of 1971 according to the Alcala case some 18 states and the District of Columbia made AFDC available; 34 states and territories and jurisdictions including Iowa did not then have not made ADC available to an unborn child. Now, immediately in the 92nd Congress I think upon learning for the first time of this then first to published regulation both the House and the House Ways and Means Committee and the Senate Finance Committee introduced committee bills to make it clear that unborn children were not to be considered entitled to ADC that they were not dependent children. They were to be excluded. Now, much as made of the fact that those bills did not pass and I'll get to that in a little bit. Since 1972, when these bills did not pass, all of these cases have a reason. I think some 18 or I don't know how many courts. Lower district courts have decided this and no less than Sixth Circuits have now ruled on it and the Sixth Circuits whole of five out six that an unborn child or fetus is entitled to welfare payments under the law. The one exception is the wisdom with the case of Wisdom versus Norton out of the Second Circuit decided in October 1974. That case had and considered all previous cases from all the Circuits and all the lower courts had those available. Since then, in December, the Fifth Circuit has also decided this matter but this again in favor of the unborn child those cases rose out of Georgia and Mississippi in Parks v. Harden. Now, Wisdom in October had the benefit of the Fourth Circuits holding the other way but Parks did not have Wisdom. No plan intended but Parks did not consider the Circuit Court's decision in Wisdom which I submit is extremely well reasoned. So, in any event the score right now for the position that I take is three judges in Wisdom who were unanimous that the fetus is not a child. Two dissents coming from Wilson versus Weaver and one of them Judge Pell and Judge Haynsworth in Parks v. Harden also dissented. And then of course there were three District Court judges two form Florida and one from Georgia who wrote opinions. So, a total of eight judges have taken the position that a fetus is not a child and not entitled to ADC. Now, what is the basis of the general holding? I think they can be summed up into about five different categories. The case is holding that an unborn child is a dependent child. First, they say that the Act is not helpful or clear. You can't help from reading the Act. Of course I disagree as I will tell him a little bit. Secondly, that there is no legislative history that one case said that the legislative history is opaque. Absolutely, I disagree; I think there's all kinds of legislative history in 1935. Third, they say that the HEW interpretations of longstanding are entitled to substantial weight. And of course they are except for one major flaw and that is that the Government says and has maintained in the amicus brief has been filed by the Solicitor General that HEW has never really considered that the statute entitled an unborn child AFDC. They have allowed this is an optional thing but beyond what they themselves considered the statute allowed.
William H. Rehnquist: General Turner, as I understand your opponent's contention is that if it could be allowed even as an option it must be under that statutory grounds and therefore it would be mandatory?
Richard C. Turner: Yes, sir. I think that is true, I think if an unborn child is eligible for ADC that it must be allowed and it is mandatory and if there is no optional borderline, I don't agree with any optional standard at all.
William H. Rehnquist: Well, then you disagree with the HEW position that it is optional?
Richard C. Turner: Yes sir, I do. I agree with the HEW position that they never have agreed that the statute.
Byron R. White: Well, do you agree when the Wisdom holding that the regulation is invalid because statute does not cover fetuses and an unborn child? Wisdom held that the regulation is invalid, did it not?
Richard C. Turner: Oh! Yes. I do agree that the regulation is invalid. And I don't see how you can put a regulation in violation of a clear case. Now, these cases rely on the triad of King, Townsend and Remillard. Three of your cases which say that you can't read in; you got to -- you can't look for -- there must be a clear indication of an exclusion from the class of those eligible. And there I submit that one doesn't determine if an exclusion can be found until eligibility has been established. And I think the courts below have seem to miss that point and this Court indicated that in fact in the Dublino case where it said, “In those cases, it was clear that state law excluded people from AFDC benefits from the Social Security Act expressly provided would be eligible.” Well, for example in Townsend that was the case where the college student was held to be able to have ADC while going to college. The access he can he can in very clear terms. It's expressed in there. The Court here goes on to say the Court found no room either in the ex language or legislative history to warrant the states additional eligibility requirements. Hereby contrast the Act allows for complementary state work incentive programs. The Dublino case -- the distinguishing case was the one out of New York where they allowed, they said that the WIN program did not preempt the state work program. So, I respectfully -
Warren E. Burger: Let me stop you for a little minute here Mr. Attorney General to this option. If from 1940 or 1950 onward and currently the agency considered this optional, is it your view that this necessarily means that they did not read it as required under the statute?
Richard C. Turner: Well, all I can say in that regard is Your Honor that in Wisdom they found and they cited that the Government's briefs and here, the Government has filed an amicus brief to conclude it.
Warren E. Burger: What I'm addressing myself to is the argument that there has been an administrative of interpretation that this is a rather unique form of administrative interpretation when the agency said, it was optional by which I take it then it was up to the states to do it whichever way they wanted to do it.
Richard C. Turner: Yes sir. I think it is --
Warren E. Burger: Does that necessarily in your view preclude an interpretation by the agency that the statute required it if they said it was optional?
Richard C. Turner: Well, I suppose not. It doesn't anymore preclude that view than it does take the opposite position. I rely entirely on what the Government has said in that regard.
William J. Brennan, Jr.: Well, the Government thinks perhaps the regulation is a valid regulation because it feels not with whether or not if she does have the child but whether or not there are circumstances under which a pregnant woman that she care for?
Richard C. Turner: That's true, the Government does say that it's a --
William J. Brennan, Jr.: You apparently, you disagree with that?
Richard C. Turner: Yes sir, I do disagree with the part that says it's optional but I do agree with the Government that the HEW has never really determined that the statute thought but the statute included the unborn.
Byron R. White: Well, what the Government says as I read them that the option was not based upon any understanding of the fetus is a child but was based only on something in favor of needy pregnant women. I don't follow the distinction but that's what they make. I gather the Second Circuit thought that they could not buy that reasoning either and not just held that the regulation was invalid.
Richard C. Turner: I can't -- I agree with the Second Circuit. I can't see --
Byron R. White: The Government agrees with you too that on the statute the fetus is not a child and --
Richard C. Turner: Yes, sir.
Byron R. White: -- but nevertheless, aid can be given as Mr. Justice Brennan suggested.
Richard C. Turner: Yes sir, but there is no -- nothing in the statute that says that that can be done and they can't simply --
Byron R. White: We care about the letter issue, do you?
Richard C. Turner: Well, no Your Honor --
Byron R. White: Suppose you care is that Iowa shouldn't be force to do it.
Richard C. Turner: Well, I care in the sense that I represent the taxpayers of Iowa and they pay taxes to the federal government and there is no allowance for this. So, in that respect yes I do care.
Byron R. White: Well, that is -- that maybe but is that the --
William H. Rehnquist: It's not the issue here. What I --
Byron R. White: What the issue before us?
Richard C. Turner: Perhaps not one it's really boiled down to it.
William H. Rehnquist: Because is Massachusetts against Mellon about 50 years ago we decided that a state didn't have the sort of interest on behalf of its tax payers that enable that the challenge or regulation of the federal government doesn't prevent you obviously from expressing your opinion --
Richard C. Turner: Yes sir.[Laughter] Very well taken Your Honor. Now, what are my reasons why I think this is a fallacious reasoning. I'd like to dwell on that a minute. First of all, a statute is to be construed according to its plain meaning in the common understanding are meant. There are virtually hundreds perhaps thousands of cases so holding that cited under statutes key number 188. I blushed to even mention the citation and not every statute is open to construction as a matter of courts. So, you don't even look at the HEW rules and regulations if the statute is clear. Those are fundamental things. You don't search for ambiguities that don't exist. Ambiguities that may be imagined by an acute and powerful intellect in the quiet of his law office or something that you should not look for, and I think that's where those imagining scheme here that this statute is unclear. This statute is very clear. The pattern of it is clear just as it was clear in King when it construed what is a parent and whether a substitute parent is a parent. And they said that it wasn't. In King they looked at it at the entire statute and they considered various sections all through it and said that they were all consistent with the fact that a parent had to be one who was legally obligated to support this trial. Judge Pell -- in our brief, we mentioned Judge Pell's decision on page 9 of our brief pointed out in his dissent a good many various sections that indicated the child actually had to be living. For example in 42 601 or the words care of dependent children in their own homes and now there's a whole list to these in there. I'm not going to go through them but various places throughout the statute cover that. And Wisdom versus Norton noted that a child when you refer to a child you're not ever in normal parlance talking about a fetus and that is why it's modified by the word “unborn” when you are or possibly inventory smear which means in the womb. Child born -- a child that's already been born is never modified by a term like post partum as was used in the Parks case the most recent case. You don't say one does say, “I have three children” but rather “I have two children and one on the way.”
Byron R. White: But a woman can be said to be “great with child” that's a very common expression?
Richard C. Turner: Yes, sir. I think that's true but that doesn't mean I don't believe that the child in the ordinarily parlance and I think that's an ordinary language. I've heard it many times but it isn't common at least not in my State in Iowa.[Laughter]
Warren E. Burger: Is it of many interest that in relation to this that the Court has held that a fetus and embryo is not a legal person?
Richard C. Turner: Yes sir and I'm going to get to that certainly and I hope I have time here to get to that. I wanted to mention though that there is a legislative history and it's cited in our petition for certiorari on page 9. There's talk of from birth to death from cradle to grave and things of that kind. Also, finally and maybe I had best with that light on skip to this. Roe v. Wade held that a child or fetus is not a person.
Potter Stewart: Within the meaning of the Fourteenth Amendment?
Richard C. Turner: Yes sir. So, I asked, “How can it be held on the one hand that an unborn child or fetus is not a person at least until the seventh month pregnancy and thus has no constitutional rights even the right to life but that on the other as it was held in Parks v. Harden a fetus is an eligible individual in title to welfare AFDC under a mere federal statute designed to protect its health.” If as Roe v. Wade holds a state may not by an abortion law abridge a woman's constitutional right to privacy in her decision to abort her fetus how can the federal social security law abridge that same constitutional right to privacy for health purpose. As Judge Haynsworth pointed out in his dissent in Parks the mother of a fetus may in consequence draw AFDC for her eligible individual and then abort at her whim. And there finally there's an old saying somebody once said, “To be alive has become a virtue and the mere ability to inflate the lungs entitled Citizen B to a substantial share of the laborious earnings of Citizen A.” Are we now stan -- are we extending this right now to those who can't inflate their lungs? Thank you.
Warren E. Burger: Thank you Mr. Attorney General.
Richard C. Turner: I'll save the rest of my time if I have any. Thank you.
Warren E. Burger: Mr. Bartels.
Robert Bartels: Mr. Chief Justice, may it please the Court. As Mr. Turner has recognized this case really involves purely a question of statutory interpretation and ultimately the question comes down to whether an unborn child is a dependent child within the meaning of Title IV of the Social Security Act and a particular Section 406 (a). Now, if as a vast majority of the lower courts have held an unborn child is a dependent child for purposes of the Act. Then, under this Court's prior decision the states must make needy pregnant women eligible for AFDC assistance with respect to their unborn children. On the other hand if an unborn child is not a dependent child within the meaning of the Act then no state may receive federal matching funds to make such AFDC payments because if an unborn child is not a dependent child there simply is no authority in the Social Security Act for the Secretary of HEW to make those matching payments.
Potter Stewart: You -- I take it that you agree that the present departmental regulation is invalid in either event. It either -- it cannot be optional in other words?
Robert Bartels: That's correct Your Honor it cannot be optional. In this Court, HEW has really adopted an entirely new position different from one that they have adopted before at least one can go back a few months to Adams versus Hecker in a District Court in Kentucky. Now, the position of HEW is that an unborn child is not a dependent child but under the Secretary's rulemaking power under 42 U.S.C. 1302, the Secretary has a kind of general legislative power to create whole new programs as long as he's willing to say that in some way the new assistance is related to the provisions of the Act as drafted by Congress.
Lewis F. Powell, Jr.: Upon the regulation, a state that opts to pay the pregnant mother, how is the computation of the payment made as if she had a child, as if the child had been born or how is it done?
Robert Bartels: Your Honor that varies from state to state and there is nothing in the Act that requires the states to pay any set amount of assistance to anybody and certainly within the confines of Dandridge versus Williams. The states would have a good deal of discretion in terms of how much to pay. Now, in California for example a woman --
Lewis F. Powell, Jr.: What I'm getting at whatever the state program maybe how is it done, is it done as if the child had in fact been born?
Robert Bartels: Your Honor in some states an unborn child is regarded as identical to a born child in terms of the man of assistance. In California for example however, a woman will receive a smaller amount of additional assistance with regard to the unborn child on the theory that the amount of assistant she need receives for her needs is impart allocated to the child and so that there can be some reduction.
William H. Rehnquist: Wouldn't there be some difficulties with that under Townsend against Swank? I mean if an unborn child is a child, can the state distinguish between unborn children and born children for purposes of the amount of aid?
Robert Bartels: Yes, Your Honor I think they could. This Court held in Dandridge versus Williams that the states can distinguish if they want to between the first five children and the six.
William H. Rehnquist: But that's a constitutional holding Townsend against Swank rested on notions of eligibility under the Social Security Act?
Robert Bartels: Your Honor, in terms of eligibility for some AFDC assistance the states may not distinguish between born and unborn children. But when it comes to setting the level of benefits in the standard of need the states have very wide discretion under this Court's holdings in Jefferson and Dandridge. So, when we're talking about the amount of assistance, the states can make reasonable distinctions amongst different groups of individuals in the AFDC program to reflect that they have different needs.
Warren E. Burger: You do not think that the existence of the federal contribution requires a uniform treatment on this subject throughout the United States?
Robert Bartels: No, Your Honor. The states have a wide latitude and that's been uniformly recognized by this Court in terms of setting need standard.
Warren E. Burger: How is this kind of a context however as Mr. Justice Rehnquist suggested?
Robert Bartels: Your Honor, no --
Warren E. Burger: Is there any case which you rely on specifically other than Dandridge that you referred to which (Voice Overlap)?
Robert Bartels: Well, Jefferson against Hackney again says that the states have this wide latitude in terms of distinguishing amongst various groups within the welfare system in terms of the amount of assistance that's paid out again. Where the federal eligibility standards or federal standards I should say are mandatory is when they deal with definitional eligibility under Section 406 (a) of the Act.
William H. Rehnquist: Supposing you win here Mr. Bartels, can the State of Iowa then say, “Well, we recognize the Supreme Court's decision and we're going to allow $50.00 a month for each child in SR living and $1.00 a month for each child that's unborn.”
Robert Bartels: Your Honor, I don't think I can give a direct answer to that except to say that the state could I think make distinctions between now $1.00 might not be reasonable in terms of the amount of assistance it's granted and some of the material in addendum C to the respondent's brief indicates that in terms of how much an unborn child needs by way of additional assistance as opposed to a born child may not be so different. So, that $1.00 might to be unreasonable and just be question for this Court as to whether that was so unreasonable as to be unconstitutional. But nothing in the Act itself would prohibit that, no. That would be an option for the states and it would be up to the courts to decide whether that was a reasonable distinction between those.
Potter Stewart: Does the statutes say something about reasonable?
Robert Bartels: No, Your Honor that would really be a constitutional question as the statute simply leaves to the states.
Potter Stewart: But where in the Constitution do you find some unreasonable?
Bryce E. Roe: In the Constitution, Your Honor? In the Equal Protection Doctrine that distinctions or discriminations between groups of individuals must have a reasonable basis.
Potter Stewart: Unless that's what it says.
Robert Bartels: Pardon?
Potter Stewart: It's not what the Constitution says, does it?
Robert Bartels: It's not what it says direct Your Honor but that's what I understand to be the traditional standard of equal protection review.
Harry A. Blackmun: I think that the age of the fetus makes no difference in your submission?
Robert Bartels: No, Your Honor. The agency, the Bureau of Public Assistance which was HEW's predecessor decided rather early on that administratively the best point at which to determine eligibility for an unborn child was when conception could be proven. The agency could've chosen quickness or viability or something like that but administratively that would've been difficult and in terms of the purposes of the Act the point at which conception at least can be proven is probably the most logical point in any event because the assistance is needed at that point in order to avoid the likelihood of irreparable mental and physical damage during the postnatal period.
Byron R. White: What possible justification would viability have as a point to qualification?
Robert Bartels: Well, Your Honor I'm not really sure. It seems to me that in terms of the purposes of the Act I guess I would take somewhat stronger position that either the quickness I guess would have the advantage of a sort of tradition in terms of the law recognizing certain rights in children when they become quick.
Byron R. White: The fetus as a child within the meaning of the statute just as much so prior to quickness or prior to viability as it is after, is it not?
Robert Bartels: Yes Your Honor, I think that's right although again that the terms of the statute are admittedly ambiguous and there was room to interpret those terms within the purposes and in light of the purposes of the statute.
Byron R. White: When you say admittedly does your opposition concede that?
Robert Bartels: I'm saying admittedly from my point of view, Your Honor.
Byron R. White: Professor Bartels, you're familiar of course of the Federal Income Tax Code?
Robert Bartels: That's correct, Your Honor.
Byron R. White: Do you get any comfort or discomfort from the fact that it is a fact that a dependency exemption has never been allowed for a “child” prior to birth?
Robert Bartels: Your Honor, I don't think that has much to do with this case. The --
Byron R. White: Like that is so because you don't cite it but [Laughter] on the other hand for purposes of this subtitle I'm reading from 152 of the Code the term “dependent” means any of the following individuals: (a) a son or daughter of the taxpayer. Do you think this is entirely have no consequence in that?
Robert Bartels: Your Honor, again interpreting this Act one has to look at the purposes of the AFDC program and those purposes are very, very different from the purposes of the Internal Revenue Code.
Warren E. Burger: Well, the Internal Revenue Code undertakes at least to give -- to take into account that there are some expenses in rearing children, does it not?
Robert Bartels: That's correct Your Honor and --
Warren E. Burger: And the welfare system does the same thing?
Robert Bartels: That's correct Your Honor although --
Warren E. Burger: As Mr. Justice Blackmun has pointed out there's a different approach in the General Revenue Code and the Social Security Act?
Robert Bartels: Your Honor, I think that in terms of the distinction there are at least a couple of points. One is in -- for one thing is an administrative matter Congress might have or decided with regard to the collection of taxes that administratively it was better to wait until the child was actually born and to avoid the situation for example in which the child was conceived on December 30th and then the family will get a tax exemption from the entire year. It may also be a reflection of Congress' judgment in passing that Code that the additional expenses for an unborn child are somewhat less than those for born child. That could be reflected in this case through a smaller level of benefits and not through cutting off eligibility all together. The petitioners take the view that the language of the statute is clear I think if one looks at it, it patently is not clear. And I suppose the strongest evidence for that at this stage is that the great majority of federal judges who have passed on this have not found it very clear. One can cite dictionary definitions both ways, one can cite Shakespeare as oppose to other colloquial statements going either way, and in some, they're really not that helpful except to indicate that dependent child can reasonably be interpreted to include unborn children. And it then becomes necessary to look at the statutory purposes and at longstanding HEW interpretations in this area. And that's a process that this Court is going through really typically in welfare cases to decide questions of statutory interpretation.
Byron R. White: Do you say that HEW in some other cases in District Courts had taken a position that the statute included the fetus?
Robert Bartels: Your Honor, the only other amicus brief that I'm very familiar with by HEW is in Wilson versus Weaver I had a little bit of trouble understanding exactly --
Byron R. White: What court was that?
Robert Bartels: That was in the District Court -- Northern District of Illinois Your Honor and that brief I guess was also adopted by in the Fifth Circuit in Parks versus Harden. Now, that brief makes no mention whatsoever of 42 U.S.C. Section 1302 and HEW seems to be taking that the position in Wilson versus Weaver that the term “dependent child” is not clear and when the term is not clear in subject to differing interpretations then the states have an option to opt out of the broader interpretation. And that's an argument that this Court has rejected in both Townsend versus Swank and Carleson versus Remillard and I suspect that's the reason that HEW now has searched around for some other arguable source of authority. 1302 just doesn't work. It only gives the Secretary the right to make rules and regulations necessary to the efficient administration of the Act. What they're trying to get here in this Court is a right to legislate broadly in the welfare area and that's something that's specifically is reserved to Congress in Section 1304 of 42 U.S.C.
Byron R. White: I gather you would agree if the Act as written does not fair the interpretation that the fetus is included as a child, then that the regulation is invalid?
Robert Bartels: That's correct, Your Honor if an unborn child is not a dependent child within the terms of the Act there are simply no authority on that that Act to make payments with regard unborn children. Now, this Court has recognized in the past that the paramount purpose of AFDC is the protection of dependent children and the legislative history makes it clear that Congress was not interested simply in children as children but also in fostering their development in the independent and productive citizens. The evidence in this case is clear that there's a crucial relationship between prenatal welfare and postnatal development in giving that relationship it's at least doesn't make very much sense for Congress to limit assistance to the postnatal period. Because unless adequate prenatal assistance is granted. The postnatal assistance is very often going to be simply too little too late. They're not even going to be able to repair the damage no matter how much assistance is granted postnatally.
Warren E. Burger: Are there programs developed by Congress for prenatal care?M
Robert Bartels: Your Honor, the only other program it specifically aims at that is Title V of the Social Security Act.
Warren E. Burger: So, that certainly suggests that they're not unaware of the problem, doesn't it?
Robert Bartels: Well, Your Honor I think that Title V is significant and that it shows that Congress was aware that prenatal care was necessary but --
Warren E. Burger: But being aware of it they have not extended it in this Act except by implication that you're arguing?
Robert Bartels: Well, Your Honor two things about that. First of all in terms of the clarity of the language, Title V doesn't talk about unborn children it talks about mothers and children and that Act was very early on and has always been interpreted to include prenatal care. Moreover, Title V is restricted to certain health services, it does not extend to every jurisdiction in the United States and it provides certain kinds of nutritional advice for example. But it provides no funds to follow the nutritional advice for example. Now, Title V covers born children as well as unborn children and so does Title IV and as the First Circuit recognized in Carver versus Hooker. It's a little in Congress to suppose that Congress gave both to born children and limited unborn children to just the Title V assistance. So, I think Title V of anything is further evidence of a congressional purpose to include unborn children. Now, that congressional purpose I think becomes more clear in 1950 than it really was in 1935. And one thing that has not really clear from the briefs in this case is that as of 1935 to interpret dependent child to include unborn children only meant that the states were free to provide assistance with respect to unborn children if they so desired. It was optional then and that was because the entire program was optional. The Section 406 (a) simply defined a large group and the states were totally free in terms of the Act to pick and choose groups with in that eligible group.
Potter Stewart: Back in those days it was aid to dependent children also was an aid to families with dependent children?
Robert Bartels: That's right, Your Honor. The needs of the caretaker relative are only added in to the computation in 1950 contemporaneously with the other statue that has significance here and that is what is now Section 402 (a) (10) of the Act which states that payments must be made to all eligible individuals.
Warren E. Burger: Even when it was aid to children as distinguished from aid to families but the payments were always made to the parents, would they not?
Robert Bartels: Oh! That's right, Your Honor.
Warren E. Burger: So that, do you read much significance into that statute?
Robert Bartels: No, Your Honor. I don't think so, if anything, the addition of the caretaker relative in 1950 shows some further indication of Congress' awareness that the needs of the mother have to be met in order that the needs of the child have to be met which applies I suppose with particular force to the unborn child. But I don't think there's any special significance about that. Now, the addition of 402 (a) (10) as this Court has held in King, in Townsend, in Carleson changed the relationship between the state and federal standards markedly. It required now that within this large group of eligible individuals that the states had to pay to everybody who was eligible. Now, in 1946, the Bureau of Public Assistance had officially promulgated in the Handbook of Public Assistance Administration a regulation which included unborn children in the eligible group. And the history of that regulation and its very terms make it absolutely clear that that was a matter of interpretation of Section 406 (a) and that the agency was signing for purposes of this Act that unborn child is a dependent child. And if HEW was implying in its brief and I couldn't quite tell that the agency has never interpreted dependent child in that way, that simply ignores this entire history. Now, what one has then is in 1950 when the mandatory eligibility provisions are enacted, the agency entrusted with administration of the Act has for several years. In fact, earlier than 1946 declared that unborn children are within that eligible group that Congress now says must be given assistance by the states. And that interpretation by the Bureau also has an independent significance quite apart from the 1950 Social Security Amendments. This Court has held on many occasions that administrative interpretation of statutory terms are entitled to great weight at least when they are consistent with the purposes of the statute. Now, this interpretation of dependent child to include unborn children began at least as early as 1940 and as addendum H to the respondent's brief indicates. In fact, this was a problem that was being considered really from the very beginning of the Social Security Act. That interpretation then was made roughly contemporaneously with the Act. It is an interpretation of longstanding in the sense that it survived. For over 30 years, it survived the passage of Section 402 (a) (10) and the only reason one perhaps can't say it still hasn't survived is that HEW now has come in and disavowed that history. I think when one looks at HEW's position, its so tied with an absurd view of its powers under 1302 that it's not entitle to any weight. Moreover, there's really no reason for the change in the interpretation by HEW except to evade the consequences of this Court's holdings in Townsend and Carleson but each --
Byron R. White: Is that May of 1941 opinion, is that the first?
Robert Bartels: That was the first sort of official opinion, Your Honor. They were in fact --
Byron R. White: Before that even?
Robert Bartels: Pardon?
Byron R. White: Before that even had the --
Robert Bartels: It was under consideration much earlier than that. In fact, after the passage of the Social Security Act in 1935 as of September 1st of 1936 at least five jurisdictions in the United States already were paying AFDC.
Byron R. White: Do we know whether this letter advice was acted on?
Robert Bartels: Yes, Your Honor that that was the ordered exception to the Wisconsin program was overruled and one of them at the memoranda there indicates that although they weren't going to make a formal policy that the Wisconsin decision would be precedent for future audits.
Potter Stewart: Since the addition of whatever it is 8 (b) (10). There cannot be options anymore as Swank and Remillard and I suppose King makes very clear?
Robert Bartels: That's correct.
Potter Stewart: And apparently HEW doesn't like that regime, they still what the states to have options?
Robert Bartels: They seem very in that system --
Potter Stewart: To find some kind of authority to give it to them. Is that right?
Robert Bartels: That's correct Your Honor and I -- there is simply is no authority in the Act for that kind of an optional program.
Byron R. White: Do we have any idea who weighed the Smith was in 1941?
Robert Bartels: He was a general counsel to the Bureau of Public Assistance Your Honor.
Byron R. White: That seems to be address to the Assistant General. That's the opposite of general counsel to department.
Robert Bartels: Yes, Your Honor. I'm not really sure at this point. I think that in fact between the two memos that Mr. Smith changed jobs and became the general counsel.
Byron R. White: Do you (Voice Overlap) with the general counsel would've provisions with Bureau said within the (Voice Overlap)?
Robert Bartels: Yes, Your Honor there was a Child Welfare Bureau I think and he may have been general counsel to them.
Byron R. White: And this letter refers to an earlier lengthy memorandum that he wrote with that?
Robert Bartels: The lengthy memorandum Your Honor is set out for the most part in the addendum I that follows immediately in memo to Ruth Blakesley.
Byron R. White: That's 1939?
Robert Bartels: Right. In those memos is that very careful consideration by the agency of the purposes and the language of the statute in terms of this question interpretation. I would like to deal with one and perhaps two points raised by the petitioners because I think they may create some confusion on this case. First, the petitioners make something in the briefs at least of the fact that there are alternative assistance programs available to pregnant women. And they point primarily to Iowa Code Chapter 252 which is a county relief program. The thing the petitioners don't point out is that that program is totally discretionary on a county by county basis and whether any assistance at all has given and if so how much depend --
Potter Stewart: For this we had no HEW in that inquiry.
Robert Bartels: Your Honor, the Bureau of Public Assistance which I believe was a division of the Social Security Board at that time --
Byron R. White: Oh! I see.
Robert Bartels: -- was the administrator of the Act. Whether any assistance is paid out under this county program is totally discretionary with individual board of supervisors and a hundred counties in Iowa. And in fact, the assistance that is typically paid out is not at all adequate or equivalent. Indeed, if it were equivalent it's hard to see why the State of Iowa would be here because if they could get federal assistance for that same program the taxpayers of the State of Iowa would be a lot better off. Food stamps also were not a suitable alternative. It's clear that Congress didn't mean that to be an alternative because they made AFDC recipients automatically eligible for food stamp benefits. And the food stamps themselves do not cover adequately that the needs of a pregnant woman during the prenatal period. Secondly, I want to come back and emphasize that the citations of cases like Jefferson versus Hackney and Dandridge versus Williams have nothing to do with this case. This case is only involving a question of whether pregnant women and their unborn children are eligible for some AFDC assistance and the states are totally free to reset the level of assistance for everybody or to make certain kinds of reasonable distinctions with in that Act. So, only a question of eligibility and not of amount of assistance. So, when you talk about financial strain on the state it is just not a necessary consequence of any decision in this case. The statutory purpose of the Act, the 1950 Amendments and longstanding HEW interpretations all make it clear than an unborn child is a dependent child within the meaning of the Act. And therefore that Iowa must to make unborn children and their pregnant mothers eligible for assistance.
William H. Rehnquist: Mr. Bartels, in Townsend against Swank and this is something that you were asked about earlier during your argument it was held that college students were required to be included yet I gather as eligible -- yet I gathered from your argument that Indiana in that case would've been perfectly free to say, sure they are included then everybody else is going to get a hundred dollars a month and college student are going to get $5.00 a month because we think there's a rational distinction and in fact, just argue the same thing they argued here and were turned down on legislative intent.
Robert Bartels: Your Honor, I think that the states could make rational distinctions among these groups and if the needs of college students were rationally arguably less than others then there could be a distinction made between the two groups.
Potter Stewart: So, they only do whatever restrictions there maybe in the Fourteenth Amendment?
Robert Bartels: Yes Your Honor. There are no restrictions of parent in a Social Security Act in terms of the state's ability to make those kinds of distinctions.
William H. Rehnquist: When 402 (a) (10) just means that everyone who's eligible has got to get something. They can get much different amounts even though they come under exactly the same term that makes them eligible?
Robert Bartels: That's right Your Honor in Dandridge versus Williams that the children who were born into the family that already has 10 children are eligible and that assistance must be paid to them but this Court held that a ratable reduction or flat grant top was all right because the needs of the 11th child are in effect less because of the economies of scale within the family. The assistance it's already being received by the other children.
Warren E. Burger: Mr. Attorney General, you have about three minutes left.
Robert L. Shevin: Thank you, Your Honor.
Byron R. White: Mr. General do you -- what kind of money you're talking about in terms, say Iowa, is there any idea?
Robert L. Shevin: No I don't Your Honor except there's one case that indicated that in Georgia I think that it might mean as much as $6.8 million in that state. Now, I have never tried to figure this out. I would point out in connection with the Title V that the government there has -- the Congress has appropriated $350 million under Title V for services, for reducing infant mortality and otherwise promoting health of mothers and children. This is in Section 7 in the U.S.C. and for services for locating medical, surgical and corrective and other services for crippled children and people like that. Now, that --
Byron R. White: That sounds primarily for (Voice Overlap) not for food or sustenance but just for prenatal care.
Robert L. Shevin: Prenatal care. Yes, sir.
Byron R. White: Does that include food, rent and (Voice Overlap)?
Robert L. Shevin: That I don't know Your Honor and I'm not familiar enough.
Byron R. White: (Voice Overlap) isn't it?
Robert L. Shevin: Yes, but prenatal care could also include medical service I suppose. But $350 million would certainly be a lot of money to spend if food and clothing were not involved here.
Byron R. White: Not very much of food and clothing is included?
Robert L. Shevin: Yes but perhaps -- well, I again repeat that when Title V specifically speaks to matter such as prenatal care, you have to consider it seems in the light of Title IV which does not mention anything about prenatal. Now, Judge Hanson did in his opinion in Alcala make it little slip he quoted one section that specifically mentioned. He quoted that as prenatal what it said was parental in Section 601 if you know. Now, that doesn't show up in his opinion that it's in this case but he was apparently laboring under the apprehension that 601 specifically provided in Title IV for prenatal care. And he emphasized it in his opinion then he later wrote supplemental opinions before it was printed that that was a typographic error. If it was, I submit why did he stress it? Now, as to these letters --
William H. Rehnquist: To disapprove that sort of practice would you?
Robert L. Shevin: What's that, Your Honor?
William H. Rehnquist: You wouldn't want us to forbid that sort of practice, would you?
Robert L. Shevin: Of correcting in a typographical error?[Laughter]
Robert L. Shevin: No, but to say that it played no part in his opinion it seemed to me he stressed that in his opinion by underscoring it.
Warren E. Burger: Do you -- would I take it that exception was a judicial opinion that was based on a reading of parental when it turned out that the correct reading was prenatal?
Robert L. Shevin: Yes sir, but the statute says parental and not prenatal clearly and the judge recognized that.
Warren E. Burger: That could be more than a typographical misapprehension on the part of the Court, would it not to confuse those two?
Robert L. Shevin: I can't speculate on what was in the Court's mind when that was done. But one more point if I may -- if the Court will indulge me just a minute. These letters that are dated June 1940 and May 1940 for the most part that pertained to an audit that had to do with the State of Wisconsin's granting of this, there's nothing -- I don't think they were in evidence. Now, maybe they were and I suppose the Court is going to consider them. I don't properly consider them a part of the record. But they don't even show in their face who Peter Cashes is, who Gertrude Gates, the chief is or where they're from or who the people are that they are addressed to, who would --
William H. Rehnquist: It weren't in the record in the District Court?
Robert L. Shevin: I don't believe that's in the record Your Honor. I think these matters have been simply added and thrown in to the plaintiff's brief in this case since this case and I don't think they're properly a part of the record herein.
Byron R. White: Well, I suppose too that outside to the City of Washington where they have no access to congressional record. We nevertheless resort to congressional records that we have here in the Washington in interpreting federal statute.
Robert L. Shevin: I think you should properly do that if there's a question about the statute.
Byron R. White: Mainly if he's irrelevant may we rely on this?
Robert L. Shevin: If they are relevant maybe but --
William H. Rehnquist: You don't even know whether they are authenticated I take it.
Robert L. Shevin: I don't Your Honor. I have no idea about that.
Thurgood Marshall: Mr. Attorney General, did you see the record in this case in the District Court?
Robert L. Shevin: No sir, I have not. Not for that extent and I can't see that but Your Honor I --
Thurgood Marshall: So you can't say whether or not the regular or not?
Robert L. Shevin: I cannot Your Honor. Not absolutely, but I think --
Thurgood Marshall: When you first find out (Voice Overlap)?
Robert L. Shevin: -- I could ask counsel, Mr. Professor Bartels. There's nothing on the face of them to indicate what they are.
Byron R. White: You usually don't print things in appendix to agree that they are printed in an appendix, the joint appendix. If it's in the record and you think it's relevant, it's usually printed in an appendix?
Robert L. Shevin: Yes sir and perhaps the Court will consider. I don't see you shouldn't necessarily consider. They obviously are letters that were written but you shouldn't give it the weight that's accorded to a United States Senator on the floor talking about things like from birth to death and cradle to grave. Doesn't reach that type of statute and there were six years that went by before these letters after the Act was passed. So, in a certain sense there was an administrative decision of longstanding prior to this decision. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.