Within the past year, the scope of the federal statute authorizing the Aid to Families with Dependent Children (AFDC) program has been expanded not by legislative amendment but by judicial interpretation in a series of federal decisions holding that states cannot deny AFDC assistance to unborn children. Four courts of appeals and ten federal district courts have so held, and two other district courts have issued preliminary injunctions to prevent state welfare departments from denying aid to the unborn. There is, however, a division of authority concerning this issue, since four federal district courts have held that states, at their option, may refuse to grant AFDC payments for the unborn. The principal issue in these cases is one of statutory interpretation—whether the Social Security Act requires aid for unborn children. Part II of this Comment deals with how several courts have resolved this problem against the background of previous United States Supreme Court decisions that have construed the federal AFDC statute. In Part III, the administrative and philosophical ramifications of these decisions are discussed. Administrative questions such as the following must be answered: How are the states to finance the increased AFDC payments, if they are required? Is the unborn child to receive the same payment as a "born" child? What happens in the case of multiple births? What is the significance of a terminated pregnancy? The philosophical difficulties in this area arise primarily out of the last question. As a result of the landmark decision in Roe v. Wade, American women presently possess greater legal freedom over the control of pregnancy termination than they have ever known. Despite judicial verbiage to the contrary, the decision to require AFDC for the unborn may be the first step toward curtailing that freedom. Finally, Part IV attempts to identify the probable trend in this area and to delineate a possible solution to the conflict through a balancing of the welfare recipient's need for AFDC for an unborn child against the need of all women for constitutionally sanctioned control over the termination of unwanted pregnancies.
Patricia J. Winter,
AFDC for the Unborn,
53 Neb. L. Rev. 581
Available at: http://digitalcommons.unl.edu/nlr/vol53/iss4/5