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December 3, 1975

Claire MURROW et al., Plaintiffs,
Robert L. CLIFFORD, Individually and as Commissioner of the Department of Institutions and Agencies, his successors in office, agents and employees, Defendant

The opinion of the court was delivered by: COHEN

The narrow issue presented for our consideration, on cross motions for summary judgment, is whether New Jersey's policy of denying AFDC *fn1" benefits to pregnant women, irrespective of whether there are other dependent children in their care, is constitutionally infirm. As a result of the decision in Burns v. Alcala, 420 U.S. 575, 95 S. Ct. 1180, 43 L. Ed. 2d 469 (1975) discussed infra, plaintiffs have abandoned their claims on behalf of the unborn child itself, and limit this action to the claims of the mothers of unborn children. For the reasons discussed below, we find that the denial of AFDC benefits to pregnant women does not deprive plaintiffs of the Equal Protection of the Law.

 To understand the nature of the claim presented, an elaboration of the facts and history of the case is necessary. This is a class action brought pursuant to 42 U.S.C. § 1983 in which jurisdiction was originally alleged under 28 U.S.C. § 1343. *fn2" Plaintiffs seek to represent the class consisting of "all women whose pregnancies have been medically determined, and their unborn children, who meet all the eligibility conditions for AFDC, including pregnant women receiving AFDC for children already born but not for their unborn child, but are denied AFDC until the actual birth of a child." (Amended Complaint, Count III). Three claims were advanced initially: first, it was argued that the state policy was a denial of equal protection to the fetus in utero ; secondly, it was contended that the pregnant woman herself was being denied equal protection; and thirdly, plaintiffs urged that an unborn child was a "dependent child" within the meaning of 42 U.S.C. § 606(a), *fn3" and that the state policy was inconsistent with the federal statutory scheme. The complaint seeks injunctive and declaratory relief in addition to retroactive AFDC payments.

 Preliminarily, we must determine what level of scrutiny should be applied to the classification in question. Plaintiffs have amended their complaint to allege that the defendants' failure to provide AFDC benefits to the represented class violates the "fundamental right to procreate." In support of this proposition, the plaintiffs cite several cases, none of which is apposite. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), for example, involved the question of whether and under what circumstances a woman could terminate a pregnancy. In Roe, the question was whether a woman had a right not to bear children. The relationship between Roe and the instant case is tenuous at best. Perhaps the leading case in the area of social welfare legislation is Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). Dandridge involved a Maryland "maximum grant regulation" which established an upper limit on the amount of money a family entitled to AFDC benefits could receive, regardless of the number of persons in the household. The Court held that the regulation was consistent with the federal statutory scheme, and that it did not violate the Equal Protection Clause of the Fourteenth Amendment. In Dandridge, it was also contended that the "fundamental right to procreate" was impaired. Justice Marshall who dissented from the majority holding in Dandridge had this to say about the argument:

"Appellees do argue that their 'fundamental rights' are infringed by the maximum grant regulation. They cite, for example, Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535 62 S. Ct. 1110, 86 L. Ed. 1655 (1942), for the proposition that the 'right of procreation' is fundamental. This statement is no doubt accurate as far as it goes, but the effect of the maximum grant regulation upon the right of procreation is marginal and indirect at best, totally unlike the compulsory sterilization law that was at issue in Skinner." 397 U.S. at 520, n. 14, 90 S. Ct. at 1180.

 On the facts of this case, we can perceive no basis for finding that plaintiffs' right of procreation is impaired, other than in a remote and tenuous fashion. We, therefore, reject plaintiffs' contention that a fundamental right is involved. From this it follows that the State of New Jersey need not justify its policy by a "compelling state interest." *fn5"

  Absent the impairment of a fundamental right, both sides agree that the test to be used in determining whether plaintiffs have been denied their constitutional rights is that which was articulated in United States Department of Agriculture v. Moreno, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973). In Moreno, the Supreme Court examined the constitutionality of § 3(e) of the Food Stamp Act of 1964, 7 U.S.C. § 2012(e). § 3(e) created two categories of persons for purposes of receiving food stamps. One class consisted of persons who lived in the same household, and were related to each other. The other class consisted of households containing one or more members who were unrelated to each other. The latter class was denied food stamps. The Court struck down the classification finding that is was wholly without rational basis. In so doing, the Court used the following analysis:

"Under traditional equal protection analysis, a legislative classification must be sustained, if the classification is rationally related to a legitimate governmental interest." (citations omitted). 413 U.S. at 533, 93 S. Ct. at 2825.

 More recently the Supreme Court has had occasion to clarify what standard was to be used in gauging the constitutionality of statutes in the area of social welfare. In Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975), at issue was the constitutionality of the duration-of-relationship requirement of the Social Security Act, 42 U.S.C. §§ 416(c)(5) and (e)(2). The statutes defined "widow" and "child" to exclude surviving wives and stepchildren who were related to the wage earner for less than nine months prior to his death.

 A three-judge court held the duration-of-relationship requirement unconstitutional because it presumed a fact which was "neither necessarily, nor universally true." 373 F. Supp. 961, 965 (N.D.Cal.1974). The Supreme Court reversed, and in so doing, recognized the vitality of Dandridge, supra. The Court quoted extensively from the Dandridge opinion:

"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed. 369. "The problems of government are practical ones and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S. Ct. 441, 443, 57 L. Ed. 730. . . .
"To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. . . . It is a standard that has consistently been applied to state legislation restricting the availability of employment opportunities. Goesaert v. Cleary, 335 U.S. 464, 69 S. Ct. 198, 93 L. Ed. 163; Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 67 S. Ct. 910, 91 L. Ed. 1093. See also Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435. And it is a standard that is true to the principle that the ...

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