REQUESTED BY: Senator Samuel K. Cullan Member of the Legislature Room 807, State Capitol Lincoln, Nebraska 68509
Dear Senator Cullan:
This letter is supplementary to our letter of February 11, 1982, concerning a proposed amendment to LB 684 which imposes a residency requirement of one year as a condition of eligibility for receipt of AFDC benefits for the unborn. As we indicated to you in our letter of February 11, 1982, such a residency requirement would be declared unconstitutional. We still maintain this position, under theShapiro analysis. Although unconstitutional for the above reason, the amendment would not be defective as violative of the supremacy clause. This is due to a recent amendment to the Social Security Act which specifically provides the states with an optional plan for aid to unborn children. See, Title XIII, Public Assistance Programs, Subtitle A, Chapter 1, § 2312(a) (amending § 406(b) of the Social Security Act) 1981. We construe this to be a clear congressional authorization for a state to exclude unborn children from AFDC entitlements. Consequently, a state's legislative attempt to exclude unborn children from this program would no longer clash with federal law. Again, the proposed amendment to LB 684 would be constitutionally defective under the United States Supreme Court decision in Shapiro v.Thompson, 394 U.S. 618 (1969).
Very truly yours,
PAUL L. DOUGLAS Attorney General
Royce N. Harper Assistant Attorney General