(dissenting) :
Regretfully, I must dissent though I am aware that the majority opinion follows the weight of authority in other circuits. The majority arrives at a socially attractive conclusion, but it is a conclusion which the Congress and state legislatures should more properly reach. In pursuing what seems just, the majority not only unduly legislates by judicial fiat but also encumbers state and federal governments with difficult and complex burdens.
Initially, I express my agreement with the majority’s conclusion that Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), and Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 1381-1382, 39 L.Ed.2d 577 (1974), allowed the district court in Parks to exercise pendent jurisdiction over the statutory claim, related as it was to the equal protection issue. See also Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 1351 n. 1, 39 L.Ed.2d 662 (1974). It appears, however, that while the equal protection claim was not “wholly insubstantial,” it had little prospect of ultimate success. Cf. Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970). Though it cannot be said that the district court abused its discretion in recognizing and adjudicating the pendent statutory claim, as a matter of sound judicial policy courts might decline to hear matters the sole jurisdictional basis for which is a constitutional claim of dubious merit. Cf. Hagans v. Lavine, supra, 415 U.S. at 550, 94 S.Ct. at 1386 (Powell, J., dissenting).1
In its discussion of the merits, the majority gives little deference to HEW’s basis for and interpretation of its own *874regulation, 45 C.F.R. § 233.90(c) (2) (ii), by which the extension of AFDC payments to expectant mothers is made optional for states participating in the program. The majority concedes that the statutory terms themselves provide little interpretative assistance, and that the legislative history is even less helpful. In such circumstances, HEW’s interpretation should be given considerable deference. As the Supreme Court said of HEW regulations relating to the AFDC program,
[HEW’s construction] is entitled to weight as the attempt of an experienced agency to harmonize an obscure enactment with the basic structure of a program it administers.
Rosado v. Wyman, 397 U.S. 397, 415, 90 S.Ct. 1207, 1219, 25 L.Ed.2d 442 (1970). Moreover, HEW’s position that grants to expectant mothers are not mandatory has been consistent and unchallenged for some 30 years. In such cases of longstanding construction of a statute by those charged with its administration, the agency’s construction should be followed “unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969); see Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415 (1972); Zemel v. Rusk, 381 U.S. 1, 11-12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965); Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965). We have no compelling indications that HEW’s position here is wrong.2
*875The majority opinion does not reach the difficult question whether the unborn are children within the meaning of the Social Security Act. Since my disagreement is with the majority’s interpretation of the regulation in question, it is unnecessary in this dissent to reach the complex issue of whether a fetus is a “child.”
HEW’s own regulation is the basic support for the majority’s conclusion that the unborn are eligible beneficiaries of AFDC payments. The optional grants to the unborn, it is reasoned, are either grants to “eligible individuals” and thus mandatory under the King-Townsend-Ca/rleson troika, or they are grants to ineligible individuals and thus illegal and ultra vires. The trap is both seductive and logical, but not unavoidable. An examination of the regulations in question will show that HEW’s position 3 is neither mandated by nor inconsistent with the Social Security Act. If this is so, the states and HEW are not oblitated to extend AFDC payments for the benefit of the unborn.
The regulation in question is analogous to other provisions by which HEW makes funding available to states under the AFDC program on a non-mandatory basis. HEW has promulgated four different provisions under 45 C.F.R. § 233.-
90(c)(2) which make payments optionally available in instances where technical eligibility is not present. Under section 233.90(c) (2) (i),4 AFDC payments can be made to an eligible relative up to 30 days before the child is placed in the care of that relative. Since at the time a relative receives such payments he is not caring for a “dependent child,” the payments are obviously beyond the statutory parameters. Just as obviously, however, such payments will enable the relative to purchase necessary food, clothing, toys and household items so that when the child does come into the relative’s custody, proper care can begin immediately. Under section 233.-90(e) (2) (iii),5 a relative can receive payments for an entire month, even if the child leaves the eligible family situation sometime during the same month. Again, technical eligibility may be lost with the child’s departure, but not absent are the obligations to pay for major expenses, such as rent and furniture, incurred in part for the child’s benefit. In addition, the regulation avoids administrative problems inherent in attempting to allocate payments for less than a month. Section 233.90(c) (2) (iv) 6 allows payments to be made to persons who are not eligible relatives or caretakers specified in 42 U.S.C. § 606(a), *876but who are providing temporary care to a child in emergency situations while other plans are being made for the child’s care and support. Providing assistance to a technically ineligible person, consistent with the purposes of AFDC benefits, could not be more manifest.
In this context, the rationale of providing optional funding for payments to pregnant women allowed by section 233.-90(c) (2) (ii), the regulation involved in this case, becomes more clear. By providing payments to women before the child is born, states can more effectively guarantee the provision of needed assistance immediately to post-partum children, those children who are clearly eligible for assistance under the Act. The other provisions allowing optional payments, sections 233.90(c)(2)(i), (iii) and (iv), are not statements that certain classes are “eligible individuals” under the Act; the fact of ineligibility is quite clear. Similarly, the optional extension in this ease of “payments with respect to an unborn child” is not a determination that the unborn are “eligible individuals,” and should not in fairness be so construed. The payments authorized by sections 233.90(c) (2) (i) through (iv) are justifiable because of their close and direct relationship to circumstances in which individuals will soon qualify for AFDC payments and will then be entitled to receive assistance under the Act. Moreover, the provisions for optional assistance are totally consistent with the statutory purpose of the AFDC program, even though such assistance is not specifically contemplated by the language of the statute. These regulations, which are well-considered and beneficial provisions, are valid under 42 U.S.C. § 1302, which gives the Secretary of Health, Education and Welfare the power to “make and publish such rules and regulations, not inconsistent with this chapter [which includes the Social Security Act], as may be necessary to the efficient administration of the functions with which [he] is charged . . . .” The regulation in this case thus does not have to be regarded either as a statement that the unborn are “eligible individuals” under the Act or as a provision that is illegal and ultra vires. Rather, the provision can be accepted for what it is: an attempt to aid those not otherwise eligible for AFDC payments in order to assure more effective assistance to those who are eligible. Thus there is no proper basis for the majority’s contention that HEW has indirectly declared the unborn to be “eligible individuals” properly the beneficiaries of AFDC payments.7
*877Viewed in the context of HEW’s purpose in promulgating the regulation in question, HEW’s conclusion that the unborn are not mandatorily eligible AFDC recipients is both logical and plausible. Nonetheless, the majority relies on this regulation, and this reliance is the basic support for a result which, it is conceded, cannot be derived from the legislative history or indicia of congressional intent.8 The reasonableness of the long-standing regulation and HEW’s interpretation thereof, combined with the total lack of compelling reasons for ignoring this rational position, seem to me to magnify the error.
Two further points need brief statement. First, the majority’s approach will unduly limit flexibility in the administration of the AFDC program. This program has been described by the Supreme Court as a “scheme of cooperative federalism.’’ E. g., King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118 (1968); Jefferson v. Hackney, 406 U.S. 535, 542, 92 S.Ct. 1724, 1729, 32 L.Ed.2d 285 (1972). The majority rationale, if logically followed, would cause the presently optional aid provisions in 45 C.F.R. §§ 233.-90(c) (2)(i), (iii) and (iv), to which we have already adverted, to be declared either mandatory on the states or ultra vires. Not only would such a result be unfortunately erroneous, but it would harm the flexibility in the working relationship of the states and HEW, and impede new attempts to facilitate the delivery of assistance to those eligible for AFDC payments.
Finally, the majority’s conclusion will present intricate and complex administrative problems to the states. The decision will allow a woman verifiably in her first month of pregnancy to begin receiving AFDC payments. But according to the principles in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the same woman, up through the sixth month of pregnancy or until “viability,” is entitled to abort the fetus subject only to regulation “reasonably relate[d] to the preservation and protection of maternal health.” Roe v. Wade, supra, 410 U.S. at 163, 93 S.Ct. at 732. There are logical inconsistencies prevalent in a situation where it is held that Congress was so concerned with the well-being of fetuses that it provided for financial assistance to the unborn, but, notwithstanding such congressional concern, the mother of a fetus can abort her “eligible individual” at her whim. This perplexing paradox is necessarily presented by today’s decision, and it should be noted that this situation is brought about solely as the result of judicial decisions. This serves only to reinforce our conclusion that the decision herein to mandate assistance to the unborn is one which should be left to the states of Mississippi and Georgia, or to the Congress of the United States.
I therefore am unable to join the majority opinion and respectfully dissent.
. In its opinion, ante p. 867, the majority opinion states that Harris is “plainly properly here on appeal.” I am not as certain. Plaintiff asserted, and the district court accepted, jurisdiction based only on a statutory claim under the Social Security Act, urging that 42 U.S.C. § 1983 states a federal cause of action and that 28 U.S.C. § 1343 provides jurisdiction. Recent opinions indicate that the latter conclusion may be erroneous. As Judge Friendly has stated, “The Social Security Act is not an ‘Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States,’ 28 U.S.C. § 1343(3), so as to remove the jurisdictional amount requirement for the statutory claims.” Aguayo v. Richardson, 2 Cir., 1973, 473 F.2d 1090, 1101, cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974). For other holdings *874that sections 1343(3) and (4) do not confer federal courts with jurisdiction over statutory claims not involving personal liberties or civil rights, see Lopez v. Luginbill, 10 Cir., 1973, 483 F.2d 486, 488-489, cert. denied, 415 U.S. 927, 94 S.Ct. 1436, 39 L.Ed.2d 485 (1974) ; McCall v. Shapiro, 2 Cir., 1969, 416 F.2d 246, 249-250; see also Note, Federal Jurisdiction over Challenges to State Welfare Programs, 72 Colum.L.Rev. 1404, 1421-1428 (1972). Since less than $10,000 is in controversy, we likewise do not have federal question jurisdiction under 28 U.S.C. § 1331(a). The Supreme Court has acknowledged that the question whether a statutory claim under the Social Security Act can derive jurisdiction from section 1343 is as yet unresolved. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 1377 n. 5, 39 L.Ed.2d 577 (1974) ; see Rosado v. Wyman, 397 U.S. 397, 405 n. 7, 90 S.Ct. 1207, 1214 n. 7, 25 L.Ed.2d 442 (1970) ; cf. Doe v. Lukhard, 4 Cir., 1974, 493 F.2d 54, 56-57, petition for cert. filed, 42 U.S.L.W. 3667 (May 24, 1974) LNo. 73-1763]. Thus, it is at least uncertain whether Harris is properly before us. In view of the majority’s disposition of Paries, however, which is properly here, it is not necessary to decide this difficult but important jurisdictional issue. Nor is it necessary to dismiss Harris, for plaintiffs could merely bring the same suit, appended to a colorable equal protection claim as in Paries, and prevail on the merits on the basis of Paries.
. The majority recognizes that HEW’s interpretation of the Social Security Act is due great deference. Ante, p. 872. Indeed, in the absence of other sources of guidance, the majority relies almost exclusively on HEW’s regulations. Inexplicably, however, that reliance does not extend to HEW’s long-held interpretation that the Act permits, as its regulation provides, optional funding for non-mandatory programs giving aid to unborn children and their mothers. Deferring to HEW on the question whether the Act contemplates optional aid does not run afoul of the Supreme Court’s command that “the principle that accords substantial weight to interpretation of a statute by the department entrusted with its administration is inapplicable insofar as those regulations are inconsistent with the requirement of § 402(a) (10) that aid be furnished ‘to all eligible individuals’.” Townsend v. Swank, 404 U.S. at 286, 92 S.Ct. at 505. If the regulations were read as properly providing optional aid to individuals not technically eligible for AFDC assistance, no “eligible individuals” under the Act would be denied benefits. The majority may properly assert that the agency’s interpretation disregards the holding in Townsend only by first declining to defer to HEW on the issue of whether optional aid is permissible under the Act. Having thus narrowed the inquiry, the majority then “defers” to what it sees as HEW’s interpretation of what is mandatory under the Act — despite the fact that HEW insists its regulation is not designed to explain what is mandatory under the Act. See note 7, infra. Either the agency’s interpretation is to be respected or it is not. The bitter must be taken with the sweet.
. As both the majority opinion and this dissent indicate, the Department of Health, Education and Welfare will be directly affected by the decision of the Court. The agency’s practice over a long period of time and its view of its own regulation are of great importance. HEW was not a party in this case, however, nor did it appear before the Court. We were made aware of HEW’s position by the submission to us of its amicus curiae brief in Wilson v. Weaver, N.D.Ill., 1972, 358 F.Supp. 1147, aff’d 7 Cir., 1974, 499 F.2d 155.
. 45 C.F.R. § 233.90(c) (2) (i) provides:
(2) Federal participation is available in:
(i) Initial payments made on behalf of a child who goes to live with a relative specified in section 406(a)(1) of the Social Security Act within 30 days of the receipt of the first payment, provided payments are not made for a concurrent period for the same child in the home of another relative or as AFDC-FC ....
. 45 C.F.R. § 233.90(c) (2) (iii) provides :
(2) Federal participation is available in:
(iii) Payments made for the entire month in the course of which a child leaves the home of a specified relative, provided payments are not made for a concurrent period for the same child in the home of another relative or as AFDC-FC
. 45 C.F.R. § 233.90(c) (2) (iv) provides :
(2) Federal participation is available in:
(iv) Payments made to persons acting for relatives specified in section 406(a) (1) of the Act in emergency situations that deprive the child of the care of the relative through whom he had been receiving aid, for a temporary period necessary to make and carry out plans for the child’s continuing care and support.
. IIEW’s position on the relationshixi between the existence of its regulation permitting optional assistance to the unborn and the majority’s conclusion that the regulation implicitly means the unborn are “eligible individuals” within the meaning of the Social Security Act is set forth in IIEW’s amicus brief in Wilson v. Weaver, supra, as follows:
Subdivision (ii) [45 C.F.R. § 233.-90(c) (2) (ii)], relating to the unborn child, is of a piece with the rest of section 233.-90(c)(2). When a child is expected but not yet born, and on the child’s birth the statutory definition of “dependent child” will be met, federal financial participation is available, at state option, in anticipation of the birth of the child. The situation is an extension of that in subdivision (i), where a child is coming to live with a specified relative within 30 days. In addition to the prospective need for furnishings, layette and other items for the unborn child, the meeting of the mother’s subsistence and health needs during pregnancy and at the time of birth may have a close relationship to the situation of the mother and child upon birth. . . .
In this context, therefore, the availability of federal financial participation in respect to an unborn child depends on the exercise of federal regulatory authority, in relation to state-administered or supervised programs which vary from state to state, that gives options to the states, which the vast majority of the states have not chosen to exercise, to obtain federal matching for payments in certain limited and time-related situations where, however, the statutory definitions are not met at the time of payment. But, in our view, neither the statute nor the regulations contemplate the imposition of mandatory coverage of unborn children upon the majority of the states which do not cover such children.
IIEW Brief, supra note 3, at 15-16 (emphasis added).
. The majority suggests by its statement that Congress “defeated” resolutions which would specifically exclude the unborn, that Congress has recognized the eligibility of the unborn. What in fact happened was that the House of Representatives passed an amendment “to malee clear that an unborn child would not be included in the definition of a child.” H.R.Rep.No.92-231, 92d Cong., 2d Sess. 184 (1972), U.S.Code Cong. & Admin.News, p. 5170. The Senate Report approved and the Senate passed the same amendment, quoting with approval the House Report’s language. S.Rep.No.92-1230, 92d Cong., 2d Sess. 467 (1972) (“only children who have actually been born” are eligible for AFDC). The provision did not pass, however, as all welfare provisions were “bottled up” by the failure to agree on the Administration’s subsequently abandoned Family Assistance Program. If any inference can properly be drawn from this action, it would be that Congress was of the strong opinion that the unborn are presently excluded from AFDC payments, and Congress wanted to correct the actions of HEW and the courts. At any rate, this congressional action does clearly indicate that the majority’s decision is totally at odds with what Congress considers sound policy.