Should Judges Decide Who Can Reproduce?

October 21, 2008 | | Comments Off on Should Judges Decide Who Can Reproduce?

Last month, state Judge Charlie Baird of Travis County, Texas, decidedly took the matter of reproduction rights into his own hands. After sentencing a 20-year old Hispanic woman to 10 years of probation for child abuse, he ordered her, as a condition of probation, to not have any more kids. The woman, Felicia Salazar, who has no prior criminal record, was convicted of failing to protect and provide medical care to her 19-month old girl when she was severely beaten by her father.

Apparently, this type of probation condition is not unprecedented in recent times. In 2001, in a decision subsequently affirmed by the Wisconsin Supreme Court, David Oakley, a father of nine, was convicted of intentionally failing to provide child support for his kids, and was ordered to avoid having another child unless he could show the court that he could support that child and his current children. The U.S. Supreme Court denied certiorari.

There are some good arguments for upholding the constitutionality of such probation conditions. For one, no one likes child abuse. What better way to prevent a mother from abusing her child (remember, she’s a convicted criminal!) than by ordering her not to have a child to begin with? As a matter of public policy, the state has substantial and justifiable interests in both protecting children and rehabilitating those who have been convicted of violating criminal law. Plus, even though restricting a woman from reproduction is tantamount to depriving her of a fundamental right, so is putting her in jail.

But what about the arguments against? After all, we don’t generally prevent convicted thieves from stealing by cutting off their arms, nor convicted rapists by cutting off – well, you get the point. Mutilation is, of course, vastly different from simply ordering someone not to engage in a particular conduct. Unless the “simply ordering one not to engage in a particular conduct” turns into a sterilization order.

A quick trip down memory lane. The year is 1927. The case: Buck v. Bell. And Mr. Justice Holmes has just declared, “Three generations of imbeciles are enough,” upholding the constitutionality of our very own Virginia law, providing for the sexual sterilization of inmates of institutions who were deemed afflicted with a hereditary form of insanity or imbecility. Fast-forward a few decades and over 60, 000 forced sterilizations later and here we are.

Yes, the comparison is a far stretch. But isn’t the slippery slope argument that much more terrifying when we actually know what lies at the bottom of that slope?

Photo courtesy of Flickr user J. Star.

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