Take a look at this interesting news item! Grist for the mill here, from today's NYT:
July 12, 2001
Father Owing Child Support
Loses a Right to Procreate
By TAMAR LEWIN
In an unusual action against a "deadbeat dad," the
Wisconsin Supreme Court has upheld a
probation order that bars a man convicted of failure
to pay child support from having more children
unless he shows that he can support all his
offspring.
The 34-year-old man, David Oakley, who has nine
children by four women and owes $25,000 in
support, faces eight years in prison if he violates the
condition.
The case split the court, 4 to 3, along gender lines. All four male justices joined in the ruling, issued on
Tuesday, finding the condition a reasonable mechanism to deal with a father who has consistently and
intentionally failed to pay the child support he owes. The three female justices opposed it as an
unconstitutional intrusion on a basic right to procreate.
Mr. Oakley's lawyer, Timothy T. Kay, said yesterday that he was still considering whether to appeal to the
United States Supreme Court. In a statement, Mr. Kay said the case had broad implications for reproductive
rights, "specifically that a class of individuals will be limited to the number of children based upon financial
resources."
Julie Sternberg, a lawyer with the American Civil Liberties Union, agreed that
the ruling created a dangerous precedent.
"These conditions do pop up from time to time," Ms. Sternberg said. "Judges sentencing a defendant
occasionally try to say they must use birth control or must be sterilized, but until now I don't know of any
appeals court that has upheld that kind of condition. It's a very dangerous precedent. The U.S. Supreme
Court has said that the right to decide to have a child is one of the most basic human rights. And in this case
there were all kinds of less restrictive alternatives, like attaching his wages, to make sure child support would
be paid."
On the other hand, a spokeswoman for the Association for Children for Enforcement of Support said the
group approved of the decision as a useful tool for ensuring that children are taken care of.
Writing for the majority, Justice Jon P. Wilcox pointed out that child support collection was an enormous
national problem, that one family in three with a child support order received no money at all and that parents
who did not pay deprived children of about $11 billion a year.
The opinion defended the restriction on Mr. Oakley as "narrowly tailored to serve the state's compelling
interest of having parents support their children." It noted that the condition would expire in five years, when
probation ends, and said the alternative of sending Mr. Oakley to prison would further victimize his children,
ages 4 to 16.
But the female justices said the order violated Mr. Oakley's fundamental right to procreate and, as Justice
Diane S. Sykes put it, basically amounted to "a compulsory, state- sponsored, court-enforced financial test
for future parenthood."
In her own dissent, Justice Ann Walsh Bradley wrote: "Today's decision makes this court the only court in the
country to declare constitutional a condition that limits a probationer's right to procreate based on his financial
ability to support his children. Ultimately, the majority's decision may affect the rights of every citizen of this
state, man or woman, rich or poor."
Justice Bradley also saw implications for abortion. The order, she said, "creates a strong incentive for a man in
Oakley's position to demand from the woman the termination of her pregnancy." And, she said, the condition
is unworkable, since Mr. Oakley "realistically cannot be stopped from having intercourse — protected or
otherwise."
Many more such cases may follow Mr. Oakley's, Justice Bradley said.
"The majority has essentially authorized a judicially imposed `credit check' on the right to bear and beget
children," she said. "Thus begins our descent down the proverbial slippery slope. While the majority describes
this case as `anomalous' and comprised of `atypical facts,' the cases in which such a principle might be applied
are not uncommon. The majority's own statistical data regarding nonpayment of support belies its contention
that this case is truly exceptional." |
