The Judge Says: Don't Get Pregnant.

[question everything]

SEPTEMBER 25, 2008

The Judge Says: Don't Get Pregnant.
A Lapsed Law Now Sees New Life
By DAN SLATER

WSJ

(snip)

In a dark corner of U.S. history, a number of states ran forced-sterilization projects, in which women deemed unfit for motherhood were surgically prevented from having a child. The country's most esteemed legal minds blessed the programs. In 1927, the U.S. Supreme Court upheld a Virginia law that authorized sterilization for a woman who, along with her mother and child, was "feeble-minded." In upholding the statute, Justice Oliver Wendell Holmes concluded: "Three generations of imbeciles are enough." By 1935, nearly 20,000 forced eugenic sterilizations had been performed in the U.S. Then, in 1942, the Supreme Court struck down Oklahoma's Habitual Criminal Sterilization Act, declaring that "marriage and procreation are fundamental to the very existence and survival of the race." Following the horrors of eugenics in Nazi Germany, the sterilization movement dwindled.

Yet in scattered cases, state regulation of reproductive rights remains a part of the legal culture -- now amid very different circumstances. Just this month, for example, a judge in Texas ordered a woman, as a condition of her probation, to stop having children after her daughter was badly abused. The order, by Judge Charlie Baird, is difficult to enforce and possibly unconstitutional. It reflects the willingness of some judges to push the limits of punishment in ways that hark back to a time before a series of landmark Supreme Court decisions elevated individual rights. In other areas, too, the impulse behind a law can linger, in society and in the courtroom, long after the law itself has fallen into disfavor or disuse. For a long time, the state asserted control over who could marry whom. It was only in 1967 that the Supreme Court struck down Virginia's anti-miscegenation law, giving constitutional protection to interracial marriage -- and creating a broader social assumption that marriage in general was a private matter. Three decades later, many states still resist same-sex marriage.

(snip)

Yet a similar condition was upheld in 2001, this time as it applied to a man. David Oakley, a father of nine children, pleaded no contest to charges that he intentionally failed to pay child support. As a condition of probation, a state judge in Wisconsin ordered Mr. Oakley not to father any more children until he could show the court he was capable of supporting the ones he had. The Wisconsin Supreme Court, in a split decision, upheld the constitutionality of the order. The U.S. Supreme Court declined to take the case on appeal.

It's hard to feel much sympathy for some of the people involved in these cases. Felicia Salazar, the 20-year-old Texas woman who found herself before Judge Baird, admitted to failing to provide protection and medical care to her then-19-month-old daughter, who suffered broken bones and other injuries when she was beaten by her father. Judge Baird sentenced the father, 25-year-old Roberto Alvarado, to 10 years in prison. Mr. Alvarado and Ms. Salazar relinquished their parental rights, and the child was placed in foster care. Judge Baird sentenced Ms. Salazar, who had no criminal history, to 10 years of probation and ordered her not to have children during that time.

"Under Texas law, judges can impose any condition on probation so long as it's reasonable," Judge Baird says. Ms. Salazar "has a fundamental right to reproduce, so I couldn't order her to be sterilized. But she can be forced to forfeit certain fundamental rights." He adds: "I'm not even preventing her from having intimate sexual relations. I'm only preventing her from becoming pregnant." Is the distinction tenable? Laurence Tribe, a professor at Harvard Law School who represented Mr. Oakley in the Wisconsin case, says Judge Baird's order is "tantamount to sterilization" and abridges Ms. Salazar's reproductive freedom as guaranteed by the Supreme Court's 1973 Roe v. Wade decision affirming abortion rights. There is also a question of enforceability. If Ms. Salazar becomes pregnant, must she choose among concealing the pregnancy, abortion or incarceration?

(snip)

http://online.wsj.com/article/SB122230566090673847.html?mod=todays_us_page_one (subscription)

[YOY]

1. It it Eugenics if you force men to wear to where clamps that hinder the flow of sperm until they are

prepared to accept fatherhood responsibly...then they are subsequently removed? A little brave new worldly but would it be eugenics?

Unethical yes IMHO...but not eugenics.

It might prevent disgusting cases like these ones and would not be permanent sterilization.

[Lyric]

2. Yeah, except for that pesky Bill of Rights thing

that prevents the government from doing medical procedures on your body without your consent.

:eyes:

[Sgent]

3. I'm not sure what I think

the government certainly has the ability to violate "fundamental" rights when you are the perpetrator of a crime, so I don't have a serious issue with the Texas case in theory.

That being said, enforcing it could cause some troublesome situations.

[Carter2]

4. This is absurd

What year are we living in?

[varkam]

5. The cases mentioned are a little bit different from classical eugenics...

and maybe this is not a very important distinction, but classical eugenics was rooted in the proposition that criminal or otherwise anti-social behavior was controlled or very largely influenced by genetics and that by preventing those individuals from passing on their "criminal genes", they would thereby prevent crime.

Here, the proposition has nothing to do with genetics, but rather the crime centers around cases involving children and parents lack of ability to care for them.

Just my .02.