ORDERING FATHERS NOT TO PROCREATE AS A CONDITION OF PROBATION FOR FAILURE TO PAY CHILD SUPPORT: AN UNCONSTITUTIONAL EXERCISE OF JUDICIAL POWER
Laura W. Morgan
Last November, the Wisconsin Supreme Court decided the case of Wisconsin v. Oakley, 248 Wis. 2d 654, 635 N.W.2d 760 (2001). In this case, the trial court found David Oakley guilty of criminal failure to support his nine children by four different women. He owed over $25,000 in support at the time of his conviction. The trial court granted Oakley probation, and set as a condition of his probation that he not have any more children unless he could demonstrate that he support all his children. The Supreme Court upheld the probation order.
The case split the court, 4 to 3, along gender lines. All four male justices joined in the ruling, 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, perhaps more sensitive to intrusions on the right to procreate, opposed it as an unconstitutional intrusion on a basic right to procreate. Of practical concern to the dissenters was the reality of enforcement of the condition of probation: if he does have another child, he goes to jail, and theres another child who definitely wont be supported.
The case was appealed to the Supreme Court of the United States. (Read the Amicus Brief filed by the Center on Fathers, Families, and Public Policy. Amicus briefs have also been filed by the National Organization of Women Legal Defense Fund and Education Fund, and Lawrence Tribe.
Despite the questions regarding the constitutionality of restricting someones fundamental right to procreate based on a child support obligation, see Zablocki v. Redhail, 434 U.S. 374 (1978) the idea of restricting parents who owe child support from having more children is catching on.
In Jefferson County, Kentucky, Luther Crawford, who fathered a dozen children by 11 women and owes $33,000 in child support, signed an abstinence provision in a plea agreement. The court changed the provision from one of abstinence to one of non-procreation.
Now, in Medina County, Ohio, a trial judge ordered as a condition of probation that Sean Talty, 30, who failed to pay child support, take reasonable steps to avoid conceiving a child. State of Ohio v. Talty, No. 02-CR-0075 (Ohio Ct. C.P. 2002).
These decisions simply do not pass constitutional muster. A court cannot intrude upon so basic a freedom as reproduction by means of an order not to procreate. Parents need education, training, and good jobs to be able to pay their child support. Not all deadbeat parents are that way by choice.