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Limiting the Right to Procreate: State V. Oakley and the Need for Strict Scrutiny of Probation Conditions

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Limiting the Right to Procreate: State V. Oakley and the Need for Strict Scrutiny of Probation Conditions CORE Metadata, citation and similar papers at core.ac.uk Provided by Seton Hall University Libraries LIMITING THE RIGHT TO PROCREATE: STATE V. OAKLEY AND THE NEED FOR STRICT SCRUTINY OF PROBATION CONDITIONS Devon A. Corneal∗ INTRODUCTION In August 2001, the Wisconsin Supreme Court touched off a national debate1 by upholding a probation condition placed on a man convicted of intentional failure to pay child support.2 The probation condition prohibited David W. Oakley from fathering children for the term of his probation unless he could prove that he was capable of supporting the nine children he had already fathered and any additional children he wanted to have.3 The ruling created a conflict between child welfare concerns and the fundamental right to ∗ J.D. Candidate, Seton Hall University School of Law; M.S. 1997, The Pennsylvania State University; B.A. 1994, The College of William and Mary. 1 State v. Oakley, 629 N.W.2d 200 (Wis. 2001). To see the breadth of coverage the case produced, as well as the countervailing policy and legal considerations, see Vivian Berger, Bedroom Sentence, NAT’L L.J., Sept. 17, 2001, at A21 (indicating that the ruling “illustrates the truth of the hoary maxim that hard cases make bad law”); Joan Biskupic, ‘Deadbeat Dad’ Told: No More Kids Wis. Court Backs Threat of Prison, USA TODAY, July 11, 2001, at 1A (stating that the decision was “likely to reverberate across the USA”); Dennis Chaptman, National Implications Seen in Ruling on Dad: Father of 9’s Attorney Considering Taking Case to U.S. Supreme Court, MILWAUKEE J. SENTINEL, July 12, 2001, at 2B; Glenda Cooper, Wisconsin Deadbeat Dad Case Tests the Rights to Parenthood, WASH. POST, July 15, 2001, at A2 (characterizing the decision as “spark[ing] a national furor”); Bruce Fein, Irresponsible Fatherhood, WASH. TIMES, August 07, 2001, at A12; Reynolds Holding, The Judicial Sex Police; Stay Out of Our Bedrooms, S.F. CHRON., July 22, 2001, at D3; Tamar Lewin, Father Owing Child Support Loses Right to Procreate, N.Y. TIMES, July 12, 2001, at A14; Leonard Pitts, Jr., Judge’s Ruling Raises Serious Doubts, DAYTON DAILY NEWS, July 18, 2001. See also Court to Deadbeat Dad: No More Kids, at http://www.cbsnews.com/now/story/0,1597,300855-412,00.shtml (July 11, 2001) (on file with author); Jennifer Foote Sweeney, Something Cheesy in the State of Wisconsin, at http://www.salon.com/mwt/feature/2001/07/13/wisconsin (July 13, 2001) (on file with author). 2 Wisconsin law provides that “[a]ny person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class E felony.” WIS. STAT. ANN. § 948.22(2) (West 2002). Although Oakley received a five-year probation term, under Wisconsin law a conviction for a Class E felony is punishable by “a fine not to exceed $10,000 or imprisonment not to exceed 5 years, or both.” WIS. STAT. ANN. § 939.50(3)(e) (West 2002). 3 Oakley, 629 N.W.2d at 201. 447 448 SETON HALL LAW REVIEW Vol. 33:447 privacy and procreative control.4 Child welfare advocates view the ruling as a victory for children and a mandate for child support enforcement.5 In contrast, civil rights advocates, dedicated to protecting an individual’s right to control his/her own reproductive future, view this type of probation condition as too great an infringement on individual constitutional rights.6 Specifically, these advocates assert that there are less intrusive/more narrowly tailored means to achieve the same important goals.7 This Comment examines the potential consequences of the Oakley decision and argues that, when courts impose probation conditions, they may not infringe upon the fundamental right to procreate unless that infringement survives strict scrutiny. Part I of this Comment details the foundation and development of the right to procreate. Part II reviews the nature of probation and the difficulty of challenging probation conditions. Part III then examines how, and in what circumstances, probation conditions have been used to limit procreative rights. Finally, Part IV discusses the problems inherent in the Oakley decision and ultimately concludes that courts must invalidate probation conditions that infringe upon the right to procreate unless they survive strict scrutiny. 4 Cooper, supra note 1, at A2 (describing the decision as opening Pandora’s box and comparing the viewpoints of representatives from the Association for Children for Enforcement of Support and the Wisconsin chapter of the ACLU). The majority and dissenting opinions in Oakley also illustrate the two positions. The majority focused on the impact that failure to pay child support has on children, noting that “[r]efusal to pay child support by so-called ‘deadbeat parents’ has fostered a crisis with devastating implications for our children” and has produced troubling consequences for children such as health and behavioral problems and lower levels of educational achievement. Oakley, 629 N.W.2d at 203. The dissent, however, focused on the basic human right to have children, characterizing it as a “fundamental liberty which the Constitution jealously guards for all Americans.” Id. at 216 (Bradley, J., dissenting). 5 Cooper, supra note 1, at A2 (quoting Geraldine Jensen, president of the Association for Children for Enforcement of Support as stating, “I understand why the court had to say no more kids until you support the ones you have. These children are living in poverty. They have a right to clothing and food. This is an extreme case, but the poor have no excuse not to support their children. We have to make payment of child support as serious as payment of taxes.”). 6 Id. (quoting a former chairwoman of the American Bar Association’s Family Law Section who characterized the Oakley decision as follows: “‘It gets the state back into the bedroom. [H]ow do you keep from sliding down the slippery slope . ?’”). 7 Lewin, supra note 1, at A14 (quoting Julie Sternberg, a lawyer for the American Civil Liberties Union as saying, “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.”). 2003 COMMENT 449 I. THE FUNDAMENTAL RIGHT TO PROCREATE The United States Supreme Court has recognized the fundamental right to procreate for nearly sixty years. The Court took the first step toward affording constitutional protection to the right in its 1942 decision, Skinner v. Oklahoma.8 In Skinner, the Court identified the right to procreate as “one of the basic civil rights of man”9 and invalidated a state statute requiring the sterilization of habitual offenders10 as an unconstitutional infringement on that right.11 The Court explained that, because “[m]arriage and procreation are fundamental to the very existence and survival of the race,” forced sterilization of criminal offenders violates the Equal Protection Clause of the Fourteenth Amendment.12 Additionally, the Court required strict scrutiny of governmental attempts to impose 8 316 U.S. 535 (1942). 9 Id. at 541. 10 Id. at 536 (defining habitual criminals, under Oklahoma law as, “person[s] who, having been convicted two or more times for crimes ‘amounting to felonies involving moral turpitude,’ either in an Oklahoma court or in a court of any other State, [and] is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal institution”) (internal citations omitted). 11 Id. at 537-42. This ruling was a sharp departure from the Court’s prior jurisprudence, most notably, Buck v. Bell where the Court upheld mandatory sterilization of the mentally handicapped in state institutions. 274 U.S. 200 (1927). In upholding the mandatory sterilization, Justice Holmes wrote his now infamous justification, “It is better for the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough.” Id. at 207. While the Supreme Court did not strike forcible sterilization laws until 1942, some lower courts acted earlier. For example, a federal district court judge invalidated a Nevada law allowing for the sterilization of certain criminals in 1918. See Williams v. Smith, 131 N.E. 2 (Ind. 1921) (striking a law allowing sterilization of prison inmates); see also Mickle v. Henrichs, 262 F. 687 (D. Nev. 1918) (ruling that a Nevada law allowing forced sterilization (vasectomy) of some criminals violated the State constitutional prohibition against cruel and unusual punishment). But see LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 162-63 (1993) (discussing later Indiana laws allowing sterilization of the “feebleminded”). 12 Skinner, 316 U.S. at 541. Although the Court ruled on Fourteenth Amendment Equal Protection grounds, because the law impermissibly discriminated against criminals, commentators still trace the recognition of reproductive control as a fundamental right to this decision. See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 657-58 (1997) (indicating that Skinner, by departing from the Courts’ previous jurisprudence as established in Buck v. Bell, was the first case to recognize the right to procreate); Tracy Ballard, The Norplant Condition: One Step Forward or Two Steps Back?, 16 HARV. WOMEN’S L.J. 139, 148 (1993) (characterizing Skinner as the “springboard” for case law supporting the right to procreate). 450 SETON HALL LAW REVIEW Vol. 33:447 involuntary sterilization.13 In 1965, the Court gave further protection to the right to control one’s reproductive choices in Griswold v.
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