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.
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