How Will It Play in New York?

Judge Marilyn O'Connor of Family Court, Monroe County, issued a controversial order in March barring a frequently homeless couple from having any more children until they can show that they will be able to care for the four children they already have. The case, Matter of Bobbijean P., N.Y.L.J. 5/17/04, Vol. 94; Pg. 20, came before the court after a child born to the couple in March 2003 was removed from their care 1 week after birth. The child was found to have cocaine in its system at birth, just like two of its older siblings; all four children, currently ranging in age from 1 to 6 years old, were placed in foster care soon after their births.

Neither parent chose to attend the hearing at which the order was issued, and neither of them was represented by counsel. The judge found, based on uncontroverted evidence, that the couple had abused drugs for years, had not supported their children, and that both parents were guilty of neglect. She then issued her order, which prohibits either parent from having more children, but does not require the couple to seek sterilization or impose any particular birth control method on them. Nevertheless, should the woman become pregnant or the man father a child following the date of the court's order, the respondents could be subject to sanctions for contempt.

As could be expected, advocates for the preservation of civil liberties are up in arms over the judge's order. As Anna Schissel, staff attorney for the Reproductive Rights Project of the New York Civil Liberties Union told Rochester newspaper The Democrat and Chronicle, she didn't “know of any precedent that would permit a judge to do this … The [U.S.] Supreme Court has ruled again and again that the right to have a child or not to have a child is at the heart of a cluster of constitutionally protected choices that stem from the right of privacy.”

National Caselaw Supporting Limits on Procreation Rights

Although this is apparently the first court order in New York to prohibit procreation, it is not the first in the nation. A handful of other states' courts have upheld such orders, but, based on constitutional grounds, many others have not.

On the “pro” side are cases in three states involving limits on procreative rights as a condition of a grant of parole. In the Oregon case of State v. Kline, CA A95942, 155 Ore. App. 96; 963 P.2d 697; 1998 Ore. App. LEXIS 1228 (Ct. of App. Of Oregon 1998), the appellant was convicted of criminal mistreatment in the first degree for breaking his son's arm and inflicting numerous bruises on him. The appellant was sentenced under the sentencing guidelines to 36 months' probation, and both the child's parents subsequently lost their parental rights. Soon afterward, the couple had a daughter. The appellant eventually admitted to having purposely injured her, also, on several occasions. These actions constituted a parole violation. At his parole revocation hearing, the court ordered the appellant to complete drug counseling and anger management treatment, after which he would be allowed to father more children if he first obtained written permission from the court.

The appellant argued on appeal that the special condition of probation infringed his fundamental right to procreate, in violation of Equal Protection Clause of the U.S. Constitution. The appellate court found no error, however, noting that in ordering the additional conditions of probation, “the trial court looked at the facts of this case, defendant's background, his previous failure to comply with probation conditions, and the availability and appropriateness of alternative probation conditions … The court determined that defendant's record showed a pattern of abusive behavior that warranted a provision keeping defendant from young children, especially his own, at least until he completes extensive counseling for his acknowledged drug and anger problems.” Because the lower court did not impose a total ban on the apellant's reproductive rights and could revoke that ban when circumstances warranted, and because the harm to appellant's potential victims was great, the court reasoned that this restraint on one of his fundamental rights was warranted by a compelling state interest strong enough to pass constitutional muster.

In Ohio v. Talty, C.A. No. 02CA0087-M, 2003 Ohio 3161; 2003 Ohio App. LEXIS 2907 (6/18/03), an Ohio appellate court upheld the decision of the County Court of Common Pleas that sentenced the appellant to non-residential community control sanctions for a period of 5 years, subject to several conditions.

The appellant in Talty was convicted on two fourth-degree felony counts of non-support of dependents, for failing to provide adequate support for three of his seven minor children. Prior to sentencing, the trial court ordered the parties to submit briefs to determine whether the court could lawfully order, as a condition of appellant's probation, that he not father a child while under supervision. The American Civil Liberties Union of Ohio Foundation was allowed to intervene and filed an amicus curiae brief in support of the position that the trial court did not have the authority to impose such a condition. At the sentencing hearing, the trial court granted probation on the condition, among other things, that appellant make all reasonable efforts to avoid conceiving another child while under the supervision of the probation department. No specific methods for avoiding conception of a child were ordered.

The appellant contended on appeal that the trial court's order violated his constitutional right to procreate. The appellate court disagreed, noting initially that, under Ohio law (R.C. 2951.02), a trial court has broad discretion in determining the conditions of probation. This discretion, however, is not unlimited when a fundamental right is involved; in such situations, the punishment must fit the crime. The Ohio test for reasonableness of a condition placed on probation, enunciated in State v. Jones, 49 Ohio St. 3d at 53, is whether the condition 1) is reasonably related to rehabilitating the offender, 2) has some relationship to the crime of which the offender was convicted, and 3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. The appellant conceded that the prohibition on his procreating during probation met all three of the Jones criteria, but argued that the court should then have applied strict scrutiny to determine the constitutionality of the condition at issue. Although the appellate court agreed with the appellant that his case involved the taking of a fundamental right, it nevertheless rejected his contention that the court should apply a strict scrutiny analysis to determine the constitutionality of the condition on probation. The court based this decision on precedent in Ohio and in other states that allows a court to decline to apply strict scrutiny when fundamental rights are impinged on in the context of setting probation conditions. All that is required in the probation setting is a rational basis review or a showing that the probation's conditions are primarily designed to meet the ends of rehabilitation and protect the public. Therefore, a determination that the parole condition met the Jones test for reasonableness was enough.

The Supreme Court of Wisconsin did apply a strict scrutiny analysis in Wisconsin v. Oakley, No.99-3328-CR, 2001 WI 103; 245 Wis. 2d 447; 629 N.W.2d 200; 2001 Wisc. LEXIS 434 (7/10/01), to come to the conclusion that a father convicted of intentional failure to support his nine children (a felony in Wisconsin) could constitutionally be ordered not to procreate. The court reasoned that the defendant's ongoing victimization of his nine children and his history of disregard for the law made the condition that he not procreate — imposed on a convicted felon facing the far more restrictive and punitive sanction of prison — was not overly broad and was reasonably related to the defendant's rehabilitation. He could lift the restriction by supporting his children, the condition was narrowly tailored to help the defendant rehabilitate himself, and the condition was reasonably related to the compelling state interest of having parents support their own children. “Simply put,” the Wisconsin Supreme Court concluded, the defendant “could have been imprisoned for 6 years, which would have eliminated his right to procreate altogether during those 6 years.”

Contrary Holdings

Most appellate courts grappling with the question of the validity of orders not to procreate have found them unconstitutional. In Trammell v. State, No. 82A01-0012-CR-418, 751 N.E.2d 283; 2001 Ind. App. LEXIS 1047 (6/18/01), the appellant's infant son had died of malnutrition. The deceased child's older sister had had surgery when she was a baby to correct an esophageal problem that made her vomit her milk. The deceased exhibited the same symptoms that his older sister had, but his mother did not take him to a doctor. She also failed to take him to his regularly scheduled appointments with a pediatrician. On the day he died, the appellant mother failed to discover the death until late afternoon, even though the baby had died about 5:00 that morning from “emaciation, dehydration and salt or electrolyte imbalance due to a chronic malnutrition,” according to the forensic pathologist who performed the autopsy.

The trial court found the mother guilty but mentally ill due to her mental retardation, and sentenced her to 18 years, with 8 years thereof to be served on probation. As a condition of probation, the trial court ordered the appellant not to become pregnant. The appellate court struck down the condition on probation, finding that it was not reasonably related to the goal of protecting the defendant's future unborn children because it would not teach her how to become a better mother. In addition, the salutary purpose of preventing injury to an unborn child could adequately be served by alternative restrictions less subversive of the appellant's fundamental right to procreate, such as a requirement that she periodically submit to pregnancy testing; that upon becoming pregnant she be required to follow an intensive prenatal and neonatal treatment program monitored by both the probation officer and by a supervising physician; and that if she bore a child during the period of probation, it could be removed from her custody and placed in foster care if the court then considered such action necessary to protect the infant.

In making its decision, the Trammell court cited to an earlier California case that struck down a similar order. In that case, People v. Pointer, 151 Cal. App. 3d 1128, 199 Cal. Rptr. 357 (Cal. Ct. App. 1984), defendant, who adhered to and imposed on her children a strict macrobiotic diet, was convicted of child endangerment and ordered not to conceive during a five-year probationary period. The Pointer court found the condition on probation was overbroad in that it would not serve any rehabilitative goal. The court went on to note that the trial court had specifically not prohibited the defendant from having sex. Since the best birth control measures sometimes fail, this raised the possibility that the appellant could conceive despite reasonable precautions to comply with the condition imposed. If she became pregnant, she might feel compelled, against her will, to obtain an abortion rather than risk going to jail for violation of her probation. The court found this an unconscionable position to put the appellant into.

How Will It Play in New York?

New York is at once one of the more liberal states in not interfering with its citizens' civil liberties (think religious tolerance and gay and lesbian rights) and one of the more repressive states (think post-9/11 security and the Rockefeller drug sentencing rules). It is difficult to predict what will happen to Judge O'Connor's ruling on appeal. Significantly, however, the state courts that have upheld orders not to procreate were dealing with people who were being granted parole for felony convictions, with the condition that parole would be revoked if they parented any new children without court permission. The withholding of civil liberties to parolees, by statutory and common law, is generally tolerated in this country. The respondent parents in the Bobbijean P. case, however, are not convicted felons, and the ultimate goal in their children's permanency plan is still reunification with their neglectful parents. In this context, a taking of civil liberties is less likely to be upheld.

At the same time, some of the concerns voiced by the Pointer and Trammell courts in rescinding such orders are not present in this case. For instance, because the mother in the Bobbijean P. case has repeatedly abused drugs during her pregnancies, incarcerating her for getting pregnant could have a rehabilitative effect – at least in the short term — by cutting off her ability to expose the fetus to the effects of illicit drugs, thus making her a better parent. Such incarceration would also be reasonably related to protecting that unborn child.

Whatever happens in the appellate courts, Judge O'Connor's order may have been too little too late: as The Seattle Times reported in its May 16 edition, relatives of the respondent revealed at a preliminary hearing concerning permanent placement of one of the respondents' children that, as of 2 weeks prior to the order's issuance, the respondent mother is once again pregnant.

Judge Marilyn O'Connor of Family Court, Monroe County, issued a controversial order in March barring a frequently homeless couple from having any more children until they can show that they will be able to care for the four children they already have. The case, Matter of Bobbijean P., N.Y.L.J. 5/17/04, Vol. 94; Pg. 20, came before the court after a child born to the couple in March 2003 was removed from their care 1 week after birth. The child was found to have cocaine in its system at birth, just like two of its older siblings; all four children, currently ranging in age from 1 to 6 years old, were placed in foster care soon after their births.

Neither parent chose to attend the hearing at which the order was issued, and neither of them was represented by counsel. The judge found, based on uncontroverted evidence, that the couple had abused drugs for years, had not supported their children, and that both parents were guilty of neglect. She then issued her order, which prohibits either parent from having more children, but does not require the couple to seek sterilization or impose any particular birth control method on them. Nevertheless, should the woman become pregnant or the man father a child following the date of the court's order, the respondents could be subject to sanctions for contempt.

As could be expected, advocates for the preservation of civil liberties are up in arms over the judge's order. As Anna Schissel, staff attorney for the Reproductive Rights Project of the New York Civil Liberties Union told Rochester newspaper The Democrat and Chronicle, she didn't “know of any precedent that would permit a judge to do this … The [U.S.] Supreme Court has ruled again and again that the right to have a child or not to have a child is at the heart of a cluster of constitutionally protected choices that stem from the right of privacy.”

National Caselaw Supporting Limits on Procreation Rights

Although this is apparently the first court order in New York to prohibit procreation, it is not the first in the nation. A handful of other states' courts have upheld such orders, but, based on constitutional grounds, many others have not.

On the “pro” side are cases in three states involving limits on procreative rights as a condition of a grant of parole. In the Oregon case of State v. Kline, CA A95942, 155 Ore. App. 96; 963 P.2d 697; 1998 Ore. App. LEXIS 1228 (Ct. of App. Of Oregon 1998), the appellant was convicted of criminal mistreatment in the first degree for breaking his son's arm and inflicting numerous bruises on him. The appellant was sentenced under the sentencing guidelines to 36 months' probation, and both the child's parents subsequently lost their parental rights. Soon afterward, the couple had a daughter. The appellant eventually admitted to having purposely injured her, also, on several occasions. These actions constituted a parole violation. At his parole revocation hearing, the court ordered the appellant to complete drug counseling and anger management treatment, after which he would be allowed to father more children if he first obtained written permission from the court.

The appellant argued on appeal that the special condition of probation infringed his fundamental right to procreate, in violation of Equal Protection Clause of the U.S. Constitution. The appellate court found no error, however, noting that in ordering the additional conditions of probation, “the trial court looked at the facts of this case, defendant's background, his previous failure to comply with probation conditions, and the availability and appropriateness of alternative probation conditions … The court determined that defendant's record showed a pattern of abusive behavior that warranted a provision keeping defendant from young children, especially his own, at least until he completes extensive counseling for his acknowledged drug and anger problems.” Because the lower court did not impose a total ban on the apellant's reproductive rights and could revoke that ban when circumstances warranted, and because the harm to appellant's potential victims was great, the court reasoned that this restraint on one of his fundamental rights was warranted by a compelling state interest strong enough to pass constitutional muster.

In Ohio v. Talty, C.A. No. 02CA0087-M, 2003 Ohio 3161; 2003 Ohio App. LEXIS 2907 (6/18/03), an Ohio appellate court upheld the decision of the County Court of Common Pleas that sentenced the appellant to non-residential community control sanctions for a period of 5 years, subject to several conditions.

The appellant in Talty was convicted on two fourth-degree felony counts of non-support of dependents, for failing to provide adequate support for three of his seven minor children. Prior to sentencing, the trial court ordered the parties to submit briefs to determine whether the court could lawfully order, as a condition of appellant's probation, that he not father a child while under supervision. The American Civil Liberties Union of Ohio Foundation was allowed to intervene and filed an amicus curiae brief in support of the position that the trial court did not have the authority to impose such a condition. At the sentencing hearing, the trial court granted probation on the condition, among other things, that appellant make all reasonable efforts to avoid conceiving another child while under the supervision of the probation department. No specific methods for avoiding conception of a child were ordered.

The appellant contended on appeal that the trial court's order violated his constitutional right to procreate. The appellate court disagreed, noting initially that, under Ohio law (R.C. 2951.02), a trial court has broad discretion in determining the conditions of probation. This discretion, however, is not unlimited when a fundamental right is involved; in such situations, the punishment must fit the crime. The Ohio test for reasonableness of a condition placed on probation, enunciated in State v. Jones , 49 Ohio St. 3d at 53, is whether the condition 1) is reasonably related to rehabilitating the offender, 2) has some relationship to the crime of which the offender was convicted, and 3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. The appellant conceded that the prohibition on his procreating during probation met all three of the Jones criteria, but argued that the court should then have applied strict scrutiny to determine the constitutionality of the condition at issue. Although the appellate court agreed with the appellant that his case involved the taking of a fundamental right, it nevertheless rejected his contention that the court should apply a strict scrutiny analysis to determine the constitutionality of the condition on probation. The court based this decision on precedent in Ohio and in other states that allows a court to decline to apply strict scrutiny when fundamental rights are impinged on in the context of setting probation conditions. All that is required in the probation setting is a rational basis review or a showing that the probation's conditions are primarily designed to meet the ends of rehabilitation and protect the public. Therefore, a determination that the parole condition met the Jones test for reasonableness was enough.

The Supreme Court of Wisconsin did apply a strict scrutiny analysis in Wisconsin v. Oakley, No.99-3328-CR, 2001 WI 103; 245 Wis. 2d 447; 629 N.W.2d 200; 2001 Wisc. LEXIS 434 (7/10/01), to come to the conclusion that a father convicted of intentional failure to support his nine children (a felony in Wisconsin) could constitutionally be ordered not to procreate. The court reasoned that the defendant's ongoing victimization of his nine children and his history of disregard for the law made the condition that he not procreate — imposed on a convicted felon facing the far more restrictive and punitive sanction of prison — was not overly broad and was reasonably related to the defendant's rehabilitation. He could lift the restriction by supporting his children, the condition was narrowly tailored to help the defendant rehabilitate himself, and the condition was reasonably related to the compelling state interest of having parents support their own children. “Simply put,” the Wisconsin Supreme Court concluded, the defendant “could have been imprisoned for 6 years, which would have eliminated his right to procreate altogether during those 6 years.”

Contrary Holdings

Most appellate courts grappling with the question of the validity of orders not to procreate have found them unconstitutional. In Trammell v. State, No. 82A01-0012-CR-418, 751 N.E.2d 283; 2001 Ind. App. LEXIS 1047 (6/18/01), the appellant's infant son had died of malnutrition. The deceased child's older sister had had surgery when she was a baby to correct an esophageal problem that made her vomit her milk. The deceased exhibited the same symptoms that his older sister had, but his mother did not take him to a doctor. She also failed to take him to his regularly scheduled appointments with a pediatrician. On the day he died, the appellant mother failed to discover the death until late afternoon, even though the baby had died about 5:00 that morning from “emaciation, dehydration and salt or electrolyte imbalance due to a chronic malnutrition,” according to the forensic pathologist who performed the autopsy.

The trial court found the mother guilty but mentally ill due to her mental retardation, and sentenced her to 18 years, with 8 years thereof to be served on probation. As a condition of probation, the trial court ordered the appellant not to become pregnant. The appellate court struck down the condition on probation, finding that it was not reasonably related to the goal of protecting the defendant's future unborn children because it would not teach her how to become a better mother. In addition, the salutary purpose of preventing injury to an unborn child could adequately be served by alternative restrictions less subversive of the appellant's fundamental right to procreate, such as a requirement that she periodically submit to pregnancy testing; that upon becoming pregnant she be required to follow an intensive prenatal and neonatal treatment program monitored by both the probation officer and by a supervising physician; and that if she bore a child during the period of probation, it could be removed from her custody and placed in foster care if the court then considered such action necessary to protect the infant.

In making its decision, the Trammell court cited to an earlier California case that struck down a similar order. In that case, People v. Pointer , 151 Cal. App. 3d 1128, 199 Cal. Rptr. 357 (Cal. Ct. App. 1984), defendant, who adhered to and imposed on her children a strict macrobiotic diet, was convicted of child endangerment and ordered not to conceive during a five-year probationary period. The Pointer court found the condition on probation was overbroad in that it would not serve any rehabilitative goal. The court went on to note that the trial court had specifically not prohibited the defendant from having sex. Since the best birth control measures sometimes fail, this raised the possibility that the appellant could conceive despite reasonable precautions to comply with the condition imposed. If she became pregnant, she might feel compelled, against her will, to obtain an abortion rather than risk going to jail for violation of her probation. The court found this an unconscionable position to put the appellant into.

How Will It Play in New York?

New York is at once one of the more liberal states in not interfering with its citizens' civil liberties (think religious tolerance and gay and lesbian rights) and one of the more repressive states (think post-9/11 security and the Rockefeller drug sentencing rules). It is difficult to predict what will happen to Judge O'Connor's ruling on appeal. Significantly, however, the state courts that have upheld orders not to procreate were dealing with people who were being granted parole for felony convictions, with the condition that parole would be revoked if they parented any new children without court permission. The withholding of civil liberties to parolees, by statutory and common law, is generally tolerated in this country. The respondent parents in the Bobbijean P. case, however, are not convicted felons, and the ultimate goal in their children's permanency plan is still reunification with their neglectful parents. In this context, a taking of civil liberties is less likely to be upheld.

At the same time, some of the concerns voiced by the Pointer and Trammell courts in rescinding such orders are not present in this case. For instance, because the mother in the Bobbijean P. case has repeatedly abused drugs during her pregnancies, incarcerating her for getting pregnant could have a rehabilitative effect – at least in the short term — by cutting off her ability to expose the fetus to the effects of illicit drugs, thus making her a better parent. Such incarceration would also be reasonably related to protecting that unborn child.

Whatever happens in the appellate courts, Judge O'Connor's order may have been too little too late: as The Seattle Times reported in its May 16 edition, relatives of the respondent revealed at a preliminary hearing concerning permanent placement of one of the respondents' children that, as of 2 weeks prior to the order's issuance, the respondent mother is once again pregnant.