How Ohio v. Talty provided for future bans on procreation and the consequences that action brings: Ohio v. Talty: hiding in the shadow of the Supreme Court of Wisconsin.

• Author: Holmer, Evelyn

1. INTRODUCTION II. THE FUNDAMENTAL RIGHT TO PROCREATE A. The Right to Procreate B. The Right to Privacy III. PROBATION PARTICULARS A. Probation: Purposes and Rationale B. Constitutional Challenges to Probation Conditions, Tests Used by Courts IV. TRAMMELL, OAKLEY, AND TALTY: THE NATION'S THREE LEADING CASES CONCERNING ANTIPROCREATION RESTRICTIONS A. Trammell v. Indiana B. Wisconsin v. Oakley C. Ohio v. Talty 1. Historical and Procedural Backgrounds 2. Application of Jones V. ANALYSIS: TOGETHER, OAKLEY AND TALTY SET THE WRONG PRECEDENT A. Oakley's Approval of Overly Broad Conditions B. Talty's Misapplication of Jones VI. RAMIFICATIONS OF PROCREATION RESTRICTIONS AS PROBATION CONDITIONS A. Forced Sacrifice of One Liberty Interest for Another B. The Practical Impact of an Impractical Punishment 1. Enforcement of the Decision against Male and Female Probationers 2. The Effects on Male Probationers' Female Partners is Unduly Burdensome 3. Child Support Possibilities Eliminated for the Current Children C. The Societal Implications of Antiprocreation Restrictions 1. Criminality for Impoverished Parents 2. Buck v. Bell Rears its Ugly Head VII. BETTER SOLUTIONS THAN A BAN ON PROCREATION A. Precautionary Measures, A Less Intrusive Means Standard for the Courts B. Remedial Measure, Proactive Legislation 1. Current Legislation 2. Proposed Legislation VIII. CONCLUSION I. INTRODUCTION

   Meet David Oakley: a Wisconsin resident and convicted deadbeat dad of nine minor children. Oakley is $25,000 arrears in child support payments. (1) Despite his physical ability to do so, Oakley cannot seem to keep a fulltime job, and he openly admits that he will never be able to support his current or future children. (2)

   Now meet Kristie Trammell: an Indiana resident convicted of child neglect on two separate occasions. One of theses convictions resulted from Trammell's neglect of her infant son, J.T., who consequently died of severe malnutrition and dehydration. (3) Trammell ignored many signs of J.T.'s worsening condition and also ignored the warnings of several people, including doctors and her own mother, that J.T. needed proper care and medical attention. (4)

   For both of these defendants, the respective Wisconsin and Indiana trial courts chose to issue sentences of probation. (5) Recognizing that probationers do not enjoy the absolute liberty that non-probationers do, (6) the sentences included conditions restricting the defendants' rights to procreate. On appeal, however, one court struck down this probation condition as excessive. (7)

   Each of the courts deliberated over the issue of whether a restriction that abrogated a probationer's right to have a child was reasonably related to the goals of the probation. Putting aside the highly emotionally charged atmosphere, the Indiana court of appeals in Trammell held that the condition was not reasonably related to the probationary goals. (8) In contrast, while utilizing a more deferential standard of review, the Supreme Court of Wisconsin held that the condition was reasonably related to the goals to withstand constitutional analysis. (9)

   In the fall of 2004, the Supreme Court of Ohio addressed this same issue in Ohio v. Tally. (10) The Talty court chose to strike down the antiprocreation restriction within a deadbeat dad's community control sanction, or probation order. (11) However, the Talty court's approving language of State v. Oakley, where the Supreme Court of Wisconsin upheld the antiprocreation restriction as a condition of probation, fundamentally set the stage for Ohio to join the Oakley precedent in the future.

   This Note discusses the constitutionality of antiprocreation restrictions as they relate to the purposes and goals of probation, in the context of the Talty, Oakley, and Trammell decisions. This Note addresses the ramifications and implications of these restrictions in relation to the deadbeat parent crisis, and it proposes more adequate means to accomplish the competing goals of child welfare and adherence to constitutional doctrine.

   Section II introduces and dissects the fundamental right to procreate as it is found under two concepts: the right itself and the right to privacy. Section HI discusses the purposes of probation, generally, and articulates two leading ways state courts deal with antiprocreation restrictions in probation sentences. Section IV provides the factual and procedural backgrounds of Trammell, Oakley, and Talty. It further provides a full analysis of the Oakley and Talty rationales. Section V discusses how the Oakley and Talty courts respectively misapplied, expressly and impliedly, the constitutional review of these probation conditions. Section VI sets forth the ramifications and implications of Talty and Oakley. Section VII illustrates how the Indiana case of Trammell v. State, where the appellate court used a "less restrictive means" analysis, properly struck down an antiprocreation condition, (12) and calls for a nationwide adoption of a less restrictive means test. This section also makes the call for, and proposes, more legislation that directly compensates the children involved in these situations.

2. THE FUNDAMENTAL RIGHT TO PROCREATE

   Justice Sandra Day O'Connor once explained that "the Constitution is the cornerstone of our nation's commitment to principles of representative government and majority rule," while the Bill of Rights is clearly, and purposefully, an antimajoritarian document. (13) The Bill of Rights (the "Bill") built a wall around certain fundamental freedoms, (14) which, theoretically, limits a majority's ability to intrude upon these freedoms. (15) As originally adopted, the Bill's purpose was to limit the federal government's abuse of power and to ensure the sovereignty of the states in legislating in furtherance of the Bill of Rights'. (16) Years later, Congress adopted the Fourteenth Amendment, which requires the states to accord all citizens due process and equal protection, similar to the Fifth Amendment's protections. (17)

   The Fifth and Fourteenth Amendments each provide that neither the federal nor state governments shall deprive any person, "of life, liberty, or property without due process of law." (18) This clause, the Due Process Clause, is interpreted as instituting two separate limits on these governments, that of "procedural due process," and that of "substantive due process." (19)

   Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. (20) Substantive due process poses the question of whether the government has an adequate reason for taking away a person's life, liberty, or property. (21)

   The United States Supreme Court has consistently held the Fourteenth Amendment incorporates most of the Bill's protections, such as freedom of religion, freedom of the press, and the right to privacy under the Amendment's use of the word "liberty." (22) Because of this incorporation, states, like the federal government, cannot encroach upon these fundamental rights. (23)

   Some rights, quite decidedly, were not expressly set forth in the Bill. The Framers singled out only a small number of fundamental principles. (24) The purpose of this was to refrain from diminishing the significance and importance of the Bill itself. (25) Justice O'Connor explains that, "a laundry list of lesser rights, such as the fight to wear powdered wigs in public, would sit uneasily beside such fundamental liberties as freedom of speech and religion." (26) The Court has historically adhered to this belief and its converse that some rights are so implicit in the concept of liberty that the Court must hold them to be fundamental, because one would never consider the need to enumerate such a basic right. (27) The Court, accordingly, offers them special protections during appellate review, via heightened scrutiny, under substantive due process. (28)

   1. The Right to Procreate

      The Court originally rejected its current position that the right to procreate is fundamental in Buck v. Bell, and it, accordingly, need not be offered heightened protection by the courts. (29) Here, the Court stated that it was perfectly constitutional for the state of Virginia to involuntarily sterilize mentally retarded persons. (30) The state institutionalized the named plaintiff, Carrie Buck, an 18 year old woman. (31) Justice Holmes, who delivered the opinion of the Court, described Carrie Buck as a "feeble minded white woman." (32) The Justice went on to advocate the Court's position by explaining that, "[t]hree generations of imbeciles are enough." (33)

      Arguably, the Court first recognized the right to procreate as a protected fundamental right in the 1942 landmark decision of Skinner v. Oklahoma. (34) There, the Skinner Court declared the Oklahoma Habitual Criminal Sterilization Act (OHCSA) unconstitutional. OHCSA allowed courts to order the sterilization of men convicted two or more times for crimes of "moral turpitude." (35) Justice Douglas, writing for the Court, stated, with urgency, the sensitive area sterilization statutes invade--the basic human right to produce offspring. (36) He explained, "[Procreation] involves one of the basic civil rights of man.... Procreation [is] fundamental to the very existence and survival of the race." (37) Justice Douglas' strong language emphasizes the fundamental nature of procreation, because of which the Court has treated the right as fundamental in most, if not all, of its subsequent decisions. (38)

   2. The Right to Privacy

      The fundamentality of the right to procreate gains further support by the Court's decisions in Griswold v. Connecticut (39) and Eisenstadt v. Baird, (40) which discuss privacy rights. Although the United States Constitution does not explicitly mention any right to privacy, (41) the Court recognizes that a right of personal privacy, or a guarantee of certain areas or zones of privacy, exists under the Constitution. (42)...