Unacceptable Collateral Damage: the Danger of Probation Conditions Restricting the Right to Have Children

• Publication year: 2022

38 Creighton L. Rev. 611. UNACCEPTABLE COLLATERAL DAMAGE: THE DANGER OF PROBATION CONDITIONS RESTRICTING THE RIGHT TO HAVE CHILDREN

Creighton Law Review

Vol. 38

A. FELECIA EPPS(fn*)

I. INTRODUCTION

You have the right to have as many children as you desire. You can have seven like the Waltons, six like the Brady Bunch, or none at all like Oprah. It is all left to your discretion - unless you fail to pay child support, and as a result end up facing criminal charges. The United States Constitution protects the right to freedom in procreation decisions. Generally, this means that the government cannot interfere with such decisions unless it has a compelling reason to do so. Even then, such interference must be narrowly tailored to meet government interests.(fn1)

In two recent cases, State v. Oakley(fn2) and State v. Talty,(fn3) courts have found limits on freedom in procreation decisions constitutional when such limits were used as probation conditions for defendants who, as a result of failure to support their children, had been convicted of a criminal offense.(fn4) In each case, the court rejected the argument that strict scrutiny, which would require a compelling state interest and a narrowly tailored means used to further that interest, should be applied to the condition. Instead, each court reviewed the condition with a lesser degree of scrutiny and came to the conclusion that the condition was valid.(fn5) Similar restrictions placed on defendants convicted of severe child abuse, although subjected to the same lower level of scrutiny, have typically been determined to be too broad and as a result unconstitutional.(fn6)

This article explores the use of probation conditions that restrict the right to freedom in procreation decisions. It begins by exploring the origin and history of the right to freedom in procreation decisions. Next, probation conditions in general will be discussed as a prelude to reviewing cases in which the courts have upheld or imposed conditions restricting the right to have children and those in which courts have determined that such conditions are impermissible. Although the cases this article reviews come from different jurisdictions, the underlying rationale for allowing or not allowing the probation condition to be imposed is the same.

The United States Supreme Court has not addressed the constitutionality of probation conditions restricting the right to have children; however, its decision in Zablocki v. Redhail(fn7) may provide precedent. In Zablocki, the Court concluded that exercise of another fundamental right, the right to marry, could not be conditioned on fulfillment of a court ordered child support obligation. In this article, the Zablocki decision will be compared to the decisions in Oakley and Talty. This comparison will demonstrate that there are significant differences between Zablocki and those cases. Consequently, Zablocki alone may not prohibit courts from imposing such probation conditions.

Allowing courts to impose probation conditions that restrict the right to have children sends several messages to poor people. It tells them that they should not have children and that they are somehow unfit parents. Further, it says to their children that it would have been better had they not been born. Ensuring that children are protected is a compelling government objective. Furthering this objective in a manner that burdens the exercise of a fundamental right can lead down a treacherous path. The dangers inherent in any approach that burdens the exercise of the right to have children will be illustrated by exploring other efforts to limit the right of disfavored groups to freedom in procreation decisions.

This article concludes that in order to avoid these dangers, state legislatures should act to limit a trial court's ability to impose probation conditions that restrict the probationer's right to have children. In addition, the courts should apply strict scrutiny to any government action, including imposition of probation conditions, that attempts to limit the right to freedom in procreation decisions. Application of strict scrutiny will almost certainly result in the invalidation or strict limitation of such actions. Finally, because of the fundamental nature of the right to freedom in procreation decisions, the dangers inherent in restricting this right, and the negative message sent to the poor, their children, and the world, if all other means of forcing someone to treat their children properly fail, incarceration of the offenders is preferable to use of a probation condition that seeks to limit the right to freedom in procreation decisions.

II. ORIGIN AND HISTORY OF THE RIGHT TO FREEDOM IN PROCREATION DECISIONS

Although the Supreme Court has not addressed the constitutionality of probation conditions restricting the right to have children,(fn8) it has decided numerous cases dealing with freedom to make procreation decisions. The holdings in these cases make it clear that this is a fundamental right protected by the constitution.

Skinner v. Oklahoma(fn9) was the first case recognizing the existence of the right to freedom in procreation decisions. In Skinner, the Court struck down an Oklahoma statute that allowed for the involuntary sterilization of habitual criminals. Under the statute, someone who committed larceny could be sterilized; someone who embezzled, regardless of how much was stolen, was not eligible for sterilization. The Court applied strict scrutiny to the classification made by the statute because of the "basic liberty" involved.(fn10) Although Skinner is often cited as the basis for the right to freedom in procreation deci-sions, the Court did not specifically state that this was a constitutional right. Rather, it decided the case on equal protection grounds, applying strict scrutiny to the classification made by the statute, thereby acknowledging the fundamental nature of the right. In subsequent cases, the Court found what appears to be a permanent home, as part of the right to privacy, for the right to freedom in procreation decisions.(fn11)

Griswold v. Connecticut(fn12) was the first case in which the Court explicitly recognized a right to privacy. The petitioners in Griswold challenged a state law that prohibited the distribution of contraceptives to married couples. The Court struck down the law, concluding that there is a zone of privacy created by several fundamental guarantees found in the Bill of Rights.(fn13) It described the right to marital privacy as prenumbral to other constitutional rights but did not find a specific place for it in the Constitution. Later, in Eisenstadt v. Baird,(fn14) a case challenging a state prohibition on the distribution of contraceptives to unmarried individuals, the Court concluded that: "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."(fn15) The prohibition in Baird was struck down on equal protection grounds.(fn16)

The landmark abortion case, Roe v. Wade,(fn17) provided the opportunity for the Court to clearly explain the constitutional basis for the right to privacy. In Roe, the Court held the right to an abortion is a personal right "fundamental or implicit in the concept of ordered liberty" included in the guarantee of personal privacy.(fn18) In discussing the nature of the right to an abortion, the Court noted that the rights to "marriage, procreation, contraception, family relationships, and child rearing and education" are all within the Fourteenth Amend-ment's concept of liberty and restriction on state action.(fn19) Once again, in Carey v. Population Services, International,(fn20) the Court discussed the nature of the right to privacy. It struck down a state law that prohibited the distribution of contraceptives to those under the age of 16 and provided that only a pharmacist could distribute contraceptives to others.(fn21) The Court reiterated its holding in Roe that "one aspect of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment is a 'right of personal privacy, or a guarantee of certain areas or zones of privacy.'"(fn22) Included in this zone of privacy is independence in making certain important decisions including marriage, procreation, contraception, family relationships and child rearing.(fn23) Twenty years later, when the court revisited the issues raised in Roe, it stated, "[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood."(fn24)

The right to freedom in procreation decisions is now clearly a fundamental right included within the right to privacy protected by the Fourteenth Amendment.(fn25) It would appear to be a right enjoyed by everyone, including those on probation for failure to pay child support. The constitutional rights of those on probation can be limited by probation conditions under certain circumstances.(fn26) Probation conditions limiting the exercise of freedom in procreation decisions, however, have generally not been allowed by state or federal courts.

III. PROBATION CONDITIONS: AN INTRODUCTION

The use of probation emerged during the...