HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, January 5, 2005

De Facto Sterilization?

A family court judge in New York who caused some controversy last year by ordering a homeless mother of four to cease from having more children has ordered a drug-addicted mother of seven to do the same.  While not a widely accepted judicial practice, judges in Wisconsin and Ohio have similarly ordered "deadbeat dads" to cease from fathering children. 

Justice Douglas' 1942 majority opinion in Skinner v. Oklahoma, 316 U.S. 535, has been widely interpreted to have construed a fundamental right to "reproductive autonomy" - one of the first, if not THE first, fundamental right enunciated by the Court.  Without getting too philosophical, it was this particular right upon which the entire right to privacy framework was constructed - including, notably, the right to an abortion. 

Obviously, it's going to be tough to defend these kinds of court orders against Constitutional attacks on many different levels.  While the Skinner Court was dealing with a disturbing Oklahoma law requiring sterilization for certain kinds of criminals, isn't the family court in this case, through the threat of finding the mother in contempt, ordering de facto sterilization of the mother?  Even if this doesn't constitute sterilization in the Skinner sense, the order certainly interferes with the mother's right to procreative autonomy.  If the state is Constitutionally restricted in influencing a woman's right to have an abortion, how can an order which essentially would require a woman to have an abortion in order to avoid violating a court order be Constitutional. 

Additionally, there are Equal Protection issues about applying these orders to drug addicts and the homeless, while not applying them to those who simply don't have the competence (the mentally ill, for instance) or the economic stability (the poor) to properly care for children.  Would it be proper, for instance, if a court ordered two potential parents to not have children if it was all but certain that their child would have a genetic disease?  Or if deaf parents wanted their child to be deaf as well?

Anyway, this case provides lots of juicy debate-fodder for Constitutional jurists and scholars.  I'm sure we haven't heard the last of it.


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