Can a Judge Sentence a Mother to Not Get Pregnant Again?

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Stop me if you’ve heard this before: a primetime legal drama with an outrageous plot.

You’ve seen it happen before, a favorite prime time legal drama, down to the wire seemingly impossible to go the way the home audience expects it to go, yet at the last minute somehow finds it slung shot to victory because of a reference to an obscure but seemingly highly influential previous case ruling precedent. It happens a lot on television. The lawyer points out what a judge ruled in another case and the current case judge is swayed, case close. In the September 2008 child abuse case against the parents of a 19-month-old, severely abused, baby girl, a precedent may have been set, or influenced by one, regardless the ruling is full of implications you are going to want to hear more about.

Let’s take a step back, what exactly is a judicial precedent?

A judicial precedent attaches a specific legal consequence to a detailed set of facts in a case, or decision. This furnishes guidelines, or rules, for determining subsequent cases with identical or similar situations. Precedence is central to legal analysis for obvious reasons, but what television doesn’t lay out for the viewer, is that there are several types of “precedent,” and they come with varied weight.

binding, or mandatory precedent, is one that must be applied or followed under the judicial hierarchy.

Persuasive precedent is not mandatory, includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, and cases made in other parallel systems. In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues.

Custom precedent describe long-held customs that have traditionally been recognized by courts and judges, and so deeply entrenched in the society that it gains the force of law regardless if there has never been a specific case decided upon.


The 2008 child abuse case took place in Texas, presided by Judge Charlie Baird. Not only did he rule that both parents, 20-year-old mother, Felicia Salazar, and the abuser in questions, the 25-year-old father, Roberto Alvarado, relinquish their parental rights completely; Alvarado also received a minimum of 10 years prison sentence. For Ms. Salazar, because of her failure to provide her daughter proper medical attention and basic protection, she received a suspended prison sentence and 10 years’ probation, with what he called, the “reasonable condition,” to not conceive or bear any more children during that time.


Now, the argument as to whether this is unconstitutional and/or un-enforceable, are obvious. What would happen if Salazar did become pregnant, would she be expected to conceal or abort the pregnancy under penalty of incarceration? Is this an abridgement to Salazar’s reproductive freedom as guaranteed by Roe v. Wade? Was this ruling just flat out too drastic? Perhaps the issue really lies with what one considers to be a, “reasonable condition,” or even, a “fundamental right.”

Judge Baird explained to the Wall Street Journal Law Blog that, “Under Texas law, judges can impose any condition on probation so long as it’s reasonable. She has a fundamental right to reproduce, so I couldn’t order her to be sterilized. But she can be forced to forfeit certain fundamental rights. I’m not even preventing her from having intimate sexual relations. I’m only preventing her from becoming pregnant.”

He additionally implied that should she become pregnant, he could revoke her probation and put her in prison, or remove the condition, or impose a new one, such as that she get prenatal care.

But again, I ask, are we allowing an infringement on a woman’s fundament right? Is parenthood a fundamental right of a person? Even Kent Anschutz, the defense attorney for Salazar, one could say to a certain degree, when asked by WSJ his thoughts on the order, agreed with the judge, he said he could, “understand the motivation of the trial judge.”

 pregnant-woman- source womens day dot com (2)

 

Judge Baird explained to the Wall Street Journal Law Blog that, “Under Texas law, judges can impose any condition on probation so long as it’s reasonable. She has a fundamental right to reproduce, so I couldn’t order her to be sterilized. But she can be forced to forfeit certain fundamental rights. I’m not even preventing her from having intimate sexual relations. I’m only preventing her from becoming pregnant.”

He additionally implied that should she become pregnant, he could revoke her probation and put her in prison, or remove the condition, or impose a new one, such as that she get prenatal care.

But again, I ask, are we allowing an infringement on a woman’s fundamental right? Is parenthood a fundamental right of a person? Even Kent Anschutz, the defense attorney for Salazar, one could say to a certain degree, when asked by WSJ his thoughts on the order, agreed with the judge, he said he could, “understand the motivation of the trial judge.”

I would argue that parenthood is not a fundamental right and even go as far as disagreeing with it being a constitutional right as well.  I view rights and desires separately. You can have the right to have a desire and pursue it under terms based on your behavior, but just because you have a desire, does not mean you have a right to it. Where does the law explicitly say, every person in America is has an inherent right to become a parent? It doesn’t. If that where the case, shouldn’t people be taking themselves to court and suing their own bodies because of their betrayal to align with their conceived wants—like all the men and women who want to be biological parents but their bodies will not allow it. What then?

Our laws are intended to protect and afford people opportunities to life in general and promote environments to create lives they like. We have laws saying when you can have sex and when you can drink, based upon the ideas that at these ages you’re better equipped to handle it or make long term decisions for yourself. These may not be the best examples, but the laws where created for a reason. That said, Judge Baird did not order her to be sterilized because of her current obvious failure as a mother. When that in fact has been a court approved measures a part of our American history unfortunately. That would have been too drastic.

Judge Baird explained to the Wall Street Journal Law Blog that, “Under Texas law, judges can impose any condition on probation so long as it’s reasonable. She has a fundamental right to reproduce, so I couldn’t order her to be sterilized. But she can be forced to forfeit certain fundamental rights. I’m not even preventing her from having intimate sexual relations. I’m only preventing her from becoming pregnant.” He further implied that should she become pregnant, he could revoke her probation and put her in prison, or remove the condition, or impose a new one, such as that she get prenatal care.

Is parenthood a fundamental right of a person?

But again, I ask, are we allowing an infringement on a woman’s fundament right? Is parenthood a fundamental right of a person? Even Kent Anschutz, the defense attorney for Salazar, one could say to a certain degree, when asked by WSJ his thoughts on the order, agreed with the judge, he said he could, “understand the motivation of the trial judge.”

I would argue that parenthood is not a fundamental right and even go as far as disagreeing with it being a constitutional right as well.  I view rights and desires separately. You can have the right to have a desire and pursue it under terms based on your behavior, but just because you have a desire, does not mean you have a right to it. Where does the law explicitly say, every person in America is has an inherent right to become a parent? It doesn’t. If that where the case, shouldn’t people be taking themselves to court and suing their own bodies because of their betrayal to align with their conceived wants—like all the men and women who want to be biological parents but their bodies will not allow it. What then?

Our laws are intended to protect and afford people opportunities to life in general and promote environments to create lives they like. We have laws saying when you can have sex and when you can drink, based upon the ideas that at these ages you’re better equipped to handle it or make long term decisions for yourself. These may not be the best examples, but the laws where created for a reason. That said, Judge Baird did not order her to be sterilized because of her current obvious failure as a mother. When that in fact has been a court approved measures a part of our American history unfortunately. That would have been too drastic.


Allison Wetzel, the Travis County assistant DA who prosecuted Salazar, has said, “I think when the average person hears a story of a mom who failed to protect a child, their instinct is that she doesn’t deserve to have a child. But we don’t get to decide that for her.”


But can’t we? It was decided that she is no longer allowed to be that child’s parent ever again. The judge did not rule that she was never allowed to become a mother ever again, just not for a certain amount of (reflection perhaps?) time, and furthermore she will not be locked away for the duration.

I’d like to believe legal sterilization was originally rooted in taking a preemptive measure to stop the creation of lives that would inevitably be harmed by the ones that created them. The misdirection in it is that you harm the person being sterilized and subject them to cruel and unusual lifelong punishment by way of a medical procedure. (Hence why it should never be on the table in a forced matter) Prison time, and I say this loosely, is meant to facilitate reform. But would our penchant for throwing people in the slammer for absurdly long stretches not be served better by becoming more creative or reasonable intentional in our sentencing, if it would lead to a path of actual corrective decision making? I think so.

Maybe you think 10 years is too long.

Okay, I get that. If that’s the case, you’re not alone, in 1999, an Indiana state appeals court struck down a no-pregnancy for eight years condition given to a mentally impaired woman who was found guilty of neglecting a dependent in connection with the death of her infant son. The ruling was reserved on grounds that it violated the woman’s “privacy right of procreation” and that the goal of preventing injury to a child could be served by less-restrictive means.

At the same time a similar condition by a state judge in Wisconsin was upheld, in 2001, in the instance of David Oakley. The father of nine, plead no contest to charges that he “intentionally” failed to pay child support. As a condition of probation Mr. Oakley was ordered not to father any more children until he could show the court he was capable of supporting the ones he had. Would you find error with this ruling?

Salazar’s judge found there to be value in the probation condition he created and it is yet to be contested by the recipient. Will cases like this serve as persuasive precedent to future cases? Time will tell. If nothing else I’m sure Law and Order SVU will find some way to include it in plot if they haven’t already.

 

Writer and curator of interesting12, Maggie is a DC based writer with a heart for nonprofits, a passion for complicated people, and lover of all things well designed and well said. This former longtime LA resident is a firm believer we should be challenging ourselves to discuss what affect us in this world and how. She’s opinionated, a teller of both sides of the story, and some say she’s clever.