Reproductive freedom isn't an absolute
Detroit Free Press
Friday, July 11, 2003
By Brian Dickerson Nearly four decades have passed since the U.S. Supreme Court decreed that the government may not prohibit its citizens from using contraceptives. But does it follow that the government may never require anyone to practice birth control -- even if he or she has a history of child neglect? The question, which has never been answered definitively, is joined squarely in a case pending before the Michigan Court of Appeals. Renee Gamez, a heroin-abusing mother of two, contends that Lapeer County Circuit Judge Michael Higgins went too far when he ordered her to furnish "verifiable evidence" she is using birth control. Gamez, whose daughters, ages 1 and 3, were placed in foster care last December after she was arrested for driving under the influence of drugs with both girls on board, says the contraceptive measures suggested by Higgins could endanger her health. In a brief filed with the Court of Appeals, Gamez's attorney argues that Higgins' order violates her client's right to privacy and forces Gamez to choose between losing her daughters and jeopardizing her health. Concern over sterilization
But Higgins says the state's interest in guaranteeing the welfare of Gamez's children trumps her right to reproductive freedom. And in a court hearing last January, he all but sneered at the mother's protests that contraceptive patches or injections would make her "violently ill." "If you're going to get sick, too bad," the judge snapped. "You're going to stop having babies that you can't take care of." Federal courts have been reluctant to permit government meddling in the sexual lives of its citizens, especially when the state attempts to decide who may reproduce. "The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects," U.S. Supreme Court Justice William O. Douglas observed in a 1942 ruling overturning a law that mandated sterilization of repeat felons. "In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear." Consequences of freedom
But state judges frustrated by abusive parents who use their reproductive freedom to bring new victims into the world have begun testing their power to say when enough is enough. In one notable case, Minnesota's highest court recently upheld a trial judge's order barring a man who refused to pay support for his nine children from fathering any more. Douglas' concern is no less relevant today. But it's getting harder for civil libertarians to make the argument that the right to reproductive freedom should be absolute. No journalist argues that the First Amendment licenses him or her to publish deliberate falsehoods. And even the most fanatical gun advocates concede that those who use their weapons to rob or kill innocent citizens should forfeit their right to bear arms. Surely it's not unreasonable for the state to ask whether a mother who admits neglecting her existing children should be free to produce more prospective victims without legal consequences. Michigan's appellate courts need to establish sensible procedures for weighing the privacy rights of parents against the interests of at-risk children and a society determined to protect them. But we can no longer afford the delusion that the reproductive choices of abusive parents are of no consequence to the rest of us.
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