Can a Judge Order a Woman to Stop Having Childen?

[WSJ_law_blog]

In a move that some believe defies Constitutional law — if not enforceability — a state judge in Texas has ordered a woman, as a condition of probation, to stop having children.

The woman is 20-year-old Felicia Salazar, who admitted to failing to provide protection and medical care to her then-19-month-old daughter, who suffered broken bones and other injuries when she was beaten by her father. Both Salazar and the father relinquished their parental rights, and the daughter was placed in foster care.

Judge Charlie Baird sentenced Salazar, who had no criminal history, to 10 years of probation. In addition to requiring Salazar to perform 100 hours of community service and to undergo a mental health assessment, Baird told Salazar not to have any more children. Here’s a report from the Statesman.

In an interview, Judge Baird told the Statesman that Texas law gives judges the discretion to set any conditions of probation deemed reasonable. He also said that neither Salazar nor her lawyer, Kent Anschutz, objected.

Anschutz said he is considering his options on behalf of Salazar. He described her as concerned about Baird’s order. “Although I fully understand the sentiment and perspective of the judge in this matter, I question the enforceability of that particular condition,” he said.

Douglas Laycock, a Michigan law prof, said the condition of probation is “probably unconstitutional.” Said Laycock: “The state rarely tries to stop people from becoming parents, so there has not been much occasion to litigate that. But undoubtedly there is a constitutional right to have children . . . and I doubt that one conviction for injury to a child is enough to forfeit that right.”

But Laycock says there is some chance the order will stick. He said that in a past Wisconsin case, a father of nine who was convicted of intentionally failing to pay child support was ordered to have no more children as a condition of probation. The Supreme Court of Wisconsin upheld that condition. “So there’s room for argument here,” Laycock said. “But I would think that if she challenges this order, it will be struck down.”

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