Less Child Abuse, Fewer Criminals? Sizing up a No-Pregnancy Order

[WSJ_law_blog]

Remember the case of Felicia Salazar, the 20 year-old Texas woman who was ordered, as a condition of probation, not to have children? Salazar had 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.

The case interested us so much that we revisited some of those Con law classics like Buck v. Bell and Skinner v. Oklahoma, did some reporting of our own and penned a column on Salazar’s case for today’s paper, which you can read here.

In the course of reporting, we received some notable comments from the three lawyers in the case — the judge, the prosecutor and Salazar’s defense attorney — and an uninvolved professor who’s represented a male defendant who received a similar order.

The Judge: “Under Texas law, judges can impose any condition on probation so long as it’s reasonable,” Judge Charlie Baird, who fashioned the no-pregnancy order for Salzar, told the Law Blog.



“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.” He added: “I’m not even preventing her from having intimate sexual relations. I’m only preventing her from becoming pregnant.”

But how about enforceability? If Salazar becomes pregnant, must she choose among concealing the pregnancy, abortion or incarceration? Alternatively, could Judge Baird order her to carry a pregnancy to term but then give the child up for adoption?

Not likely, Judge Baird told us, though he made clear he was merely hypothesizing. Should she become pregnant, he said, he could revoke her probation and put her in prison. Or, he says, he could remove the condition or impose a new one—that she get prenatal care, for instance. “It’s only limited by your creativity.”

The Prosecutor: Allison Wetzel, the Travis County assistant DA who prosecuted Salazar, said, “I’ve been doing this almost 21 years and I’ve never seen a judge do this. This was not something that the defense and the prosecutor agreed on. This was something that Judge Baird added himself after the plea agreement had already been made.” She added: “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.”



The Defense Lawyer: “I’ve never handled a case where this kind of order was entered,” said Kent Anschutz, the defense attorney for Salazar. “Generally, for someone who’s worked in the criminal courts for over 20 years, there’s certainly a sense that if you don’t have child abuse you can eliminate one of the major causes creating future criminals. It’s just an obvious thing that children that are unwanted, unloved and abused end up with problems of many kinds, and end up ultimately in the criminal justice system.”

When we asked Anschutz whether he agreed with Judge Baird’s no-pregnancy order, he said: “I certainly understand the motivation of the trial judge in entering the order. Ultimately, whether these kinds of orders are constitutional — that’s a whole other legal question.”

The Professor: In 2002, Harvard Prof Laurence Tribe repped a Wisconsin man who received a probation order similar to Salazar’s.



David Oakley, a father of nine children who pleaded no contest to charges that he intentionally failed to pay child support, was ordered not to father any more children until he could show the court he was capable of supporting the ones he had. The Wisconsin Supreme Court, in a split decision, upheld the constitutionality of the order. (The U.S. Supreme Court denied cert.)

When we asked Professor Tribe what he thought about Salazar’s case, he said that Judge Baird’s order is “tantamount to sterilization” and abridges Salazar’s reproductive freedom as guaranteed by Roe v. Wade.