Conservative-run state legislatures across the country have provided a seemingly unending supply of increasingly restrictive anti-abortion measures, but a case out of Ohio is a reminder that government restrictions on access to abortion care represent one piece of a larger attack by conservatives on procreation and family rights generally.
Asim Taylor has four children with four different women, to whom he owes nearly $100,000 in child support payments. Taylor recently pleaded guilty to four charges of felony nonpayment of child support. In connection with his plea, an Ohio judge placed Taylor on probation and, as a condition of that probation, ordered Taylor not to have any more children until he had paid his child support debt. Specifically, Taylor was ordered to “make all reasonable efforts to avoid impregnating a woman during the community control period or until such time that [he] can prove to the Court that he is able to provide support for his children he already has and is in fact supporting the children or until a change in conditions warrant the lifting of this condition.”
At the time of sentencing, Judge James Walther reportedly called his order a “matter of common sense and personal responsibility.” But Taylor’s attorney objected to the probation condition, arguing it violated a host of Taylor’s reproductive privacy and equal protection rights. This month, an Ohio Court of Appeals upheld the order and opened the door for imposing similar restrictions on defendants in the future.
The decision released by the Ohio Court of Appeals did not actually rule on Taylor’s constitutional challenge, but instead said that because the documents before the court were incomplete, it had no choice but to affirm the probation order. Judge Donna Carr, a former prosecutor and Republican, took the opportunity in Taylor’s case to go even further than her colleagues, arguing that the probation condition was both warranted and constitutional. “Taylor has here demonstrated that he is not inclined to support any of his children. There is no reason to believe that he would be inclined to support any future children,” she wrote. Therefore, Carr reasoned, because Taylor “demonstrated a long-term refusal to support multiple children by multiple women notwithstanding his ability to work and contribute something for their care,” an order barring him from having more kids is “reasonably related to future criminality.”
Roe has collapsed and Texas is in chaos.
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Generally speaking courts have come to mixed conclusions on whether or not
procreation limits like the one at issue in Taylor’s case are acceptable, and there’s uncertainty in the law here, not to mention the United States’ atrocious history of forced sterilizations and violations of reproductive autonomy. In 1927, in Buck v. Bell, the Supreme Court infamously and almost unanimously upheld the compulsory eugenic sterilization of the “mentally defective.” And in 1942, in Skinner v. Oklahoma, the Court invalidated an Oklahoma law that involuntarily sterilized some recidivist felons, noting that only the most compelling government interests should support interference with the fundamental constitutional right to procreate. The Supreme Court in Skinner didn’t directly overrule Buck, but it did recognize that procreation is a fundamental constitutional right, setting a high bar for the state to clear should it want to impose limitations on that right. Unfortunately, though not surprisingly, courts have seemed most sympathetic to those government actions and policies that most directly restrict the reproductive rights of the poor and people of color.
With both the expansion of the surveillance state and the explosion of income
inequality, the willingness of courts to impose—let alone uphold—the kind of restrictions at issue in the Asim Taylor case should raise some serious concerns for reproductive rights activists. For example, a Wisconsin Supreme Court decision in 2001 upheld a condition of probation that limited a defendant from having any more children during the five-year term of his probation unless he could show that he had the ability to support the new children and that he was supporting the children he already had. The court reasoned that convicted persons don’t enjoy the same liberty interests as non-convicted persons, and therefore the state could more reasonably limit their rights to procreate. And a Texas court ordered a woman not to have any more children while on probation for failing to protect her child from a beating by the child’s father.
Perhaps in cases of extreme neglect or failure to support, it’s easier to stomach the kind of probation condition ordered for Taylor and other convicted persons. And there’s a long line of case law that justifies more state invasions of privacy based on a person’s relationship to the criminal justice system. But as the Buck v. Bell decision makes so clear, it really is a slippery slope from determining who is “fit” by the state’s standards to reproduce and who is not. In Buck v. Bell, the Supreme Court justified the mandatory sterilization law by reasoning that “three generations of imbeciles are enough,” reflecting
a disdain for people with developmental disabilities in our culture and enshrining it in our law.
As more and more people fall into the reach of the criminal justice system simply because they are poor, decisions like those
made in Taylor’s case threaten to do the same with the cultural disdain for poverty.
Taylor’s attorney reportedly has said he plans to ask the Ohio Supreme Court to review the decision.