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Thursday, September 25, 2008

Law - "In scattered cases, state regulation of reproductive rights remains a part of the legal culture"

Dan Slater has an interesting article today in the Wall Street Journal, beginning with discussion of forced sterilization for the "feeble-minded" in earlier times and then continuing:

Following the horrors of eugenics in Nazi Germany, the sterilization movement dwindled.

Yet in scattered cases, state regulation of reproductive rights remains a part of the legal culture -- now amid very different circumstances. Just this month, for example, a judge in Texas ordered a woman, as a condition of her probation, to stop having children after her daughter was badly abused. The order, by Judge Charlie Baird, is difficult to enforce and possibly unconstitutional. It reflects the willingness of some judges to push the limits of punishment in ways that hark back to a time before a series of landmark Supreme Court decisions elevated individual rights.

In other areas, too, the impulse behind a law can linger, in society and in the courtroom, long after the law itself has fallen into disfavor or disuse. For a long time, the state asserted control over who could marry whom. It was only in 1967 that the Supreme Court struck down Virginia's anti-miscegenation law, giving constitutional protection to interracial marriage -- and creating a broader social assumption that marriage in general was a private matter. Three decades later, many states still resist same-sex marriage.

Similarly, the rationale behind forced sterilization is making its way back into the courts in the form of no-pregnancy orders, in small numbers and often overturned on appeal. In 1999, after finding a mentally retarded woman guilty of neglecting a dependent, in connection with the death of her infant son, a state court in Indiana ordered her not to become pregnant as a condition of her eight-year probation. A state appeals court struck down the no-pregnancy condition, ruling 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.

Posted by Marcia Oddi on September 25, 2008 09:22 AM
Posted to General Law Related