Unlimited Reproduction?

Judge Marilyn O'Connor is at it again. For the second time in as many years, this family court judge has ordered a drug addicted mother to cease bearing additional children until she cleans up her act. The question is, can the American legal system withstand such sudden injection of common sense?

The 31-year-old mother, identified in court papers only as Judgette W., lost custody of her children, ranging in age from eight months to 12 years, in child-neglect hearings dating back to 2000. Six are in foster care and one lives with an aunt.

The youngest child, Victoria, and two others tested positive for cocaine at birth, and all seven "were removed from her care because she could not and did not take care of them," Judge O'Connor said in a December 22 decision made public yesterday [January 4].

Judgette W., incidentally, is not being coerced into abortions or sterilizations, she is being threatened with contempt of court and jail time if she becomes pregnant again. According to the court papers, Judgette W. is also a prostitute. Judge O'Connor took pains to explain her reasoning:

"Because every child born deserves a mother and a father, or at the very least a mother or a father, this court is once again taking this unusual step of ordering this biological mother to conceive no more children until she reclaims her children from foster care or other caretakers," O'Connor wrote.

One might think this line of argument to be rationally (and morally) unassailable, but of course, the New York Civil Liberties Union (NYCLU) disagrees with the judge. In the NYCLU's view, Judge O'Connor's decision is unacceptable because it "tramples on a fundamental right - the right to procreate."

"There is no question the circumstances of this case are deeply troubling," said the group's executive director, Donna Lieberman. "But ordering a woman under threat of jail not to have any more babies ... puts the court squarely in the bedroom. And that's no place for the government."

True enough. Certainly Americans do not want a government that intrudes into its citizens personal lives, nor attempts to dictate the very private decisions regarding whether or not one should have a family or how large a family. Such a government would end up as a tryanny, not matter how well intentioned its policies. However, in the case of Judgette W., the government is not the intruding party. Judgette made her personal life and reproductive decisions the business of the government by engaging in irresponsible and illegal behavior that placed her children in danger. Once her children were found to be at risk, the state had every right to intercede on their behalf - it being the proper duty of the state to protect its citizens. Thus, Judgette imposed significant costs and burdens on the state and its agencies, costs that the taxpayers must assume. Since Judgette's history of reproductive choices, combined with her general lifestyle choices, had created the need for state intervention and since that history and her current behavior indicated that, left unchecked, she would continue to threaten the health and well-being of future offspring and increase the financial and custodial burden on the state, the state was well within its rights to insist that she cease behavior that would perpetuate that situation.

Had Judgette managed her affairs better, she could have had as many or as few children as she wanted - so long as the conditions in which she raised those children did not invite state intervention. To argue, as the NYCLU does, that a person has the unlimited right to procreate no matter what burden that procreation places on society, or what risk it poses to future offspring, defies reason.

The NYCLU, however, specializes in using the law to defy reason. In a brief filed in the appeal of Judge O'Connor's previous order barring a couple of drug addicts from having additional children, the NYCLU argues:

The burden is on the proponent of the infringement (here, the judge) to justify it. However, Judge O'Connon failed to establish in her decision that saving money is a "compelling state interest" or that prohibiting Stephanie and Rodney [a drug addicted couple who faced a similar order from the judge in March 2004] from having more children until they can prove that they, as opposed to "society," can support the children is narrowly tailored to acheive that compelling state interest. Without having established that her order passes strict scruitiny analysis - or even recognizing the fundamental nature of the right to procreate - Judge O'Connor's order not to procreate fails the constitutional test and must be deemed to violate Stephanie's and Rodney's right to privacy under both the federal and state constitutions.

Actually, saving money can, I think, be justified as a compelling state interest. The state has only such money at its command (excluding Washington's profligate tendency to borrow). Every additional cost that the state has to assume means that money must be taken away from some other program, or that the state must borrow, which in the long term means the same thing. If Rodney and Stephanie continue to add to the foster care rolls every year, along with Judgette and those like them, then the money available for foster care must be increasingly spread out among ever more children, with the result that the quality of care will suffer. Or, alternately, additional funds must be appropriated to foster care, funds taken away from other programs. There exists a limit to the amount of money available to government, every unnecessary expense (ignoring the inevitable waste and corruption) deducts from the funds available to dispense to worthy goals. Every additional child in foster care, especially those born cocaine-addited and requiring significant medical care, means a reduction in services elsewhere - perhaps to welfare programs funding AIDS or cancer treatment, or care of the indigent elderly. If preventing such needless costs doesn't constitute a "compelling interest" one can't imagine what does.

Of course, the NYCLU can't resist employing the mandatory leftist tactic - the race card:

Furthermore, the ban, if replicated, will disproportionately impact the poor and persons of color, who make up the largest share of individuals in front of the Family Court. Nationally, children raised in poverty are more likely than other children to be reported to child protective services and to be placed in substitute care. Indeed, poverty level is the most accurate predictor of foster care placement and the duration of time a child spends there. As a result, the child welfare system is marked by significant race and class disparities. The statistics locally are similar: although in 2000, only 14% of Monroe County [New York] is African American, black children made up nearly 50% of children in foster care. Through this ban, the court has attempted to engage in a kind of eugenics that this country no longer tolerates.

Poverty may well be the greatest predictor of whether a child find himself in the foster care system. But what is the greatest predictor of poverty? Lousy decisions - including the decision to have more children than one can afford to raise, or having children out of wedlock, or having children when one is addicted to drugs, or having children when one is a prostitute. These are the decisions that place one at the highest risk of poverty and place children in the most danger. But the NYCLU doesn't want to mitigate such bad decisions even when they directly harm children and burden the state. One could argue, in fact, that the NYCLU engages in a racist eugenics policy of its own. By preventing any state action that would mitigate the reasons people fall into poverty (or remain mired there), groups like the NYCLU is ensuring that the population of impoverished people increases. If African Americans (or other groups) are disproportionately represented there, then groups like the NYCLU could be construed as manipulating policy to increase the numbers of African Americans born into poverty, and working to keep them in poverty. Why groups like the NYCLU might want to do so is anyone's guess. But it is not in the interest of the people they claim to represent (whose lives will only grow worse under the burden of mor children), the children who result from such unhappy procreation (who will face of life of poverty and physical impairment) and society in general, whose resources and fabric will be strained.

The American Civil Liberties Union (ACLU) underscores the perception that left-leaning organizations actually want to increase the number of people (particularly minorities) living in poverty through its aggressive opposition to even private efforts to limit the number of children born to crack addicts. In California, a privately funded and operated program called CRACK (Children Requiring a Caring Kommunity) offers female drug addicts $200 to get sterilized. There is no government involement in this program, yet the ACLU has mounted a militant public relations campaign against it. Why?

The ACLU of Southern California and numerous medical and drug treatment professionals oppose this incentive program because it uses financial coercion to induce female drug addicts to surrender control over their reproductive choices at a time when they are not able to offer truly informed consent. Further, this unsound and coercive proposal diverts scarce support and funding from accessible treatment and maintenance programs to keep women drug-free.

A $200 payment to a drug addict in exchange for her sterilization is a demeaning alternative to women in a vulnerable situation. Desperate addicts use desperate means to support their habits. CRACK's sterilization incentive, designed as it is to give drug addicts money that will most likely be used to support their habit, is like offering a woman payment for sex to finance her next fix. The underlying problems fueling substance abuse are not addressed.

Notice that the ACLU first argues against this program because it "diverts scarce support and funding from accessible treatment and maintenance programs to keep women drug-free." Yet its sister organization, the NYCLU, says that there is no "compelling state interest" in saving state money - money that would presumably be spent on such programs. Worse, the ACLU, which likes to position itself as a defender of one's right to choose, including presumably a woman's right to use drugs, now condemns her right to accept a cash payment from a private source - and the private source's right to make such an offer. So much for freedom of choice. The ACLU goes on - almost incoherently - to argue that offering the cash payment constitutes "financial coercion" to get the woman to take birth control or be sterilized and that this is improper because the drug addicted woman cannot make a rational decision because of her addiction.

The ACLU is arguing that a drug addict cannot make any decision because his or her mind is impaired. Thus there can be no informed consent. But if that's true about accepting a cash payment for birth control or sterilization, then it must also be true about other decisions. If a drug addict decides - without financial compensation - to get an abortion, say, how can we be sure that she has truly offered informed consent. Will the ACLU be haunting abortion clinics, suing to prevent drug addicts from freely choosing abortions? (Don't hold your breath.) What about cooperation in government rehabilitation programs? Since a drug dealer can't offer informed consent due to their condition, should they be permitted to check themselves into rehab? After all, their mental state is impaired. If a private program offered cash drug addicts in exchange for their willing admission into rehabilitation, that would be improper too, under the ACLU's reasoning, since it would be financial coercion and lack of imformed consent. The ACLU's reasoning is so perverse, it defies comprehension.