National Partnership for Women & Families

Daily Women's Health Policy Report

September 26, 2008

The Wall Street Journal on Thursday examined how a "scatter[ing]" of no-pregnancy orders in state courts is reflective of state laws in the first half of the 20th century, which included forced sterilization of women "deemed unfit for motherhood." Few judges have issued rulings ordering women not to become pregnant in recent years, and such orders often are overturned on appeal. However, "state regulation of reproductive rights remains a part of the legal culture," the Journal reports.

One of the most recent orders involves the case of Felicia Salazar, a 20-year-old Texas woman, who pleaded guilty to failing to provide medical care for her 19-month-old daughter's broken bones and other injuries caused after being beaten by her father. Judge Charlie Baird this month ordered Salazar to stop having children as a condition of her 10-year probation. According to the Journal, the order is "difficult to enforce and possibly unconstitutional," and "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 another case, a mentally disabled women from Indiana who was found guilty of neglecting a dependent, in connection with the death of her infant son, was ordered by a state court not to become pregnant as part of her eight-year probation. A state appeals court struck down the order, ruling that it violated the woman's "privacy right of procreation" and that the aim of preventing injury to a child could be served by less restrictive means. However, in 2001, the Wisconsin Supreme Court, in a split decision, upheld a court order directing a man who had failed to pay child support for his nine children to not father any more until he could support the children he already had.

Baird said that such orders are constitutional in Texas, adding that, under state law, "judges can impose any condition on probation so long as it's reasonable." He added that Salazar "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. I'm not even preventing her from having intimate sexual relations. I'm only preventing her from becoming pregnant."

Laurence Tribe, a professor at Harvard Law School who represented the man who failed to pay child support, said that Baird's order is "tantamount to sterilization" and that reproductive rights are guaranteed by Roe v. Wade. Allison Wetzel -- the Travis County, Texas, assistant district attorney who prosecuted the mother who failed to protect her daughter from an abusive father -- said she agreed the mother should have been placed on probation but did not agree with the no-pregnancy order. "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," Wetzel said, adding, "But we don't get to decide that for her" (Slater, Wall Street Journal, 9/25).