RRP: Your Rights to Sexual Health Services: A Reference Card for Youth

June 29, 2004

In March 31, 2004, Judge Marilyn O’Connor of the Monroe County Family Court stirred up the legal and social services community, locally, nationally and internationally, when she released her decision in the Matter of Bobbijean P, In re Bobbijean P., No. NN 03626-03, 2004 N.Y. Slip Op. 50286(U) (Fam. Ct., Monroe Cty March 31, 2004).

The allegations made by the Monroe County Department of Human and Health Services (“DHHS”) caseworker and adopted by the judge concerning Stephanie P. and Rodney E., Bobbijean’s parents, certainly don’t cry out for sympathy for Stephanie and Rodney: drug abuse, multiple children in foster care. Of course, who knows whether the characterizations of Stephanie and Rodney by the judge or the caseworker are accurate: neither parent was there to dispute the allegations and there was no attorney present to represent their interests. Nonetheless, Judge O’Connor found that Stephanie and Rodney had neglected Bobbijean and sustained the baby’s removal from their care.

Monroe County, the petitioner, then proposed a plan to reunite Bobbijean with her parents, as required by state law. The judge adopted the plan with four modifications that were not requested by the County, the last two of which have caused all of the controversy. In these two modifications the judge ordered Stephanie not to get pregnant again until she regained custody of Bobbijean and her three other children and Rodney not to father any more children until he regained custody of Bobbijean and every other child of his in foster care.

The judge, recognizing that the order was “unusual,” acknowledged that Stephanie and Rodney had a constitutional right to conceive a child. However, she cited a 1972 Supreme Court decision, Stanley v. Illinois, 405 U.S. 645 (1972), as the basis for recognizing this right only when coupled with the ability to “raise” the children born through the exercise of this right. This ability “includes providing financial support,” the judge stated. When “society must bear the financial and everyday actual burden of care,” particularly of children likely to be neglected from birth, the right to procreate loses its “protection,” she continued. Furthermore, Judge O’Connor noted, having more children would make the “task of enabling [Stephanie and Rodney] to become adequate parents” that much “harder and more expensive for taxpayers.”

The conditions not to procreate that Judge O’Connor imposes in her order violate constitutional principles of privacy under both the United States and New York State Constitutions which underlie the right to procreate. First, the judge misstates the right to procreate. In 1942 the Supreme Court first declared it to be “one of the basic civil rights of man,” striking down a program forcing certain prisoners to be sterilized in Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). In the seventies, the Supreme Court reaffirmed the primacy of the right to procreate free from unwarranted government interference. In Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), the Supreme Court proclaimed, “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Five years after Stanley v. Illinois (the case cited by Judge O’Connor in support of her assertion that there is only a right to bear and raise a child), the Supreme Court again asserted that “the decision whether or not to beget or bear child is at the heart” of the “cluster of constitutionally protected choices,” such as marriage, contraception, abortion, and family relations. Carey v. Population Services International, 431 U.S. 678, 685 (1977).

In none of these seminal opinions did the Supreme Court condition the right to conceive a child in any way on some prognosis about a parent’s ability to raise or support the child. New York’s highest court also has repeatedly recognized that the right to privacy, which underlies the right to reproductive autonomy, is a fundamental right under the New York Constitution. Rivers v. Katz, 67 N.Y.2d 485 (1986); Cooper v. Morin, 49 N.Y.2d 69 (1979). The Court of Appeals further has recognized that the right to procreate is among those fundamental rights protected by the State Constitution’s privacy protections. In Hope v. Perales, 83 N.Y.2d 563, 575 (1994), the Court of Appeals recognized that this “fundamental right to reproductive choice, inherent in the due process liberty right guaranteed by our State Constitution, is at least as extensive as the Federal constitutional right.” Thus, under both the New York and federal constitutions, Stephanie and Rodney have a fundamental right to procreative autonomy.

And herein lies Judge O’Connor’s second constitutional error: she applied the wrong test to determine whether her order not to procreate passes constitutional muster. She offered a “balancing of interests” test (Stephanie’s and Rodney’s interest in procreating versus society’s interest in not having to bear the financial burden of potential future neglected children). However, when the government (here, the judge) seeks to infringe an individual’s fundamental rights under the Constitution, it rather must show that the infringement passes the two-part “strict scrutiny” test: it must (1) articulate one or more “sufficiently compelling state interest[s]” that justify the infringement and (2) it must show that the means chosen are “narrowly drawn” to effectuate “only those interests.” Carey, 431 U.S. at 686.

The burden is on the proponent of the infringement (here, the judge) to justify it. However, Judge O’Connor failed to establish in her decision that saving money is a “compelling state interest” or that prohibiting Stephanie and Rodney from having more children until they can prove that they, as opposed to “society,” can support the children is narrowly tailored to achieve that compelling state interest. Without having established that her order passes strict scrutiny 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.

Although courts in other states, notably Wisconsin and Ohio, have upheld bans on procreation as a condition of probation imposed on certain convicted felons, those courts employed a “reasonableness” standard — a weaker test than strict scrutiny — and based their use of such tests on state court precedents identifying the “reasonableness” test as the proper test for analyzing probation conditions. Even if these courts’ holdings were valid, there is no federal or New York precedent that would permit applying a lower standard of constitutional scrutiny to a non-criminal Family Court matter, as Judge O’Connor did here.

The order suffers from other constitutional flaws as well. Stephanie appeared only once during the neglect proceeding, early on, and waived her right to counsel. Can her waiver be said to be “knowing, willing, and voluntary,” Matter of Meko M., 272 A.D.2d 953, 954 (4th Dep’t 2000), when the judge later, in Stephanie’s absence, curbed Stephanie’s constitutional right to procreate? Rodney never appeared in court. Further, neither parent had any reason to think that the judge might issue such an order, as Monroe County had not requested that the Judge restrict the parents’ right to procreate in its disposition plan for Bobbijean and no legal precedent exists to permit such an order. Without prior notice of the prohibition to which they could be subjected, the order violates the parents’ due process rights under the Fourteenth Amendment of the Federal Constitution and Article I, § 6 of the New York Constitution.

Moreover, on a practical level, how will Judge O’Connor enforce the ban on procreation if either parent violates it? Jail? A forced abortion? Sterilization? Unenforceable orders breed disrespect for the law.

Finally, Judge O’Connor has essentially imposed a financial means test on the right to have children. Who is next? A family of four, all currently on welfare? Parents with one child in foster care for neglect? A family of eight children, all of whom in their senior years will draw Social Security and two of whom may end up on Medicaid? And what about the application of the judge’s financial logic to the exercise of other fundamental rights? For example, can New York City ban all protests (protected by the First Amendment) during the Republican convention this summer because of the extra security costs the protests will entail?

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 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.

Everybody agrees that that Stephanie and Rodney’s children should be safe and cared for. Everybody also agrees that society needs to take greater steps in breaking the “cycle of neglect.” But a ban on the fundamental right of Stephanie and Rodney to procreate — or of any person unable to financially support their children — is not going to achieve these goals and certainly cannot do so while respecting the Constitutions of this state and country. The latter goal, in particular, requires a comprehensive political solution, involving the reallocation of public and private resources, not a judicial approach that focuses on individual cases and individual punishments.

In spite of these many concerns, the judge’s decision may not be appealed. Only Stephanie and Rodney have standing to appeal the order and they must do so within thirty days after their receipt of the judge’s decision. To date, to the best of our knowledge, they have not approached an attorney to discuss the possibility.

Judge O’Connor may be encouraged to impose bans on reproduction in her future Family Court proceedings, as may be other Family Court judges in Monroe County and perhaps other areas of the State. The New York Civil Liberties Union will monitor these developments closely, and will intervene as necessary to protect all New Yorkers’ fundamental constitutional rights to reproductive autonomy.