- The Washington Times - Tuesday, October 1, 2002

The right to be a parent faces imminent Supreme Court tests in appeals by a "deadbeat dad" of nine from a Wisconsin jail and a childless three-striker destined to die in a California prison.
Their separate cases asserting an untrammeled right to procreate have reached the high court in response to judges banning promiscuous and nonsupportive men from having more children or from even having sexual intercourse.
Among the 2,098 appeals that justices will confront when their summer recess ends next week is David Oakley's assertion that Wisconsin unconstitutionally outlawed his impregnating anyone for five years. The restriction was the post-prison part of a sentence for feloniously refusing to pay $25,000 in support for nine children he fathered with four women.
Circuit Judge Fred Hazlewood sentenced Oakley to eight years in prison and suspended five years if Oakley "avoids having another child unless he showed that he could support that child and current children."
The Wisconsin Supreme Court split 4-3 along sexual lines in ruling against Oakley, who is in his mid-30s.
All three female justices opposed the decision because it "allowed the right to have children conditioned upon financial status," an objection seconded in friend-of-the-court briefs from unlikely allies the National Organization for Women and the Center on Fathers, Families and Public Policy.
"We recognize procreation as a fundamental right. But this is an alternative to going to prison for five years where he could not procreate at all," said Diane Welsh, the assistant Wisconsin attorney general opposing Oakley's appeal. "I think their vote stemmed from the justices' fear that it was like a financial requirement to parenthood, which is not true."
Oakley's attorney is Harvard professor Laurence H. Tribe, a specialist on arguing constitutional issues before the Supreme Court.
The justices also await California's reply, due Oct. 17, in a case that accuses officials at Mule Creek State Prison of violating lifer William Gerber's civil rights by refusing to let him use FedEx or the U.S. Postal Service to send semen to artificially inseminate his wife, Evelyn, 47. Gerber, 44, is ineligible for conjugal visits.
"Whether [the sperm] is used to inseminate Mrs. Gerber, to clone Gerber, or as a paperweight has no conceivable effect on the safe and efficient operation of the California prison system," Circuit Judge Alex Kozinski wrote in a dissent to the 6-5 ruling allowing the state to prevent artificial insemination involving her husband.
"What Gerber seeks to do is not inconsistent with incarceration the way it would be if he wanted to carry a Glock [pistol] or conduct nuclear fission experiments in his cell," Judge Kozinski said. "Prison guards don't patrol cell blocks at night looking for inmates committing Onan's transgression."
"She can have a baby with any man in the world except her husband," said Teresa L. Zuber, the Sacramento lawyer seeking victory for the Gerbers before Mrs. Gerber is past childbearing age.
"The clock ticks, but it's not yet moot," said Miss Zuber, who said the issue has importance beyond the cell where her client is serving 100 years to life plus 11 years on a three-strikes conviction for firing a gun, making terrorist threats and using narcotics.
"It's important to everyone who cares about the degree to which the government can decide personal issues as to who can have a child and who can't have a child, particularly when you've got an unincarcerated spouse involved," she said, adding that Mrs. Gerber is financially secure and will pay all expenses.
Other courts are watching these appeals:
In Louisville, Ky., Luther Crawford, 49, avoided prison for "flagrantly failing" to pay $33,000 in support for 12 children of 11 mothers by signing a plea agreement March 12 "not to engage in any sexual intercourse."
Early this month, Medina County, Ohio, Judge James L. Kimbler ordered Sean Talty, 30, to "make reasonable efforts" to avoid pregnancies during five years of probation for not paying $43,000 in support for a half-dozen children.
In the Oakley case, the Wisconsin Supreme Court said, "Incarceration, by its very nature, deprives a convicted individual of the fundamental right to be free from physical restraint, and this in turn encompasses and restricts other fundamental rights, such as the right to procreate."
The 9th U.S. Circuit Court of Appeals adopted that language in the Gerber case.

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