Brief Fact Summary. Petition was placed on probation for continued failure to pay child support, with a probation condition forbidding him from having any more children unless he proved that he could provide for the new children in addition to the previous. He petitioned for post-conviction relief contesting the condition.
Synopsis of Rule of Law. The probation condition was narrowly tailored and furthered a legitimate state interest, and therefore was constitutional.
Issue. Did the court violate petitioner’s constitutional right to procreate because the means employed by the court were not narrowly tailored to serve a compelling state interest?
Held. The probation condition is reasonably related to his rehabilitation because it will assist petitioner in conforming his conduct to the law.
Refusal to pay child support is a crisis with devastating implications for our children. It results in childhood poverty and enforcing payment is a major policy directive. Wisconsin law provides a broad array of punitive sanction other than incarceration.
Petitioner argues that because the court has recognized the fundamental liberty interest in a citizen to procreate, the condition here warrants strict scrutiny. He concedes that the State’s interest in requiring parents to support their children is compelling, but argues that the means employed are not narrowly tailored because his ability to procreate is effectively eliminated because he will probably never have the ability to support the children.
This court rejects the idea that petitioner has an absolute right to refuse to support his current nine children and any future children. Incarceration by its very nature would deprive him of the ability to procreate. The condition of probation is not overbroad. If he continues to refuse to pay he will face eight years in prison regardless of how many children he has, and the condition will expire at the end of his probation.
Dissent. The condition is essentially a prohibition on the right t have children. The Supreme Court has that a similar prohibition on marriage was not a justifiable means. Such a condition could have unacceptable collateral consequences such as being coercive of abortion. The majority imbues a fundamental liberty interest with a sliding scale of wealth.
Discussion. The majority placed great emphasis on the fact that incarceration would prevent petitioner’s procreation anyway, while the dissent claimed that the majority’s decision made it the only state to uphold such a condition.