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Birth Control as Penalty for Child Abuse

<i> Alan M. Dershowitz teaches at Harvard Law School and writes a column. </i>

You think it’s easy to be a judge? OK, you decide the appropriate punishment in the Debra Ann Forster case.

Forster, an 18-year-old mother of three from Mesa, Ariz., recently pleaded guilty to two counts of attempted felony child abuse. She had left her two baby boys, then 18 months and 6 months old, in a sweltering apartment for two days last summer. If her estranged husband had not found the babies, they almost certainly would have died. They were, in fact, hospitalized in serious condition for malnutrition, dehydration and skin lesions. Forster admitted abandoning the babies, claiming she was unable to deal with the pressure of taking care of them. She also admitted taking drugs and attempting suicide. Several months after this near disaster, while in jail, Forster gave birth to yet another baby, this time a daughter. There was no evidence that her emotional state had improved.

What is a judge to do under these circumstances? It is always easier to decide what a judge should not do. In this case, Judge Lindsay Ellis Budzyn handed down a sentence that is sure to offend civil libertarians, religious fundamentalists, feminists and nearly every other “ist.” The judge sentenced the defendant to remain on birth control for the rest of her child-bearing life. In addition, she may never again see her children (they have been put up for adoption) and she cannot baby-sit for others.

This sentence of legally mandated childlessness will be enforceable through the mechanism of lifetime probation. Unless the defendant can provide “written proof"--whatever that means in this context!--that she is using birth control, she will be sent back to prison.

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Understandably, the American Civil Liberties Union of Arizona is objecting to this “stunning violation of a person’s right,” as is Forster’s public defender. The religious right, which opposes birth control, will complain, as will feminists who believe in a woman’s right to reproductive freedom. Many people with no particular political or religious affiliation also will be uncomfortable with government-imposed birth control, a concept associated more with totalitarian regimes than with democracies.

Nor are the constitutional issues mooted by the fact that Forster has the option of going to jail rather than complying with the judge’s birth-control order. When a court gives a defendant a choice of punishments, all the options must be constitutional. For example, a judge should not be able to give a defendant the choice between attending church services or going to prison, since no government official is empowered to mandate religious observance.

But the question remains, what is to be done to a woman who is biologically capable of giving birth to babies but emotionally incapable of bringing them up? Enforced sterilization has been used, even in the United States during this century, against persons believed to be mentally retarded. But this may be the first case in which mandatory birth control has been imposed as a punishment for crime. To be sure, long sentences of imprisonment have occasionally been used as an indirect form of birth control. But we know that women can give birth and even conceive while behind bars.

Among the most offensive aspects of Judge Budzyn’s sentence is its duration. Forster has been condemned to a lifetime of childlessness, regardless of how she may mature or change over time. As Budzyn recognized, Forster is “a child, bearing children.” But children do grow up (at least if given the chance that Forster nearly denied her babies). In a few years, it is possible that Forster will be emotionally capable of caring for children.

I suspect that the judge was engaging in a bit of muscle flexing--as well as media hype--in imposing the life sentence. If Forster were to come back to court in a few years with some reliable expert assessment of her capacity to raise children, it is unthinkable that a court would actually say: “This was a punishment of lifelong childlessness and I’m sticking to it.” But even an older, more mature Debra Ann Forster will have a heavy burden to overcome if she seeks to get off the court-imposed pill (or whatever form of birth control the court wants her to prove she is using).

What Judge Budzyn did was wrong. But I ask you to think what would have been the right punishment or other response for an 18-year-old child who insists on bringing into the world children who deserve far more than she is able to give them. “To let the punishment fit the crime” may have been the “object all sublime” of the fictional Mikado. But real-life judges have few options available other than the traditional punishments of imprisonment and fine. And in cases like Forster’s, these black-and-white options seem inadequate in coping with the real-life tragedies of life and death confronting the sentencing judge in this case.


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