Judge to Let Birth Control Order Stand : Sentence: Attorney for convicted child abuser says he will appeal ruling requiring his client to submit to surgical implant.

Saying he believes an admitted child abuser gave “knowing and voluntary consent” to his unusual sentence, Tulare County Superior Court Judge Howard Broadman refused Thursday to lift his order that the woman submit to a surgically implanted birth control device.

Defense attorney Charles Rothbaum of Visalia said he will appeal Broadman’s ruling, with the help of the American Civil Liberties Union.

Broadman’s Jan. 2 sentence was the first in the nation that requires the implantation of a new contraceptive, Norplant, which is inserted under the skin of a woman’s upper arm and slowly releases synthetic hormone that prevents pregnancy for three to five years. The tiny rubber device, approved last month by the Food and Drug Administration, is scheduled to go on sale in February.

Before denying a motion by defendant Darlene Johnson of Tulare to reconsider his sentence of one year in jail and three years of conditional probation, Broadman read part of the transcript from her original sentencing hearing.

In it, he compared Norplant to the birth-control pill, but added that it does not have to be taken daily. Johnson asked if it would harm her, and the judge said that it was reversible and had been approved by government regulators. She then assented.

Rothbaum pointed out that the word “surgery” was never used, and that his client did not know that the device would have to be implanted in her body. Broadman said he recalled gesturing during his explanation to indicate that Norplant would be placed inside the body.

The judge, appointed to the bench in 1988 by former Gov. George Deukmejian, then took the unusual step of defending himself--in court and on the record--against charges of sexism, racism and elitism.

Johnson, 27, is black, unmarried and pregnant and was on welfare when she beat two of her four children with a belt, belt buckle and electrical extension cord.

“It would make no difference if the defendant was rich or poor,” Broadman told a crowded courtroom in this busy central California farming community of 74,000. “The rights of the children must be protected. . . . The rationale for this is based on what I call common sense.”

Rothbaum, who was not present when his client agreed to the contraception condition, said after court was recessed that he believes poverty was a crucial--and unconstitutional--factor in Broadman’s decision.

“He said it didn’t have anything to do with whether she is poor or rich,” he said, “but he asked her at the original hearing whether she was on welfare. . . . What does her welfare status have to do with anything if he is not concerned with her economic status?

“What this all has to do with is a conservative political agenda that says certain classes of people should not be allowed to reproduce,” Rothbaum said.

Because it is the first case in which the Norplant birth-control method has been imposed by a court, the ruling has drawn attention from civil rights and family-planning groups who have called the idea unconstitutionally harsh and invasive of the defendant’s privacy, as well as an abuse of the technology.

Rachael Pine of the ACLU’s Reproductive Freedom Project in New York said attorneys in the organization’s San Francisco office will assist Rothbaum with the appeal.

“I am extremely alarmed by this,” Pine said, “especially since there is nothing about this order which remedies the crime.”

Pine said a probation order that included counseling or other services to help Johnson become a better parent would have been more appropriate. “Darlene Johnson could use Norplant until the day she dies, and it would not help her children one bit.”

Previous attempts to mandate birth control as an alternative to fines or imprisonment have not survived appeals. The U.S. Supreme Court in 1942 banned court-ordered sterilization, and seven years ago a California appellate court overturned a mandatory contraceptive order.

Johnson, who has been convicted over the last decade for check fraud, petty theft, burglary and battery, pleaded guilty to three felony counts of abusing two of her children, 4 and 6 years old, last September.

Court records state the children had scars and wounds on their backs, arms, necks and legs. Those two girls and a 3-year-old daughter are now in foster homes; Johnson’s eldest child, an 11-year-old boy, is staying with Johnson’s mother.