In the Norplant Case, Good Intentions Make Bad Law : Courts: The choice of jail or a contraceptive implant for a woman convicted of child abuse violates her rights--and fails to help her children.

Hard problems make bad law. Visalia Judge Howard Broadman had to recognize the conundrum he faced as he ordered a woman appearing in his court on child-abuse charges to have Norplant, a new chemical contraceptive, implanted in her skin if she wanted to avoid serving three more years in jail.

Broadman imposed his unprecedented sentence on the grounds that Darlene Johnson had “shown herself to be incapable of caring for children,” and so it would be in everyone’s best interests that she not have more children “until she is mentally and emotionally prepared to do so.” His order was further justified, he said, because the state has a compelling interest in protecting any children Johnson might conceive in the future.

Child abuse is a national tragedy. Putting an end to it should be a national priority. But sentencing women who have abused their children to state-imposed sterilization is an irrational and unconstitutional reaction to the problem; it does nothing to help the already-existing victims of abuse.

First, forced sterilization, even the temporary sterilization induced by Norplant, is not an appropriate criminal sanction in a civilized society. Depriving a human being of the fundamental right to procreate as a punishment for a crime is the hallmark of totalitarianism. We do not seriously consider forced sterilization as a punishment for any crime, even murder.

Men rape women virtually every day, but face neither state-imposed sterilization nor castration. How ironic that in a society that claims to respect the inherent dignity of every individual, when a woman is in the criminal dock, forced sterilization is suddenly acceptable.

Women in this country have fought for more than 100 years to establish a right to reproductive choice, including the right to choose when to have children as well as when not to carry a pregnancy to term. We know that all the laws in the world protecting women’s equal access to political and economic rights are meaningless if every individual woman cannot control her body.

The threat of sterilization has been one of the major ways that government and others in authority have tried to remove that control from women. For example, in 1973, the federal government was sued after a federally funded family-planning clinic in Montgomery, Ala., sterilized two black teen-age girls who had merely gone to the clinic for a general checkup. Whatever the reasons--ranging from the population-limitation rationales for sterilizing low-income women to patronizing assertions that women cannot use contraceptives properly--involuntary sterilization of any woman undermines the rights of all women.

Norplant works by releasing a synthetic female hormone called levonorgestral at a slow, steady rate from an implant in a woman’s arm; it has been approved by the Food and Drug Administration but never used by the general public. To that extent, it is still experimental.

It is an irresponsible use of state authority to insist that an individual be a medical guinea pig or face a jail sentence. The crime that Johnson committed was mistreating her children, not having them. The sentence should address child abuse and not childbearing.

The judge’s attempt to force a woman to choose between jail and sterilization is flatly unconstitutional. The state has a right, indeed a responsibility, to protect children, but it has no right to control possible conception.

This reproductive decision is central to our concept of individual autonomy. The U.S. Supreme Court has ruled on the right to privacy several times this century. It has consistently held that this right in regard to reproductive decisions is among those liberties “so rooted in the traditions and conscience of our people as to be ranked as fundamental” that it must be protected and guaranteed by the Constitution.

The Supreme Court has also specifically addressed the validity of state-imposed sterilization. In 1942, the court struck down an Oklahoma statute that imposed sterilization as a penalty for individuals convicted two or more times of certain types of crimes. The court held that such punishment directly violated the Constitution by “depriving certain individuals of a right to have offspring.”

In the only appellate decision involving this issue, the California Court of Appeals ruled, in 1984, that a woman convicted of child endangerment could not be prohibited from conceiving as a condition of her probation. The Santa Cruz County case involved a mother of two young children who had repeatedly refused a court order to feed her children, who suffered from severe malnutrition and underdevelopment.

In this opinion, the appellate justices were especially interested in protecting an individual’s right of privacy from over-reaching government officials seeking to dictate birth-control decisions as an exercise of punitive power. The right of privacy, it should be noted here, is explicitly guaranteed in the California Constitution.

The saddest part of Broadman’s sentence is it does nothing to help the victims of abuse. When Johnson came before the judge, the system had already failed the Johnson children. Child abuse is not caused by having too many children. Parents with one child are accused of mistreatment; others with many children are loving and caring.

Child abuse is a disease that afflicts all income levels and races. Generally, it stems from a lack of knowledge about raising children, a history of violence within the family, plus exacerbating factors like drugs, alcohol abuse or economic deprivation.

When society refuses to dedicate adequate resources to address these problems, it sets the stage for child abuse. When parents fall prey to their own history of abuse and in turn mistreat their children, judges are left to sentence the abuser and the children are left with the scars of abuse.

If we care about abused children, we have to work at prevention. Only then will we begin to alleviate the underlying causes of this tragic cycle.

Currently society has only two long-term responses to protect battered children: either remove the children from their biological parents permanently or rehabilitate the parents so the family can remain together. Most professionals in the field prefer the latter. Preventing Johnson from having additional children does absolutely nothing to prevent her from abusing the four young children she has already conceived, and it does nothing to build a safe home for those children with their mother.

Johnson is already required as part of her sentence to undergo counseling and attend parenting classes. Her children will not be returned to her until she is capable of caring for them. No one can quarrel with this sort of sentence for child abusers.

But forced sterilization, even if it is temporary, cheapens our respect for human dignity. It deflects attention from options that cost more but deal far more effectively with the problem, and it violates a woman’s hard-won right to reproductive freedom.