Pubdate: Thu, 17 Jul 2003
Source: Detroit Free Press (MI)
Copyright: 2003 Detroit Free Press
Contact:  http://www.freep.com/
Details: http://www.mapinc.org/media/125
Author: Brian Dickerson, Free Press Columnist
Bookmark: http://www.mapinc.org/find?175 (Pregnancy)
Bookmark: http://www.mapinc.org/women.htm (Women)
Bookmark: http://www.mapinc.org/heroin.htm (Heroin)

BIRTH-CONTROL RULING RAISES TOUGH ISSUES

Thirty-seven-year-old Renee Gamez has a history of heroin abuse. She also 
has five children, none of them currently in her custody.

The judge overseeing the parental neglect case involving Gamez's two 
youngest children thinks it would be a good idea if Gamez refrained from 
getting pregnant again while she's trying to overcome her addiction and 
regain custody of her existing kids.

But Gamez has taken exception to Lapeer County Circuit Judge Michael 
Higgins' demand for proof that she is practicing birth control. In briefs 
submitted to the Michigan Court of Appeals, her attorney argues that 
Higgins' order violates Gamez's constitutional right to control her 
reproductive destiny.

I wrote about the controversy surrounding Higgins' order last week, 
anticipating what I was certain would be a spirited debate between civil 
libertarians and those who want to limit the reproductive rights of parents 
who abuse drugs, children or both.

If my own correspondence is any indication, child welfare workers, 
maternity ward nurses and many taxpayers are spoiling for such a fight. But 
few elected officeholders are eager to wage one.

The Court of Appeals apparently will rule on Gamez's appeal without hearing 
oral arguments. And while virtually every prosecutor and judge I've spoken 
to privately expresses sympathy with Judge Higgins' frustration, no one has 
filed a brief defending his order.

"It's something everyone would like to be able to do, to tell parents in 
that situation 'That's it! You've got to stop having babies!' " says Lapeer 
County Prosecuting Attorney Byron Konschuh, whose office represents the 
Family Independence Agency in its child neglect case against Gamez. "But in 
the real world, you just can't."

Because Higgins issued the controversial birth control order on his own 
initiative, Konschuh said, the prosecutor's office has no obligation to 
defend the judge's action in the Court of Appeals. Besides, Konschuh adds, 
he doubts the order is constitutional.

But is the case against regulating the reproductive rights of abusive 
parents really that open-and-shut?

Other Rulings Not Fought

After all, judges have broad discretion to set the conditions under which 
parents who've lost legal custody of their children may regain it. Every 
day, courts order such parents to undergo therapy, submit to random drug 
testing, or avoid contact with substance-abusing spouses or siblings.

And the FIA doesn't hesitate to seize custody of newborns whose parents 
have ongoing histories of drug use or child neglect. Is it so outrageous to 
argue that the same government (and taxpayers) who dutifully rush to the 
rescue of endangered newborns have a legitimate interest in the pregnancies 
that produce them?

State Rep. William Van Regenmorter, R-Hudsonville, who spent years 
overseeing the Senate Judiciary Committee, says he can't remember any 
serious discussion of the state's authority to mandate birth control for 
abusive parents.

"It's one of those things where the Legislature has thrown up its hands and 
said, let's leave this one to the courts," he says.

But if the Court of Appeals overturns Higgins' order, pressure may build 
for legislative action to prevent abusive parents from conceiving new 
victims at will.

Judge Higgins has raised an important question. Policymakers can't ignore 
it just because the answer is hard.
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