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Jewish World Review Sept. 11, 2001 / 22 Elul, 5761

David Reinhard

David Reinhard
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No incarceration
without procreation? -- Who knew?

Who knew the Constitution's framers -- the folks who wrote in all those rights -- thought prisoners had the constitutional right to procreate while in prison?

Who knew the people who ratified the Constitution -- the "we" in "we the people" -- believed a man's right to sow his seed "survives incarceration"?

Who knew? Two judges on the 9th U.S. Circuit Court of Appeals knew, and their wigged-out minting of a new constitutional right -- an inmate's right to inseminate via FedEx -- highlight our day's dug-in judicial activism and 9th Circuit strangeness.

The facts in the case: William Gerber would like to artificially inseminate his 46-year-old wife, but, as Judge Myron Bright wrote, "his particular circumstances disallow the 'natural' method of procreation." Those circumstances include that fact that Gerber will spend the rest of his life behind bars in California for assorted serious crimes.

Now you might think being in the slammer would hurt a guy's marital love life, but Gerber's not one to let prison walls triumph over amour. He asked the warden to let him collect his specimen and send it off to his wife. The happy couple even offered to spring for all the extra expenses attendant to the artificial insemination.

But before anyone could say "And baby makes three" the warden said no to Gerber's baby plans. It seems he had a prison to run. Who could believe it?

Certainly not Bright and 9th Circuit Judge Stephen Reinhardt. Although they admitted "the Supreme Court has not yet decided whether the right to procreate survives incarceration," the two slapped together a new constitutional right nonetheless. How they concocted this new right showcases judicial activism in its crudest form.

The Supreme Court, Bright wrote, has said prisoners have a right to marry while in prison and maintain their procreative abilities for use upon release. This "tends to support the notion that a person's procreative rights survive while he is in prison." Therefore -- or, if you like, abracadabra -- "the right to procreate survives incarceration but . . . the exercise of that right can be restricted for legitimate penological reasons." The district court would have to decide if the warden had "legitimate" reason for denying Gerber's request.

Only an intellectual -- or a judicial activist -- could believe such bosh.

First, when the Supreme Court ruled prisoners had a right to maintain their procreative abilities, it was striking down Oklahoma's Habitual Criminal Sterilization Act. Only judges bent on making law or amending the Constitution themselves could transform a prisoner's right not to be sterilized involuntarily into a right to procreate while behind bars. Second, a prisoner's right to maintain his procreative abilities for later use isn't the point here. Gerber's a three-strikes-and-you're-out lifer. He isn't going anywhere.

But deconstructing the Bright-Reinhardt decision really misses the point. There's no need for fancy explication. It's like interviewing a cow.

Happily, Judge Barry G. Silverman offered a potent dissent in what he calls a "a seminal case in more ways than one." He notes that no court has ever upheld a right to procreate from prison by artificial insemination. He then cites case after case in which courts have ruled to the contrary.

But these homely facts aren't Silverman's most devastating points. He lacerates the majority for the three-judge panel with a broader but no less precedent-packed line of attack. "The majority simply does not accept the fact that there are certain downsides to being confined in prison, and that the interference with a normal family life is one of them," he writes, going on later to state: "Common sense . . . suggests that procreation is fundamentally inconsistent with incarceration."

You might think so.

If the full 9th Circuit fails to take this case up and endorse Silverman's common-sensical dissent, the Supreme Court should do what it so often does these days: Reverse the 9th Circuit's judicial activism. Bright and Reinhardt's reach exceeds their grasp --- if not William Gerber's.

JWR contributor David Reinhard is an associate editor at The Oregonian. Comment by clicking here.


© 2001, David Reinhard