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.