Court won't review case of man banned from having more children

WASHINGTON -- The Supreme Court on Monday turned away an appeal from a man under court order to stop fathering children.

The Supreme Court declined to hear the case of David Oakley, who has fathered nine children out of wedlock. Oakley, who faces eight years in jail if he impregnates another woman, argued that it is unconstitutional for the government to limit his right to have children.

The case could have dragged the court into an argument about the constitutional rights to procreate -- an issue with implications for the emotionally charged debate over abortion.

"I fear that courts throughout the country will use this to trample on parents' rights and poor people's rights," said Scott Sussman, an attorney for the Wisconsin-based Center on Fathers, Families and Public Policy, a group that helps needy parents.

Oakley owed $25,000 in child support when a Wisconsin court ordered the unmarried man to stop fathering children.

The 1999 ban was a condition of Oakley's probation for skipping out on court-ordered child support payments. He was 34, with little education or money and a prison record.

Ronald D. Rotunda, a law professor at George Mason University, said the court's refusal to intervene is not an endorsement of the theory that "rich people can procreate and poor can't." For now, justices are not ready to take up the subject, he said.

"There hasn't been a case quite like this," Rotunda said.

In appealing to the Supreme Court, Oakley's lawyer argued that the government has not justified its need to prevent Oakley from fathering children.

"Procreation ... is at the very heart of the personal rights protected by the Constitution, for it by definition concerns the most intimate of human activities and relationships," Laurence Tribe wrote, partially quoting an earlier high court ruling.

The Wisconsin Supreme Court divided along gender lines in upholding the ban last year. The four male state justices prevailed.

"Here is a man who has shown himself time and again to be totally and completely irresponsible," wrote Justice William Bablitch for the majority. "It is overwhelmingly obvious that any child he fathers in the future is doomed to a future of neglect, abuse, or worse."

The three female state justices disagreed, saying that having children is a basic human right guaranteed by the Constitution. The ban would be difficult to enforce and could end up coercing women into having abortions, Justice Ann Walsh Bradley wrote.

The Supreme Court did not comment in refusing to take the case.

"Someday the Supreme Court is going to have to tackle this one," said Thomas Goldstein, another lawyer for Oakley.

The case could return to the Supreme Court if Oakley fathers another child and challenges his imprisonment.

"No one wants him to end up in jail, because that's worst of all for the kids," Goldstein said.

The case is Oakley v. Wisconsin, 01-1573.

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