The Volokh Conspiracy

The Austin American-Statesman reports:

A judge in Travis County has ordered a woman to stop having children as a condition of her probation in her case of injury to a child by omission, an extraordinary measure that legal experts say could be unconstitutional.

The order was for Felicia Salazar, 20, who admitted to failing to provide protection and medical care to her then-19-month-old daughter last year. The girl suffered broken bones and other injuries when she was beaten by her father, Roberto Alvarado, 25, who was sentenced to 15 years in prison. Alvarado and Salazar relinquished their parental rights, and the child, who has recovered, was placed in foster care.

On Sept. 5, state District Judge Charlie Baird sentenced Salazar, who had no criminal history, to 10 years of probation after she reached a plea bargain with prosecutors.... In addition to requiring Salazar to perform 100 hours of community service and to undergo a mental health assessment and setting other typical conditions, Baird told Salazar not to have any more children.

In an interview Wednesday, Baird said Texas law gives judges the discretion to set any conditions of probation deemed reasonable. He also said that neither Salazar nor her lawyer, Kent Anschutz, objected....

Conditions of probation are enforced by putting a defendant in jail or prison when they are violated.

I can't speak to Texas law, but generally probation conditions are constitutional -- even when they restrict constitutional rights such as the freedom of speech or the freedom of association -- whenever they are "reasonably related to legitimate penological interests," a test that is easy to meet. The theory is that if the defendant is imprisoned, she would lose a great many of her constitutional rights, under the same standard, and the rule should be the same if the judge gives her probation instead of a prison sentence. And this theory would seem to apply to the right to have children as well: If you're imprisoned, you have no constitutional right to have children or even to have sex, so a court should likewise be able to impose a similar restriction if you're put on probation. Such "the greater power [here, imprisonment, which would generally prevent having children] includes the lesser [here, a probation condition that imposes a similar prohibition]" arguments don't always work -- but they do work in many situations.

To quote an earlier Wisconsin Supreme Court case that's alluded to in the article, State v. Oakley (2001):

[A]s a condition of probation, a father of nine children, who has intentionally refused to pay child support, can be required to avoid having another child, unless he shows that he can support that child and his current children.... [I]n light of Oakley's ongoing victimization of his nine children and extraordinarily troubling record manifesting his disregard for the law, this anomalous condition -- imposed on a convicted felon facing the far more restrictive and punitive sanction of prison -- is not overly broad and is reasonably related to Oakley's rehabilitation. Simply put, because Oakley was convicted of intentionally refusing to pay child support -- a felony in Wisconsin -- and could have been imprisoned for six years, which would have eliminated his right to procreate altogether during those six years, this probation condition, which infringes on his right to procreate during his term of probation, is not invalid under these facts.

Some might ask whether a judge could likewise restrict probationers from having sex. The answer, I think, is that the same general rule would apply, but it would usually yield a different result as to probationers' sexual relations than as to prisoners' sexual relations, since there's not much of a legitimate penological interest served by a "no sex even when you're outside prison" rule.

On the other hand, judges do often impose rules limiting a probationer's association with particular people who are seen as bad for the probationer's rehabilitation, such as fellow gang members; such a rule would indeed end up limiting sexual contact between the probationer and those people, as well as other kinds of contact. And at least one case I saw, State v. Henriksen, 690 N.W.2d 885 (Wisc. App. 2004) (unpublished), upheld an order -- aimed chiefly at preventing the probationer, who was also convicted for failing to pay child support, from having more children -- prohibiting a probationer "from having any sexual relations unless he has the explicit permission of his probation agent": "[Henriksen] may not have sexual intercourse with a woman until ... the probation agent is convinced that Mr. Henriksen is ready to either accept responsibility for any offspring, [or] is ready to prevent conception, and, secondly, that the probation officer is satisfied that any potential partner of Mr. Henriksen knows of his failure to support in the past and knows of the need to protect herself."

So I'm not sure that this sort of restriction is particularly likely to be wise or effective; but my tentative sense is that under current law it is indeed constitutional. On the other hand, Doug Laycock, a very knowledgeable constitutional law scholar whose work I much respect, takes a different view (quoted in the article).