Ohio Court Upholds Sentence that Requires Man to Stop Having Children

by Charles C. W. Cooke

A peculiar story in USA Today:

Asim Taylor owes about $100,000 in child support, and an appeals court in Ohio has upheld an unusual sentence meant to make sure that bill doesn’t grow: Justices reaffirmed that the Elyria man can’t have any more kids until he pays up, reports the local Chronicle-Telegram.

That means Taylor, who is in his mid-30s and has fathered four children, could go to jail if he impregnates someone during the five years he’s on probation, 19 Action News reports. He plans to appeal to the Ohio Supreme Court on the grounds that he has a constitutional right to procreate, says his attorney.

A bizarre and unattractive sentence, of course. But is it actually illegal? Certainly, if one is to read the federal Constitution as it’s written, I’m not sure that one could really find such a “right to procreate.” This isn’t federal action, so it’s not a question of enumerated powers. And, even if we get into the dodgy realm of incorporation, it would be difficult to see on what grounds a prohibition could be justified.

Perhaps we are to believe that the Ohio constitution has him covered? I’m no expert, but, having read through it this morning I can’t find anything explicit that would suggest that it does either – except possibly, given a generous reading, the sections on “cruel and unusual punishments” and on privacy, and the customary assertion that the “enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.”

Of course, we don’t actually live under an originalist reading of the Constitution. So here’s my question: If abortion is to be covered by the privacy elements of the Constitution on the grounds of “​procreational autonomy” and of Justice Kennedy’s invented right to determine one’s own conception of “existence, of meaning, of the universe, and of the mystery of human life,” won’t this eventually be, too? Thus far, the record is mixed. The Ohio Supreme Court has previously struck down a similar sentence that barred a man from having any more children, but that decision rested not upon the procreation part per se and more on the judge’s having failed to provide an acceptable mechanism by which the order might eventually be lifted. Over in Wisconsin, meanwhile, such punishments are not only reasonably typical, but have been sanctioned by the state’s Supreme Court.

An interesting one all round.

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