Slippery slopes

When I was in law school, in 1992, I was horrified when eugenics, or forced sterilization, came up in our constitutional law class. Having never encountered the 1927 Supreme Court case, Buck v. Bell, it was a new proposition for me, and one that made me recoil. How dare the state determine who shall have a child or not (Carrie Buck was unfit to bear children, according to the state of Virginia, who found her an “imbecile”), and who made it boss? After all, I thought, this is not China. No law to curtail the ability to have children, or to limit the number of children one could have, will ever pass due process muster. Right?

Flash forward several years to my first assignment as a parent’s attorney in dependency, neglect and abuse court, or, as we call it: DNA Court. That docket is not for the faint of heart, or those without sufficient boundaries between work and personal life, because what one sees there cannot be unseen. Children being burnt for discipline, being in a crack house while mom shoots up and has sex for money or living with mom’s sexually-abusive, new boyfriend whom she keeps around to pay rent and buy groceries.

One can imagine my ideology would begin to shift away from the belief that a state must never intervene in a person’s fundamental right to procreate, or a parent’s paramount right to parent, no matter how abusive or neglectful they are. I began to consider the idea that sometimes, under the direst of dire circumstances, a state may justify intervention — to remove children from parents permanently, and, hypothetically, to prevent procreation in the first place. Limited, of course, to the extreme cases where a mother has multiple children and the state has proven her unfit to parent any of them due to dependency, abuse or neglect or when a father voluntarily asks the state to pay the costs of a vasectomy because he can’t get out of non-support court.

Which brings me to the query: Is it ever a justifiable exercise of a state’s power to compel would-be parents who are opiate or heroin addicts (or alcoholics) to use birth control? What if one of their babies was born addicted to the substance they used during a pregnancy? Lest you believe someone has replaced me with a pod person, let me explain.

In addition to my assignment as a parent’s attorney, I was appointed later, in another division, as a guardian ad litem, an attorney who acts solely as a representative of the child in any given case. I was appointed to represent a newborn whose mother was a drug addict and who, consequently, was born addicted and painfully withdrawing. In the short time that passed between the emergency removal hearing and the next court date, the newborn died.

If babies born addicted to drugs is an outcome we can prevent as individuals first, and as a society, second, should that not be a priority somehow?

Perhaps there’s a sliver of hope in Casey’s Law though, by which an addict’s family or spouse may petition a court to force treatment (and promise to foot the bill for the treatment).

If a state can compel drug and alcohol treatment against a citizen’s will, is it such a far stretch to compel addicts to use birth control, whether they seek treatment or not? Does your answer depend on how many children they have, how old the addicts are, what drugs they are using, have they had any children removed before, have they had babies born addicted who later had brain damage or died?

The tricky part is (as is always the case when balancing an individual’s right to be free from state intrusion against the state acting as our parent and substituting its judgment for ours) who is the decision-maker and how does the decision-maker decide? What are the safeguards? For example, how long must an addict be clean before he or she can cease using birth control, theoretically? Who checks the checker?

Inasmuch as I don’t see any “mandatory birth control for addicts” bills on the horizon, and I am not advocating for same, this much is sure: Casey’s Law or any other law, frankly, will not force an addict to get clean if the addict wants to use. Ask a few clean addicts if any amount of nagging or tough love or jail or forced treatment or having his or her kids taken away by the state got them clean. On the off-chance forced clean time is enough to break the physiological and psychological addiction, all the better. But if the addict can’t break the cycle, must the state let him or her take another baby down the destruction path with them?