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Recently, the Wisconsin Supreme Court received a brief flurry of attention when it affirmed a lower court's decision against David Oakley prohibiting him from fathering any more children as a condition of his probation. But that's not exactly how the judgment was reported: broadcasts were more along the lines of "Wisconsin man banned from procreating!" and other similarly inaccurate yet casually inflammatory stories. Taking the usual sound byte at face value, the Wisconsin justices sound like monsters yet the actual case is significantly more interesting, if a bit less sensational.

The key difference between the facts of the case and what has been reported is that no one has been forbidden to have kids because he can't pay for them. Oakley currently has nine children by four different women, and has been convicted of the felony of intentionally refusing to pay child support. "Intentionally" means he has the financial ability to support his nine children, yet has willfully refused to do so. He is not being punished because he can't afford the children he has, he's being punished because he could pay for them and refuses to.

Furthermore, the actual "punishment" is considerably more lenient than the alternative offered, and is more along the lines of what Oakley himself requested. As part of a plea bargain, Oakley agreed to plead no contest to three counts of intentional refusal to pay child support, and the state agreed to recommend no more than six years of prison. At the hearing, Oakley said he shouldn't go to jail because he is able to hold a full-time job, and so should be able to maintain employment and begin paying the support he owes his children.

That leaves the state with two alternatives: send Deadbeat Dad David to jail, where he will certainly not be having any more children and will be doing nothing to rectify the huge debt he owes his children and their mothers, or put him on probation so that he can be gainfully employed and amend the offenses he has been convicted of. The lower court chose the second alternative with two stipulations added. First, if he again refuses to pay child support, he goes to jail for the eight years to which he was technically sentenced (the term was stayed in favor of the conditional probation).

Second, and this is the key part, he can't have any more children during probation unless 1) he is supporting the children he already has and 2) he demonstrates he will also support the new child. Notice how far from "man goes to prison if he fathers another child" this resolution is. It is not illegal for David Oakley to have more children! It is illegal for Oakley to father another child while continuing to refuse to support his children even though he is able. A previous Wisconsin ruling said: "The theory of probation contemplates that a person convicted of a crime . . . may be rehabilitated without placing him in prison." (State v. Evans, 1977)

This probation fits that definition: it begins the process of correcting Oakley's wrongs earlier than if he was sent to prison for eight years, and requires that he not commit the same crime he is on probation for seems fairly equitable to me! Still, there are the ruling's critics who shout, "But procreation is a fundamental right! The government can't infringe on that!" It is a common misconception that fundamental rights can't be limited by the government at all this is simply not true. Fundamental or basic rights are simply harder to regulate we want to make sure that rights like life, liberty, freedom of speech, and so on are only interfered with or limited for very good reasons.

Therefore, they are subject to a "strict scrutiny" test: the government's actions have to pass a careful judicial evaluation in order to be constitutional. To give the textbook answer, the action taken (in this case, prohibiting Oakley from having more children unless he meets the two conditions) must be "supported by a compelling state purpose" and must be "narrowly tailored" to achieve the desired purpose. For you legal eagles out there, that's from Wygant v. Jackson Board of Education, 1986. So does this judgment meet those two requirements? I say yes. Is the desire to make sure Oakley's poverty-stricken, abused children get at least some support from their absent and uncaring father a compelling state purpose?

I think so. And is this punishment narrowly tailored? "Narrowly tailored" requires that the government action at issue be very effective and infringe the constitutional right as little as possible while still achieving the government's compelling interest. Considering that Oakley was given probation as per his request to be allowed to hold a job, and the moratorium on having children is only valid if he continues to refuse to support the children he already has, the judgment is stringently tailored to the specific goal: to prompt him to support to his existing children.

The contentious issue, yet the one issue of the whole debacle not covered by the media, is the test the justices used: they decided that the strict scrutiny test was not applicable and used a lower standard, as the person whose right to procreation was affected was a felon on probation. Thus the real controversy of the case has nothing to do with procreation specifically: it's whether felons are protected by the same judicial tests regarding their fundamental rights as the rest of us are. Technical, and not very sexy. How would that ever make it into a sound byte?

Thus we return to the original problem: where is Dan Rather's explanation of fundamental rights? When will Barbara Walters’ misty-eyed interview with the Justices of the Wisconsin Supreme Court be airing? Nope, not interesting enough. The media prefers screaming headlines to the truth. This is hardly a new insight, but is no less troubling than before. How are we supposed to protect our fundamental rights if the nightly news doesn't even bother to accurately cover them? How will informed citizens take action on current events if they have to spend all their time independently researching the events' implications?

There is no easy answer, especially in an age in which ratings trump truth. ("Fear Factor," anyone?)

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