Having survived a dose of Legal Theory 101, re-examine Kick’s contention that the Wisconsin decision may trigger a "slippery slope" that erodes personal rights in the face of State control of reproductive rights. This debate has also been central to concerns about in vitro fertilization, gene therapy, and designing family systems. The battleground over reproductive rights has been fought between 'natural law' theorists (cooperation), libertarian/weak liberals (the right to privacy) and 'family values' advocates (the group/society right to security of the relationship and control over the socialization process). The desire for a child also spans different motivations: to rear a child, to give birth, to beget, to have a child with someone, to have an heir, or as the result of social pressures. [7]

The Wisconsin decision was made in the context of a 'natural law' theory that opposes the libertarian/weak liberal view that is closest to Kick's essay. [8] The libertarian/weak liberal view claims that moral theory does not adequately define our personal freedom, so that "the law must allow us to violate positive obligations in order to provide us with sufficient freedom from governmental restraint." [9] The 'natural law' theory argues in contrast that "having a child involves other people . . . it produces a new person who is not consulted." [10]

The judge had to consider the central fact, therefore, that the defendant already has nine children he cannot currently support. A 'natural law' theorist might argue that Kick's emphasis on the State avoids considering any reciprocal responsibility by the defendant to provide 'duty-of-care' (a central pillar of family law) to his progeny. A utilitarian theorist might also add that the individual right to self-determination has been weighed in this specific circumstance and would be found wanting by society. By labelling this the action of a police state, Kick falls into the error of a false dichotomy.

Kick's rhetorical example of drug addicts prevented from having children also has some startling implications. The gulf between 'natural law' and libertarian/weak liberal theorists obscures some controversial data on what biological 'hardwired' factors may set constraints on a child’s psychosocial growth. Howard Bloom cites research by Jerome Kagan that prebirth cascades of a key stimulant called norepinephrine, a stress hormone, creates children whose limbic system is on trigger-ends and susceptible to fear: "our social experience—be it good or bad—began in utero and shaped the very way we formed. In addition, we marinated in chemicals our mother secreted to handle her own crises and her joys. Her stress hormones were capable of premolding us as emotionally troubled infants. Her hormones of happiness would have the opposite effect." [11] Summarizing 196 controlled Birth-Order studies, Frank Sulloway observed that "the influence of birth order is 5 to 10 times greater [italics original] for most personality traits than it is for academic achievement and IQ." [12] While I agree with Kick that preventing drug addicts or other people in hated groups from having children is deplorable, the possible links between in utero drug abuse and impact on a child's psychosocial growth are worthy of further exploration and debate. English common law has avoided this kind of consequentalist thinking and damage lawsuits. The "historical wildcard" of eugenics, the manipulation of "children’s rights" by the religious right, the false specter of "crack babies" created by the GOP, the current controversy over evolutionary psychology and sociobiology, and the progressive left's past distaste for considering how peersonal actions that are legally sanctioned by society but not by the child (a vast conceptual category that has been 'stolen' and 'dumbed down' by pro-life activists) may influence the limits of self-determination makes it unlikely that such a debate would ever occur in the near future, though. The sociopolitical implications of research by Bloom, Kagan, Sulloway and others is too taboo to consider.

Is the Wisconsin decision a 'slippery slope' that erodes personal rights? Not necessarily. Kick argues that the decision could have a 'domino effect' on other groups hated by society (such as the poor, drug users, and the disabled). He's right to raise these concerns, however, the same fact that made the case news-worthy has also simultaneously limited the scope of the judgment because of the narrative process by which precedents are applied. Kick's argument from the analogy of 1920s eugenics laws is also undermined by our different social values (national advocacy institutions and international charters) and greater knowledge that disavows prejudiced legal thinking. The decision was clearly meant as a social deterrent to the defendant: there is a time-limit (2004) likely tied to the age of the defendant's children and his current child support load. The analogy to 1920s eugenics laws would hold up better if the Wisconsin court had ordered a vasectomy.

Finally, since Kick raises the possibility that the Wisconsin decision may be ratified by the Supreme Court, is it really set in stone? Remember the popular misunderstanding that precedents establish broad definitions that ascribe laws. The Wisconsin judge affirmed a decision already made by a circuit court judge. When decisions are made in relation to a previous court order on an appeal basis, the judge is making the "decision" as an action order to settle or dispose an ongoing controversy in the specific case at hand, not creating an indelible rule that is binding on all future cases or analogous categories. [13]

Reproductive rights are also protected by precedents in both US and international law. Justice Willliam O. Douglas argued in Skinner v. Oklahoma (1942), when placing 'compulsory sterilization' within the confines of the Fourteenth Amendement's equal protection clause, that it deprived individuals of a basic liberty. Justice Goldberg in Griswold v. Connecticut (1965) placed privacy in marriage under the Ninth Amendment. Roe v. Wade (1973) echoed Goldberg's argument that the State could only interfere in procreation and reproductive rights when it had "a compelling interest" to do so. The US Supreme Court also recognized in Eisenstadt v. Baird (1972) that "the right of the individual, married or single, to be free of unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Article 12 of the European Convention on Human Rights and Article 16 of the United Nations Universal Declaration on Human Rights protect the "universal absolute" of reproductive rights beyond the US Supreme Court's jurisdiction. [14] Because of these precedents, the decision would likely be limited or overturned on appeal to the Supreme Court. A more disturbing scenario, which Kick hints at, is that the Wisconsin decision reflects a broader strategy by conservatives to roll-back Roe v. Wade, and a Bush administration would appoint Supreme Court justices who may accomplish this task.

Why was this social complexity obscured in Russ Kick's argument? In the rush to warn people about the implications of the Wisconsin ruling, he adopted the term "police state" as a "hot-button device" to grab the reader's attention (nice editorial copy). This might lead some readers who are not savvy with Kick's arguments to overgeneralize and rush to misinterpretations. Our language helps to define our social space and how we act within it. Before you j'accuse the police state outside your door, make sure you're not searching for simplicity that is not really there.

Endnotes:

[1] Barbara Baum Levenbook. "The Meaning of a Precedent." Legal Theory, 6 (2000). p. 199.

[2] Barbara Baum Levenbook. Ibid. p. 226.

[3] Barbara Baum Levenbook. Ibid. p. 190.

[4] Barbara Baum Levenbook. Ibid. p. 213.

[5] Barbara Baum Levenbook. Ibid. p. 189.

[6] Barbara Baum Levenbook. Ibid. p. 225.

[7] Ruth F. Chadwick. "Having Children." In. Ruth F. Chadwick (ed.). Ethics, Reproduction and Genetic Control (rev. ed.). London and New York: 1992. pp. 9-16.

[8] Heidi M. Hurd. "Moral Rights and Legal Rules: A Natural Law Theory." Vol. 6 No. 4 (2000), p. 441.

[9] Heidi M. Hurd. Ibid. p. 446.

[10] Ruth F. Chadwick. Ibid. p. 6.

[11] Howard Bloom. Global Brain: The Evolution of Mass Mind from the Big Bang to the 21st Century. New York: John Wiley and Sons, 2000. p. 147.

[12] Frank J. Sulloway. Born to Rebel: Birth Order, Family Dynamics and Creative Lives. New York: Pantheon Books, 1996. p. 76.

[13] Barbara Baum Levenbook. Ibid. p. 187.

[14] Robert H. Blank. Regulating Reproduction. New York: Columbia University Press, 1990. pp. 2-3.

Select Bibliography:

Robert H. Blank. Regulating Reproduction. New York: Columbia University Press, 1990.

Howard Bloom. Global Brain: The Evolution of Mass Mind from the Big Bang to the 21st Century. New York: John Wiley and Sons, 2000.

Ruth F. Chadwick (ed.). Ethics, Reproduction and Genetic Control (rev. ed.). London and New York: 1992.

Heidi M. Hurd. "Moral Rights and Legal Rules: A Natural Law Theory." Vol. 6 No. 4 (2000), pp. 423-455.

Barbara Baum Levenbook. "The Meaning of a Precedent." Legal Theory, Vol. 6 No. 2 (2000). pp. 185-240.

Scott J. Shapiro. "Law, Morality, and the Guidance of Conduct." Legal Theory, 6 (2000). p. 127-170.