MADISON, WIS. A deadbeat dad with nine children can be barred from fathering any more while on probation unless he can prove that he can support them all, a deeply divided Wisconsin Supreme Court ruled Tuesday.
In a 4-3 decision that broke down along gender lines and raised fundamental constitutional issues about the right to have children, justices upheld a Manitowoc County judge's restrictions on the right of David Oakley to procreate.
The majority all men cited Oakley's "abysmal history" of child support and the problems of child poverty created by deadbeat parents.
"The harm he has done to his nine living children by failing to support them is patent," Justice William Bablitch wrote in a concurring opinion.
"He has abused at least one of them," Bablitch added. "Under certain conditions, it is overwhelmingly obvious that any child he fathers in the future will be doomed to a future of neglect, abuse, or worse."
But the court's three female members Justices Ann Walsh Bradley, Diane Sykes and Chief Justice Shirley Abrahamson strongly disagreed, saying having children "is a basic human right and an aspect of the fundamental human liberty which the Constitution jealously guards for all Americans."
Walsh also wrote that upholding the ruling could coerce a woman who became pregnant by Oakley to have an abortion.
"Creating an incentive to procure an abortion in order to comply with conditions of probation is a result that I am not prepared to foster," Bradley wrote in a stinging dissent.
Bradley chastised the majority for upholding what she said was an unconstitutional limitation.
"The majority's decision allows, for the first time in our state's history, the birth of a child to carry criminal sanctions," she wrote.
In January 1999, Manitowoc Circuit Judge Fred Hazlewood sentenced Oakley to three years in prison; one count was for failing to pay $25,000 in child support, and on two other counts, he stayed an eight-year prison sentence in favor of five years of probation.
That probation came with the condition that Oakley not father any children during that time unless he could prove to the court that he could support all of them.
At the time Hazlewood imposed the restriction, he said: "If you think I'm trampling all over your constitutional rights, so be it."
Justice Jon Wilcox noted that if Oakley had been sent to prison, his right to procreate would have been eliminated, and that the condition set by Hazelwood did not completely prohibit Oakley's right to father children.
"Judge Hazlewood placed no limit on the number of children Oakley could have," Wilcox said. "Instead, the requirement is that Oakley acknowledge the requirements of the law and support his present, and any future children."
Oakley, 34, has sons ages 4, 5, 10 and 12, and two 13-year-old daughters, as well as daughters ages 3, 12 and 16 by four different women.