Judge Bars Woman From Having Children

by Cara on September 22, 2008

in courts, parenthood, patriarchy, pregnancy, reproductive justice

A Texas judge has set the conditions of a woman’s probation to include that she not have children.

The order was for Felicia Salazar, 20, who admitted to failing to provide protection and medical care to her then-19-month-old daughter last year. The girl suffered broken bones and other injuries when she was beaten by her father, Roberto Alvarado, 25, who was sentenced to 15 years in prison. Alvarado and Salazar relinquished their parental rights, and the child, who has recovered, was placed in foster care.

On Sept. 5, state District Judge Charlie Baird sentenced Salazar, who had no criminal history, to 10 years of probation after she reached a plea bargain with prosecutors. In Texas, judges set conditions of probation. In addition to requiring Salazar to perform 100 hours of community service and to undergo a mental health assessment and setting other typical conditions, Baird told Salazar not to have any more children.

In an interview Wednesday, Baird said Texas law gives judges the discretion to set any conditions of probation deemed reasonable. He also said that neither Salazar nor her lawyer, Kent Anschutz, objected.

“When you look her background, the circumstances of this case,” he said, “a reasonable condition of her probation was that she not conceive or bear any children.”

Anschutz said he is considering his options on behalf of Salazar. He described her as concerned about Baird’s order.

“Although I fully understand the sentiment and perspective of the judge in this matter, I question the enforceability of that particular condition,” he said.

The first thing I notice here is that this is yet another case of a woman being punished for failing to stand up to the actions of an abusive man. While it’s possible that Salazar is a sadist who enjoys the torture of children as much as the child’s father, it’s just as likely if not more so that the child’s father was also abusive to her and/or she was afraid of him.

But I’m going to set that aside. Why? Because it’s not about how sympathetic the woman in question is. It’s about whether or not this is constitutional, and whether or not it is a violation of this woman’s inalienable rights.

Despite what one of the so-called legal experts from the article says, the U.S. government has in fact tried to stop people from becoming parents. Our country has a long history of forcible sterilization and forcible birth control use, particularly for women of color, low-income women, women with disabilities, and women with criminal histories and/or drug addictions. Welfare has at time included conditions that its recipients not have any more children.

Whenever this topic comes up, people want to argue that the right to procreate is not in fact a right, and they want to argue that the rights of children come before the rights of parents.  The problem is that there is a difference between the right to procreate and the right to parent.  I believe that people have a right to parent, although it is a right that has to be revoked in extreme circumstances (and a right that I feel is revoked far too often for petty, classist, racist and other prejudiced reasons).  And I certainly agree that a child’s right to safety comes before a parent’s rights.  However, the right to procreate is not the same thing, and if we want our government to have the right to take it from people, we need to consider what that means.

If the government has the right to demand that people stop procreating, it means that the government has the right to control our consensual sex lives.  It means that the government has a right to decide who is and is not worthy of the right to control over their own bodies, and who is and is not worthy of the right to give birth.  It means the government has a right to decide what medical procedures people undergo — from birth control, to sterilization and/or temporary sterilization, to abortion.

That is not a government that values the lives, choices, rights and health of its women citizens, and it is not a government I wish to live under.  And even if you’re one of those people who seem to be commenting everywhere that this woman “shouldn’t be having children” — as I have argued many times before, we don’t have to like a woman’s decisions regarding her reproductive capacity in order to defend her right to make them.

h/t Feministing


1 InfamousQBert September 22, 2008 at 1:57 pm

so, are they going to order men not to rape her? oh, i guess we tried that and it didn’t work so well.

i’m feeling stabbity.

2 Alexandrialeigh September 22, 2008 at 2:31 pm

Hmmmm…not only a question of constitutionality, but also, considering that the only form of birth control that is 100% effective is abstinence, what would the court do if she happened to — accidentally or otherwise — become pregnant? Would they force an abortion? Withdraw her right to motherhood as soon as the new child is born? That opens up a huge amount of other issues…

3 Rachel September 22, 2008 at 2:52 pm

Ok, so did Baird order Alvarado not to make any more babies? As you point out Cara, Salazar had likely been abused by Alvarado as well, and her ability to provide protection for that child is challenged any time an abuser enters the picture.

But what about the abuser? Is it permissible for him to make more babies to abuse? The implication, if he was not given the same condition, is that it’s a woman’s job to protect her children, but not a man’s. Which is ridiculous.

And while I think there are people who probably shouldn’t be having kids, I do not agree that it would ever be constitutional to manipulate their right to do so.

4 Renee September 22, 2008 at 2:55 pm

This is not a reasonable ruling as it grants the state far too much control over a womans body. If we say that this one individual is not to reproduce what is to stop the state from casting an even wider net?

5 blondie September 22, 2008 at 3:04 pm

Rachel asked the same question that was in my mind. Since the father was the actual beater of the child — as opposed to the mother, whose apparent crime was not preventing the father from beating the child and then failing to provide medical care (whatever that actually means in this case) — was a part of his sentence that he bear no more children?

Sure, the father/actual assailant got 15 years in prison, compared to the mother’s/failed protector’s 10 years on probation. But if the judge was concerned about an ability to parent, one would think that the actual violent beating would be a greater disqualifier than the failure to prevent the beating.

Not only is this judge meddling in a woman’s sexual “rights” (I use scare quotes because it is questionable those in power in the U.S. deem women to actually have such rights), he seems to feel perfectly free to involve himself quite intimately in the mother’s future sex life, while not even considering doing so with the father.

6 Thealogian September 22, 2008 at 3:17 pm

Regardless of the specifics of this case, which otherwise I would like to comment on, but it seems pretty covered here (she’s also been abused, etc.), I’m concerned with precedent and how are laws are really collections of following other precedents. This ruling cannot become part of standards and practices in the justice system yet I doubt that this woman has the economic resources to appeal the ruling (or perhaps she doesn’t want children, so that’s why she’s not pursing it), but seriously, this cannot become precedent.

7 ShelbyWoo September 22, 2008 at 4:04 pm

According to the article:

Conditions of probation are enforced by putting a defendant in jail or prison when they are violated.

So, if she does get pregnant, I guess they throw her in jail – or maybe they wait to incarcerate her after she has the baby. Either way, it doesn’t sound like it would be what’s in the best interest of her or her would-be child.

At one point in the article someone (a man I believe) says something like “Well, she could have gotten 10 years in prison where she couldn’t conceive anyway.” Lovely.

8 Cara September 22, 2008 at 4:57 pm

Shelby — it’s particularly lovely when you realize that quote is from the judge.

9 SunlessNick September 22, 2008 at 4:57 pm

Rachel’s question was the first thing that came into my mind as well, though she and blondie have already articulated the reasons why.

10 Maggie September 22, 2008 at 5:38 pm

I’d say that this isn’t necessarily an example of a country-wide problem. Every now and then a crazy lower-court Judge does this, it always gets overturned on appeal. He probably knows it’ll get overturned on appeal. Believe me, crazy Judges do crazier things than this every day. I’m just grateful our appellate courts are consistent on this issue so it isn’t more widespread.

11 Cara September 22, 2008 at 5:54 pm

Maggie — except the article cites a case where the Supreme Court of Wisconsin upheld a similar condition. It was for a man, but it’s still the same basic idea and I don’t exactly expect our judicial system to give women a better deal regarding who does and doesn’t have the right to procreate.

12 The Quilter September 22, 2008 at 7:03 pm

There seems to be an assumption here that Salazar was an abused woman. We don’t know that and that would certainly be something her lawyer would have presented to the court. Why didn’t she obtain medical care for her child? Everyone here has been very blase about this charge. Blondie muses that she has no idea what that even means. Well, Blondie, the kid had multiple broken bones, I assume that would mean taking the kid to a doctor.

I don’t think this is an onerous condition at all. The husband and I took in a foster son with fetal alcohol syndrome. We have now adopted him. Finding foster homes for abused children is very difficult. There is a severe shortage of them. These kids simply do not stand a chance with the Salazars of the world. And contrary to popular opinion here, the gov’t is very reluctant to remove kids from the home. There is simply no place to put them.

When society has to run around cleaning up after Salazar, it is reasonable to ask her to stop reproducing until she can receive some help learning how to parent.

13 Cara September 22, 2008 at 7:14 pm

Too bad “we” can’t be the ones helping her with learning better parenting, since we don’t want society running around and cleaning up after her.

There are many other horrible presumptions in your comment about how an abused woman ought to behave, but suffice it to say that a woman who is too afraid to stop the abuse of her child is probably too afraid to take that child to a doctor where she’ll either be forced to finger the abuser or be arrested herself and therefore have to leave her child alone with that abuser.

And I speak for no one else here, but child abuse is a very serious charge, and I didn’t say otherwise. I also said that we don’t know whether or not she was abused, just that statistically speaking it’s rather likely. As I said specifically in the post, how sympathetic Salazar is or is not is not at all the point here.

14 SunlessNick September 22, 2008 at 7:39 pm

When society has to run around cleaning up after Salazar

After Salazar? Alvarado is the one who made the mess; he’s the one who broke the bones in the first place.

15 Rachel September 22, 2008 at 8:32 pm

Thank you, Nick. That’s exactly what I wanted to say.

16 Cara A. September 22, 2008 at 8:42 pm

Why does it not suprise me that this is in Texas, and the woman in question is Hispanic?

I really need to move out of this fucking state.

17 Cara A. September 22, 2008 at 8:46 pm

Just to clarify, I feel like because she is Hispanic is the reason why she’s getting such a bullshit punishment, and why they know they will probably get away with it.

18 The Quilter September 22, 2008 at 9:40 pm

Cara, you are arguing out of both sides of your mouth. On the one hand you are making the assumption that she could not take her child to the doctor because her husband would have beaten her, on the other hand you are saying that whether she is a sympathetic character or not is not the point your getting at.

Let us suppose her husband would not have beaten her if she took the child to a doctor, then what excuse does she have? The last thing we need is more kids to take care of because Salazar can only bear children, she can’t take care of them. I don’t see how this is a big constitutional crisis. Are you going to take care of all these children?

19 The Quilter September 22, 2008 at 9:46 pm

Sorry to post again, I meant to add that you state that the gov’t has been too quick to take away a woman’s right to parent. The opposite is the case. Kids are left in the hands of abusive parents much more frequently than they are removed from the home.

Even if the right to bear and raise children can be found in the constitution, and I am not saying you cannot, constitutional rights can be taken away through proper judicial procedure when a person breaks the law.

20 Cara September 22, 2008 at 10:23 pm

No Quilter, you were making more than one argument and I was addressing them. I addressed the proposed abusive situation primarily because ignorance about abuse is a huge pet peeve of mine and likely to get me very irate, and I’m not going to let is pass without comment. I don’t care, for the purposes of this argument, whether or not Salazar was abused, but I’ll be damned if you’re going to make ignorant statements about domestic violence on my blog without any sort of response from me.

And even if she “doesn’t have an excuse,” I don’t give a shit. I do not believe that the government should have the right to control anyone’s body. Period. I believe that is a feminist stance, and I believe that whenever the government does try to impose control over women’s bodies it is directed at those who are already most marginalized, as I explained in the post. You can be a part of that all you want. But I won’t be. I don’t believe that I have to personally take in children in order to make that stance valid, but if you’re asking whether or not I’m fine with my tax dollars paying to raise children who come from abusive homes or if I believe our tax dollars should go towards rehabilitative purposes so that many families will be able to be reunited, then please, take the goddamn money out of my paycheck.

21 Alison Hymes September 22, 2008 at 11:24 pm

The woman is 20 years old and has no criminal record before this conviction. Whether or not she could have gotten the child care, are we saying that a 20 year old’s character is set for life and that she is incapable of rehabilitation and change and growth and learning? Are we willing to throw her away as irredeemable when she is barely past her teen years? Science is saying that brains continue to develop way past adolescence now, if she for some reason is immature for a 20 year old are we prepared to say that is a reason to take away her chance to be a parent forever?

Children of low income families are taken away far too easily in my opinion and observation while children of middle class and upper class families have to be half dead or dead to be removed from their homes. I know too many adults who should have been removed from their families but were not because their parents were people with social standing and too many adults who were removed basically for reasons of poverty and lack of family resources to believe that the child protecion system in this country is not classist.

22 Kara September 23, 2008 at 12:06 am

I honestly believe the judge knows that the law can’t hold up this ruling. He is probably counting on the fact that this woman is mostly likely poor/nonwhite and young; and will be afraid of his authority without the actual power of law to back him up.

He wants to intimidate her into having no more children, playing on her fear and ignorance. I don’t know if that’s worse or better.

23 The Quilter September 23, 2008 at 1:29 am

Cara, I don’t think I made any ignorant statements about domestic abuse. Can you show me where I did that? I certainly did not mean to.

The “feminist stance” which holds that no barriers can be placed on women either by not allowing them to get pregnant or by not allowing them access to abortion makes no sense to me. We do not live in a libertarian, laissez faire society. I am glad we don’t. I don’t agree with the laissez faire philosophy. But that does mean that we are responsible for one another.

If we use jails for people who break laws, then the government has control over people’s liberty. That does not mean it is a slippery slope to a society where we no longer have control over our liberty. I think the same can be argued in this case.

The damage done to children born to drug addicted mothers, abusive parents and so on is staggering. It is no less a problem than spousal violence. In both cases (spousal and child abuse) you have a completely innocent party who is at the mercy of another.

It is society who has to shoulder the burden for abused children. I beleive you when you say that you are willing to pay higher taxes so proper services can be offered to these children, such as safe homes to put them in. But some problems cannot be corrected such as the child who suffers permanent developmental damage from gestating in the womb of a drug abuser. I don’t want to see addiction become a crime and I don’t want to see these women go to jail, but I DO want to stop them from getting pregnant.

Forced sterilization was a shameful part of our past. I do not want to see poor women or developmentally handicapped women serilized or forced to take birth control. But I think that is a different situation from a woman who has been convicted of an especailly egregious case of child neglect. She is not permanently stopped from having children. She can have children when her probation period is over.

There is more to consider than the woman’s reproductive rights here. There is the welfare of the children she may choose to bring into the world.

24 Cara September 23, 2008 at 8:57 am

There seems to be an assumption here that Salazar was an abused woman. We don’t know that and that would certainly be something her lawyer would have presented to the court. Why didn’t she obtain medical care for her child? Everyone here has been very blase about this charge. Blondie muses that she has no idea what that even means. Well, Blondie, the kid had multiple broken bones, I assume that would mean taking the kid to a doctor.

Right there Quilter, you seem to be directly connecting the idea that she was abused with the fact that she did not obtain medical care for her child, and saying that even if the former were true, there’s still no excuse for the latter. I already explained why that assumption is rather short-sighted.

Forced sterilization was a shameful part of our past. I do not want to see poor women or developmentally handicapped women serilized or forced to take birth control.

It’s not just a frequent part of our past, it’s a less-frequent part of our present. If you click on the links I provided, you’ll see that.

The “feminist stance” which holds that no barriers can be placed on women either by not allowing them to get pregnant or by not allowing them access to abortion makes no sense to me. We do not live in a libertarian, laissez faire society.

Then I’m really not sure we have anything left to discuss. Except to say that you would be false in my particular case when you say “no barriers,” as for example, surrogacy and egg donation are regularly very exploitative and I certainly do believe there ought to be barriers in those cases. And so my stance is not one that I would call “libertarian” but rather supportive of reproductive justice. It is in fact quite possible to protect the rights of both women and children by addressing the root causes of problems rather than just throwing people on the prison merry-go-round and barring them from having children.

25 Rose September 23, 2008 at 11:00 pm

This seems a bit extreme. First of all, I doubt she was ordered to take birth control, my impression being that her plea would no longer be in effect, she would go to jail and her child put into foster care.
I, for one, am all for not allowing parents who have shown, one way or another, that they can’t take care of their children, be it actual abuse or putting the child into an -obviously- high risk situation.
When the government tells me I have to get an abortion/ go on neuvaring/ stop having sex, I’ll be right out there with you raging for my rights, but when it’s “we don’t trust you to take care of future children,” I at least want more details before I start channeling Orwell.

26 Cara September 23, 2008 at 11:09 pm

Rose — in order to meet the requirements of her probation, Salazar must a) remain celibate or b) use some form of birth control. Are they physically forcing her? Most likely not. But they are coming pretty damn close, and are in fact forcing her into the situation if she wants to not go to jail. Extreme coercion is a form of force.

As for “when the government starts telling you to get a nuvaring,” that has already happened. Well, actually it was norplant. Judges have ordered that women be implanted with it as terms of probation. I can’t remember whether or not if those rulings were overturned, but the fact is that it has happened. I don’t expect the vast majority of people to know that (though I wish they did), but you might want to check in on these things before accusing someone of overreacting.

27 Jean September 24, 2008 at 5:28 pm

She may have agreed because it is the only way she can afford to have contraception, by court order. You are all assuming she wants more children in the near term. What is norplant, maybe $600 when I used it. She and her lawyer may be happy.

Let me repeat that: obtaining a court order may be the only way she could afford contraception.

Given the realities of TX, how do you know this is not true? How much of our framing, where we assume access to contraception and our right to refuse men who won’t wear condoms? Do we know she has had those rights?

28 Cara September 24, 2008 at 5:36 pm

Jean, you could absolutely be right. But that doesn’t excuse the judge’s ruling and is hardly the kind of solution to that problem. Better access to birth control is. Further, as others have pointed out, there is absolutely no evidence that the judge has actually ordered her to take birth control. He has only ordered her not to conceive.

29 Lemur September 25, 2008 at 12:48 am

I agree that there are lots of people out there who shouldn’t be having kids. This, however, is not an answer. This is deeply fucked up and there’s no way it’s okay.

{ 3 trackbacks }

Comments on this entry are closed.

Previous post:

Next post: