September 30, 2014

Elyria
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test

Attorney argues man has right to procreate

ELYRIA — Asim Taylor has a basic human right to procreate, the attorney for the Elyria man barred from having children while he is on probation wrote in appeal documents filed Wednesday challenging the court order imposed earlier this year by Lorain County Probate Judge James Walther.

Taylor

Taylor, 35, who pleaded guilty to charges he failed to pay nearly $100,000 in back child support for the four children he’s already fathered, wouldn’t be the only one impacted by the order, attorney Doug Merrill wrote.

“The court-imposed order strips not only Mr. Taylor of his right to procreate, but it also strips the rights of any women with whom that Mr. Taylor may be involved,” Merrill wrote.

Merrill has also argued that the order could infringe the rights of women to decide whether or not to have an abortion because it could force them to choose between having a child and seeing Taylor punished or having an abortion to protect his freedom.

Walther, who has said he welcomes the appeal, imposed the order as a test case, and if it survives the challenge, has indicated he will impose it on other defendants in criminal nonsupport cases. Walther called the order “a matter of common sense and personal responsibility” when he imposed the condition as part of Taylor’s five years of probation.

In 2004, the Ohio Supreme Court struck down a similar order imposed by Medina County Common Pleas Judge James Kimbler because Kimbler didn’t provide a mechanism for the order to be lifted.

Walther’s order does contain a way for the order against Taylor to be removed — he must become current on his child support payments.

But both Merrill and the American Civil Liberties Union of Ohio, which filed a “friend of the court” brief supporting Taylor, wrote that is unfair to Taylor because of his economic status.

“In Mr. Taylor’s instance, he cannot pay based not on unwillingness to pay, but on inability,” Merrill wrote.

Both Merrill and the ACLU point to U.S. Supreme Court decisions that have struck down efforts by the government to regulate conduct in the bedroom as unconstitutional.

For instance, in 1942, the U.S. Supreme Court struck down an Oklahoma’s Habitual Criminal Sterilization Act.

“(Jack) Skinner, convicted of two separate felony offenses (one involving the theft of chickens) was ordered to undergo a vasectomy,” the ACLU wrote. “The Court invalidated the statute on equal protection grounds and, in so doing, noted that the rights at issue were fundamental, even for repeat felons.”

Not every court has overturned orders dealing with whether convicted criminals can procreate. The Wisconsin Supreme Court has upheld an order similar to what Walther imposed on Taylor.

Walther’s order isn’t Taylor’s only legal problem. He is facing drug charges that could result in his probation being revoked, regardless of what happens with the appeal.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.