ELYRIA — Lawyers for Asim Taylor continued their efforts to overturn a court order barring the Elyria man from having any more children while he is on probation for failure to pay child support, telling a panel of appeals judges Thursday that a Lorain County probate judge’s order violates Taylor’s fundamental rights.
“Procreation’s not a crime,” defense attorney Doug Merrill said during the hearing before the 9th District Court of Appeals. “He’s having children with other consenting adults.”
Probate Judge James Walther imposed the order in January when he placed Taylor on probation for failing to pay nearly $100,000 in back child support to the four children he’s already fathered. The judge said at the time that the order was “a matter of common sense and personal responsibility.”
County Assistant Prosecutor Steve Albenze echoed Walther’s sentiment, arguing Thursday that the order makes sense because the state has an interest in making sure Taylor supports his children.
“The more children you have, the more child support payments you’re going to have,” he said.
Merrill, however, argued that the order is similar to the concept of debtor’s prisons, where inmates who couldn’t pay their creditors once were incarcerated. He said the order effectively bases Taylor’s compliance on his net worth.
Theoretically, Merrill said, a judge could impose the same order on a person who owes only $2,000 in child support.
Walther has said that he views Taylor, 36, as a test case and if his order survives scrutiny by the appeals court and possibly the Ohio Supreme Court, he plans to impose similar restrictions on defendants in future child support cases.
Jennifer Martinez Atzberger, an attorney for the American Civil Liberties Union of Ohio, said that the effect of the order goes beyond prohibiting Taylor from having more children. It prevents him from engaging in sexual relations because all sexual intercourse carries the risk of impregnation, she said.
She joined Merrill in worrying about how far Walther and other judges might take procreation bans.
“This is not just about one man’s individual right to have another child. It’s a slippery slope,” Atzberger said.
The legality surrounding banning people from having more children never has been fully decided by the court system. Although the U.S. Supreme Court struck down an Oklahoma law that mandated forced sterilization for habitual criminals in 1942, the Wisconsin Supreme Court has recently upheld a court order similar to the one Walther imposed on Taylor.
In 2004, the Ohio Supreme Court struck down an order imposed by Medina County Common Pleas Judge James L. Kimbler that barred a man on probation from having more children. In that case, the state’s high court ruled that the procreation ban was unconstitutional because Kimbler didn’t include a mechanism for lifting the order.
Albenze said the same logic can’t be applied to Walther’s order because it contains a mechanism for Taylor to get out from under the ban — he must become current on his child support obligations.
Appeals Judge Carla Moore also questioned Albenze about what would happen if Taylor found an independently wealthy woman who wanted him to father a child she planned to support herself. She also pointed out the difficulty in actually enforcing the order.
Albenze said no one was saying enforcing the order would be easy.
“It may be tough to enforce, (but) it’s constitutional,” he said.