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Jewish World Review Nov. 9, 2001 / 23 Mar-Cheshvan, 5762

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Inmates and proud parents -- SIX days before Sept. 11 purged much of the silliness from public life, the 9th U.S. Circuit Court of Appeals, famously imaginative and frequently reversed, outdid itself. Rummaging around in the U.S. Constitution, it discovered that male inmates in prisons have a "fundamental" right to procreate by artificial insemination.

Female prisoners, however, do not have the corresponding right. And the 9th Circuit is uncharacteristically reticent about whether males can exercise this right only with an actual spouse, or also with a significant other. It is unclear why, as a matter of constitutional law, as the 9th Circuit imagines it, that difference should make any difference.

William Gerber, 41, resides in a California prison, where, as a "third strike" felon, he is serving a life sentence for his third conviction, this time for making terrorist threats, using narcotics, negligently discharging a gun and illegally possessing a gun as an ex-felon. Chafing at the way imprisonment interferes with his social life, two years ago he sued, charging a violation of his civil right to send some of his semen to a Chicago sperm bank that would impregnate his wife.

In early September, a three-judge panel of the 9th Circuit ruled, 2 to 1, that Gerber is correct -- James Madison and the others in Philadelphia 214 years ago did indeed provide just such a right. Joined by Stephen Reinhardt, another judge who provides the U.S. Supreme Court with steady work reversing 9th Circuit rulings, Judge Myron Bright explained how "the right to procreate survives incarceration."

California regulations -- which Bright, remarkably, given his penchant for activism, has not rewritten -- forbid conjugal visits for prisoners serving life sentences. But, Bright notes, the Supreme Court has several times affirmed the "fundamental" nature of the right to procreate -- at least, Bright judiciously adds, "outside the prison context." But he says that context is constitutionally irrelevant because no "legitimate penological objectives" are served by not recognizing Gerber's procreative right.

In 1942 the Supreme Court struck down Oklahoma's Habitual Criminal Sterilization Act, saying that prisoners have a constitutional right to retain their procreative abilities for use after incarceration. Bright says that ruling, by stressing the "fundamental" nature of the procreative right, "lends support" to the notion that prisoners retain "some form" of such right in prison.

Although the San Francisco-based 9th Circuit is a factory for manufacturing novel rights, Bright inexplicably accepts that prisoners have no constitutional right -- given his jurisprudence, why ever not? -- to conjugal visits. Neither is there, he says, a constitutional right for women inmates to be impregnated. "We cannot," he says, "ignore the biological differences between men and women."

However, prison authorities understandably worry that women prisoners will now claim that the Constitution's guarantee of equal protection of the laws will confer upon them the right to be inseminated, which will create substantial burdens for prison administration. And when that claim is made, as surely it will be, Bright surely will say that niggling administrative matters cannot interfere with the enjoyment of "fundamental rights." He already says: "It is simply impermissible to restrict the constitutional rights of one group because of fear that another group will assert its constitutionally protected rights as well."

Dissenting, Judge Barry Silverman, who has a dry sense of humor -- and needs it, given the "Through the Looking Glass" logic of many of his 9th Circuit colleagues -- wrote: "This is a seminal case in more ways than one" because "the majority simply does not accept the fact that there are certain downsides" -- a delicious choice of words -- "to being confined in prison." One of them is "the interference with a normal family life."

Yes, he says, the Constitution's proscription of "cruel and unusual punishments" protects prisoners from measures such as forced sterilization. However, that hardly establishes "a constitutional right to procreate from prison via FedEx."

Silverman does not subscribe to the jest that inmates retain only two rights in prison -- the right to serve their time and the right not to be exposed to secondhand smoke. However, Silverman quotes Wisconsin's Supreme Court: "Incarceration, by its very nature, deprives a convicted individual of the fundamental right to be free from physical restraint, which in turn encompasses and restricts other fundamental rights, such as the right to procreate."

Before Gerber gets his heart set on fatherhood, he should consider this: In the five terms from 1996 through 2000, the U.S. Supreme Court reviewed 90 rulings from the 9th Circuit and reversed 77 of them.

Now, will a post-Sept. 11 sobriety restrain the 9th Circuit's silliness? Don't be silly.

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