"Bear in mind what it is that made this country great," attorney Teresa Zuber tells me. She's the attorney who just won last week's U.S. Court of Appeals for the Ninth Circuit judgment in favor of a California inmate who wants to father a child through artificial insemination. As an appellate panel in San Francisco wrote (and this is federal law now for nine states), "We hold that the right to procreate does indeed survive incarceration."
Actually, what made this country great were people who yearned to live free and responsibly. What's making this country less great is the attitude that if someone else has a right, you should have it, too -- even if you're behind bars because you're a three-time loser in prison for life.
Enter William Reno Gerber, 41. In 1997, Gerber was high on drugs, angry, armed and shooting up his home. His wife, Evelyn, called the police. "Mrs. Gerber did not want him to be arrested or charged with anything, she just wanted the cops to come to calm him down," explained Zuber.
One big problem: Gerber was a twice-convicted felon. It was illegal for him to have a gun, and it was illegal for him to play shoot 'em up. So rather than simply calming down Gerber -- at the risk of their lives, thank you very much -- police arrested him. A jury convicted him for discharging a firearm negligently, making terrorist threats (against the cops, who were supposed to just calm him down and leave) and being an ex-felon in possession of a firearm.
A judge sentenced Gerber to 111 years -- which means no conjugal visits. "Best-case scenario, he would be eligible for parole in 55-and-a-half years," explained Department of Corrections spokesman Russ Heimrich.
The Gerbers, Zuber says, had wanted children before the arrest, and still wanted them after a warden rejected the sperm-donation scheme. With their own money, they hired attorneys to appeal the warden's decision and offered to pay any costs incurred in the artificial insemination process.
"The attorney general (Bill Lockyer) is wasting all of this taxpayer money to fight this poor couple's profound desire to bear a child together," said Zuber.
Actually, Lockyer is trying to save taxpayers' money. Zuber likes to frame the case as one of a "poor couple" against the state, but the federal appeals court's decision could open a floodgate of inmate sperm (and eggs, later).
You just know that if Gerber can be a sperm donor, indigent inmates will petition for the same "right." A court that would find a right to procreate in prison surely would agree. Expect female inmates to demand equal treatment -- and win.
What if a girlfriend wants to have an inmate's baby? Zuber answered, "Whether it's a girlfriend or not, I don't know. That case isn't before me. I haven't thought it through." Of course not.
Deputy Attorney General Greg Walston noted, "I don't know where it does end. The potential ramifications across the Ninth Circuit are significant. That's what we get when we get a case like this, when a court recognizes a new right, that all inmates have a right to procreate."
Look at how Judges Myron H. Bright and Stephen Reinhardt came to their conclusion. In 1978, the Supreme Court ruled that prisoners have a right to marry, even if inmate marriages preclude cohabiting. Another decision, Skinner, wisely put an end to Oklahoma's Habitual Criminal Sterilization Act -- ending a sorry reign of forced sterilizations -- because prisoners have a right to procreate after they've served their time. Amen to that.
Too bad the two judges then decided that those two decisions, together with the California penal code, mean that prisoners who do not have the right of conjugal visits -- because there's a legitimate reason for withholding them -- do have a right to procreate by methods for which there are no "legitimate penological reasons" (don't blame me for the choice of words here) to oppose.
Earth to the Ninth Circuit court: The "legitimate penological reason" is that prison is punishment. No freedom. No hot Starbucks lattes. No new babies.
Not one to pass up a good pun, dissenting Judge Barry G. Silverman wrote, "This is a seminal case in more ways that one." And: "With the utmost respect, the majority's reading of the Constitution is as unprecedented as it is ill-conceived."
Ill-conceived is the word. It's just plain selfish to choose to have a child whose dad will be in prison from birth to, not just high school graduation, but also early retirement. There are foster children and hard-to-adopt kids for whom life with the Gerbers could be a step up. Nix that, because, Zuber explained, "He's a devout Christian, and he feels very strongly that God wants him to have a child, and Mrs. Gerber does, too."
Great. The Gerbers feel strongly about it. Let's change the law.
Teresa Zuber suggests that I think about what makes America great. Would-be parents like these are not the answer to her question.