Are We Sterilizing Prisoners? Why Courts Should Prevent Prison
Administrators from Denying Prisoners the Fundamental Right to
Procreate
Journal of Gender, Race and Justice
| January 01, 2013 | Minot, Tanner | Copyright
I. INTRODUCTION
In 2001, William Gerber, a forty-one-year-old inmate of the California penitentiary system, wanted to have
a baby with his wife, Evelyn, who was forty-four). (1) Gerber was in the midst of a 111-year sentence,
arising from his violation of California's "three strikes law." (2) The violation occurred when Gerber was
convicted not of murder, rape, or arson, but of "discharging a firearm and making terrorist threats." (3)
There was little to no chance the California courts would let William out on parole. (4) Still, he and his wife
desired to become parents. (5)
Because it was California policy to categorically deny prisoners serving life sentences the right to conjugal
visits, (6) Gerber determined that mailing his semen directly to his wife for artificial insemination was the
only way to fulfill his desire to procreate. (7) To accomplish this task, Gerber asked prison administrators
to allow him to send his semen to a laboratory in a plastic container by overnight mail. (8) Although
Gerber volunteered to pay all costs, prison administrators denied his request. (9) The prison warden
claimed that because the procedure was "not medically necessary" Gerber had no constitutional right to
have this simple desire fulfilled. (10) Because Gerber knew his wife would not be able to have children for
much longer, he sought injunctive relief in the courts to force the prison to honor his request. (11) The
district court and the Ninth Circuit Court of Appeals refused to grant the injunction, holding that a prisoner
does not have a constitutional right to procreate while in prison. (12)
To be a prisoner in the United States is to have many of the constitutional rights and freedoms other
citizens enjoy, and which most take for granted, simply disappear. (13) Historically, it is a status that
entails being at the mercy of the administrators of penal institutions who are, in large part, insulated from
judicial review. (14) Between 1980 and 2010, the rate of incarceration in the United States more than
tripled; in 2008, nearly one out of every hundred U.S. citizens was incarcerated. (15) Today, United
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States prisons house at least 50,000 inmates in solitary confinement, denying many the ability to
converse with others or read. (16) Rape is so common in prisons that it has become a matter of course.
(17) And all of this is perfectly constitutional. (18) This Note addresses why Gerber and others like him
have failed in their efforts to have children in prison and what courts might do to allow future prisoners in
Gerber's situation (19) to overcome the often arbitrary denial of their rights that has become a hallmark of
the United States prison system. (20)
II. BACKGROUND
The question of whether the right to procreate should survive incarceration involves a study of history and
constitutional law on the subject of prisoners' rights. (21) This Part first provides an overview of prisoners'
rights as they have developed since Skinner v. Oklahoma, (22) as well as a brief general discussion of
fundamental constitutional rights and standards of review. (23) Next, this Part focuses on the evolution of
the fundamental right of procreation for non-prisoners, both male and female, and addresses fundamental
rights that survive the prison context--such as the right to marry. (24) Finally, this Part provides
summaries of the two Circuit Courts of Appeals cases, Goodwin v. Turner (25) and Gerber v. Hickman,
(26) which have directly addressed a more limited question that is the subject of this Note: whether male
prisoners have the constitutional right to mail their semen to their wives for artificial insemination. (27)
A. Prisoners' Rights and the Right to Procreate
Over the past several decades, prisoners in the United States have benefited from a trend toward judicial
protection of some, but not all, of the fundamental rights that the Constitution grants United States
citizens. (28) The first landmark case on the subject of prisoners' rights was Skinner v. Oklahoma, (29)
decided in 1942. (30) In Skinner, the United States Supreme Court held that the forcible sterilization of a
prisoner was a violation of his "fundamental" constitutional right to procreate. (31) The Court based its
holding on the idea that sterilization deprived prisoners of a "basic liberty[,]" particularly in the case of
those prisoners who would eventually be released from prison. (32)
The Skinner principle, despite its role in establishing procreation as a fundamental constitutional right,
(33) did not immediately lead to progress in the area of prisoners' rights. (34) Courts in the years following
Skinner have not extended its principle, as some predicted, to grant an affirmative right of procreation-what some have called the right of "[f]ull procreative freedom"--for prisoners. (35) Moreover, the Supreme
Court has never directly ruled on whether the denial of a prisoner's affirmative right to procreate is
unconstitutional. (36) This Part provides an overview of the evolution of prisoners' rights, as recognized
by the courts. Next, it provides a discussion of the current standard of review for constitutional challenges
brought by prisoners. Finally, this Part discusses the rights that the Supreme Court has deemed
"fundamental" in both the prison and non-prison contexts.
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1. The Evolution of Prisoners' Rights
Prior to the 1960s, courts historically exhibited deference to the regulations and restrictions imposed by
jail and prison administrators. (37) In 1954, the Tenth Circuit, in Banning v. Looney, (38) articulated what
became known as the "hands-off" doctrine, (39) which stated that "[c]ourts are without power to supervise
prison administration or to interfere with the ordinary prison rules or regulations." (40) Years later, the
Eighth Circuit explained that "[t]he federal courts ... entertain a natural reluctance to interfere with a
prison's internal discipline. ..." (41) The hands-off attitude--the idea that courts had little to no authority
over the rights of convicts sentenced by judges for their wrongdoing--often resulted in the poor treatment
of prisoners. (42) Furthermore, prior to the 1960s, prisoners generally did not have any way to assert their
rights in court, as most courts determined that prisoners surrendered their constitutional rights upon
entering prison. (43) Courts adhered to these conventions at a time when societal attitudes and common
conceptions held that prisoners were little better, if not worse, than slaves. (44)
This policy of deference to prison rules and regulations has persisted over time. (45) Courts today remain
generally reluctant to side with prisoners against prison administrators, despite the fact that the scope of
prisoners' rights litigation has increased dramatically in recent years. (46) As the Supreme Court noted in
Pell v. Procunier, the nature of incarceration under a common-sense and historically-based
understanding withdraws or limits many privileges and rights. (47) Moreover, such restrictions are
"justified by the considerations underlying our penal system." (48) The Court elaborated on these
considerations in Procunier v. Martinez, finding that prisons primarily serve three government interests:
(1) order; (2) security; and (3) rehabilitation. (49) Whether punitive or reformist in nature, prison cultures
across the United States hold great power over the lives of the prisoners they contain. (50)
2. Judicial Scrutiny in Prisoners' Rights Cases and the Effects of Turner v. Safley (51)
Although prisoners' status as social outcasts necessarily abridges their constitutional rights, prisoners do
not lose all rights the moment they enter prison. (52) Beginning in the late 1970s, the Supreme Court
enumerated certain rights retained by prisoners, including some rights that survived incarceration but
were partially restricted by the historical goals and characteristics of the prison system. (53) First, in Bell
v. Wolfish, the Court emphasized that "convicted prisoners do not forfeit all constitutional protections by
reason of their conviction and confinement in prison." (54) Five years after Wolfish, in Hudson v. Palmer,
the Court held that "while persons imprisoned ... enjoy many protections of the Constitution, it is also clear
that imprisonment carries with it the ... loss of many significant rights." (55) The Court in Hudson
concluded that prisoners retain only those rights that are "not inconsistent with [their] status as ...
prisoner[s] or with the legitimate penological objectives of the corrections system." (56) The Hudson
standard thus required courts to reject prisoners' rights claims that were either (1) inconsistent with the
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"legitimate" goals of the prison system, or (2) inconsistent with the status of being a prisoner. (57)
Although the Hudson standard placed a high burden on prisoner-plaintiffs, it also provided prisoners with
a path for curbing the most egregious violations through judicial protection of their constitutional rights.
(58)
As seen in Hudson, the standard of review courts apply is a crucial factor in determining whether a
challenged prison restriction or regulation passes constitutional muster. (59) Until the late 1980s, it was
unclear what standard of review courts would apply in prisoners' rights cases. (60) Some courts applied
the two-part Hudson standard, which was linguistically similar to rational-basis review. (61) Other courts,
such as the Second Circuit in Abdul Wali v. Coughlin, applied strict scrutiny. (62)
In 1987, in the landmark case of Turner v. Safley, the Supreme Court settled any uncertainty by rejecting
a plaintiff-prisoner's invitation to adopt strict scrutiny as the standard of review in cases alleging violations
of prisoners' constitutional rights. (63) The Court refused to apply strict scrutiny because it did not wish to
"hamper [prison administrators'] ability to anticipate security problems and to adopt innovative solutions to
the intractable problems of prison administration." (64) Instead, the Court crafted a reasonableness
standard to determine whether a prison restriction impinged on prisoners' rights. (65) Specifically, the
Court held that, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid
if it is reasonably related to legitimate penological interests." (66)
Furthermore, the Turner Court articulated a four-part balancing test to determine the reasonableness (i.e.,
constitutionality) of a challenged prison restriction or regulation. (67) First, "a regulation cannot be
sustained where the logical connection between the regulation and the asserted goal is so remote as to
render the policy arbitrary or irrational." (68) Second, courts must give deference to prison policies that
provide alternative ways for inmates to exercise the protected right. (69) Third, courts must consider "the
impact accommodation of the asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally." (70) Lastly, "the absence of ready [regulatory] alternatives is
evidence of the reasonableness of a prison regulation." (71) The Court concluded by summarizing what
courts now recognize as the Turner standard of review: a "prison inmate retains those [constitutional]
rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of
the corrections system." (72) Today, the Turner standard remains the applicable standard of review in
prisoners' rights cases. (73)
3. The Fundamental Right to Procreate for Non-Prisoners
Starting in the 1960s, the Supreme Court began to broaden the scope of fundamental constitutional
guarantees. (74) In Griswold v. Connecticut, the Court held that the right to privacy invalidated a
Connecticut law that banned the use of contraceptives, even among married individuals. (75) Invoking
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NAACP v. Alabama, (76) the Court reaffirmed that a "governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms." (77) Seven years later, the
Court melded the notions of privacy and the right to procreation in Eisenstadt v. Baird, holding that "[i]f the
right of privacy means anything, it is the right ... to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to bear or beget a child." (78)
In the same year as the Eisenstadt decision, the Court held that "the rights to conceive and to raise one's
children have been deemed 'essential,' 'basic civil rights of man,' and '[r]ights far more precious ... than
property rights.'" (79) A year later, the Court once again invoked the notion of a fundamental constitutional
right to privacy in its landmark decision, Roe v. Wade, (80) which held that the due process right to
privacy included the right to obtain abortions. (81) Four years after Roe, in Carey v. Population Services
International, (82) the Supreme Court decided another issue concerning state regulation of the sale of
contraceptives and established that "[t]he decision whether or not to beget or bear a child is at the very
heart of this cluster of constitutionally protected choices." (83) By the mid-1970s, the Court had made
clear that it considered the right to procreate, outside the prison context, to be a fundamental
constitutional guarantee.
4. Fundamental Rights in the Prison Context
This Note has addressed the fact that prisoners necessarily sacrifice some, but not all, constitutional
rights when they enter prison. (84) It is helpful to examine those constitutional rights that do survive in the
prison context. (85) One example of a right that survives incarceration is the right to marry, which the
Supreme Court upheld in Turner v. Safley. (86) In Turner, a prisoner challenged a prison regulation that
effectively prohibited prisoners from marrying. (87) The Court, citing numerous positive attributes of
marriage, held that the regulation was not reasonably related to any legitimate prison goal, and was
therefore unconstitutional. (88) The Court reasoned that the positive attributes of marriage undermined
the contention that allowing prisoners to marry would hinder the goal of rehabilitation. (89) The Court
further noted that a penitentiary's ban on marriage was an "exaggerated response" to any potential
security concerns, especially in light of the minimal burdens imposed by prisoners exercising this right.
(90)
In addition to the right to marry, the Supreme Court has found that several other constitutional rights (91)
survive incarceration. Such rights include the Skinner guarantee against sterilization, (92) the right to free
exercise of religion, (93) the right to have meaningful access to courts, (94) the right to freedom of
speech, (95) and the right to be free of invidious racial discrimination. (96) These rights developed as the
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Supreme Court heard case after case arising from prisoners' complaints that prison administrators had
deprived them of basic constitutional entitlements. (97)
Although these fundamental rights survive in the prison context, exemplifying the principle that "convicted
prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in
prison," (98) it remains true that not every aspect or attribute of each of these rights survives
incarceration. (99) Put another way, even fundamental rights that survive incarceration may be subject to
"substantial restrictions" as a result of incarceration. (100) Turner suggests, however, that as long as
some indefinite number of "important attributes" survive (such as the positive attributes of marriage cited
by the Court), restrictions on rights do not alone preclude the right as a whole from surviving as well.
(101)
B. Prisoners and Procreation: Goodwin and Gerber
Although the Supreme Court has not directly addressed whether the right to procreate survives
incarceration, (102) the Eighth and Ninth Circuit Courts of Appeals have held that the right does not
survive incarceration. (103) The first of these decisions was Goodwin v. Turner, in 1990. (104) The
second was Gerber v. Hickman, in 2002. (105) Section One of this Part provides an overview of the
Goodwin court's majority and dissenting opinions, while Part Two addresses Gerber.
1. Goodwin v. Turner
The first of the two circuit cases arose when Steven Goodwin, an inmate in the Missouri prison system,
asked prison administrators for access to a plastic cup. (106) He hoped to use the cup to send his sperm
to his wife, for the purpose of artificially inseminating her. (107) The administrators denied his request.
(108) Goodwin appealed the denial on grounds that the prison administrators violated his fundamental
right to procreate. (109) The Eighth Circuit, after declining to review the denial under strict scrutiny,
applied the Turner standard, asking "whether the regulation [was] reasonably related to legitimate
penological interests." (110) The court assumed that Goodwin's right to procreate did, in fact, survive
incarceration; (111) however, the court did not make an explicit finding on the matter. (112) Instead, the
court upheld the prison administrators' denial of Goodwin's request, finding that the restriction satisfied
the Turner test because it was rationally related to the legitimate penological interest of "treating all
inmates equally. (113)
In reaching this conclusion, the court reasoned that, were prison administrators forced to allow Goodwin
to artificially inseminate his wife, they would have to make similar allowances for female prisoners. (114)
Because this corollary obligation would tax the prison's resources, particularly its medical services,
denying the right to female prisoners constituted a legitimate interest. (115) Furthermore, the court
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reasoned, because a corresponding legitimate penological interest is to treat all prisoners equally,
denying Goodwin's right furthered that goal and did not amount to a constitutional violation. (116)
Judge McMillian, in dissent, argued that the majority incorrectly applied the Turner test. (117) Weighing
the "fundamental importance of the right of procreation" against the "minimal burden that accommodation
of Goodwin's narrowly tailored request would impose" on the prison, McMillian reasoned that the
regulation was unconstitutional. (118) He concluded that the restriction of Goodwin's right to procreate
was not reasonably related to legitimate penological interests, thereby failing the Turner standard. (119)
In addition to concluding that the Goodwin majority incorrectly applied Turner, Judge McMillian analyzed
prisoners' right to procreate in a broader context. (120) He stated "[c]ourts have found that other privacy
rights of personal choice in family matters survive incarceration and deserve protection subject to
legitimate penological objectives, and there is every reason to believe that the same holds true for the
right to procreation." (121) McMillian cited Turner, Skinner, and Monmouth County Correctional
Institutional Inmates v. Lanzaro, (122) which held that a female prisoner's right to abortion survived
incarceration. (123) He concluded by emphasizing that "[e]xamination of these cases will confirm that the
right to procreation survives incarceration." (124)
2. Gerber v. Hickman (125)
Twelve years after Goodwin, the issue of a prisoner's right to procreate arose once again. (126) William
Gerber was an inmate in the California prison system serving what was essentially a life sentence. (127)
In a request similar to Goodwin's, Gerber asked prison officials to permit him to mail a sperm specimen to
his wife so that she could be artificially inseminated. (128) At the time of Gerber's request, the California
prison system did not permit conjugal visits for prisoners serving life sentences. (129) Therefore, Gerber
requested a plastic vial, a prepaid mailing container, and that the prison officials permit him to send his
sperm to a laboratory in the plastic vial. (130) The prison officials ultimately (131) denied his request, and
Gerber filed suit. (132) He argued that the Supreme Court's ruling in Skinner, where the Court held that
the forced sterilization of prison inmates was unconstitutional, in conjunction with the Turner holding--that
the right to marry survived incarceration--vested him with a fundamental right to procreate that survived
imprisonment. (133)
Applying the Turner test, the court first noted that, "[i]n order to determine whether this amounts to an
impermissible deprivation of Gerber's constitutional rights, our inquiry is two-fold. First, we must
determine whether the right to procreate while in prison is fundamentally inconsistent with incarceration."
(134) If the right was fundamentally inconsistent with incarceration, the inquiry would end in favor of the
prison's restriction, because "[p]risoners cannot claim the protection of those rights fundamentally
inconsistent with their status as prisoners." (135) Only when the prisoner's asserted right was not
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inconsistent with incarceration would the court turn to the second inquiry: whether "the prison regulation
abridging that right [was] reasonably related to legitimate penological interests. ..." (136) If the regulation
was reasonably related to legitimate penological interests, then the regulation would be valid; if not, it
would be unconstitutional. (137)
In addressing the first question, the court held that the right to procreate was fundamentally inconsistent
with incarceration. (138) The court first distinguished the right to procreate from other rights that survived
incarceration but that were abridged in the prison context. (139) The court conceded that the mere fact
that incarceration abridged such rights did not mean that those rights did not exist. (140) For example,
although the prison environment necessarily abridged many of the attributes associated with marriage,
such as living with one's spouse and the ability to have sexual intercourse, the right to marriage survived
incarceration. (141) The court went on to list several rights--including some "fundamental element[s] of
personal liberty"--that did not survive incarceration. (142) As examples of such rights, the court named the
right to conjugal visits and the right to unfettered visitation. (143) The court nevertheless found no case
law holding that the right to procreate survived incarceration, and declined to grant the prisoner-plaintiff's
request. (144)
The Gerber court concluded that its holding was "not dependent on the science of artificial insemination,
or on how easy or difficult it is to accomplish." (145) Rather, the court asserted that its holding "stem[med]
from consideration of the nature and goals of the correctional system, including isolating prisoners,
deterring crime, punishing offenders, and providing rehabilitation." (146) The court rejected Gerber's
analogy between sterilization and the preclusion of his procreative efforts. (147) It hinted that Skinner's
principle applied only to certain prisoners--those who would be eligible for release or parole at some later
date. (148) Furthermore, the court refused to even consider whether the restriction was reasonably
related to legitimate penological interests. (149)
As in Goodwin, a forceful dissent confronted the Gerber majority's conclusions. The dissenting opinion
stated that "[t]here is absolutely nothing in the record indicating that procreation simpliciter--the right to
have a child--is fundamentally inconsistent with the fact of incarceration." (150) Judge Tashima, joined by
four other judges, further criticized the majority's conclusion for resting not on facts but on vague
generalities about the nature of prison life and its goals. (151) The dissent argued that, while the right to
intimate association and the right to privacy were inconsistent with incarceration because of security
concerns, it did not follow that procreation through artificial insemination gave rise to the same concerns.
(152) Rather, "because of the technology of artificial insemination, ... procreation can be achieved without
compromising security." (153) The dissent concluded that, because none of the rights that do not survive
incarceration were at stake in this case, precedent required the prison to grant the request. (154)
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III. ANALYSIS
This Part begins with an analytical overview of two major topics addressed in the Background of this
Note. First, it addresses the history and progress of the plight of the United States prisoner. (155)
Second, this Part briefly covers the evolution of fundamental rights in the United States, with specific
emphasis on the right of procreation. (156) This overview will provide a framework for the argument that
the positive trend in prisoners' rights over the past few decades, combined with the fundamental status of
the right to procreate, should lead courts to conclude that this right should survive incarceration. (157)
Additionally, this portion of the Analysis argues that denying prisoners the right to procreate under
reasonable circumstances results in the functional sterilization of prisoners and thus could give rise to a
violation of Skinner v. Oklahoma. (158) Finally, this Part explains how courts have applied and may
prospectively apply the Turner v. Salley standard to provide a constitutional basis for prisoners to
exercise their fundamental right to procreate. (159)
A. The Trend: Expanding the Rights of Prisoners
Throughout the early part of the twentieth century, prisoners in the United States had few judiciallyprotected constitutional rights. (160) But over the past several decades, the United States Supreme Court
has adopted the view that there is no "iron curtain" separating prisoners from the Constitution. (161)
Furthermore, while the public's attitude toward prisoners likely lies somewhere between scorn and willful
ignorance, the general mood in the mainstream media with regard to prisoners is more humane today
than it once was. (162) Courts reflect this positive trend, as prisoners have seen steady but uneven
progress over the past several decades, (163) leading to an increasing judicial recognition of prisoners'
constitutional rights. (164) This Part argues that this evolution, coupled with the Skinner principle, can
pave the way for the right to procreation to survive incarceration. Finally, it continues with a discussion of
how such a right to procreate can survive the highly deferential Turner test.
1. Skinner and the Origins of Prisoners' Rights
There is nothing hypothetical about the fact that when prison administrators or courts deny a prisoner the
means to procreate, he or she is, for all intents and purposes, rendered sterile while in prison. (165)
Black's Law Dictionary defines "sterilization" as "Nile act of making (a person or other living thing)
permanently unable to reproduce." (166) Prison administrators across the country deny many prisoners
serving life sentences conjugal visits, (167) making it impossible for them to ever procreate. (168) By
denying such prisoners access to, for example, a plastic vial and the ability to mail the vial to their wives,
(169) prison administrators in effect deny those prisoners the ability to reproduce. In view of this result,
the Skinner principle outlawing forced sterilization of prisoners must serve as the backdrop for the entire
discussion. Because Skinner bestowed "fundamental right" status on the ability to procreate, the modern-
9
day denial of certain means of procreation by prison administrators, under the circumstances laid out
above, results in the functional sterilization of those who will spend the rest of their lives enduring the
United States prison system. (170)
Some courts and commentators have raised the possibility of an alternative interpretation of Skinner.
(171) These authorities suggest that Skinner merely held that forced sterilization of prisoners was a
violation of the Equal Protection Clause, rather than an infringement on prisoners' right to procreate. (172)
This interpretation asserts that Skinner did not uphold procreation as a fundamental right that survives
incarceration, but instead only established a bar on prison administrators sterilizing some, but not all,
prisoners, based on the nature of their crimes. (173) Thus, Skinner can be interpreted in two distinct
ways. (174)
The first and broadest interpretation asserts that the Skinner principle prohibits sterilization of prisoners
because the right to procreate is "fundamental" and thereby deserves robust judicial protection. (175) The
language of the Skinner opinion, stating that "[m]arriage and procreation are fundamental to the very
existence and survival of the race[,]" supports this interpretation. (176) Additionally, because the Skinner
Court articulated this right in the prison context, common sense dictates that the Court intended to uphold
the right for prisoners. (177)
On the other hand, some courts, such as the Ninth Circuit in Gerber, have suggested that Skinner stands
for a more limited idea: that only prisoners who will not be incarcerated for life have a constitutional
protection against being sterilized. (178) Prisoners in this group would include those serving, in some
instances, decades-long sentences, regardless of the particular circumstances they and their families
face. (179) This narrower reading asserts that Skinner merely held that it was only impermissible for
authorities to permanently violate the "fundamental right to procreate" of prisoners who are eligible for
release at some later date. (180) Because this interpretation does not grant all prisoners judicial
protection against sterilization, it follows that it would not support the conclusion that Skinner stands for
the principle that the right to procreate survives incarceration. (181)
The narrower interpretation of Skinner has a corollary effect. (182) Such a reading requires the
assumption that the Court might have permitted the sterilization of prisoners serving life sentences
without the possibility of parole. (183) This interpretation requires the logically inconsistent belief that,
notwithstanding the Skinner Court's declaration that the right to procreate is fundamental, no
constitutional violation would exist as long as the sterilized prisoner had no prospects of release. (184) Is
this really what the Skinner Court meant when it asserted that procreation was "fundamental to the very
existence and survival of the race[?]" (185) Such language seems to belie the very nature of procreation
as the Skinner Court described it. (186)
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To illustrate how strongly the Court viewed the importance of procreation as a fundamental right in
Skinner, one should look again to the opinion itself, which begins: "This case touches a sensitive and
important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the
perpetuation of a race--the right to have offspring." (187) The Court repeatedly noted the "irreparable
injury" sterilization imposes, and emphasized that there was "no redemption for the individual whom the
[sterilization procedure] touches." (188) Similarly, there was no redemption for William Gerber and his
wife, denied access to a mere plastic vial by the law and prison administrators. (189)
2. Contrasting the Right to Procreate with Other Fundamental Rights that Survive Incarceration
The Skinner rule, important as it was in establishing procreation as a fundamental right, did not
immediately lead to the progress many had hoped for in the area of prisoners' rights. (190) Because the
Supreme Court has not conclusively addressed the issue, (191) the question whether the fundamental
right to procreation survives incarceration remains unanswered. In view of this lack of certainty, it is
appropriate to consider how courts have treated other fundamental constitutional rights in the prison
context. One example of a fundamental right that survives incarceration is the right to marry, which the
Supreme Court established in Turner v. Safley. (192) Other rights that survive incarceration include (193)
the right to free exercise of religion, (194) the right to meaningful access to courts, (195) and the right to
free speech. (196)
When the Turner Court concluded that the right to marry survived incarceration, the Court considered
many attributes of intimacy normally associated with marriage--for example, sexual intercourse,
cohabitation, and emotional benefits. (197) The Court held that the right to marry survived incarceration,
despite the fact that many such attributes would necessarily be withheld by virtue of a prisoner's status.
(198) In support of its conclusion, the Court listed several "important attributes" of marriage that would
positively affect prisoners despite the nature of incarceration. (199) Such positive attributes of marriage
included: (1) the benefits of emotional support; (2) the idea that marriage was often an expression of
religious faith as well as a positive commitment to one's partner; (3) prisoners' expectations that their
marriage would be consummated upon release from prison; and (4) an ability for prisoners to avail
themselves of the many legal and governmental benefits associated with marriage, such as inheritance
rights, wrongful death claims, and legitimizing children. (200) The Court explained that these attributes
were sufficient to conclude that the right to marriage survived incarceration. (201)
Many of the rights that survive incarceration, particularly the right to marry, are closely related to the right
to procreate. (202) Procreation is a traditional aspect of the marital relationship, and for many people
having children is a primary goal of matriage. (203) The presence of family in a prisoner's life, especially
children, can be an important feature in the rehabilitation process. (204) One commentator has
11
emphasized that prisoners, to maintain some semblance of humanity, are "usually in need of immediate
personal and social acceptance by a small friendly group. The family is the ideal group to help him make
the transition from confinement to freedom." (205) While children should never be treated as instruments
for the rehabilitation of their parents, it would be obtuse for prison administrators to deny the benefits
families provide in the lives of prisoners. (206)
The Turner Court listed and relied upon several positive attributes of marriage as a basis for holding that
the right to marry survived incarceration; therefore, one may reasonably argue that the benefits of having
children should likewise be a crucial factor in determining the status of the right to procreate in prison.
(207) Specifically, the Turner Court's reliance on the emotional support marriage provides, as well as its
conclusion that marriage can be an expression of religious faith, (208) is an easy analog for the argument
that procreation survives incarceration. (209) In sum, the Turner Court's analysis of the right to marry-particularly its focus on the positive attributes of marriage in the prison context--would suggest that
denying the right to procreate by reasonable means is no less objectionable than denying the right to
marry. (210)
3. Turner and the Persistence of the Hands-Off Legacy
Despite recent progress in prisoners' rights cases, courts today continue to exhibit a broad degree of
deference to prison administrators. (211) Thankfully, the Banning hands-off doctrine, which held that
"[c]ourts are without power to supervise prison administrators or to interfere with the ordinary prison rules
or regulations[,]" (212) no longer applies with the force it once did. Indeed, the fact that the plaintiffprisoners in Goodwin and Gerber were able to bring grievances before a court is a mark of progress.
(213) However, prisoners seeking judicial protection of their rights still have an uphill battle, because
prison rules and regulations are entitled to a great deal of deference from the courts. (214) Prisoners
must prove that the rule or regulation they are challenging is entirely unreasonable. (215) To do so, they
must overcome a standard--the Turner reasonableness test--which shackles them with a high burden of
proof. (216)
As noted in the Background Part, the Supreme Court modified the hands-off doctrine in Procunier v.
Martinez while maintaining a "policy of judicial restraint" regarding prisoners' constitutional rights. (217)
Martinez, while still reflecting the traditional deference, took a leap in explicitly recognizing "the need to
protect constitutional rights" of prisoners. (218) Although Martinez was factually distinct from the
procreation issue, and its holding later restricted to a small subset of claims, (219) it nevertheless marked
progress for the cause of prisoner rights. (220)
It is helpful to review the Turner reasonableness standard, which requires courts to employ a four-part
balancing test to determine if the regulation or restriction in dispute is constitutionally permissible. (221)
12
First, courts must presume a regulation is unconstitutional if "the logical connection between the
regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." (222) Second,
courts must defer to prison policy when the challenged restriction leaves alternative ways for inmates to
exercise the protected right. (223) Third, courts consider "the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of prison resources
generally." (224) Lastly, "the absence of ready [regulatory] alternatives is evidence of the reasonableness
of a prison regulation." (225)
Although this test is easy to summarize--as with any reasonableness test--it is difficult to apply, especially
in the context of the right to procreate. (226) One commentator distills the broader analysis into a two-part
rule: (1) "constitutional rights survive incarceration to the extent they are consistent with incarceration";
and (2) if such rights are consistent with incarceration, then the court's inquiry "should focus solely on
whether legitimate penological interests preclude an inmate from exercising that right under Turner's
reasonableness test." (227) Courts must apply the four-part Turner balancing test in the second prong of
this analysis. (228) An examination of Goodwin and Gerber, with the Turner test in mind, indicates that
there might be hope for prisoners seeking to assert their right to procreate in the future. (229)
B. Hope from the Ashes of Goodwin and Gerber
Although the majorities in Goodwin and Gerber reached similar discouraging results, it remains uncertain
how other courts might apply the Turner test to a prisoner's attempt to assert his or her right to procreate.
(230) Questions arise in view of the Ninth Circuit's complicated procedural history in Gerber, which
despite its ultimate holding began with a seemingly hopeful result. (231) Furthermore, the dissents in both
cases provide evidence of strong legal arguments that some future court may adopt. (232) Despite these
two instances of prisoner defeat, it is reasonable to believe that a future court might travel a different path
and grant prisoners the constitutional right to procreate under reasonable circumstances. A discussion of
the dissents in those cases helps illustrate the legal paths a future prisoner-plaintiff in a similar case might
take.
Because it is based on a reasonableness determination, the Turner test is inherently susceptible to any
number of different modes of analysis. (233) Indeed, commentators have noted that a "troubling" aspect
of the test lies in uncertainty as to how courts might go about determining whether, and to what degree,
fundamental rights survive incarceration. (234) For instance, recall in Turner that the Court listed several
positive attributes of marriage as a basis for holding that the right to marry survived incarceration. (235)
This creates uncertainty because it is unclear how many attributes a fundamental right must have that are
"compatible with imprisonment" in order for that right to survive incarceration. (236) The corollary question
is: how many non-compatible attributes would it take, under Turner, to render a fundamental right
13
incompatible in its entirety? The standards regarding the sufficiency of compatibility are imprecise and
unpredictable. (237) As one pessimistic commentator explains, "[it would be unfortunate if, post-Turner,
the Court requires that constitutional rights maintain an unspecified minimum number of attributes
compatible with prisoner status in order for that right to survive for prisoners, because then courts could
more easily claim that a right does not survive incarceration." (238) Conversely, the fact that these
questions are unresolved may also be encouraging, because courts can just as easily rule in favor of a
prisoner-plaintiff. (239)
In view of the leeway a reasonableness standard affords, it is premature to assume that either the
Goodwin or the Gerber courts actually applied the Turner test correctly. One may easily contend, for
instance, that the Turner Court's conclusions about marriage's rehabilitative effect would hold equally
valid as an argument for the right to procreate. (240) Are not the prison officials' responses in Goodwin
and Gerber--denying the simple request of a plastic vial--just as "exaggerated" as the denial of the right to
marry in Turner? (241) In short, it is reasonable to hope, in view of the constitutional rights the Supreme
Court has over the years allowed prisoners to maintain, that courts in future proceedings will include the
right to procreate among them. Thus, inconsistency and uncertainty in this issue's legal history constitute
both a boon and a curse to male prisoners who seek to have children through artificial insemination.
The passionate dissent by Judge McMillian in Goodwin provides a useful framework for a strong legal
argument that the right to procreate survives incarceration, and that the court inappropriately denied the
prisoner in Goodwin the ability to exercise that right. (242) As a general matter, Judge McMillian first
asserted that, [b]ecause of the fundamental importance of the right of procreation and the minimal burden
that accommodation of Goodwin's narrowly tailored request would impose ... I would reverse. ..." (243)
This conclusion rested on two primary rationales: (1) the fundamental nature of prisoners' right to
procreate; and (2) the fact that the Turner-created survival of the right to marriage "strongly suggests" that
the right to procreate, like marriage, should persist even when one is incarcerated. (244)
McMillian further asserted that Skinner was the Supreme Court case that was "most directly on point."
(245) Echoing the problematic nature of a narrow interpretation of Skinner, he stated: "If the right to
procreation did not survive incarceration, prison officials would presumably be free to take away the
capacity to procreate upon incarceration." (246) McMillian claimed that such a result would lead to absurd
and barbaric results. (247) Moreover, considering the substantially small burden involved in granting the
prisoner's request, there was thus no viable reason to conclude that the prisoner's right to procreate did
not survive his incarceration. (248) This argument provides a strong legal basis for a future prisoner's
claim in two ways. First, McMillian's Turner analysis conclusively shows that the Turner reasonableness
test offers hope for prisoners seeking to establish their right to procreate under the current standard of
review. Second, McMillian's interpretation of Skinner provides a powerful legal and moral directive: to
14
countenance the sterilization of prisoners in any form is to violate the Constitution's protection of
fundamental rights.
IV. CONCLUSION
It is a necessary and unavoidable fact that prisoners surrender some constitutional rights upon entering
prison. But there is little sense, and much harm, in the notion that prison officials have the authority to
strip prisoners of rights that are compatible with the goals and interests of penal institutions. Although the
standard for reviewing the actions of prison administrators is deferential, it should not preclude the
allowance of the right to procreate in circumstances like those of the prisoners in Goodwin and Gerber.
Such an allowance is consistent with the history of both prisoners' rights and the right to procreate.
Moreover, the current case law--specifically Turner, Gerber, and Goodwin--has not foreclosed the
possibility that prisoners have a fundamental right to procreate. Above all, a civilized society should not
tolerate the barbaric practice of functionally sterilizing prisoners.
(1.) Gerber v. Hickman, 291 F.3d 617, 619 (9th Cir. 2002).
(2.) Tanimi Michele Kipp, Should the Right to Procreate Be Imprisoned?: The Debate of Gerber v.
Hickman, 29 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 125, 127 (2003).
(3.) Id.
(4.) Gerber, 291 F.3d at 619.
(5.) Id.
(6.) Kipp, supra note 2, at 127.
(7.) Id. at 128.
(8.) Id.
(9.) Id.
(10.) Id.
(11.) Id.
(12.) Gerber v. Hickman, 291 F.3d 617, 619 (9th Cir. 2002).
15
(13.) Thomas F. Woods, Note, Gerber v. Hickman: The Ninth Circuit Vacates a Seminal Case, 88 IOWA
L. REV. 1243, 1247 (2003).
(14.) Id at 1247-48.
(15.) Adam Gopnik, The Caging of America, NEW YORKER, Jan. 30, 2012,
http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?currentPage=all;
Adam Liptak, / in 100 U.S. Adults Behind Bars, New Study Says, N.Y. TIMES, Feb. 28, 2008,
http://www.nytimes.com/2008/02/28/us/28cnd-prison.html.
(16.) Gopnik, supra note 15.
(17.) Id
(18.) See id. (explaining that the Bill of Rights "emphasizes process and procedure rather than principles"
and grants "no protection at all against outrageous and obvious violations of simple justice").
(19.) In a discussion of the right to procreate in the prison context, complexities arise due to the diverse
array of incarcerated persons in the United States. For example, because it is a great deal less
burdensome for a male prisoner to mail his semen outside the prison for artificial insemination than for a
female prisoner to become pregnant and give birth in prison, the question of whether the right to
procreate should survive incarceration for women as well as for men is a complicated one. See Kipp,
supra note 2, at 144. While one may argue that prisons should permit procreation for all prisoners in
reasonable circumstances, this Note will limit the scope of the discussion to situations where male
prisoners request the right to mail their semen outside the prison for artificial insemination. Consequently,
this Note does not advocate for such a limitation on the general right to procreate in prison; on the
contrary, the United States justice system should take a long, hard look at the rights it denies prisoners in
all contexts. Rather, this Note's limited scope reflects the problems listed above, the realities of the
deferential Turner test, and the limited purview of case law on prisoners' procreative rights claims.
(20.) See Gopnik, supra note 15 (discussing the "scale and the brutality of [U.S.] prisons").
(21.) See infra Part II.A-B. (discussing the evolution of prisoners' rights, U.S. Supreme Court cases
involving fundamental rights, and specifically the fundamental right to procreate).
(22.) Skinner v. Oklahoma, 316 U.S. 535 (1942); see infra Part II.A.1.
(23.) See infra Part II.A.2.
16
(24.) See infra Part II.A.3-4.
(25.) Goodwin v. Turner, 908 F.2d 1395 (8th Cir. 1990).
(26.) Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002).
(27.) See infra Part II.B.
(28.) Woods, supra note 13, at 1247-48.
(29.) Skinner v. Oklahoma, 316 U.S. 535 (1942).
(30.) See Lindsay S. Harrington, Comment, Life-Term Inmates' Right to Procreate Via Artificial
Insemination: Why So Much Fuss Over the Contents of a Plastic Cup?, 33 MCGEORGE L. REV. 521,
529 (2002) ("Since Skinner, the Court has also recognized that a prisoner retains those constitutional
rights that are not inconsistent with his status as a prisoner or with legitimate interests related to
penological objectives.").
(31.) Id. at 541 ("Marriage and procreation are fundamental to the very existence and survival of the
race.").
(32.) Id.
(33.) The scope of this interpretation is the subject of some debate. See KATHLEEN M. SULLIVAN &
GERALD GUNTHER, CONSTITUTIONAL LAW 428 (17th ed. 2010) (explaining that the Court invalidated
the sterilization of prisoners on Equal Protection grounds, and not on substantive due process grounds).
(34.) Harrington, supra note 30, at 528-29 (discussing the lengthy and uneven progress made in allowing
prisoners to bring valid claims to court).
(35.) Id. at 529 (quoting Jack F. Williams, Differential Treatment of Men and Women by Artificial
Reproduction Statutes, 21 TULSA L.J. 463,481 (1986)) (internal quotation marks omitted).
(36.) See id. at 528-31.
(37.) Woods, supra note 13, at 1247-48 (explaining that courts frequently deferred to prison regulations).
(38.) Banning v. Looney, 213 F.2d 771 (10th Cir. 1954).
17
(39.) Note, Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of
Convicts, 72 YALE L.J. 506, 506 (1963) [hereinafter Beyond the Ken of the Courts].
(40.) Banning, 213 F.2d at 771 (defining the rule later known as the hands-off doctrine); see also Beyond
the Ken of the Courts, supra note 39, at 506.
(41.) Jackson v. Bishop, 404 F.2d 571, 577 (8th Cir. 1968).
(42.) Richard Guidice, Jr., Note, Procreation and the Prisoner: Does the Right to Procreate Survive
Incarceration and Do Legitimate Penological Interests Justifi, Restrictions on the Exercise of the Right, 29
FORDHAM URB. L.J. 2277, 2282-83 (2002).
(43.) Kristin M. Davis, Note, Inmates and Artificial Insemination: A New Perspective on Prisoners'
Residual Right to Procreate, 44 WASH. U. J. URB. & CONTEMP. L. 163, 163 (1993) (addressing the
dearth of pre-1960s prisoners' rights cases heard by courts).
(44.) Guidice, Jr., supra note 42, at 2282.
(45.) Woods, supra note 13, at 1247-48 (noting the continued reluctance of courts to validate prisoners'
rights claims).
(46.) Guidice, Jr., supra note 42, at 2277-78.
(47.) Pell v. Procunier, 417 U.S. 817, 822 (1974).
(48.) Id (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)) (internal quotation marks omitted).
(49.) Procunier v. Martinez, 416 U.S. 396, 412-13 (1974) (explaining that these government interests-order, security, and rehabilitation--provide the basis for judicial deference to prison policies).
(50.) Gopnik, supra note 15 (contrasting the Southern "vengeful" penal attitude toward incarceration with
the predominantly Northern "reformist" attitude).
(51.) Turner v. Safley, 482 U.S. 78 (1987).
(52.) Bell v. Wolfish, 441 U.S. 520, 545 (1979) (citations omitted) (explaining that prisoners retain some,
but not all, rights when they enter prison).
(53.) See infra notes 54-59; supra notes 50-52.
18
(54.) Wolfish, 441 U.S. at 545.
(55.) Hudson v. Palmer, 468 U.S. 517, 524 (1984).
(56.) Id. at 523 (alterations in original) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)) (internal
quotation marks omitted).
(57.) Id.
(58.) See id
(59.) See Turner v. Safley, 482 U.S. 78, 89 (1987) (reflecting the Court's reluctance to interfere with
prison administrators' policies under non-strict scrutiny review).
(60.) Woods, supra note 13, at 1249 (discussing the pre-Turner lack of guidance for courts hearing
prisoners' rights cases).
(61.) Hudson v. Palmer, 468 U.S. 517, 523 (1984); see also Turner, 482 U.S. at 89 (rejecting strict
scrutiny in prisoners' rights cases and establishing that restrictions on those rights must be reasonably
related to a legitimate penological interest).
(62.) Abdul Wali v. Coughlin, 754 F.2d 1015, 1018 (2d Cir. 1985) ("Where an inmate alleges that precious
constitutional rights are being abridged, the judiciary has the power, and indeed the duty, to intervene.
..."); Woods, supra note 13, at 1249-50.
(63.) Turner, 482 U.S. at 89 (implicitly rejecting the Abdul Wall strict scrutiny standard of review).
(64.) Id. (reflecting the need for judicial deference to prison restrictions and regulations).
(65.) Id.
(66.) Id.
(67.) Id. at 89-91.
(68.) Id at 89-90.
(69.) Turner v. Safley, 482 U.S. 78, 90 (1987)
(70.) Id.
19
(71.) Id. at 90-91.
(72.) Id. at 95 (alterations in original) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)) (internal
quotation marks omitted).
(73.) Woods, supra note 13, at 1250-51.
(74.) See infra notes 75-83.
(75.) Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (upholding a "penumbra" of privacy rights
emanating from the Bill of Rights).
(76.) NAACP v. Alabama, 377 U.S. 288, 308 (1964) (holding an Alabama statute that prevented the
NAACP from doing business within the state unconstitutional).
(77.) Griswold, 381 U.S. at 485 (quoting NAACP, 377 U.S. at 307) (internal quotation marks omitted).
(78.) Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
(79.) Stanley v. Illinois, 405 U.S. 645, 651 (1972) (quoting May v. Anderson, 345 U.S. 528, 533 (1953);
Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).
(80.) Roe v. Wade, 410 U.S. 113 (1973).
(81.) Id. at 154, 164-65 (upholding a woman's fundamental right to obtain an abortion in certain
circumstances).
(82.) Carey v. Population Servs. Inel, 431 U.S. 678 (1977).
(83.) Id. at 685.
(84.) See Bell v. Wolfish, 441 U.S. 520, 545 (1979) (citations omitted); supra Part 11.A.2.
(85.) See infra notes 86-96.
(86.) Turner v. Safley, 482 U.S. 78, 97-98 (1987) (striking down a Missouri prison's proscription of a
prisoner's right to many).
(87.) Id. at 82. Specifically, the prison's policy required prisoners wishing to many to obtain permission
from the prison superintendent. Id. The policy had the practical effect of prohibiting marriage. Id.
20
(88.) Id. at 95-98.
(89.) Id. at 98-99.
(90.) Id. at 97-98.
(91.) Guidicc, Jr., supra note 42, at 2284.
(92.) See supra Part II.A.
(93.) O'Lane v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (holding that a prisoner's right to free
expression of religion survives incarceration).
(94.) Bounds v. Smith, 430 U.S. 817, 823 (1977) (holding that a prisoner's right to access the courts
survives incarceration).
(95.) Pell v. Procunier, 417 U.S. 817, 822 (1974) (holding that a prisoner's right to free speech survives
incarceration).
(96.) See Substantive Rights Retained by Prisoners, 37 GEO. L.J. ANN. REV. CR1M. PROC. 944, 98084 (2008).
(97.) See Guidice, Jr., supra note 42, at 2284.
(98.) Bell v. Wolfish, 441 U.S. 520, 545 (1979).
(99.) See Turner v. Safley, 482 U.S. 78, 95-96 (1987).
(100.) Id. at 95.
(101.) Id. Turner itself is ambiguous as to precisely how many "important attributes" must persist in order
to allow the fundamental right to survive incarceration. See id. at 95-96 (concluding that several important
attributes of marriage, when "[t]aken together, ... are sufficient to form a constitutionally protected marital
relationship in the prison context").
(102.) See Harrington, supra note 30, at 528-31.
(103.) Gerber v. Hickman, 291 F.3d 617, 619 (9th Cir. 2002); Goodwin v. Turner, 908 F.2d 1395, 1396
(8th Cir. 1990).
21
(104.) Goodwin, 908 F.2d at 1395 (denying a prisoner's right to procreate on Equal Protection grounds).
(105.) Gerber, 291 F.3d at 619 (denying a prisoner's right to procreate on grounds that the request failed
under the Turner standard of review).
(106.) Goodwin, 908 F.2d at 1398.
(107.) Id.; Woods, supra note 13, at 1253-54.
(108.) Goodwin, 908 F.2d at 1397.
(109.) Id. at 1398.
(110.) Id. at 1398-99.
(111.) Id. at 1398.
(112.) Id.
(113.) Id. at 1399.
(114.) Goodwin v. Turner, 908 F.2d 1395, 1400 (8th Cir. 1990).
(115.) Id.
(116.) Id.
(117.) Id at 1401 (McMillian, J., dissenting) (arguing a correct application of Turner should have granted
the prisoner the right to procreate).
(118.) Id.
(119.) Id.
(120.) See Goodwin v. Turner. 908 F.2d 1395, 1401-03 (8th Cir. 1990) (McMillian, J., dissenting).
(121.) Id. at 1402.
(122.) Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) (holding a female
prisoner's right to an abortion survived incarceration).
22
(123.) Goodwin, 908 F.2d at 1402 (McMillian, J., dissenting).
(124.) Id.
(125.) The facts of this case are also addressed in the introduction. See supra Part 1.
(126.) The second case to address whether the right to procreate survived incarceration was Gerber v.
Hickman, 291 F.3d 617 (9th Cir. 2002).
(127.) See supra Part I. Gerber's sentence was technically "100 years to life plus eleven years." Gerber,
291 F.3d at 619.
(128.) Gerber, 291 F.3d at 619.
(129.) Id.
(130.) Id.
(131.) In Gerber, the Ninth Circuit initially ruled that the right to procreate survived incarceration and that
the warden's restriction failed the Turner test and was therefore unconstitutional. Gerber v. Hickman, 264
F.3d 882, 890-92 (9th Cir. 2001). This ruling stated that "there is no 'valid, rational connection' between
the prison regulation and the legitimate governmental interest put forward to justify it." Id. at 892 (quoting
Turner v. Safley, 482 U.S. 78, 89 (1987)). The Ninth Circuit subsequently granted a rehearing and
reversed its decision. Gerber, 291 F.3d at 620-21.
(132.) Gerber, 291 F.3d at 619.
(133.) Id. at 622.
(134.) Id. at 620.
(135.) Id.
(136.) Id.
(137.) Id.
(138.) Gerber v. Hickman, 291 F.3d 617, 620-21 (9th Cir. 2002).
(139.) Id.
23
(140.) Id.
(141.) Id. at 621-22.
(142.) Id. at 621 (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984)) (internal quotation marks
omitted).
(143.) Id.
(144.) Gerber v. Hickman, 291 F.3d 617, 622 (9th Cir. 2002).
(145.) Id.
(146.) Id.
(147.) Id.
(148.) See id.
(149.) Id. at 623.
(150.) Gerber v. Hickman, 291 F.3d 617, 624 (9th Cir. 2002) (Tashima, J., dissenting) (arguing that the
right to procreate was not fundamentally inconsistent with the prison system).
(151.) Id.
(152.) Id. at 625.
(153.) Id.
(154.) Id.
(155.) See infra Part III.A.1.
(156.) See infra Part III.A.2.
(157.) See infra Part III. A.1-3.
(158.) See infra Part III.A.1.
24
(159.) See infra Part III.B.
(160.) Davis, supra note 43, at 163 (stating that, prior to the 1960s, prisoners had essentially no judiciallyprotected constitutional rights).
(161.) Hudson v. Palmer, 468 U.S. 517, 523 (1984).
(162.) See. e.g., Erik Eckholm, U.S. Shifting Prison Focus to Re-entry Into Society, N.Y. TIMES, Apr. 8,
2008, http://www.nytimes.com/2008/04/08/washington/08reentry.html; John Sides, How Prisons Make
Bad Citizens, WASH. POST, Aug. 25, 2010, http://voices.washingtonpost.com/ezraklein/2010/08/how_prisons_make_bad_citizens.html.
(163.) See Woods, supra note 13, at 1247-48.
(164.) See id.
(165.) See supra note 19. This Note has previously discussed the problems inherent in the right to
procreate as it applies to various classifications of prisoners. This Note refers here to prisoners whose
terms of imprisonment are substantial enough to make it impossible for them to reproduce without the aid
of prison administrators, and whose requests for the right to procreate are reasonable under the
circumstances.
(166.) BLACK'S LAW DICTIONARY 1454 (8th ed. 2004).
(167.0 See Hernandez v. Coughlin, 18 F.3d 133,137-38 (2d Cir. 1994) (holding that there is no
fundamental right to conjugal visits while in prison).
(168.) See id.
(169.) This factual situation mirrors that of Goodwin v. Turner, 908 F.2d 1395 (8th Cir. 1990), and Gerber
v. Hickman, 291 F.3d 617 (9th Cir. 2002).
(170.) See generally Gopnik, supra note 15 (asserting that the state of the United States prison system is
"the moral scandal of American life").
(171.) See SULLIVAN & GUNTHER, supra note 33, at 428 (asserting that Skinner's holding is rooted in
the Equal Protection Clause).
(172.) See id.; Gerber v. Hickman, 291 F.3d 617, 622 (9th Cir. 2002); Guidice, Jr., supra note 42, at 2285.
25
(173.) See Goodwin v. Turner, 908 F.2d 1395, 1402-03 (8th Cir. 1990) (McMillian, J., dissenting)
(explaining the procreation-as-fundamental-right interpretation of Skinner); SULLIVAN & GUNTHER,
supra note 33, at 428 (explaining the Equal Protection interpretation).
(174.) See supra note 173.
(175.) See Goodwin, 908 F.2d at 1402-03 (McMillian, J., dissenting): Skinner v. Oklahoma. 316 U.S. 535,
541 (1942).
(176.) Skinner, 316 U.S. at 541.
(177.) See Woods, supra note 13, at 1264.
(178.) Gerber v. Hickman, 291 F.3d 617, 622 23 (9th Cir. 2002).
(179.) For example, in Gerber, the plaintiff's wife was probably approaching menopause, which explains
his rush to assert his procreative right. Id. at 619.
(180.) See id. at 622-23.
(181.) See id.
(182.) See id. at 628 (Tashima, J., dissenting) (arguing that Skinner's holding was not restricted "to the
proposition that forced surgical sterilization of prisoners violates the Equal Protection Clause," but instead
stood for a much more robust constitutional protection for prisoners seeking to procreate while in prison).
(183.) See id. at 624 (citing Skinner for the proposition that the right to procreate is a fundamental right in
the prison context).
(184.) See Gerber v. Hickman, 291 F.3d 617, 622-23 (9th Cir. 2002) (arguing that the key distinction in
the Skinner holding was between those prisoners who were incarcerated for life and those who were not).
(185.) See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
(186.) See id. at 536.
(187.) Id.
(188.) Id. at 541.
26
(189.) Gerber, 291 F.3d at 619.
(190.) See supra Part II.A.
(191.) See supra Part II.A.
(192.) Turner v. Safley, 482 U.S. 78, 96 (1987) (holding that the right to marry survives incarceration).
(193.) Guidice, Jr., supra note 42, at 2284; see also supra notes 92-96.
(194.) O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (holding the right to express one's religion
survives incarceration).
(195.) Bounds v. Smith, 430 U.S. 817, 823 (1977) (holding the right of prisoners to have access to courts
survives incarceration).
(196.) Pell v. Procunier, 417 U.S. 817, 822 (1974) (holding the right to free speech survives
incarceration).
(197.) Turner, 482 U.S. at 95-98.
(198.) Id.
(199.) Id. at 95-96.
(200.) Id.
(201.) Id. at 96 ("Taken together, we conclude that these remaining elements are sufficient to form a
constitutionally protected marital relationship in the prison context.").
(202.) Woods, supra note 13, at 1264-66 (asserting historical connections between the right to marry and
the right to procreate).
(203.) Id. at 1264.
(204.) Edith T. Peebles, Steven J. Goodwin is Doing Federal Time, and We Won't Let Him Be a Father-the Erosion of the Rights of Federal Prisoners: Goodwin v. Turner, 24 CREIGHTON L. REV. 1165,1198
(1991).
27
(205.) Id. (quoting Eugene Zemans & Ruth Shonle Cavan, Marital Relationships of Prisoners in TwentyEight Countries, 49 J. CRIM. L. CRIMINOLOGY & POL. SCI. 50,50 (1958)).
(206.) See id.
(207.) Woods, supra note 13, at 1263-64.
(208.) Id. at 1264.
(209.) This is merely to suggest that having children can be a source of emotional support and an
expression of religious faith. See generally id. at 1263-64.
(210.) See id.
(211.) See supra Part II.A.2.
(212.) Banning v. Looney, 213 F.2d 771. 771 (10th Cir. 1954) (establishing the hands-off doctrine).
(213.) It is certainly progress compared to the Banning hands-off principle, which would have prevented
the plaintiffs in Goodwin and Gerber from ever seeing a courtroom. See id.
(214.) Turner v. Safley, 482 U.S. 78,89 (1987).
(215.) Id. at 89-90.
(216.) See supra Part II.A.2.
(217.) Procunicr v. Martinez, 416 U.S. 396,406 (1974).
(218.) Id.
(219.) Martinez dealt with prisoners' ability to send correspondence to free people outside the prison, and
thus fell under a First Amendment analysis. Id. at 408.
(220.) See Thornburgh v. Abbott, 490 U.S. 401, 414 (1989) (asserting that, especially when contrasted
with the "hands-off' doctrine, the Turner "reasonableness standard is not toothless").
(221.) Turner v. Salley, 482 U.S. 78, 89 (1987).
(222.) Id. at 89-90.
28
(223.) Id. at 90.
(224.) Id.
(225.) Id.
(226.) See Woods, supra note 13, at 1261-73 (discussing the difficulties in applying the Turner test).
(227.) Id. at 1264 (reframing the Turner test into a more comprehensible two-pan analysis).
(228.) Id.
(229.) See infra Part III.B.
(230.) See Woods, supra note 13, at 1263-64.
(231.) See id. at 1257-61. The Ninth Circuit originally held that the right to procreate survives
incarceration in Gerber v. Hickman, 264 F.3d 882 (9th Cir. 2001), only to reverse its own decision in
Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002). Woods, supra note 13, at 1258-61.
(232.) See Gerber, 291 F.3d at 624-32 (Tashima, J., dissenting); Goodwin v. Turner, 908 F.2d 1395,
1400 07 (8th Cir. 1990) (McMillian, J., dissenting).
(233.) Woods, supra note 13, at 1262 (addressing the ambiguities of the Turner test).
(234.) Id.
(235.) Turner v. Safley, 482 U.S. 78, 95-96 (1987).
(236.) Woods, supra note 13, at 1262.
(237.) See id.
(238.) Id.
(239.) This is a necessary corollary from the above argument. See id.
(240.) See Turner, 482 U.S. at 95-96; see also supra Part II.A.4.
(241.) See Turner, 482 U.S. at 97-98; see also supra Part II.A.4.
29
(242.) See Goodwin v. Turner, 908 F.2d 1395, 1400-07 (8th Cir. 1990) (McMillian, J., dissenting).
(243.) Id. at 1401.
(244.) Id. at 1402.
(245.) Id.
(246.) Id. at 1402-03.
(247.) Id.
(248.) See also Gerber v. Hickman, 291 F.3d 617, 624 (9th Cir. 2002) (Tashima, J., dissenting) ("We
need not conclude at this stage of the litigation that the right to procreate necessarily is consistent with
incarceration, but only that the record before us does not establish that it is not.").
30