The U.S. Supreme Court has yet to address a case that is precisely on point for such a probation condition. Nonetheless, two lines of decisions are relevant. One line concerns sterilization. In its infamous 1927 decision in Buck v. Bell, the Court upheld the compulsory eugenic sterilization of the "mentally defective" in a case involving a young woman named Carrie Buck. The Court stated that "three generations of imbeciles are enough."

In 1942, however, in Skinner v. Oklahoma, the Court – without overruling Buck – invalidated a punishment of sterilization that was imposed upon some, but not all, types of recidivist felons. In doing so, the Court said that procreation is a fundamental constitutional right and must therefore not be the subject of arbitrary deprivation.

In a second line of cases, the Court has recognized the right not to procreate, in decisions protecting the use of contraception (Eisenstadt v. Baird and Griswold v. Connecticut) as well as abortion (Roe v. Wade). In each of these decisions, though the issue before the Court was the right to avoid reproducing, the rhetoric of the Justices underlined the importance of allowing people to choose whether or not to procreate. In other words, even though these particular cases provided an entitlement not to reproduce, they did so on a theory that encompassed both negative and positive choices in that domain.

Based on these cases, lower courts that have confronted probation conditions involving the use of contraception (e.g., conditions requiring the surgical introduction of a temporary contraceptive) have generally invalidated such conditions. In doing so, they have concluded that the government did not demonstrate that depriving the probationer of her option to reproduce was necessary to serve a compelling governmental interest, the standard for reviewing deprivations of fundamental constitutional rights.

In one exceptional case, however, a state supreme court held otherwise, approving an order not to procreate that had been imposed upon a man convicted of failing to pay child support for his nine existing offspring.

The Texas Judge's Reasoning – and the Problems in His Logic

Notwithstanding the case law recognizing a fundamental right to determine one's reproductive life, Judge Baird asserted that this unusual probation condition was an appropriate one. He explained, first, that the law gives him a great deal of discretion to set any reasonable probation condition. Second, he stated that he could unquestionably have sentenced Salazar to a prison term, during which she would not have been able to reproduce. Therefore, he suggested, he had effectively imposed a less severe version of what would have been a permissible prison sentence by ordering the probationer not to have a child.

Before assessing the constitutional legitimacy of the probation condition imposed, it is useful to take a closer look at the judge's own arguments. First, though Texas law does give a judge considerable discretion in setting conditions of probation, this fact does not relieve him of the obligation to obey the dictates of the U.S. Constitution. If one may not deprive a person of her right to procreate as punishment for a crime, then a judge who does so has violated the law, regardless of what Texas statutes purport to authorize.

Second, on the question of Salazar's not being able to procreate inside a prison anyway, such an argument may prove too much. There are many things that one cannot do inside a prison – including organizing a rally to protest an unfair law – that do not thereby become fair game as a probation condition.

The inability to procreate in prison is, to some degree, an incidental byproduct of confinement. To make it, instead, a deliberate and targeted intervention in an otherwise free person's life is quite a different matter. Indeed, the death penalty incidentally eliminates a condemned person's ability to do anything, once dead, but this does not mean that every deprivation that falls short of death (including compelled fasting, the removal of limbs, or a refusal to permit any expression of ideas) is necessarily acceptable.

The judge's assumptions about his authority to prohibit Salazar from conceiving a child are therefore questionable. Nonetheless, we might ask, should a judge be able to order a person not to conceive?

The Argument in Favor of a Non-Procreation Probation Condition

From the perspective of a convicted felon, the option of freedom with the no-procreation condition is likely to look much more appealing than the alternative of incarceration. Whether by design or not, either penalty would frustrate the convict's desire to reproduce during her sentence. The choice would therefore appear simple: It is less aversive to live on the outside for a decade and not conceive children (because of a direct order) than it is to live in a prison cell for ten years and not conceive children (because of a lack of opportunity). In fact, it is possible that the particular probationer had no plans to have children and therefore might view the probation condition as insignificant. Virtually no one, by contrast, would view ten years in prison as an insignificant burden.

From the point of view of society, moreover, incarcerating a prisoner is extremely expensive. Some estimate the cost at about six times that of probation supervision. Imprisonment is therefore arguably a worthwhile proposition only if at least one of two conditions is met – either the criminal's act was so wrongful that inflicting retribution is a high priority or the criminal poses an apparent danger to the population and must be incapacitated. But Felicia Salazar – the woman on probation in this case – does not appear to have acted out of malice toward her daughter – she was instead passive in the face of her boyfriend's violence. For this reason, she seems a poor candidate for harsh retribution, as the judge appeared to recognize in imposing probation rather than imprisonment in the first place. For similar reasons, Salazar would be unlikely to pose a threat to anyone.

The only individuals whom Salazar might endanger, based on her history, are dependent children in her care. Given her record of neglecting the needs of her own child (who is now in foster care), however, no government official will deem Salazar fit to become a foster parent or an adoptive mother in the near future. Thus, the only potential means by which she might inflict harm is by having her own child and then failing to protect and care for that child. Ordering her not to conceive and a bear a child, then, is not only less harsh and much less expensive than incarceration, but it also seems more closely to fit the incapacitation objective of the state with respect to her particular crime.

The Difficulties with the Argument for a Non-Procreation Probation Condition

To understand what might be wrong with a no-conception condition of probation, one must look beyond the particular choice faced by Salazar, who is – for the reasons articulated above – more likely to accept than to complain about the no-procreation condition. One way to do that is to assume hypothetically that in the next ten years, Salazar violates the condition at issue and conceives. What happens then?

One possibility is that Salazar discovers that she has conceived and then seeks an abortion to destroy the evidence. In such a case, assuming that she would not otherwise have terminated her pregnancy, the judge's order has effectively pressured a woman into aborting as a means of avoiding incarceration. This prospect will likely disturb anyone who believes that the decision whether or not to continue a pregnancy belongs to a woman, and it will undoubtedly also trouble those who oppose abortion on moral grounds.

To avoid this possibility, the judge might arrange for routine or random pregnancy tests – just as some probationers are subject to random drug testing. In such a case, an abortion would not necessarily protect Salazar from the discovery of her having conceived, because her hormone levels could expose the truth, even after termination. This might remove (or at least reduce) the incentive for her to terminate a pregnancy.

But if Salazar did have an abortion, she could legitimately ask why the judge would punish her for having conceived. That is, if – as the law currently provides – a woman may not be compelled to carry a pregnancy to term, then what purpose does it serve to place Salazar in prison for conception if her abortion has eliminated the potential of harm to a child whom she might have neglected? To put the matter differently, what business does a judge have in ordering her not to conceive, rather than just ordering her not to give birth?

It is possible that the judge ordered Salazar not to conceive to avoid the appearance of pressuring her to abort, but the consequence is either to incentivize abortion nonetheless, or to be prepared to incarcerate a woman after she has eliminated the possibility that she will neglect her child in the future. And if Salazar conceives but decides to remain pregnant, then placing her in prison is unlikely to provide the most healthful environment for the optimal development of her fetus. The order not to procreate, in other words, creates many problems as soon as Salazar decides to violate it.

The judge might alternatively insist on Salazar's use of a contraceptive that can be implanted in or injected into her body (and thus verified) such as a Depo-Provera injection or an IUD. Such an intervention, however, is physically intrusive and may also give rise to unanticipated health consequences. For a judge to direct medical interventions that are not in the patient's best interests, moreover, might itself be unconstitutional, under Washington v. Harper.

And finally, it is not obvious why the judge cannot accomplish the same child-protective objective (without regulating reproduction) by requiring that any children Salazar does have be removed from her custody. With such an obvious less-restrictive alternative, the judge's procreation probation condition becomes even more questionable.

Better than Prison

Yet the original question still gnaws at us – how can it be permissible to incarcerate a woman but impermissible to release her on condition that she not have more children (whom she would be unfit to raise)? This question reveals a hidden assumption – currently accepted as uncontroversial by our legal system – that prison sentences represent a legitimate baseline against which to measure alternative penalties. When we conclude that prison is so terrible that an order not to conceive seems "better" by comparison, this conclusion should perhaps make us question our readiness to incarcerate, rather than motivate us to approve of the probation condition.

Incarceration is an inappropriate baseline, particularly for a person who has not acted maliciously and who does not pose much of a danger to anyone. The loose fit between the procreation probation condition and the government's objectives seems impressive only by comparison to the complete absence of fit between the alternative of incarcerating Salazar for ten years and the objective of preventing her from neglecting any more children.

The lesson of Salazar's case may therefore have less to do with the right to procreate – the ground on which a court would likely invalidate the condition if given the opportunity – than it does with the routinely-violated fundamental right to be free from incarceration. Perhaps if we subjected infringements upon this right to the strict scrutiny that it deserves, we might arrive at attractive alternative means of addressing criminal behavior.

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Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.