Update: On December 18, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“Did the court order him [Chapman] not to have any more children or did the court order him to make reasonable efforts not to have any more children until his child support obligations are up-to-date?”

Justice Stewart, to counsel for Chapman

“If the objective of the state is to ensure that Mr. Chapman supports his kids, isn’t that met by the get-a-job order?”

Chief Justice O’Connor, to the assistant prosecuting attorney

On July 21, 2020, the Supreme Court of Ohio heard oral argument in State of Ohio v. London Chapman, 2019-1410. At issue in this case is whether a trial court can impose a community control condition that limits a probationer’s right to procreate.

Case Background

On January 7, 2016, London Chapman pleaded guilty to eleven counts of felony non-support in violation of RC. 2919.21 (B). At the sentencing hearing the trial court ordered that Chapman complete five years of community control and that Chapman “make all reasonable efforts to avoid impregnating a woman during the community control period” unless “[he] can prove to the Court that he is able to provide support for the children he already has and is in fact supporting the children or until a change in conditions warrant the lifting of this condition.” The trial court also required Chapman to support his children and pay over $200,000 in arrears, in monthly installments, plus any current child support owed.

Chapman appealed, challenging the anti-procreation condition on constitutional and non-constitutional grounds. In a unanimous decision, the Ninth District Court of Appeals reversed. While the appeals court found that Chapman had failed to show the condition violated the three-part test of State v. Jones, a remand was necessary so the trial court could consider Chapman’s constitutional arguments challenging the anti-procreation community control condition.

On remand, the trial court rejected Chapman’s constitutional arguments, finding the anti-procreation condition constitutionally sound because it directly related to the non-support crimes of which he was convicted, and contained a lifting mechanism including the full payment of Chapman’s child support arrearage and supporting his existing children.

Chapman again appealed on both constitutional and non-constitutional grounds.  

The Second Appeal

In another unanimous decision, the Ninth District Court of Appeals affirmed the trial court’s ruling that Chapman’s anti-procreation community control condition was constitutional.

Based on the doctrines of law of the case and res judicata, the appeals court declined to consider Chapman’s non-constitutional arguments. The appeals court instead focused on Chapman’s constitutional claims. The appeals court acknowledged that the right to procreate is fundamental under the United States Constitution. However, the court also stated that community control conditions, even those that infringe on fundamental rights, are valid so long as they satisfy the Jones test, which these did. The court rejected Chapman’s argument that the anti-procreation condition is subject to strict scrutiny because those on probation do not enjoy the same liberties as law abiding citizens.  

Read the oral argument preview of the case here.

Chapman’s Proposition of Law Accepted for Review 

The Trial Court violated Mr. Chapman’s Due Process and Equal Protection rights under the Fourteenth Amendment to the United States Constitution and Article I, Sections One, Two, and Sixteen of the Ohio Constitution and Mr. Chapman’s right to privacy under the Ninth Amendment to the Constitution and Article I, Section Twenty of the Ohio Constitution when it imposed an additional community control condition on Mr. Chapman to take steps to avoid conceiving another child while he is on community control.

Key Statutes and Precedent

U.S. Const. Amen. V (“No person shall be . . .  deprived of life, liberty, or property, without due process of law…”)

U.S. Const. Amen. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)

U.S. Const. Amen. XIV (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)

Ohio Constitution Article I, Section 1 (Inalienable Rights) (“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”)

Ohio Constitution Article I, Section 2  (Right to alter, reform, or abolish government, and repeal special privileges) (“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.”)

Ohio Constitution, Article I, Section 16 (Redress in courts) (“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”)

Ohio Constitution Article I, Section 20  (Powers reserved to the people) (“This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.”)

RC. 2919.21 (B) (Nonsupport statute)

R.C. 2919.21 (D)(affirmative defense to nonsupport if accused is unable to provide adequate support but did provide the support that was within the accused’s ability and means.)

Skinner v. Oklahoma, 316 U.S. 535 (1942) (“The right to procreate is considered fundamental under the United States Constitution.”)

Eisenstadt v. Baird, 405 U.S. 438 (1972) (All individuals, whether single or married, have the right to choose whether to procreate without government interference.)  

*State v. Jones, 49 Ohio St. 3d 51 (1990) (A community control condition can be imposed so long as it is (1) is reasonably related to rehabilitating the offender; (2) has some relationship to the crime the offender committed; and (3) relates to the criminal conduct or future criminal conduct and serves the statutory ends of probation. The condition must not be overbroad.)

*Oakley v. Wisconsin, 629 N.W.2d 200 (2001) (Though the right to procreate is fundamental, “it is well-established that convicted individuals do not enjoy the same degree of liberty as citizens who have not violated the law.”)

*State v. Talty, 2004-Ohio-4888 (2004) (Striking down an anti-procreation condition for community control because the condition did not have a lifting mechanism.)

*cited by counsel at argument

At Oral Argument

Arguing Counsel

Giovanna D. Bremke, Bremke Law LLC, Avon, for Appellant London Chapman

David J. Carey, American Civil Liberties Foundation of Ohio, Columbus, as Amicus in Support of London Chapman

Jennifer Goodall, Assistant Prosecuting Attorney, Lorain County, for Appellee State of Ohio

Chapman’s Argument

Chapman shared oral argument time with amicus ACLU Foundation of Ohio. Ms. Bremke argued the nonconstitutional issues; Mr. Carey the constitutional issues.

One of the most sacred rights Americans enjoy is the right to have children. And yet, as a result of Mr. Chapman’s felony conviction for failing to pay child support, the trial court in effect castrated Mr. Chapman by ordering that he not have any more children as a condition of his community control sanction. Since Mr. Chapman has no way of knowing what the order to use reasonable efforts not to have more children means, the condition in the order is overbroad and in effect, means sterilization.

The Court does not need to reach the constitutional issues to decide this case. There are non-constitutional issues with the overbreadth of the order. It is unclear what it would take for Mr. Chapman to prove that he could support his children. Is proving that he can support his children with a current support order and being current on his monthly obligation enough, or is paying the entire arrearage required? Mr. Chapman does not know what is required of him. The conditions are either outside his control or a large financial burden. Even meeting his current support obligation is a large financial burden, as is paying the back support.

Mr. Chapman did take responsibility here. He pleaded guilty to the offenses. Last time counsel checked, he had a job. This case has the potential of setting a very dangerous precedent. At what point do we say, this is too many children, too many convictions, and too much support? This case should be reversed and sent back to the trial court to remove this restriction.

ACLU’s Argument

It is beyond dispute that procreation falls within the exclusive category of fundamental rights, and in fact it is among the oldest rights recognized under that doctrine. It differs from other fundamental rights in that it is difficult to imagine any factual scenario in which procreation is directly related to the offense charged.

But the constitutional question here is whether that right to procreate loses its constitutional protection in the context of probation and community control. Despite the state’s position that the Court need do nothing more here than apply State v. Jones, that is the issue in this case. The Court must examine the direct relationship between the events and the restriction and also the relationship between the government’s interest and the actual condition that was imposed. Procreation is almost never if ever directly related to the offense. As this Court pointed out in Talty, the government must have a specifically articulated interest, and then the condition must be tailored to it. Jones looks for just some relationship to the crime and conviction, which is a relatively lenient standard that is still not met here. But in a constitutional context, there must be a direct relationship.

The condition imposed in this case was both under and over-inclusive, which shows it is not narrowly tailored. The state’s interest here is not in preventing Mr. Chapman from procreating; it is in securing resources for his existing children. Nothing in this condition controls his debts, or expenditures, assigns or garnishes his wages—he could adopt a child and not be in violation of this condition. It is also overbroad. Mr. Chapman could donate sperm to a sperm bank and be in violation of this condition while having nothing to do with the state’s interest.  That is the hallmark of failing to narrowly tailor. The majority of courts reviewing cases with orders of this nature have rejected them. This Court should follow the consensus view. To do otherwise requires devaluing that fundamental right in one of the most intimate, personal aspects of people’s lives. 

State’s Argument

The state agrees that procreation is a fundamental right and agrees that ordinarily an intrusion or restriction upon that fundamental right is subject to strict scrutiny. But strict scrutiny should not be applied in this case. An ordinary citizen that would have a restriction like this would be entitled to a strict scrutiny analysis, but that is not this case. This is a case involving a man who has a felony conviction for nonsupport of dependents and it is a condition of community control. And the order is not overbroad. 

Mr. Chapman must use some sort of protection or remain abstinent to meet the condition imposed here. Because of the government’s horrible past history with sterilization orders, there are certain things that are off the table for the government to tell somebody that they have to do. There is case law that says there are areas in which the government cannot regulate an individual’s behavior. An individual can choose to exercise those precautions if he wants to. Mr. Chapman could go and get sterilized if he wanted to, and then he could never violate this condition of probation. But the court cannot tell him to do that.

The state believes the condition in this case is a permissible condition. In many situations the court must act like the conscience of the individuals who are on probation, because if they had done the things they were supposed to do they never would have been in the situation.

As far as the state proving a violation of this condition, it would come down to a factual analysis and what evidence exists at that time. Sometimes a defendant will make disclosures or admissions about what he did or didn’t do. That in and of itself could be enough. Or maybe his girlfriend who is now bearing his child knows he is the only individual she engaged in sexual conduct with, that they didn’t take any precautions, they didn’t even talk about it, and now she’s pregnant.  And now she knows, which she didn’t know before, that he is on community control for not supporting his other children and she is bitter and angry and wants to come and testify. So, there may be situations where the state has the evidence to put forth before the court to establish a willful violation of this condition of community control.

The condition requiring that Mr. Chapman support his children would not necessarily be met just by his getting a job. An individual can be convicted of failure to support his children if he fails actively to seek employment and doesn’t try to obtain any type of employment. But the judge was concerned about the fact that time and time again Mr. Chapman has created new support obligations when he couldn’t meet his prior obligations. Here, Mr. Chapman either clearly hadn’t sought employment or he hasn’t put his money where it needs to go. If he were complying with what the law requires, then the restriction on probation would be lifted. That is what the lifting mechanism is for.

This Court has determined that a condition like this that does not have that a lifting mechanism is overbroad. It is the state’s position that not only must the three-part Jones test be applied, but when engaging in a constitutional analysis, there must be an additional analysis to examine the lifting mechanism, to determine whether or not it is overbroad. The condition here meets the Jones test, meets the lifting mechanism requirement, and also meets strict scrutiny because the lifting mechanism causes it to be more narrowly tailored. It addresses exactly what the court was concerned about, which is that in taking on or creating additional support obligations during the period of probation, having more children would prevent Mr. Chapman from using the funds that he has to meet his existing obligations. If there is only so much a person is able to earn, that person may not be able to meet his or her current support obligation.

Mr. Chapman is not being charged with a separate crime. He is being asked to satisfy his current child support obligations as a condition of his community control. If he does, there will be no restriction on procreation.

What Was On Their Minds

Exactly What Was Ordered Here

Did the court order Mr. Chapman not to have any more children or did the court order him to make reasonable efforts not to have any more children until his child support obligations are up-to-date, asked Justice Stewart?

There wasn’t any directive in the order that required Mr. Chapman to become 100% current on these 11 cases of nonsupport, was there, asked Chief Justice O’Connor? The order doesn’t require payment of all back support, does it?

Fundamental Right to Procreate

Is procreation different than any other fundamental right, such as the right to bear arms, or free speech rights, asked Justice DeWine? We don’t ordinarily ask, for example, whether sending someone to prison who has a fundamental right to travel is the most narrowly tailored way to achieve a rehabilitative purpose, do we? Or whether barring someone who has a Second Amendment right to bear arms by sending them to prison is the most narrowly tailored way? We don’t do the analysis that way in other contexts in a punitive setting, do we? So is procreation just different than anything else?

Narrow Tailoring

If someone is going to be incarcerated, we don’t say, is putting this person in prison the most narrowly tailored way to accomplish the government’s compelling interest in rehabilitation and protecting the public, do we, asked Justice DeWine?

Mr. Chapman was convicted of nonsupport of his offspring, noted Chief Justices O’Connor. Doesn’t the condition that he not father any more children have some direct relationship to the crime for which he was convicted? Isn’t the government’s interest seeing that he does right by the children he already has? If the objective of the state is to ensure that Mr. Chapman supports his kids, isn’t that met by the get-a- job order? An order to maintain gainful employment will meet the objective of earning money, and transferring that money to the child support bureau for the purposes of support. Why is that not the most narrowly tailored response to his non-support?

Wasn’t there an additional condition in this case that Mr. Chapman maintain employment, asked Justice Donnelly? Isn’t that narrowly tailored to the offense at issue? He noted that non-support is not a strict liability offense, but rather, the state had to prove recklessness and that inability to pay was an affirmative defense. So regardless of how many kids Mr. Chapman has, isn’t the condition that he maintain employment narrowly tailored? Doesn’t that accomplish the goals of what the trial court was trying to do here?

Isn’t the state’s interest here seeing that Mr. Chapman’s children are supported, asked Justice Stewart? Couldn’t a court find that if he did get his girlfriend pregnant, but he said she told him she was on birth control, that was reasonable? Or that is was unreasonable because he didn’t take responsibility? What if he has a girlfriend who is independently wealthy who would not even require him to support a child? Wouldn’t he still be in violation?

Failure to Support Statute

The statute says you are liable if you fail to support and you have the means to do so, noted Justice DeWine. The statute doesn’t criminalize not being able to support your child. When you have the money to do so, it criminalizes not spending that money to support your children and that would seem to be the same crime whether you have one or 14 children, so how is this restriction related to the law? The crime doesn’t change based on the number of kids you have. It basically says if you are able to make a specific sum of money that can be used for support, you need to pay that for support for your kids no matter how many kids you have or what the order says. Justice DeWine really pounded on the assistant prosecutor about this, finally stating that maybe she was missing his question. He stated he simply didn’t understand how having additional support obligations would affect at all whether Mr. Chapman was complying with the law. If the law requires that you use the money that you are able to support your children, then changing the number of children you have wouldn’t affect whether you have violated the law, would it? It is simply how you use the money you are able to earn. What is illegal is not to meet your current support obligations when you have the means to do so, not to use the money you can use to support your children.

What Would Suffice as Compliance

If Mr. Chapman made some efforts, could the court deem those efforts reasonable or unreasonable, asked Justice Stewart? If the order had been specific, that Mr. Chapman needs to use some sort of birth control, would that be specific enough?

Doesn’t the language “make all reasonable efforts to avoid impregnating a woman during the community control period or until such time as he can prove to the court that he can provide support for the children he already has and is in fact supporting the children, or until a change in conditions warrant that the condition be lifted” include a variety of things that could happen, all of which are within Mr. Chapman’s control, asked Chief Justice O’Connor?  Has Mr. Chapman gone back to court to get the condition relieved? If he is gainfully employed and making his support payments, wouldn’t that moot the procreation issue?

How will the defendant know if he has violated this condition, asked Justice DeWine? What should his lawyer advise him to do?

Chapman’s Attempts to Meet Conditions

Isn’t it up to Mr. Chapman to go to court and have the conditions modified based on his circumstances, asked Chief Justice O’Connor? Couldn’t he go back to the domestic relations court and attempt to have his child support modified?

Doesn’t the law allow the judge to tell the defendant what will violate the condition of his probation, asked Justice DeWine, adding that someone ought to be able to tell him what is going to be a violation of his probation.  Does the fact the state is reluctant even to define what might violate the conditions here suggest that the government may be in an area that it shouldn’t be?

At some future violation hearing, how would the state ever be able to enforce this, asked Justice Donnelly? The burden would be on the state to demonstrate at a violation hearing that Mr. Chapman didn’t take reasonable steps. How would the state ever be able to establish this condition that subjects him to incarceration?

How it Looks From the Bleachers

To Professor Emerita Marianna Bettman

Like a win for Chapman, on narrow grounds, but let me hasten to add that not a single justice who spoke from this very hot bench showed the slightest sympathy for Chapman’s failure to support his children, especially the Chief, whose disgust seemed pretty evident in her questioning, closely followed by Justice Stewart. And all the justices who spoke, to varying degrees, seemed to support most of the conditions imposed.

The Chief particularly challenged Chapman’s counsel for not going back to court to get the support order modified in light of any present extenuating circumstances. She noted that if Chapman were gainfully employed and making support payments, the procreation issue would be moot.

Justice DeWine really pounded on the assistant prosecutor about the fact that the crime here is failure to use the money one has to support one’s children, not to criminalize someone for not being able to support his children, and that the offense doesn’t change based on the number of children one has. And Justice Donnelly really pressed the assistant prosecutor on how the state would be able to prove that Chapman failed to use reasonable efforts not to impregnate a woman, which Ms. Goodall admitted was a difficult question to answer.

Everyone agrees the state’s interest is in Chapman providing support for his children as he is able. While I think the other parts of the trial court’s order are permissible, I think the case is going to be remanded to the trial court to tweak the order and the terms of the lifting mechanism to tie them to the actual existing support requirement. I’m not sure if the Court will need to address the constitutional issues to get to this outcome. If they do wade in there, I think all will agree strict scrutiny is not required here, as it would be with law-abiding citizens.

Despite the hot bench, there were no questions from Justices French, Fischer, or Kennedy.

To Student Contributor Maggie Pollitt

I am cautiously calling this one for Chapman.

Chief Justice O’Connor was less than thrilled by Chapman’s argument. She was more interested in Chapman’s current circumstances—whether he has a job, whether he’s currently paying child support, whether he could get the support order modified—than she was with the validity of the trial court’s order.

Justice DeWine grilled both parties. During Chapman’s argument, he pushed counsel to admit that community control conditions do not need to be narrowly tailored. During the State’s argument, he said that the conditions need to be related to the crime and repeatedly asked counsel how having children is relevant to the non-support felony. The assistant prosecutor tried to assuage Justice DeWine by stating that creating new support obligations was relevant to Chapman’s rehabilitation. I’m not sure that Justice DeWine was satisfied.

Justice Donnelly asked how the State would prove that Chapman’s actions were reasonable (or unreasonable). Justice DeWine also asked this. Both justices implied that, while the requirement to get a job was reasonable, prohibiting procreation may not be.

Though her questions usually give her away, I couldn’t get a good read on Justice Stewart’s thoughts. During the State’s argument, she questioned how Chapman or a court would know whether Chapman’s precautions were reasonable. During Chapman’s rebuttal, she seemed to reveal her opinion that restrictions on procreation were reasonable for someone who was convicted of nonsupport. Her questions lead me to believe that Justice Stewart would be satisfied with an anti-procreation community control condition so long as the condition was better defined.

My favoritism for Chapman may be clouding my judgment, but the bench’s questions point toward a win for Chapman. I think the Court will expect the community control condition to be more narrowly tailored to Chapman’s nonsupport felony.