A Judge Whose Ideas Nearly
Got Him Killed, Time, Mar. 9, 1992.
This article is an interview of the Judge Howard Broadman. He is the
judge that gave Darlene Johnson the option to use Norplant as a condition
of probation. I used this article because the holding of People v. Johnson
is not a matter of public record. I want to give the judge's reasoning
for the sentence.
In the interview the judge states that he felt providing Ms. Johnson
with the Norplant option was a compassionate decision. He felt that sterilization
system would create less stress in the defendant’s life, thus helping her
become a better parent. When asked if he violated Ms. Johnson rights to
privacy, the judge answered that courts balance one right against another.
He felt he was balancing her rights against the rights of others.
In an interesting side note someone tried to assassinate the judge,
as a result to the decision to include Norplant in probation sentencing.
Meredith Blake, Welfare and Coerced Contraception:
Morality Implications of State Sponsored Reproductive Control, 34 U.
Louisville J. Fam. L.311 (1995-1996).
This article discusses the recent trends of state legislators to condition
the receipt of welfare benefits upon submitting to the Norplant contraceptive.
The primary focus is on the moral issues which these proposals raise. The
author begins by providing a brief overview of historic and the modern
movement toward coercive contraception use by women on welfare. Legislators
and politicians in Arizona, Connecticut, District of Columbia, Florida,
Kansas, Louisiana, Maryland, Mississippi, South Carolina, Tennessee, and
Washington have proposed creating incentives for AFDC mothers to begin
use of Norplant .
The most interesting section of this article deals with the coercion
welfare mothers endure under these new welfare "reforms." Many women select
Norplant without being completely informed about the risks associated with
the procedure. Next the author poses the question of whether there is a
real informed and voluntary choice between accepting the Norplant system
or discontinued receipt of state aid. The welfare programs intice women
by offering them extra welfare benefits. For these women the extra money
may be the opportunity provide food and shelter for the woman’s family.
In conclusion, the author suggest politicians should develop alternative
to address the welfare problem. The government should provide alternative
contraceptive programs for poor women. However, the author does not explore
or identify any particular alternative.
Tenn. Code Ann. §71-5-133 (1996)
This Tennessee statute is an example of a the state placing increased
emphasis on providing welfare mother with information about Norplant.
The statute states, "the department of human services shall provide
written information concerning the availability through the medical program
of the Norplant contraceptive implant." The statute also state, "such information
shall be supplied to other women of child bearing age whose income is below
the federal poverty level and are receiving any other state or federal
government subsidies, including, but not limited to food assistance."
Douglas Breman, The Rights and Wrongs
of Norplant Offers, 3 S. Cal. Rev. L.& Women’s Stud. 1 (1993).
This article outlines some of the proposed legislative initiatives to
pay women to utilize Norplant. The author condemns these proposed initiatives
because he believes they are racist and sexist. The proposed Norplant offers
are racist because they focus on influencing the procreation decisions
of women on welfare. The author states the disproportionate percentage
of women receiving welfare are in fact minorities. Therefore the Norplant
proposals have a racist eugenic undertone.
The article also describes the inherent sexism of Norplant proposals.
Norplant system only sterilizes women. However, women do not become pregnant
by themselves, but there are no proposals for male contraception systems.
The value of this article is its proposed alternatives to using state
mandated Norplant sterilization. The author proposes a basic plan of offering
financial incentives (through tax deductions) for people attening classes
discussing responsible parenting. The purpose of these classes is to facilitate
reproductive autonomy, not to encourage or dissuade use of contraception.
These classes would be open to all people across the socio-economical spectrum,
which alleviates any racist or sexist biases.
Joan Callahan, Contraception or Incarceration:
What’s Wrong With This Picture?, 7 Stan. L. & Pol’y Rev. 67 (1995-96).
This article take a very unique perspective on the use of Norplant in
criminal sentencing. The author argues the use of Norplant as a condition
of probation is both legally and morally acceptable when incarceration
is the only other alternative. The author argues that making Norplant a
condition of probation is simply an option given to the female defendant.
The court system is not directly forcing the woman to receive the Norplant
system, instead the defendant’s sentence is suspended on the condition
she accepts Norplant. In other words, the defendant has a choice of probation
with Norplant or incarceration. The choice is between a bad option of Norplant
and a worse alternative of prison.
Many other commentators assert the use of Norplant in probation sentencing
is coerced. These commentator state acceptance of Norplant is not voluntary
when only other alternative is the threat of prison. .
The author attacks this reasoning by the analogy that "refusing to allow
Norplant as a condition of probation because women are or would be ‘compelled’
to accept it as an alternative to incarceration is like preventing a mugging
victim from handing over her cash on the grounds that her choice to do
so is not free, thereby forcing her to accept the other alternative." .
The author conclude that the use of Norplant should only be an alternative
to incarceration. The problem with both of these options is that neither
the interest of women or children are served.
Melissa Burke, The Constitutionality of
the Use of the Norplant Contraceptive Device as a Condition of Probation,
20 Hastings Const. L.Q. 207 (1992).
This article proposes that the criminal justice system should never
order the use of Norplant as a condition of probation for mothers convicted
of their first child-abuse offense. The article evaluates the constitutional
issues of similar probation orders.
The author uses the California case of People v. Johnson to develop
an analytical framework for determining when a state has a constitutionally
compelling interest to justify the infringement of an individuals fundamental
rights. This article provides a good overview of the Johnson case,
which was the first time a judge used Norplant as a condition of probation
for a child abuse conviction. The article then applies the facts to the
three part compelling interest test. The three part compelling interest
test is used to determine whether a condition of probation is constitutional.
First, the condition must reasonably relate to the intended purpose; second,
the value to the public must vastly outweigh ant resulting impairment of
probationer’s rights; finally, other alternative must not be less subversive
of constitutional rights. .
The author concludes that court ordered Norplant use may survive the
compelling interest test. However, the justice system should only use Norplant
in situations where the defendant is a repeat offender and the defendant
volunteers to use Norplant.
Rebecca Dresser, Long-term Contraceptives
in the Criminal Justice System, Medicine and Health News, Jan. 1995.
This article analyzes the sentencing of Norplant in criminal cases.
The author evaluates whether the Norplant is justified under the four goals
of punishment: retribution, deterrence, incapacitation, and rehabilitation.
These goals support the fundamental principle that the state is morally
authorized and required to deprive convicted offenders of substantial freedom.
Norplant sentencing has its greatest justification in the goal of rehabilitation.
In the Johnson case the judge’s rehabilitative claim was that by
preventing future births the defendants stress level would decrease. The
author implies the use of Norplant will have a disproportionate effect
on minorities, but never develops this idea.
The author concludes that when judges offer Norplant as a probation
condition, then the judge should offer at least one additional nonincarcerative
option. This would alleviate some of the coercive problems with sentencing
Rachel StephanieArnow, The Implantation of Rights:
An Argument for Unconditionally Funded Norplant Removal, 11 Berkley
Women’s L.J. 19 (1996)
This article addresses the problems with state Medicaid policies that
provide unconditional funding for insertion of the Norplant contraceptive
but restrict the funding for removal. These policies can effectively sterilize
indigent recipients who want the Norplant strips removed. In almost every
state, Medicaid coverage will fund both the cost of insertion and removal
of Norplant. However, the states of South Dakota, Oklahoma, and South Carolina
limit the funding for removal. South Carolina expressly exclude removal
funding to relieve medical side effects. Oklahoma and South Dakota exclude
funding removal for the purpose of conceiving children.
The author asserts the restrictions on Norplant removal is an direct
violation of section 1396 of the federal Medicaid act. .
This section allocates federal money for furnishing "medical assistance
on behalf of families...whose income and resources are insufficient to
meet the costs of necessary medical services." .
The author then concludes these statutes violate fundamental rights of
the Constitution. In Cruzan v. Missouri Dept of Health, the rights
to withdraw medical treatment was established. .
In Grizsold v. Connecticut, the Court established the right to procreative
S.C. Code §43-5-24
When an individual applies for assistance through the Aid to Families
with Dependent Children Program, the Department of Social Services must
provide the applicant with information on methods of contraception and
family planing, excluding abortion counseling.
Barbara Bernier, Class. Race and Poverty:
Medical Technologies and Sociopolitical Choices, 11 Harv. Blackletter
J. 115 (1994).
In this article the author asserts that the Hippocratic Oath which provides
the ideal standard of medical care is often ignored when the patients are
minorities. The article begins with a historical overview of the medical
abuses endured by African Americans in the United States. The most documented
of these abuses was the famous Tuskegee Syphilis Study. For forty years
the United States government performed research on the effects of syphilis
using poor, uneducated black men in Alabama. These patients were denied
penicillin, which is the most effective cure.
The author then describes modern eugenics policies in the United States.
This discussion is divided into two parts. First, the author discuses how
the court system ignores the Supreme Court decision in Skinner v. Oklahoma,
which established that individual’s have a fundamental right to procreate.
. Yet, this right is
increasingly ignored by sentencing judges which allow child abuse and rape
defendants the choice between sterilization or incarceration.
Secondly, the author warns that legislative and judicial sanctions of
Norplant will have a disparate impact on minority communities. The author
implies that making Norplant a condition of probation will coerce welfare
mothers into using the contraceptive.
Scott J. Jebson, Conditioning a Woman’s
Probation on Her Using Norplant: New Weapon Against Child Abuse Backfires,
17 Campbell L. Rev. 301 (1995).
In this article the author takes the position that Norplant as a condition
of probation is unreasonable. In People v Dominguez, the California
Appellate Court established a three-part test to determine if a probation
condition is reasonable. .
Under the Dominguez test a probation condition is unreasonable if
it: 1) has no relationship to
the crime of which the offender was convicted; 2) relates to conduct
which is not itself criminal; and 3) requires or forbids conduct which
is not reasonably related to future criminality. .
The author concludes that Norplant probation conditions fulfill each
prong of the Dominguez. First, Norplant sterilization has no relationship
to child abuse, because child abuse is the result of poor parenting skills,
not to many children. Second, bearing children is not an illegal activity.
Third, Norplant prohibits conduct which is not related to future criminality.
The court can avoid future incidences of child abuse by placing the victim
under protective custody. For these reasons, the author believes Norplant
is an unreasonable condition of probation.
In conclusion, the author suggests the court should rehabilitate defendants
with Parents Anonymous classes. These classes teach parents appropriate
Smith v. Superior Court of Arizona, 725
P.2d 1101 (1986).
In this case the defendants pleaded no contest to a class five felony
(child abuse). The defendants were the parents of the child. The were charged
with child abuse which resulted in the death of a nine month old baby.
The defendant mother had left the child unattended for several days while
the child suffered from a viral infection. A pathologist reported that
when the baby was found it was in the initial stages of decomposition,
and had not been feed in days. The court noted the child died slowly in
great pain and alone, either no one heard or no one cared about his screams
for help. .
The trial judge sentenced the mother to the maximum sentence of two
and one half years. However, he informed the defendants that if they agreed
to voluntary sterilization, he would reduce the sentence to one and one
half years. The defendants contended the court lacked jurisdiction to impose
this condition because no statutory authority allows sterilization as a
condition of sentencing. The defendants claimed the judges option was illegal
The Supreme Court of Arizona held the trial judge does not have the
jurisdiction to impose sterilization as a condition of reduced sentencing.
The Court held that specific statutory authorization must be on point for
such a sentence.
Cal. Welf. & Inst. Code §11450.04
This statute places a prohibition on increased welfare payment for any
child born into a family already receiving welfare. Except any child who
was conceived as a result of contraceptive failure if the parent was using
an intrauterine device, a Norplant, or the sterilization of either parent.
Wash. Rev. Code §74.09.800 (1996).
The Maternity care access program shall, consistent with the state budget
act, develop a maternity care access program designed to ensure healthy
birth outcomes as follows: (8) Provide family planning services including
information about the synthetic prosestin capsule implant form of contraception,
for twelve months immediately following a pregnancy to women who were eligible
for medical assistance under the maternity care access program during that
Kristyn M. Walker, Judicial Control of
Reproductive Freedom: The Use of Norplant as a Condition of Probation,
78 Iowa L. Rev. 779 (1993).
This article addresses the primary role of probation in the criminal
justice system. Then the author analysis whether the use of Norplant as
a condition of probation is reasonable. The author take the position that
sentencing Norplant as a condition of probation, does not serve the rehabilitative
function. The sentencing of Norplant must have some direct and reasonable
relationship to the crime of child abuse. Birth control or sterilization
will not cure the psychological problems which cause child abuse. Abuse
is a disease caused by many aggravating factors such history of family
violence, drug addiction, and financial difficulties. Therefore, using
Norplant as a probation condition will not resolve any of these factors.
The author also determines whether the use of Norplant as a condition
of probation is a cruel and unusual punishment under the Eight Amendment.
The use of Norplant is an inherently cruel punishment. The use of sterilization
is certainly a cruel and unusual punishment because it take away an individuals
right of freedom of bodily invasion.
This article also emphasizes the racial impact of Norplant use. The
author provides statistics which find that African American women are more
likely to be reported for child abuse, because health care professionals
are more likely to report minorities. .
Darci Elaine Burrell, The Norplant Solution:
Norplant and the Control of African American Motherhood, 5 UCLA Women’s
L. J. 401 (1995).
This article addresses the legal implication of coercing poor African
American women to use Norplant. The article gives a historical analysis
of the eugenics movement and the constant devaluing of African American
motherhood. This historical movement now takes the form of using Norplant
to control poor African American women on welfare and probation sentencing.
The article discuses how African American women on welfare and Caucasian
women on welfare are treated differently. Essentially African American
women are treated as less deserving of the right to bear children.
The author concludes by calling for a women’s movement to provide a
voice for these women. Without this movement poor African American women
will not be treated fairly.
People v. Pointer, 151 Cal. App.
3d 1128 (1984).
In this case a woman was convicted for child endangerment and violation
of a custody decree. Ms. Pointer endangered her children’s health by imposing
a strict macrobiotic diet. This diet of exclusively grain products resulted
in the malnourishment and underdevelopment of the children. The defendant
refused to listen to medical advice about proper nourishment. This resulted
in the youngest child’s hospitalization. Thereafter the state of California
took the children into protective child custody.
The trial judge ordered the defendant not to conceive any children during
her probation. He felt this condition was in appropriate because the defendant
refused to accept responsibility of her conduct and stated she intends
to continue her actions in the future.
The California Court of Appeals found the trial court had not abused
its discretion, and the condition was reasonable according to the Domiguez
test. However, the appellate court found the trail judge had violated the
defendants constitutional rights, because there were less restrictive alternative
This decision leaves the door open for sterilization if a trial judge
can argue sterilization is the least restrictive means. The Appellate Court
had the chance to hold sterilization is never permitted, but they decided
the case on technical grounds.
Rita Rubin, Stopping This Birth Control
Can Hurt. Removing Norplant Capsules Takes Skill, U.S. News & World
Reports, July 25, 1994.
This article describe the difficulty women are facing in having the
Norplant contraceptive system removed. The informational booklet describing
the Norplant procedure states that removal should take 15-20 minutes. The
procedure should only require a local anesthetic. However, some women are
having to return for several removal sessions because improper insertion
of Norplant was conducted incorrectly. Sometime during the extraction procedure
swelling makes some of the strips impossible to locate and remove. Some
doctors improperly inserted the strips underneath a layer of fat instead
of directly beneath the skin. This has lead many physician to refuse to
remove the strips for fear of liability.
Catherine Stevens-Simon & Lisa
Correlates and Consequences of Early Removal of Levonorgestrel
Implants Among Teenage Mothers. (Norplant Contraceptive Implants),
9/1/98 Arch. Pediatr. & Adoles. Med. 893 (1998).
This study was to address the problem of repeated pregnancy among teenage
mothers. The authors believe that Norplant could decrease the number of
accidental and unintended pregnancies reducing the gap in contraceptive
vigilance. The study focused on whether adolescent mothers who request
early removal of Norplant implant due to adverse effects. Of the 181 patients,
66 requested early removal of their Norplant strips. A significant portion
of the mother that had the implants removed felt they could make their
boyfriends pleased by becoming pregnant.
Ninety-one percent of the patients reported adverse effects from the
Norplant implants. The most common effect was moodiness (70%), irregular
vaginal bleeding (65%), headaches (61%), depression(46%) and weight gain
The authors conclude that Norplant insertions are the most consistent
to reduce unwanted adolescent pregnancy, which remains a significant public
health issue for the United States. The authors suggest that more effective
counseling before Norplant insertions could result in fewer removals.
Kathryn Ericson, FDA Says Norplant Is
Safe, Approves New Package Insert, West’s Legal News, Aug. 22, 1995.
On August 17, 1995, the Food and Drug Administration issued a statement
reaffirming its stance that the Norplant contraceptive device is safe.
The FDA has found no basis for questioning the effectiveness and safety
of the Norplant system. However the FDA approved of new educational materials
that include a discussion of possible side effects including vaginal bleeding,
headaches, nausea, dizziness and nervousness.
Linda M. Dinerman, Michele D. Wilson, Anne
K. Duggan & Alain Joffe Outcomes of Adolescents Using Levonorgestrel
Implants vs. Oral Contraceptives or Other Contraceptive Methods., 9/1/95
Arch. Pediatr. & Adoles. Med. 967 (1995).
This article presents the results of a medical study of 166 sexually
active adolescents. The purpose of this study was to gather information
about sexual activity of these patients after each chose a form of contraception.
The patients who chose Norplant as their contraceptive resulted in one
patient (2%) becoming pregnant. Of the patients that chose oral contraceptives,
thirteen (20%) became pregnant. The main reason for the failure of oral
contraceptives was the patients forgetting to take the pill. Several of
the subjects discontinued Norplant use because they suffered headaches,
mood swings, weight gain, nausea, amenorrhea and hair loss.
The authors suggest that Norplant implants are a more successful method
of contraception for adolescents. The authors also stated Norplant patients
were generally satisfied with them. The authors warn that adolescents interested
in Norplant should receive extensive counseling about potential side effects.
Adolescents who are unable to tolerate menstrual irregularities may not
be good candidates for implant use.
One of the issues barely covered was the potential for increased incidences
of sexually transmitted diseases due to reduced condom use. The authors
stated that the number of STD’s did not differ among the groups.
Avondet v. Blankstien, 692 N.E.2d 1063
In this civil case the Ohio Court of Appeals upheld a verdict for woman
who became pregnant after implantation of the Norplant system. The Plaintiff
later aborted the fetus. The jury awarded $30,000 in actual damages. The
trial court granted defendant motion for denial of punitive damages because
the defendant had no malice.
I selected this case because it gives a good condensed description of
the insertion of Norplant through expert testimony. In this case the plaintiff
became pregnant because the doctor implanted the Norplant system after
the plaintiff’s menstrual cycle. Therefore the defendant should have advised
plaintiff to use other forms of birth control until the next menstrual
Rita Rubin, Birth
Control Failure Americans -- and Their Doctors--Ignore Some Effective Options,
U.S. News & World Reports, Mar. 3, 1997.
This article describes how the use of Norplant as a contraceptive has
dropped. In 1994, more than one million women used Norplant, however the
popularity has significantly decreased due to well publicized lawsuits
against the manufacturer. The lawsuits blame Norplant for a variety of
adverse symptoms. Also the lawsuits charge Norplant is to difficult to
remove. Wyeth-Ayerst Laboratories which is the manufacturer of Norplant
is currently engaged in over 650 lawsuits involving 13,000 plaintiffs.
Birth control experts believe this massive amount of litigation is preventing
laboratories from researching newer forms of birth control.
A chart reveals that Norplant is the most effective contraception system
for preventing unintended pregnancy. Norplant has only a 0.05% failure
rate as compared to the 6% failure rate for birth control pills and 18%