ELYRIA — A Lorain County judge is considering whether to bar a child-support scofflaw from having more kids while on probation. But the man’s defense attorney argues the order wouldn’t be legal — citing a 2004 Ohio Supreme Court decision overturning a similar order made by Medina County Common Pleas Judge James L. Kimbler.
Lorain County Probate Judge James Walther originally planned to impose the unusual sentence on Asim Taylor, 35, on Wednesday, but has delayed the hearing until next week “to allow the parties and the Court to research whether the Court has the authority to order the Defendant to make all reasonable efforts to avoid impregnating a woman during the community control period or until such time that Defendant can prove to the Court that he is able to provide support for his children he already has and is in fact supporting the children.”
Walther, who handles virtually all of the county’s criminal nonsupport cases, declined to discuss the potential sentence in the Taylor case because he has not yet held the hearing.
Doug Merrill, Taylor’s lawyer, said his client was “astounded” by the proposed sentence.
He also doesn’t believe that Walther would be on solid legal ground if he were to forbid his client from having any more children, even if it is just while he’s on probation.
Merrill cited to a 2004 Ohio Supreme Court decision in which the state’s highest court overturned a similar restriction imposed by Kimbler in a criminal nonsupport case.
In that case, the judge ordered the 33-year-old Sean Talty, who had seven children by five women and owed more than $30,000 in back child support, to “make all reasonable efforts to avoid conceiving another child” during the five-year period he would be on probation.
But the Supreme Court, in a divided decision, ruled that the “antiprocreation condition” failed to put in place a mechanism under which it could be lifted if Talty made good on his child support obligations. The judge in that case had effectively abused his discretion when he banned Talty from having more children, the Supreme Court determined.
Nick Worner, spokesman for the American Civil Liberties Union of Ohio, said that his group was a party in the Talty case and had argued against the sentence.
“Reproductive freedom is a fundamental right,” he said.
Worner said although he isn’t familiar with the Taylor case, he believes the legal precedent set by the Talty decision shows where the law in Ohio comes down on the idea of preventing people from having children.
He also said that the issue of bans on procreation is about where to set the limits on judicial and governmental power.
“The question of whether someone should have more kids is different than whether a court should order them to have more kids or not to have any more kids,” Worner said.
According to court documents, Taylor owed a combined total of $78,922.12 to four children when he was indicted in August 2011. He pleaded guilty to the nonsupport charges in September.
Merrill said he was somewhat surprised that Walther is considering the antiprocreation ban in Taylor’s case because his client doesn’t have the worst back child support bill he’s seen.
In addition to the nonsupport charges, Taylor has an extensive criminal record including convictions on weapons, escape and drug charges, some for which he is still on probation, according to court records.
Merrill also said that if Walther were to impose the restriction, it might run up against the landmark Roe v. Wade decision from the U.S. Supreme Court that legalized abortion. He said if Taylor were to impregnate a woman, she would face a choice between carrying the baby to term and risking Taylor going to prison or having an abortion.
“There’s the potential for pressure to abort the child, and I think that may run contrary to Roe,” Merrill said. “It’s a woman’s choice.”