Petition for Writ of Certiorari — Gerber v. Hickman, Warden
Supreme Court brief2002
Ask Donna
What actually matters in this document.
Text
Supreme Cour. U.S
FILED
02 419 Ave 16 2003
Supreme Court of the United States
OCTOBER TERM 2001
¢ ©
WILLIAM RENO GERBER,
Petitioner,
v.
RODERICK HICKMAN, WARDEN
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
TERESA L. ZUBER
Counsel of Record
LAW OFFICES OF TERESA L. ZUBER
P.O. BOX 160525
SACRAMENTO, CALIFORNIA 95816
(916) 456-1955
FAX: (916) 456-1957
Attorney for Petitioner William Reno Gerber
QUESTIONS PRESENTED 7
The right to procreate is “one of the most basic civil
rights of man,” is “fundamental to the very existence and
survival of the race,” and, as such, is “implicit in the concept
of ordered liberty.” (Skinner v. Oklahoma, 316 U.S. 535, 541
(1942); Palko v. Connecticut, 302 U.S. 319, 325 (1937).) Yet, the
Court of Appeals for the Ninth Circuit, in a controversial
and widely-discussed bare majority 6-5 en banc opinion,
reversing the three judge panel decision, determined on a
motion to dismiss that a prison may permanently terminate
this most basic right of a prisoner—and of his innocent
spouse —without showing that doing so serves any legitimate
governmental interest. The Ninth Circuit determined the right
to procreate never survives incarceration, and a life term
prisoner cannot send his semen out of the prison for artificial
insemination of his wife, even if he can show that it would
pose no appreciable burden on the prison. The questions
presented by the decision include the following:
1. Did the Court of Appeals for the Ninth Circuit err in
holding that the constitutional right to procreate while in
prison is inconsistent with incarceration under all
circumstances?
2. Did the Ninth Circuit err in holding as a matter of law
that a warden’s imposition of the gratuitous punitive
measure of permanently depriving the right to procreate
to life term inmates and their spouses does not violate
either the Equal Protection Clause of the Fourteenth
Amendment or the Cruel and Unusual Punishment
Clause of the Eighth Amendment?
Se a re]
TABLE OF CONTENTS
CIEE Bee FIRE Peace tcsntenavsinsnvenscptenenesineninininnighsietenciiiatin 1
TABLE Ce CIEE? FA TUB G eee 0 Baie este scene vnssssentenneseveveesesenenns 1v
FA Ce Fe ee ca recsenicrnsenctorerssstaneenaninenicommniencinestoons x
PETITION FOR A WRIT OF CERTIORARI............:ccccceceeeees 1
CITATIONS OF OPINIONS AND ORDERSG............:::::0000 1
STATEMENT OF FUREIOI. TION ..ccnscscscsvesssrsscsesesscsescesvonsees 1
CONSTITUTIONAL PROVISIONS INVOLVED................. 1
i A FERRE SR GA BEERS Sle siticerniinicondasictennivnnmnnssennstveneiass 2
ee! 2), 5. RES S ie oeesseneeenovnn nen 2
Se - FN BI ocisinsececctsciasceemainignnsenrinnecncamnesevces 3
A. Proceedings In The District Court .............:00 3
B. Proceedings In The Ninth Circuit..........0.cc 5 |
REASONS FOR GRANTING THE WRIT ..........cccccsesseseseeeees 6
I. Certiorari Is Proper, Because The Ninth
Circuit's En Banc Majority Decided An
Important And Unsettled Question
Ge PE BIE isncisecniacnsedcnsastatiiecloninnoninindiansesiineennes 7
II. Certiorari Is Proper, Because The Ninth
Circuit's En Banc Opinion Decided An Important
Federal Question In A Way That Conflicts With
Relevant Decisions Of This Court. ..........0:::cccccee 11
Ill. Certiorari Is Proper, Because The Ninth
Circuit's En Banc Decision Conflicts With
Every Other Published Opinion In The
United States Courts Of Appeals On The
Same Important Issue Of Whether The
Right To Procreate Survives Incarceration. ........... 14
IV. Certiorari Is Proper, Because The
En Banc Opinion Is Wrong, Results In A
Gross Miscarriage of Justice, Erodes The
Important Constitutional Rights To Marriage
And Procreation, And Is Unduly Harsh. ............... 16
A. The En Banc Opinion Incorrectly Concludes
That The Right To Procreate Is Inconsistent
With Incarceration. ............ssccseesseseees ieipscekehicie 17
ee ee
-ii-
B. The En Banc Decision Improperly Allows A
Warden To Gratuitously Impose The
Additional Punishment Of Permanent
Deprivation Of The Right To Procreate In
Violation Of the Equal Protection Clause
And The Eighth Amendment. .................c00c00000 22
1. The Denial of Mr. Gerber’s Request Violates
The Equal Protection Clause ...........c.c0cc0000000+. 23
2. The Denial Of Mr. Gerber’s Request Violates
Mr. And Mrs. Gerber’s Rights Under The
Re III oil csccnisciteinosebagnashecasiaine 26
a. The Warden's Denial Of The Request
Imposes Cruel And Unusual Punishment
Si IIIS cde casavdataieecnpurinsisasnatecxasaces 26
b. The Warden's Denial Imposes Cruel
And Unusual Punishment On The
Innocent Mrs. Gerbe?.............cccccccccccceeeee 28
EL EES eee en 29
a arlene at ves craiinisueasiqonndrsecsieesnianiovenreenynnnsnsasd App. 1
-iii-
TABLE OF CITED AUTHORITIES
U.S. CONSTITUTION
I ict tncnsacsceaninercnttciuintaitiieii 1, 1-2, 9, 12, 16, 22, 27
SAI FA Oo OF Discrsassisttccttecntettitnitinneiienes 1, 1, 16-17, 22-23, 26
CASES
Army & Air Force Exchange Service v. Sheehan
RE Fe Ee iiiline tnscsliesenntni eitcideiliainsibiniiiniaiiniaiinianiionn 11
Atkins v. Virginia
__ US. __, 2002 Westlaw 1338045 (2002) ............eseesesseeees 27
Carey v. Population Services Int'l
1 CA Ce aici taesweniviedienianciamnente 13
Cleveland Bd. of Education v. Chesterfield County Sch. Bd.
Ae Sead, Se CI wth hinihevssechsciiennsinennliipsidbaaaiiiniieaiinivniabiionl 13
Edwards v. South Carolina
re A Be IE tiisisivaiih denndhniuieianiiiaiainsimauniemionanidedll 7
Eisenstadt v. Baird
re hast icteiniccsnesinnitcianetleidtnbieiiinetianiands 13
Gerber v. Hickman
EE CO ees A inci enitcapenemnininanionniintiain passim
Gerber v. Hickman
DO8 FF Be CO Ae Bt avicwesiniecnsnennsepntnrsinvtnntonns 1,5, 14, 21
Gerber v. Hickman
103 F. Supp. 2d 1214 (E.D. Cal. 2000)... eee 1, 4-5, 22
Goodwin v. Turner
SOS FE Fae IN Gs RO eernistssinesiomniinesniiciapinnnnntinbaets 15
-iv-
Griswold v. Connecticut
Fe Ae CTI wediitthccsdusishaatieenhiseactiasieimaeienaaecaee 9, 28-29
Harmelin v. Michigan
eR I Ce D tisiscsinsnurinncidbhisiaKicioeapamioaianvadaiaane a 27
Henderson v. Kibbe
PE AR TEU iheticntdiccbienbnieiinneeteceini ae 11
Ingraham v. Wright
RE SAU: SE PEF P iecsninesedsancaine sicsscnaabinebeceimenciadcae eae 26
Layne & Bowler Corp. v. Western Well Works
SFE RE EE COPED sci icisisisaktoieentninigar na beiciadenmaaldiialinbe sane 7
Lugar v. Edmonson Oil Co.
Ga REA FI IED ichtatesicseensancesolasaceacaeucaueidias accent 11
Michael H. v. Gerald D.
a Fl Fe IE accciivisinsisinnsiecscesastarlonarticll ince eienas 16
Monmouth County Correctional Inst. Inmates v. Lanzarro
A Ta SU GUE SAE. BOE Pacineccieivensnsisaiinincsimnineiseneibeaucdadenaaadael 14
Montana v. Kennedy
et SA CPE D sorvsnnsrevsicecsinesinncatsdcnanaiaiacabanaaatonate 16
O’Lone v. Estate of Shabazz
CE Se GRUIE D catitihiiceroninnninisindiscnictsbsiniecsieu lami aenton 20
One 1958 Plymouth Sedan v. Pennsylvania
ee I cbcltitinensinssetnccecernescininitiasiaidbaadeabcaenbiaoe 7
Palko v. Connecticut
Rc): ON I ea Fee Sk oe aOR 1, 29
=o
Pell v. Procunier
ae SEE CITT schinicesbiissnsibstiovihclioeniniiinacinebinbeisimeadladaetianginil 20
Planned Parenthood v. Casey
ee ee UII iiescciccervsansessisesinainnastibanipiiamiletnmnbeaniianin 13
Pointer v. Texas
ee AY SEI IID vicixsvescsineszerscresueeiciasisstsenstiianciilabioiiatieiedeiaiiael 7
Procunier v. Martinez
Ne PRs AU IUD wsssssnsnaneoniasivinsnhiticasniasusnielemminaedsiaidaatinaas 9
Rhodes v. Chapman
ee Saas SA ERO UED cisiiniccionnnctcnsentenesanh cuiahiactanesalagbeebabbneeibaniaas 27
Rice v. Sioux City Cemetery
AR Te CPU icinvtnrnininneniepinrenionsdinecinpshaianniaieimmuaeniaiaan 7
Roberts v. United States Jaycees
Oe ra ID ecaincn tencsnenssestircnenstincnsaiibtiniaiienialeapiaaiaaadiainn 21
Robinson v. California
A ED cinissncnithiseneshtitieentesitninnitaneleilinipiasiadblnsibtnamaian 28
Skinner v. Oklahoma
Se ak: SU IEE Saviesenehcesncodenpiihidevianentail 1, 8, 11-17, 22-25, 30
Solem v. Helm
SE APAIS GEE FCT TNND SscscsereinisnsvnssciniensishentabdiadialashactiitenlClidaniall 27-28
Stanley v. Illinois
Fs Ga I sipceciiciarecevnntininninenneanatienpinioaginiimaiamnaian 13
Thompson v. City of Louisville
Fe Sh PO COU cicssnscncnsinnsinetcniahiseincnintitieainsatiediag iia 16
Thornburgh v. Abbott
Re a I wnn-cssisibscncensiediiceneanetiaeacbehipieapbinaseaibseaie 9, 26
-vi-
Turner v. Safley
ey FEET B usehiveiitinscicelieuabibiaibiacbsielahotanseenvnl 4, 9-10, 16-19
United States v. Doe
SH OF. GE CR weesccinnscinsceressccnsscctsneve epbdieach ee 11
United States v. Gouveia
i Sy SN idiavoll teeta TS 7
Zablocki v. Redhail
Se Re re tiated tnditaasaitianetink snack ae 8-9, 29
STATUTES, RULES, AND ADMINISTRATIVE CODES
FEDERAL
ERE eee te err eT 19
ee Pai A aia aiakrsstntccidinaie te 5
Se Sia I MTD ios ccschisnstsinseiichinassueteoribsenautamaibeeaiacdcnsdged nL 1
ig Se | ET GN NOMS ae aL 19
Ae I I adc ct tN od mh os 3
es tats Mars WIS RANI osc casrsansevtralasbicansbeabsduanecdbaalesacsiacs 4
Ie |
aati les MUI issn Aicallovveabipacisssabeseehapntiedeouanes-Sceachase 14
are its I ibinicssnvabennneceinniccsilecadincisdubsehensibonielaslesmaessal 7,11
STATE
| ETA 23
OS 5 +) 5: ane eae ee 23
Os Sc UI i 19
Cal. Code Regs. tit. 15, § 3174 ......ccececccesssscsesssssseee 21, 23, 28
Se Me Os I 23
LEGAL TREATISES AND LAW REVIEWS
R. Stern, E. Gressman, S. Shapiro & K. Geller,
Supreme Court Practice (7th ed. 1993)........c.cesee. 7-8, 11, 16
-vii-
J. Weinstein & C. Wimberly, Secrecy in Law and Science,
23 Cardozo Law Review 1 (2001) ............sscccssssseesseesseseeeees 18
NON-LEGAL PERIODICALS AND ON-LINE MATERIALS
Garry Abrams, Absentee-Fatherhood Effort Lives,
Despite Long-Odds Underdog Status,
Los Angeles Daily Journal, Sept. 25, 2001 ..........:.ccceceeeeees 10
Ralf Hoppe, Ein Kind namens Moon,
EGR CRPGOEE, FUNG, BION ccccsescocceninssvensnosatiosnsssnnunescssnnnnesomnesio 10
David Kravets, Court Rules on Prisoner’s Semen,
Washington Post, <http:/ / www.washingtonpost.com
/wp-dyn/articles/ A1764-2002May23.html> ............c0000000 10
Denny Walsh, Inmate loses plea to father a child,
Sacramento Bee, May 24, 2002 ...............c.scsscsssssssssesssesssessseees 10
Henry Weinstein, Inmate May Not Ship Wife Semen,
Los Angeles Times, May 24, 2002............::s:sssssssssssssssseeeesees 10
George Will, Inmates and Proud Parents,
Washington Post, November 8, 2001 ..........:::csscssssseeseeeeeeees 10
Court: No Inmate Procreation Rights, <http:/ /www.cnn.
com/2002/law/05/23/ prisoner.semen.ap> ...........0000000 10
Inmate wants okay to post sperm, The Australian,
<http:/ / www.news.com.au/common/
story_page/0,4057,3998553 %5E1702,00. htmI>............00000+ 10
Postan nemzene az elitélt kaliforniai, <http:/ / www.index.
hu/ politika/bulvar/ sperma? ..............sssscsssssssessesessseeseserees 11
-vill-
Preso quer mandar sémen para mulher,
<http:/ / www.cidadeinternet.com.br/br/
portales/erotica/nota/0,2600,24961,00.htmI> ..00.00..00.00.0... 10
Prison Procreation Lawsuit Reinstated,
<http:/ /news.bbc.co.uk/hi/English/ world
/ Americas/ newsid_1529000/ 1529425.stm> ..........cccccccccees 10
Samen per Post: US-Haftling Will Sich Fortpflanzen,
Rheinische Post, <http:/ / www.rp-online.de/news/
journal/2002-0321/ fortpflanzung.htm> ................c.cce00008 10
Tahanan dilarang kirin sperma lewat surat, <http://www.
satulelaki.com/ peristiwa /0,26622,00.htmI>......0....cccc0000- 11
Una sentencia permite ser padre a un condenado a cadena
perpetua, El Mundo, <http:/ /www.el-mundo.es/2001
/09/09/sociedad /1045460_imp.html>...............:cc00000. 10-11
TABLE OF APPENDICES
Gerber v. Hickman
291 F.3d 617 (9th Cir. 2002)
IU sian App. 1
Gerber v. Hickman
273 F.3d 843 (9th Cir. 2001)
(Order granting rehearing en banc) ..........cceeeeneeees App. 25
Gerber v. Hickman
264 F.3d 882 (9th Cir. 2001)
(Three-judge panel decision) ................c.scsssserssesssersees App. 27
Gerber v. Hickman
103 F. Supp. 2d 1214 (E.D. Cal. 2000)
CEU CEI BIICIIIOID sieiesdesstinicccknunintieccneswsiisemctieiceeee App. 47
Gerber v. Hickman
Not officially reported (E.D. Cal. 2000)
(Findings and recommendations of
a I sh pti cceiicscnsitboncecctsiianireicnienistnnleieanansintoenecs App. 57
PETITION FOR A WRIT OF CERTIORARI
Petitioner William Gerber respectfully petitions for a
writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.
CITATIONS OF OPINIONS AND ORDERS
The district court’s opinion (per Damrell, DJ.)
granting the respondent’s motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure (Appendix
[“App.”] 47-55) is published at Gerber v. Hickman, 103 F.
Supp. 2d 1214 (E.D. Cal. 2000). The three-judge panel of the
Court of Appeals for the Ninth Circuit majority opinion (per
Bright, J.) (reversing the district court decision), and
dissenting opinion (per Silverman, J.), (App. 27-46), are
published at Gerber v. Hickman, 264 F.3d 882 (9th Cir. 2001).
The Ninth Circuit’s order granting a rehearing en banc
(App. 25) is published at Gerber v. Hickman, 273 F.3d 843 (9th
Cir. 2001). The en banc panel six-judge majority opinion
(per Silverman, J.) (affirming the district court decision), and
two dissenting opinions (five-judge dissent per Tashima, J.,
and three-judge dissent per Kozinski, J.), (App. 1-24), are
published at Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002).
STATEMENT OF JURISDICTION
This Court has jurisdiction under 28 U.S.C. section
1254(1) to review by writ of certiorari the judgment of the of
the United States Court of Appeals for the Ninth Circuit in
Gerber v. Hickman, dated May 23, 2002, issued following the
rehearing en banc conducted pursuant to the order
respecting rehearing dated December 4, 2001.
CONSTITUTIONAL PROVISIONS INVOLVED
‘...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.”
-- U.S. CONST., amend. XIV, § 1.
“Excessive bail shall not be required, nor excessive fines
‘
_
imposed, nor cruel and unusual punishments inflicted.”
-- U.S. CONST., amend. VIII.
STATEMENT OF THE CASE
I. The Underlying Facts
Petitioner William Gerber (“Mr. Gerber”) is serving a
sentence of 100 years to life plus 11 years under California's
“three strikes” law for the act of shooting his own television
set. Mr. Gerber’s life sentence was not as a result of charges
of any offense resulting in bodily harm, nor, over the course
of his entire life, has he ever been charged with such an
offense. At Mr. Gerber’s sentencing hearing, the supposed
“victim” of the crime, his wife Evelyn Gerber, pleaded with
the sentencing court for leniency in sentencing. In rejecting
Mrs. Gerber’s plea, the sentencing court acceded to the
State’s expressed desire that Mr. Gerber “never see the
outside of the prison again.” Mr. Gerber was sent to Mule
Creek State Prison in Ione, California.
Mr. and Mrs. Gerber profoundly desire to bear a
child together, and have so desired since before the acts
giving rise to Mr. Gerber’s incarceration. It is still the
Gerbers’ desire to have a child, notwithstanding Mr.
Gerber’s incarceration for life. It is their desire that the child
be biologically fathered by Mr. Gerber—Mrs. Gerber is not
interested in adopting a child or having some man other
than her husband father a child.
Though the California Department of Corrections
(“CDC”) allows conjugal visits for most married inmates, it
generally does not allow such visits for married life-term
inmates, including Mr. Gerber. Mr. Gerber formally made a
request to the warden of that prison, respondent Warden
Roderick Hickman (“the Warden”),' that he be allowed to
provide his wife with a semen sample. Specifically, Mr.
Gerber asked that he be permitted to have his attorney or a
private physician receive the collection at the prison for
1. The Warden was originally improperly named as “Rodney” Hickman
in the complaint that gave rise to this petition.
2.
transfer to a laboratory or health care provider, all at his and
his wife’s own expense. The Warden denied this request.
Mr. Gerber even located a company that could
receive a collection of semen by overnight mail and preserve
it for the eventual artificial insemination of Mrs. Gerber.
Through this procedure, a laboratory would mail a plastic
collection receptacle to Mr. Gerber at the prison. The
laboratory would also provide a prepaid return mailer, for
returning the filled collection receptacle. Mr. Gerber would
then ejaculate into the receptacle. The filled receptacle
would then be returned to the laboratory in the prepaid
mailer by overnight mail. At that point all further steps
would occur outside the prison; for example, the laboratory
would arrange the transfer of semen to a health care
provider for the artificial insemination of Mrs. Gerber.
Mr. Gerber and his wife are willing to bear all of the
costs of the collection of Mr. Gerber’s semen, including
reimbursement to the CDC for any costs associated with the
mailing of the receptacle or the monitoring of the same.
Furthermore, the prison maintains comprehensive policies
and rigorous procedures to ensure the safety and propriety
of any items received or sent in the mail by inmates, and Mr.
Gerber does not object to the application of those procedures
to the collection receptacle.
Through counsel, Mr. Gerber proposed this simple
procedure to the Warden. The Warden refused and
continues to refuse to comply with Mr. Gerber’s simple, yet
highly important, request. This forced Mr. Gerber to turn to
litigation—an action for injunctive relief pursuant to 42
U.S.C. section 1983 against the Warden that gives rise to this
petition —to enforce his and his wife’s constitutional right to
procreate.
II. Procedural History
A. Proceedings In The District Court
The operative complaint, filed in the United States
District Court for the Eastern District of California, alleges
that the Warden violated Mr. Gerber’s constitutional rights
by prohibiting him from providing semen to artificially
inseminate his wife. In his complaint, Mr. Gerber did not
pray for monetary damages; he sought only injunctive relief.
In lieu of filing an answer to Mr. Gerber’s complaint,
the Warden moved to dismiss the complaint pursuant to
Rule 12(b){6) of the Federal Rules of Civil Procedure, or
alternatively, for summary judgment. The Warden
predicated his motion to dismiss on his assertion that the
fundamental constitutional right to procreate does not
survive incarceration. The Warden’s motion was primarily
premised on Turner v. Safley, 482 U.S. 78 (1987).
The hearing on the motion to dismiss, or
alternatively, motion for summary judgment, was held
before Magistrate John F. Moulds on March 2, 2000. On
March 7, 2000, the magistrate filed findings and
recommendations recommending the denial of the motion.
(App. 57-61.) The magistrate determined that an inmate
retains those constitutional rights that are not inconsistent
with the status of being a prisoner or with the legitimate
penological interests of the prison. (App. 59.) In his
findings and recommendations, the magistrate stated that
persuasive reasons support Mr. Gerber’s position that the
right to procreate survives incarceration, and that additional
discovery and a full record would allow the court to
properly determine whether this right is in fact consistent
with the status of being a prisoner and with the legitimate
interests of the prison. (App. 60.) It was for these reasons
that the magistrate recommended denial of the motion to
dismiss. (Id.) The magistrate also recommended the denial
of the motion for summary judgment on the grounds that
Mr. Gerber made a substantial showing that numerous
factual issues were in dispute. (App. 60-61.)
The district judge rejected the magistrate’s findings
and recommendations, and granted the Warden's motion to
dismiss Mr. Gerber’s complaint under Rule 12(b)(6) of the
Federal Rule of Civil Procedure. (App. 55.) The district
-4-
court made no ruling on the motion for summary judgment.
In making its ruling, the district court relied on non-
controlling authority to determine that the fundamental
right to procreate does not survive incarceration under any
circumstances. (App. 49-54.)
Mr. Gerber appealed to the United States Court of
Appeals for the Ninth Circuit to review the judgment
pursuant to 28 U.S.C. section 41.
B. Proceedings In The Ninth Circuit
The appeal was argued and submitted before a three-
judge panel of the Ninth Circuit on December 13, 2000. On
September 5, 2001, the three-judge panel issued an opinion
reversing the district court’s dismissal, holding that the right
to procreate is not inherently inconsistent with incarceration,
and remanding the case to the district court for
determination under Turner v. Safley, 482 U.S. 78 (1992), of
whether, on the facts, the Warden’s denial of Mr. Gerber’s
request was reasonably related to a legitimate penological
interest. (App. 39, 43.) Judge Barry G. Silverman dissented,
taking the position that the right to procreate does not
survive incarceration. (App. 46 (Silverman, J., dissenting).)
Following briefing on its own motion, the Ninth
Circuit ordered on December 4, 2001 that the appeal be
reheard en banc. (App. 25.) Accordingly, the appeal was
reargued on March 20, 2002, before an eleven-judge panel.
Only one member of the three-judge panel, the dissenting
Judge Silverman, was drawn for the en banc panel.
On May 23, 2002, the en banc panel issued a majority
opinion in which only six of the eleven judges joined,
affirming the district court’s dismissal of the case. (App.
10.) The majority opinion was authored by Judge
2. As noted by the magistrate, Mr. Gerber submitted evidence in
response to the motion for summary judgment clearly demonstrating that
there were numerous genuine issues of materia: fact precluding summary
judgment under Rule 56 of the Federal Rules of Civil Procedure. (App. at
60-61.)
3. Unless otherwise indicated, all further citations to the Appendix in this
Silverman. As in his earlier dissent, Judge Silverman opined
that the right to procreate is fundamentally inconsistent with
incarceration. (App. 9.) The majority opinion also held that
the district court's dismissal without leave to amend was not
an abuse of discretion. (App. 9-10.)
Five of the eleven judges dissented from the majority
opinion, on the grounds that there is nothing in the record
nor common sense that indicates that procreation simpliciter
is fundamentally inconsistent with the fact of incarceration.
(App. 10-11 (Tashima, J., dissenting).) In addition, three
judges dissented in a separate dissenting opinion by Judge
Alex Kozinski, observing that there is nothing inherently
inconsistent about the mechanics of procreation as Mr.
Gerber had proposed, that the California legislature had not
authorized deprivation of the right to procreate as a form of
punishment, and that these rights are “far too important to
be abrogated based on nothing more than the personal
opinion of prison bureaucrats... .”(App. 19-24 (Kozinski, J.,
dissenting).)
As Judge Silverman was the only judge on the en
banc panel who also served on the original three-judge
panel, a total of 13 judges in the Ninth Circuit reviewed Mr.
Gerber’s appeal. Of those 13 judges, seven agreed the
district court’s decision should have been reversed, while
only six agreed that the case should be affirmed. It is only
the distribution of the judges—and the happenstance that
one judge was able to vote twice — that resulted in the Ninth
Circuit's affirmance of the district court’s judgment.
REASONS FOR GRANTING THE WRIT
The issues in this case are crucial—not only for Mr.
and Mrs. Gerber, but also for all who are concerned about
the level to which members of our free society are required
to tolerate unjustified governmental interference with the
very personal decision of whether to bear and beget
children, a right that is perhaps the most basic and
petition refer to the en banc panel decision.
-6-
a eee
compelling need of any life form.
There are compelling reasons to grant this petition,
including several reasons identified in Rule 10 of the Rules
of the Supreme Court: (1) the en banc majority decided an
important question of federal law that has not been, but
should be, settled by this Court; (2) the en banc majority
decided an important federal question in a way that conflicts
with relevant decisions of this Court; and (3) the en banc
decision conflicts with at least one decision of another
United States Court of Appeals.
The importance of the case can scarcely be
overstated. The en banc decision seriously obstructs the
exercise of fundamental constitutional protections, not just
of an inmate, but of the innocent inmate’s spouse. The
constitutional protections at stake include fundamental
liberty interests, particularly regarding marriage and
procreation. The decision effectuates a deprivation of a
fundamental aspect of life itself, without any legislative
authority to do so.
I. Certiorari Is Proper, Because The Ninth Circuit’s En
Banc Majority Decided An Important And Unsettled
Question Of Federal Law.
Certiorari is proper where an important
constitutional right is at stake, and where the issue is novel
and important. (SUP. CT. R. 10(c).. See also R. STERN, E.
GRESSMAN, S. SHAPIRO & K. GELLER, SUPREME COURT
PRACTICE [hereinafter, “STERN & GRESSMAN”] § 4.12 at 186-
87 (7th ed. 1993).)4 This Court has defined “importance” to
refer to the importance of the issues “’to the public as
distinguished from’ importance to the particular ‘parties’
involved.” (See id. § 4.11 at 184.)5
4. Citing Edwards ». South Carolina, 372 U.S. 229, 230 (1963), Pointer v.
Texas, 380 U.S. 400, 401 (1965), United States v. Gouveia, 467 U.S. 180 (1984),
and One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696 (1965).
5. Citing Layne & Bowler Corp. v. Western Well Works, 261 U.S. 387, 393
(1923) and Rice v. Sioux City Cemetery, 349 U.S. 70, 79 (1955)
4.
As the Warden himself argued in briefs directed both
to this Court and the Ninth Circuit: “It is difficult to dispute
that this case poses an ‘important question of federal law
that has not been, but should be, settled by th{[e Supreme]
Court.’”© Mr. Gerber agrees with the Warden that this case
poses an important question that should be settled by this
Court.
The issue of whether the constitutional right to
procreate survives incarceration is vitally important for the
same reason the Court granted review in Skinner v.
Oklahoma: because the decision allowing the government to
permanently terminate an individual's right to procreate
raises “grave and substantial constitutional questions.”
(Skinner v. Oklahoma, 316 U.S. 535, 536 (1942).) Describing
the public interest at stake, the Skinner Court observed that a
state’s power to permanently terminate an individual's right
to procreate “may have subtle, far-reaching and devastating
effects. In evil or reckless hands it can cause races or types
which are inimical to the dominant group to wither and
disappear.” (/d. at 541.)
Because Mr. Gerber is a life-term inmate, not eligible
for conjugal visits under California regulations, the
Warden's refusal to allow him to artificially inseminate his
wife involves the same permanent governmental
deprivation of the right to procreate, with the same potential
for eradication of certain types of people. It is sterilization
on the installment plan.
Moreover, the effects of this decision reach beyond
Mr. Gerber to his faithful and dedicated wife, and to other
spouses of inmates, who have the constitutional right to
procreate exclusively with their spouses. (See Zablocki v.
6. See Appellee’s Motion to Stay the Mandate, September 10, 2001, at p. 5,
citing STERN & GRESSMAN, § 4.11 at 184. See also Application To Stay
Mandate Of United States Court of Appeals for the Ninth Circuit Pending
Certiorari, September 19, 2001, at p. 10-11 (arguing “importance” present
based on government body litigant and asserted public interests
represented by the Warden).
-8-
Redhail, 434 U.S. 374, 386 (1978) (recognizing decision to
marry and raise family entitled to same protection as right to
abortion); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965)
(recognizing constitutional right of married couples to make
decisions about child bearing).) Absent from the en banc
majority opinion is any discussion about the vital impact the
decision has on the procreative rights of non-inmate spouses
such as Mrs. Gerber.”
The effects of the en banc decision are even more
profound in that the decision undermines the very
institution of marriage, which this Court recognized
survives incarceration in Turner v. Safley, 482 U.S. 78 (1987).
By cutting off all avenues of procreation for inmates and
their spouses, the en banc majority drives a wedge in the
marital relationship, and undermines society’s interest in
encouraging individuals to have children within marital
relationships.
Furthermore, the en banc decision that “the right to
procreate while in prison is fundamentally inconsistent with
incarceration,” combined with its misapplication of the
Eighth Amendment to exclude the right to procreate from
being part of “the minimal civilized measure of life’s
necessities,” could mean that a pregnant female inmate may
have no recourse against prison personnel who force or
cause an involuntary abortion, as childbearing would not be
considered one of “life’s necessities.”8 (See App. 9, 10.)
Further, the en banc decision suggests that prison officials
could deny a pregnant inmate’s request to obtain an
7. See App. 23-24 (Kozinski, J., dissenting); Turner v. Safley, 482 U.S. at 85,
quoting Procunier v. Martinez, 416 U.S. 396, 409 (1974), overruled on other
grounds by Thornburgh v. Abbott, 490 U.S. 401, 413014 (1989) (recognizing
the need to consider the impact of prison restrictions on the constitutional
rights of those who are not prisoners). -
8. Mr. Gerber firmly believes that childbearing is indeed one of life’s
necessities. Accordingly, under the Eighth Amendment, the prison must
not interfere with his, or pregnant inmates’, rights to procreate, where
exercise of the right does not undermine legitimate penological interests.
(See Section IV.B.2 of this petition, infra at 26-29.)
-9.
abortion on the basis that the right to choose abortion is a
procreative right, and as such, does not survive
incarceration.
In addition, the issues raised are novel. This Court
has not addressed the question of whether the right to
procreate, in some form, is not inconsistent with
incarceration under the framework set forth in Turner. Nor
has the Court addressed the question of whether a prison
official may effectuate the aims of sexual sterilization on life-
term inmates without any legislative authority and without
any compelling, or merely legitimate, reason to do so.
The case has generated national, as well as
international, public interest. The hearings and decisions
before the three-judge panel and the en banc panel garnered
reports and commentary in numerous newspapers and news
broadcasts across the country and around the world.’
9. The story was widely reported in the United States in the print and
broadcast media. (See, e.g. Henry Weinstein, Inmate May Not Ship Wife
Semen, L.A. TIMES, May 24, 2002, at B1; Denny Walsh, Inmate loses plea to
father a child, SACRAMENTO BEE, May 24, 2002, at A2; David Kravets, Court
Rules on Prisoner’s Semen, WASH. POST (visited May 25, 2002) http://www.
washingtonpost.com/wp-dyn/articles/ A1764-2002May23.html; Court: No
Inmate Procreation Rights (visited May 25, 2002) http://www.cnn.com/
2002/law/05/23/prisoner.semen.ap; Broadcast interview of Teresa L.
Zuber, MSNBC News, March 22, 2002, 8:25 a.m. E.S.T.; Garry Abrams,
Absentee-Fatherhood Effort Lives, Despite Long-Odds Underdog Status, L.A.
DAILY JOURNAL, Sept. 25, 2001, at Al; George Will, Inmates and Proud
Parents, WASH. Post, November 8, 2001, at A31.) It was also discussed in
news reports, commentary, and feature stories in many other countries,
including Germany (see, e.g., Ralf Hoppe, Ein Kind namens Moon, DER
SPIEGEL, July 8, 2002, at 125; Samen per Post: US-Haftling Will Sich
Fortpflanzen, RHEINISCHE POST (visited July 8, 2002) http://www.rp-
online.de/news/journal/2002-0321/fortpflanzung -html); England (see,
e.g., Prison Procreation Lawsuit Reinstated, (visited March 23, 2002)
http:/ /news.bbc.co.uk/hi/ English/ world/ Americas/ newsid_1529000/ 1
529425.stm); Australia (see, e.g., Inmate wants okay to post sperm, THE
AUSTRALIAN (visited July 8, 2002) http://www.news.com.au/common
/story_page/0,4057,3998553%5E1702,00.html); Brazil (see, e.g., Preso quer
mandar sémen para mulher (visited July 8, 2002) http:/ / www.cidadeinternet
.com.br/br/ portales/erotica/nota/0,2600,24961,00.html); Spain (see, e.g.,
Una sentencia permite ser padre a un condenado a cadena perpetua, EL. MUNDO
(visited July 8, 2002) http://www.el-mundo.es/2001/09/09/sociedad/
-10-
The right to procreate is undoubtedly an important
constitutional right, and the issues presented in this petition
present novel and important questions.
II. Certiorari Is Proper, Because The Ninth Circuit’s En
Banc Opinion Decided An Important Federal
Question In A Way That Conflicts With Relevant
Decisions Of This Court.
Rule 10(c) of the Supreme Court Rules provides as a
compelling reason for granting a writ of certiorari that a
United States court of appeals “has decided an important
federal question in a way that conflicts with relevant
decisions of this Court.” (SUP. CT. R. 10(c).) Such a conflict
must be direct, but may occur “from an arguable
misinterpretation or misapplication of the precedent,” such
that the conflict is “apparent.”19 The en banc decision
presents a direct and apparent conflict with this Court's
profoundly important holding in Skinner v. Oklahoma.
In the context of an earlier version of a “three strikes”
law, this Court ruled in Skinner v. Oklahoma that the right to
procreate is a fundamental constitutional right, and further
held that a state may not permanently deprive one class of
convicted individuals the right to procreate, while allowing
another similarly situated class to do so, without
establishing a compelling state interest to support such
discrimination. (Skinner v. Oklahoma, 316 US. at 541-42. See
also App. 23 (Kozinski, J., dissenting) (stating that “[s]uch a
right may be abrogated only pursuant to lawful authority
and for compelling reasons” ).)
Yet the en banc holding that the right to procreate is
1045460_imp.html); Indonesia (see, e.g., Tahanan dilarang kirin sperma lewat
surat (visited July 8, 2002) http://www.satulelakicom /peristiwa
/0,26622,00.html); and Hungary (see, e.g., Postan nemzene az elitélt kaliforniai
(visited July 8, 2002) http:/ / www.index.hu /politika/bulvar/ sperma/).
10. STERN & GRESSMAN § 4.5 at 174, citing United States v. Doe, 465 U.S. 605,
610 (1984), Lugar v. Edmonson Oil Co., 457 U.S. 922, 926 (1982), Army & Air
Force Exchange Service v. Sheehan, 456 U.S. 728, 733 (1982), and Henderson v.
Kibbe, 431 U.S. 145, 152 (1977).
-11-
“fundamentally inconsistent with incarceration” means that
the Warden need present no reason—compelling or even
pretextual—to justify his permanent deprivation of
prisoners’ right to procreate. (See App. 4, 9.) This holding
thereby eviscerated Skinner's holdings that this right is
fundamental and that the government may not extinguish
this right except upon a showing of a compelling interest
sufficient to justify the deprivation.
The en banc majority attempted to exempt Mr.
Gerber’s case from the mandates of Skinner based on the
means of permanent deprivation of the right to procreate. In
particular, the en banc majority contended that Skinner
applies only to “forced surgical sterilization,” because
sterilization is “intrusive,- permanent, and irreparable.”
(App. 6 (emphasis omitted).)
In Mr. Gerber’s case, the Warden's deprivation of Mr.
Gerber’s right to procreate is no less permanent and
irreparable than sterilization for one simple reason: Mr.
Gerber is a life-term inmate. The en banc majority’s remaining
purported distinction, the intrusive nature of surgical
sterilization, is irrelevant, because the Skinner Court did not
rely on this factor at all. Intrusiveness pertains more
appropriately to analysis under the Eighth Amendment's
bar against cruel and unusual punishment. But Skinner
explicitly declined to consider that issue. (Skinner, 316 U.S.
at 538.) Indeed, while Skinner dealt with a statute that
provided for surgical sterilizations in the forms of
vasectomy for a male and salpingectomy for a female (id. at
537), not one word of the majority or concurring opinions in
Skinner mentions, or even alludes to, the intrusive nature of
these procedures as a basis for the decision. It is hard to
imagine that, had the statute in Skinner provided for life in
prison as a means to prevent procreation, whether for punitive
or eugenic goals, this Court would have upheld it in Skinner.
On the contrary, Skinner rests entirely on the Court's
concern about government's ability to prevent an individual
from propagating:
-12-
The power to sterilize, if exercised, may have subtle,
far-reaching and devastating effects. In evil or reckless
hands it can cause races or types which are inimical to
the dominant group to wither and disappear. There is
no redemption for the individual whom the law
touches. Any experiment which the State conducts
is to his irreparable injury. He is forever deprived of a
basic liberty.
(Skinner, 316 U.S. at 541 (emphasis added).) Accordingly,
the intrusive nature of surgical sterilization is a distinction
without a difference. Otherwise, a government could
constitutionally permanently chemically sterilize someone,
while advancing no compelling interest, on the ground that
chemical sterilization does not involve surgical sterilization,
as was at issue in Skinner.
Indeed, if physical intrusiveness were the operative
consideration for the Skinner court, Skinner would only stand
for the proposition that “liberty,” within the meaning of the
due process clause, includes only the right to be free from
forced surgical sterilization, not the right to procreate
generally. (See App. 17 (Tashima, J., dissenting).)
Numerous Supreme Court cases refute this narrow reading
in rulings recognizing that the constitution protects the right
to procreate from governmental interference outside the
context of forced sterilization."
Skinner therefore means what it says: that
“[mJarriage and procreation aie fundamental to the very
existence and survival of the race” and that the constitution
requires review by strict scrutiny to determine whether the
11. See, e.g., Planned Parenthood v. Casey, 505 US. 833, 851 (1992)
(concerning right to abortion); Carey v. Population Services Int'l, 431 U.S.
678, 685 (1977) (concerning right of minors to access birth control);
Cleveland Bd. of Education v. Chesterfield County Sch. Bd., 414 U.S. 632, 640
(1974) (concerning right of school teacher not to be fired for becoming
pregnant); Eisenstadt v. Baird, 405 U.S. 438, 453.(1972) (concerning right of
unmarried individuals to have access to birth control); Stanley v. Illinois,
405 U.S. 645, 651-652 (1972) (concerning right of unmarried father to have
custody of his child after death of child’s mother).
-13-
government may deprive individuals of this fundamental
right, even for those convicted of crimes. (Skinner, 316 U.S.
at 541.) The en banc holding that the right to procreate in
prison is “fundamentally inconsistent with incarceration,”
without any showing of a compelling, or even trivial, reason
to justify this decision, conflicts with Skinner. This Court's
review is necessary to resolve this conflict.
III. Certiorari Is Proper, Because The Ninth Circuit’s En
Banc _ Decision Conflicts With Every Other
Published Opinion In The United States Courts Of
Appeals On The Same Important Issue Of Whether
The Right To Procreate Survives Incarceration.
Another compelling reason meriting Supreme Court
review exists when “a United States court of appeals has
entered a decision in conflict with the decision of another
United States court of appeals on the same important
matter.” (SUP. CT. R. 10(a).) Aside from Judge Silverman’s
own dissent in the original three-judge panel, the en banc
majority decision that the right to procreate does not survive
incarceration under any circumstances conflicts with every
other published opinion, majority or dissenting, in the
United States Courts of Appeals.
The first glaring conflict is with the Third Circuit's
decision in Monmouth County Correctional Institution Inmates
v. Lanzarro, 834 F.2d 326 (3d Cir. 1987). In Monmouth County,
the court specifically recognized that the right to procreate
exists in the prison context. (Id. at 333 n. 11.) The court
relied on this proposition in recognizing that a woman’s
constitutional right to choose abortion over childbirth also
exists in the prison context. (Id. at 335.)
Similarly, below, the three-judge panel of the Ninth
Circuit held, with ample support, that the right to procreate
survives incarceration. (App. 33-39 (three-judge panel
decision).) Furthermore, the five-judge dissenting opinion
submitted with the en banc opinion recognized that the
record fails to support a conclusion that the right to
procreate simpliciter does not survive incarceration. (App.
-14-
aaa ila ails.
10-19 (Tashima, J., dissenting).) Similarly, the three-judge
dissenting opinion notes that neither “committing Onan’s
transgression,” nor “mailing a package, or handing it to your
lawyer” is even “remotely inconsistent with incarceration.”
(App. 19-20 (Kozinski, J., dissenting).)
Moreover, even while erroneously concluding, on
the specific facts before it, that a ban on artificial
insemination was reasonably related to a penological
interest, the Eighth Circuit’s decision in Goodwin v. Turner,
908 F.2d 1395 (8th Cir. 1990), assumed that the right to
procreate survives incarceration.12 (Id. at 1398.) The
dissenting opinion in Goodwin analyzes the issue in detail,
and explains why the right to procreate survives
incarceration. (Id. at 1401-03 (McMillian, J., dissenting).)
The bare majority en banc inion conflicts with
every other court of appeals opinion, majority or dissenting
(except for Judge Silverman’s own previous dissent), ever
published on whether the right to procreate survives
incarceration.
Furthermore, the conflict on this issue is bound to
create confusion in the lower courts as they struggle to
determine such issues as, for example, whether an inmate
who had previously frozen his or her gametes prior to
incarceration may release the frozen gametes to a spouse or
surrogate mother,!5 whether prisons may require inmates to
use contraceptives during conjugal visits solely to prevent
procreation, whether pregnant inmates may opt for
abortion, and whether pregnant inmates may be forced to
endure involuntary abortions. The en banc decision is truly
12. Strangely, the en banc opinion does not even cite the Eighth Circuit's
review of the district court’s decision in Goodwin v. Turner.
13. Counsel for the Warden conceded during oral argument at the
rehearing en banc that the prison could not prevent an inmate from
procreating if the inmate had the foresight to deposit his semen before
being incarcerated, and the inmate’s spouse obtained the semen from the
sperm bank. The Warden thereby concedes that becoming a parent
through artificial insemination is not inherently inconsistent with
incarceration.
14.
unprecedented in the courts of appeal in its sweeping and
unsubstantiated holding. Supreme Court review is
necessary to resolve these conflicts.
IV. Certiorari Is Proper, Because The En banc Opinion
Is Wrong, Results In A Gross Miscarriage of Justice,
Erodes The Important Constitutional Rights To
Marriage And Procreation, And Is Unduly Harsh.
Supreme Court review is appropriate where the
result reached below represents a gross miscarriage of
justice, erodes an important legal principle or is unduly
harsh. (STERN & GRESSMAN § 4.17 at 194 (citing, inter alia,
Montana v. Kennedy, 366 U.S. 308, 309 (1961) and Thompson v.
City of Louisville, 362 U.S. 199 (1960).) The wrongness of the
en banc decision results in all of these injustices.
As discussed below, the en banc decision is wrong
for two major reasons: (1) it fails to abide by the holdings of
Skinner v. Oklahoma and Turner v. Safley, 482 U.S. 78, 84
(1987) in deciding that the right to procreate does not
survive incarceration at all, and (2) it fails to recognize that
imposition of the gratuitous punitive measure of
permanently depriving an inmate and his spouse the right to
procreate violates the Equal Protection Clause and the
Eighth Amendment. In these respects, the decision results in
a gross miscarriage of justice and is unduly harsh.
_ Further, the impact of the decision severely erodes
the important constitutional right to procreate and
undermines the integrity of the constitutional right to marry.
This Court has recognized that the integrity of the marital
union is undermined when other individuals might be
involved in issues relating to having children within a
marriage. (Michael H. v. Gerald D., 491 U.S. 110, 131 (1989)
(Scalia, J., plurality opinion).) For couples such as the
Gerbers, the en banc decision leaves them no option but to
either go childless or involve another individual to
impregnate Mrs. Gerber. The en banc decision thereby both
erodes the right to procreate and undermines the integrity of
the marital union for no legitimate reason whatsoever.
sh
A. The En Banc Opinion Incorrectly Cencludes That
The Right To Procreate Is Inconsistent With
Incarceration.
No one disputes that the Constitution protects the
right to procreate. (See U.S. CONST. amend. XIV; Skinner v.
Oklahoma, 316 U.S. 535 (1942).) The en banc majority
acknowledged that “prison walls do not form a barrier
separating prison inmates from the protections of the
Constitution.” (App. 3, quoting Turner v. Safley, 482 U.S. at
84.) The en banc majority, however, quoted these principles
without applying them, and failed to discharge its duty to
protect constitutional rights of prisoners. (See, e.g., Turner v.
Safley, 482 U.S. at 84 (stating “[w]hen a prison regulation or
practice offends a fundamental constitutional guarantee,
federal courts will discharge their duty to protect
constitutional rights”).)
This Court has held that “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.” (Id. at 94; Pell v.
Procunier, 417 U.S. 817, 822 (1974).) In Turner v. Safley, this
Court elucidated this principle by setting forth a two-prong
test to determine whether a prison regulation is
constitutional.
The first prong of the Turner test examines whether
the constitutional right at stake survives incarceration in
general. (Turner, 482 U.S. at 94-96.) It is this prong upon
which the en banc majority relied in reaching its erroneous
decision. Under Turner, the court was required to decide
whether the right to procreate is affected “by the fact of
confinement or the pursuit of legitimate corrections goals.”
(Id. at 95-96.) If sufficient attributes are unaffected by
confinement or legitimate goals, the right is deemed to
14. The second prong examines whether the right that survives
incarceration is reasonably related to a legitimate penological interest.
(Turner, 482 U.S. at 89, 96-97.) The en banc majority did not reach this
prong.
th
survive incarceration. (Id. at 89, 96.)
The en banc majority, however, failed to consider
any attributes of the right to procreate, and even failed to
apply a minimal level of genuine analysis regarding the
relaticnship between the facts relating to the right to
procreate and the nature and purposes of incarceration.15
(See App. 17 (Tashima, J., dissenting) (stating that neither
facts in the record nor the majority’s vague references to
penological needs support the conclusion that procreation is
fundamentally inconsistent with incarceration); App. 20-21
(Kozinski, J., dissenting) (noting that prison authorities
offered no proof that either physical acts required to deliver
semen collection out of prison, or recipient's use of
collection, have any effect on legitimate interests of prison).)
The en banc panel should have followed this Court's
methodology in Turner by undertaking a careful
examination of the attributes of the right at stake and the
circumstances of incarceration to determine whether the
right is not inconsistent with incarceration. (See App. 12-13
(Tashima, J., dissenting). See also Turner v. Safley, 482 U.S. at
95-96.)
Analyzing the right to marry in the prison context in
Turner, the Court observed that many attributes of marriage
survive incarceration, even after taking into account the
15. Disturbingly, the en banc majority opinion cited an inapplicable law
review article to support its cursory dismissal of the technological
advancements that would allow an inmate to procreate without any
measurable burden on the prison. The majority cited Jack B. Weinstein
and Catherine Wimberly’s article, Secrecy in Law and Science, 23 CARDOZO
L. REV. 1, 9-11 (2001) to support its proposition that whether the right to
procreate survives incarceration is unaffected by scientific advancements
in reproductive technology. (App. 7.) The majority’s position is akin to
suggesting that sending and receiving mail is inconsistent with
incarceration, because the law cannot countenance the invention of paper
and pen. Weinstein and Wimberly’s article has absolutely nothing to do
with the court’s untenable proposition. Rather, the cited pages of the
article describe the adversary system’s pressure on scientific experts to
maintain consistency in spite of their willingness to adjust conclusions.
(Weinstein & Wimberly, supra, at 9-11.)
-18-
limitations imposed by prison life. (Turner, 482 U.S. at 95.)
Among these attributes are (1) the expressions of emotional
support and public commitment that marriage provides, (2)
the fact that marriage is often an exercise of religious faith,
(3) the expectation that an inmate will be released and may
ultimately consummate the marriage, and (4) the fact that
marital status is often a precondition to the receipt of
government benefits. (Id. at 95-96.) Based on these
attributes that are unaffected by incarceration, this Court
held that the right to marry survives incarceration. (Id. at
96.)
Had the en banc majority followed this same
methodology, it would have seen that nearly identical -
attributes of procreation are similarly unaffected by
incarceration. Certainly, a son or daughter can provide
enormous emotional support and public commitment. In
addition, many religions include edicts to procreate. For
example, Genesis 9:1 of the Judeo-Christian Bible includes
the mandate from God, “Be fruitful, and multiply, and
replenish the earth.” Thus, procreation in many cases may
be an exercise of religious faith. Additionally, most
inmates have an expectation of being released and
ultimately of providing a physical presence for the child.17
Finally, family status is often a precondition to the receipt of
government benefits, including Social Security death
benefits and inheritance rights.18 All of these aspects of
procreation are unaffected by the fact of confinement or by
16. And it is with Mr. Gerber, a devout Christian who feels a mandate
from God to beget offspring—a mandate that has been frustrated by the
Warden’s actions.
17. Notwithstanding the State’s expressed desire that Mr. Gerber “never
see the outside of the prison again,” it is not beyond the realm of
possibility that he may someday in the distant future be paroled, though
certainly not while Mrs. Gerber is still fertile.
18. See, e.g., 42 U.S.C. § 402 (Social Security death benefits to surviving
children); 5 U.S.C. § 8341 (death benefits to surviving children of
government employees); CAL. PROB. CODE § 6402 (intestate succession to
surviving children).
-19-
the pursuit of legitimate corrections goals.
The en banc majority posited that only intangible and
emotional aspects of marriage, not physical aspects, survive
incarceration. (App. 8-9.) By apparent implication, the
majority intimated that a constitutional right can survive
incarceration if, and only if, it can exist with no physical
aspect. This position is untenable. The right to marry, for
example, involves the physical acts of arranging the
presence of witnesses to observe the taking of wedding
vows, the physical act of signing the marriage contract, and
the physical act of mailing the marriage documents to the
governmental agency responsible for recording the
marriage. The right to free speech, which survives
incarceration under Pell v. Procunier, 417 U.S. 817 (1974),
often involves the physical acts of obtaining and using
writing or art materials and depositing the writing or art
objects in the mail. Free exercise of religion also survives
incarceration, and includes a wide variety of physical rituals,
many of which can be exercised in prison commensurate
with legitimate institutional needs. (O’Lone v. Estate of
Shabazz, 482 U.S. 342, 352 (1987) (describing inmate access to
nearly unlimited congregation for prayer, access to religious
leader, access to alternative meals and special eating times).)
The current state of the record on the motion to
dismiss establishes that Mr. Gerber’s request to procreate
through artificial insemination is no different from the
standpoint of the prison from mailing a urine sample to an
attorney to prove innocence, or providing a blood, urine or
stool sample to a private physician to obtain an independent
diagnosis of disease, neither of which does the Warden
contend are inconsistent with incarceration. (See App. 17,
n.4 (Tashima, J., dissenting); App. 20-21 (Kozinski, J.,
dissenting).) As Judge Kozinski explained, just as an inmate
may become a best-selling author by sending out a
manuscript for a novel or biography, or be a graphic artist
who sells his work by mail, Mr. Gerber’s request “is no more
inconsistent with Gerber’s status as a prisoner than is any
other consequence of mailing materials from prison to the
-20-
outside world.” (App. 21 (Kozinski, J., dissenting).).
Furthermore, the regulations and operations of
California state prisons belie the en banc majority's holding.
The State of California generally provides procreative -
opportunities to married inmates through its family visits
program, which allows conjugal visits. (See CAL. CODE
REGS. tit. 15, § 3174.) Accordingly, it defies logic to contend
that exercise of this right is inherently inconsistent with
incarceration when numerous inmates procreate under this
prison-operated program. (See App. 15 (Tashima, J.
dissenting), App. 22-23 (Kozinski, J., dissenting). See also
App. 39 (three-judge panel majority decision).)19
Rather than engaging in the required analysis, the en
banc majority merely mentioned general correctional
policies and goals of confining offenders to deter crime,
protect the public, and rehabilitate the inmate, (App. 5-6),
without including any discussion whatsoever about the
attributes of procreation and whether these attributes are
sufficiently unaffected by legitimate correctional goals. (See
App. 10-19 (Tashima, J., dissenting).)
Instead, the en banc majority simply noted that the
right of intimate association is necessarily abridged in the
prison setting, to conclude that the total loss of this right “is
simply part and parcel of being imprisoned.” (App. 5, citing
Roberts v. United States Jaycees, 468 U.S. 609 (1984).)
Redefining “abridge” to mean “annihilate” is not
constitutional analysis, and does not constitute a compelling
reason, or even a rational basis, to justify the Warden's
permanent termination of an individual’s or his spouse's
right to procreate. (See App. 14, 17-19 (Tashima, J.,
19. Indeed, inmates with convictions for assault, battery, and even
torture, mayhem or murder may be eligible for procreative opportunities.
(See CAL. CODE REGS. tit. 15, § 3174 (generally allowing family visits for
non-life-term inmates and life-term inmates with a parole date set).) But
Mr. Gerber and many other life-term inmates, who have never been
convicted of harming anyone, do not. , (See id. § 3174(e)(2) (excluding
inmates with sentences of life-term without the possibility of parole or
life-term with no parole date set from eligibility for family visits).)
2%.
dissenting); App. 23-24 (Kozinski, J., dissenting).) The en
banc majority’s end-run around constitutional analysis
would mean that neither the right to marry nor the right to
free speech could survive incarceration either, as they also
involve intimate association. But they do. And so does the
right to procreate. The en banc opinion is blatantly wrong.
B. The En Banc Decision Improperly Allows A
Warden To Gratuitously Impose The Additional
Punishment Of Permanent Deprivation Of The
Right To Procreate In Violation Of-the Equal
Protection Clause And The Eighth Amendment.
Skinner v. Oklahoma forbids the arbitrary removal of
reproductive potential as a criminal punishment. No one
contends that Skinner v. Oklahoma constitutionally mandates
that prisons make extraordinary administrative efforts to
accommodate the right to procreate, such as providing
conjugal visits. But, where, as here, trial on the merits
would show that the prisoners’ reproductive ends can be
served without any measurable inconvenience to the prison,
the issue becomes whether reproduction can be denied for
gratuitous punitive reasons.” The answer to this question is
“no” under two separate strands of constitutional authority:
(1) the Equal Protection Clause and (2) the cruel and unusual
punishment provision of the Eighth Amendment.?!
The denial of Mr. Gerber’s request to participate in a
20. Indeed, at oral argument for the rehearing en banc, counsel for the
Warden argued, for the first time in the case, that deprivation of the right
to procreate is part of the punishment upon being imprisoned.
21. During oral argument in the district court, Mr. Gerber asked the
magistrate judge for leave to amend his complaint to allege additional
facts and claims. Among the amendments to his complaint, Mr. Gerber
intended to allege that the denial -of his request violates the equal
protection clause and constitutes cruel and unusual punishment. The
district court dismissed his complaint, ordering the clerk to close the file,
thereby foreclosing amendment. (App. 55 (district court opinion).) For
the reasons set forth in this section, the en banc majority improperly held
that amendment would be futile. (App. 9-10.)
<Y.
costless accommodation of Mr. and Mrs. Gerber’s right to
procreate is an unconstitutional punitive sterilization on the
installment plan.
1. The Denial Of Mr. Gerber’s Request Violates The
Equal Protection Clause.
The denial of Mr. Gerber’s request to artificially
inseminate his spouse violates the equal protection clause of
the Fourteenth Amendment by unjustifiably imposing the
punishment of permanent deprivation of the right to
procreate to one class of offenders, while allowing exercise
of this right to other similarly situated offenders. (See U.S.
CONST. amend. XIV; Skinner v. Oklahoma, 316 USS. at 541-42.)
The en banc majority improperly held that assertion of this
claim would be futile. (App. 10.)
Mr. Gerber was sentenced to a life-term under
California’s “three strikes” law, enacted in 1994. (See CAL.
PENAL CODE §§ 667, 1170.12.) Because the CDC barred
conjugal visits for life-term inmates in 1995 (see CAL. CODE
REGS. tit. 15, § 3174(e)(2), effective May 30, 1995), Mr. Gerber
is not eligible for conjugal visits, and will not be eligible for
parole during Mrs. Gerber’s fertile years. Yet, any other
offender with the same record of felonies (one of which was
a juvenile conviction) as Mr. Gerber, who had been
convicted prior to the effective date of the “three strikes”
law, would have received a maximum sentence
enhancement of only five years,“ would therefore be eligible
for conjugal visit privileges, and could exercise procreative
rights through that avenue or upon release from prison.
Because Mr. Gerber is ineligible for conjugal visits
and is unlikely to be released during his life (and certainly
not during Mrs. Gerber’s fertile years), the only feasible
means for Mr. and Mrs. Gerber to procreate is through
artificial insemination. The warden’s denial of Mr. Gerber’s
22. The maximum sentence enhancement at the time was up to five years
for each prior “serious felony” committed as an adult. (See 1989 Cal Stat.
ch. 1043, § 1, (amending CAL. PEN. CODE § 667).)
-23-
request thereby utterly deprives both Mr. and Mrs. Gerber,
and other married couples in the same class, of the
fundamental right to procreate, whereas other similarly
situated inmates who were convicted before “three strikes”
(and those inmates’ spouses) are not deprived of that right.
In Skinner, this Court required strict scrutiny review
of a punishment that disparately impacted the right to
procreate of two similarly situated classes of felons.
(Skinner, 316 U.S. at 541.) The distinction between the two
classes in that case concerned the time criminal intent arose
in the felon’s mind. (Id. at 541-42.) The Court required strict
scrutiny review, because “[t]he equal protection clause
would indeed be a formula of empty words if such
conspicuously artificial lines could be drawn.” (Id. at 542.)
The instant case similarly involves a “conspicuously
artificial line” with respect to time. The effective date of the
“three strikes” law arbitrarily divides Mr. Gerber and other
third strike life-term inmates from other similarly situated
inmates who were sentenced prior to the effective date of the
“three strikes” law. Solely because Mr. Gerber was
convicted after the “three strikes” law took effect, neither
conjugal visits nor release from prison is available to him to
permit him to father a child. The en banc majority offers no
explanation that could support, under strict scrutiny, the
propriety of the Warden imposing this invidious
discrimination against Mr. Gerber’s class of individuals. >
If the State of California passed a statute requiring
chemical sterilization of any person sentenced to life
imprisonment under the “three strikes” law, this Court
would likely not hesitate to declare such a barbaric law to be
unconstitutional, much as this Court did when faced with a
23. Although the Warden may not acknowledge as much, it is likely the
Warden's view that convicted criminals are “bad seeds” who should not
pass along their genes, as exemplified by the Warden's suggestion that
Mr. Gerber may become a father by having Mrs. Gerber find some other
man to be the child’s biological father. Of course, even if this is the
Warden’s position, he must be required to present evidence to
substantiate his views.
-24-
similar law in Skinner. The “three strikes” law, in
combination with the Warden’s denial of Mr. Gerber’s
request, creates the same harsh result.
Instead of applying strict scrutiny, the en banc
majority determined that a “rationality review” was the
proper standard of review, which directly conflicts with the
strict scrutiny test mandated by Skinner for equal protection
claims alleging deprivation of the right to procreate.
(Compare App. 10 with Skinner v. Oklahoma, 316 U'S. at 541.)
But even under rational basis review, the en banc
majority reached an untenable conclusion. The en banc
panel's illogical and circular reasoning was as follows: Mr.
Gerber is not similarly situated to inmates who have the
same prior conviction record but were sentenced before the
effective date of the “three strikes” law, because inmates
sentenced prior to 1995 “are eligible for conjugal visits.”
(App. 10.) Yet the inquiry of whether differential treatment
exists (in this case, allowing one class to procreate while
prohibiting the other from doing so) is relevant to the
disparate treatment component of the equal protection
analysis, not to the issue of whether the two classes are
similarly situated. To hold that groups are not similarly
situated because they are treated disparately would always
result in the conclusion that there is mever an equal
protection violation because, under this logic, if the groups
are subject to disparate treatment, then ipso facto they would
not be similarly situated. The en banc majority relied on this
stunningly circular argument to conclude that strict scrutiny
review is not required.
The en banc panel then opined that the Warden’s
denial of the request is rational, because “maintaining
contact with those outside the prison is more important for
inmates who will eventually be released.” (Id.)24 This
24. The Warden at no point asserted this interest; the en banc majority
invented this basis for the Warden's denial of Mr. Gerber’s request. As
this was not an interest asserted by the Warden, nor supported by
anything in the motion to dismiss, the majority’s reliance on its own
made-up interest cannot form the basis for denying Mr. Gerber’s claim.
-25-
interest is not rationally related to any legitimate penological
interest. The procedure requested by Mr. Gerber requires no
more “contact with those outside” than mailing a letter.
That the mailing might result in the creation of a human life
in no way undermines any legitimate interest of the prison.
As Judge Kozinski noted in his dissent, whether the mailing
“is used to inseminate Mrs. Gerber, to clone Gerber or as a
paperweight has no conceivable effect on the safe and
efficient operation of the California prison system.” (App.
20 (Kozinski, J., dissenting).)*
The en banc panel erred by foreclosing Mr. Gerber
from establishing by competent evidence that the Warden's
deprivation of his fundamental right to procreate violates
the Equal Protection Clause.
2. The Denial Of Mr. Gerber’s Request Violates Mr.
And Mrs. Gerber’s Rights Under The Eighth
Amendment.
a. The Warden’s Denial Of The Request Imposes
Cruel And Unusual Punishment On Mr. Gerber.
Initially, the ban against cruel and unusual
punishment bars unauthorized punishment. (See Ingraham v.
Wright, 430 U.S. 651, 664-67 (1977) (summarizing the law).)
As discussed above, no California statute authorizes as
punishment the permanent deprivation of the right to
procreate. Moreover, the CDC’s own regulation allowing
conjugal visits for most married inmates establishes that the
legislative penalty of incarceration does not include
deprivation of the right to procreate. (See App. 21-23
(Kozinski, J., dissenting).) On this ground alone, the
Warden's denial of Mr. Gerber’s request constitutes cruel
and unusual punishment, as it superimposes an
unauthorized penalty onto his life-term sentence.”
25. See also Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (stating that
“implications of outgoing correspondence for prison security are of a
categorically lesser magnitude than implications of incoming materials”).
26. Nothing in the record suggests that the Warden denied Mr. Gerber’s
-26-
In addition, this Court recently reiterated that the
Eighth Amendment “succinctly prohibits ‘excessive’
sanctions . . . . [I]t is a precept of justice that punishment for
crime should be graduated and proportioned to the offense.”
(Atkins v. Virginia, __ U.S. __, __, 2002 Westlaw 1338045, at
20-21 (2002), citing Weems v. United States, 217 U.S. 349, 367
(1910).) Furthermore, conditions of confinement may not
involve punishments “grossly disproportionate to the
severity of the crime warranting imprisonment.” (Rhodes v.
Chapman, 452 U.S. 337, 347 (1981).)
A punishment is unconstitutionally disproportionate
if (1) the gravity of the offense compared to the harshness of
the penalty raises an inference of gross disproportionality,
(2) the punishment is disproportionately severe compared to
other penalties inflicted by the state, and (3) the punishment
is disproportionately severe compared to other jurisdictions.
(Solem v. Helm, 463 U.S. 277, 290-91 (1983). See also Harmelin
v. Michigan, 501 U.S. 957, 1000 (1991) (Kennedy, J.,
concurring.)
Approximately 14 years after his only felony
conviction as an adult, Mr. Gerber discharged a gun into his
own television set. Mr. Gerber posed no threat to Mrs.
Gerber at any time, and indeed she was not even home
when the incident occurred. Mr. Gerber’s prior convictions
involved an armed burglary when he was only 17 years old,
and an act of shooting into apartment walls when he was in
his early to mid-twenties. None of the offenses involved
bodily harm to anyone.
Considering that Mr. Gerber has never been
convicted of harming anyone, the unauthorized punishment
of permanently terminating Mr. Gerber’s right to procreate,
in addition to his life-term sentence for shooting his
television, is excessively harsh and unusually severe. These
circumstances raise an inference of gross disproportionality.
Moreover, Mr. Gerber’s superimposed sentence is
grossly disproportionate when compared to other
request as a punishment for anything Mr. Gerber did while incarcerated.
24.
punishments in California. Indeed, the State of California
generally promotes procreative opportunities for most
married inmates by providing them eligibility for conjugal
visits. (See CAL. CODE REGS. tit. 15, § 3174.) Indeed, even
life-term inmates with a parole date set may obtain conjugal
visit privileges. (Id. § 3174(e)(2).) Accordingly, inmates with
a parole date set, with convictions for assault, battery, and
even torture, mayhem or murder, may be eligible for
procreative opportunities. But Mr. Gerber, who was never
convicted of harming anyone, does not.
Similarly, the punishment is disproportionate when
compared with other jurisdictions. Not one single
legislature in the country has a statute prohibiting an inmate
from artificially inseminating a spouse. Further, Mr. Gerber
has located no other instance in the United States where an
individual has been permanently deprived of the right to
procreate for the act of shooting one’s own television set.
The Warden’s denial of Mr. Gerber’s request is cruel
and unusual punishment, because it is unauthorized by the
legislature and is grossly disproportionate to his crimes
b. The Warden’s Denial Imposes Cruel And Unusual
Punishment On The Innocent Mrs. Gerber.
Even more troubling is the fact that the Warden’s
denial of the request terminates the innocent Mrs. Gerber’s
fundamental right to procreate with her husband with no
basis in administrative need. Absent such a need, termination
of Mrs. Gerber’s right to procreate constitutes cruel and
unusual punishment.
There can be no doubt that punishing, that is,
depriving the liberty of, an individual who has committed
no crime constitutes cruel and unusual punishment. (See
Solem v. Helm, 463 U.S. 277, 290 (1983); Robinson v. California,
370 U.S. 660, 667 (1962) (noting that a single day in jail for
having a common cold would be cruel and unusual
punishment).) Procreative rights within legal marriage, as a
liberty interest, have had special constitutional recognition
since this Court's decision in Griswold v. Connecticut in 1965.
-28-
(Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (recognizing
married couple’s right to access birth control).) See also
Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (stating that right
to procreate must mean right to enter only relationship in
which sexual relations take place); Palko v. Connecticut, 302
US. 319, 325 (1937) (recognizing fundamental rights as
“implicit in the concept of ordered liberty”).) The right to
procreate therefore includes the right to bear children within
the bounds of the marital relationship. As Mr. Gerber’s wife,
Mrs. Gerber has the right to procreate with her husband.
If special administrative burdens would be required
to permit an innocent spouse to be impregnated, the
Constitution poses no demand that prison authorities invest
their limited resources even in the accommodation of
Griswold rights of the innocent. But where there is no burden
on the prison, the arbitrary termination of reproductive chances for
married non-offenders makes a mockery of Griswold rights for all
of those in Mrs. Gerber’s situation. The Gerbers must be
allowed to establish that allowing their request would pose
no measurable burden on the prison. In the absence of such
a burden, the gratuitous termination of the innocent
spouse’s right to procreate with an incarcerated spouse is
nothing less than cruel and unusual punishment of a
completely innocent person—and in this case, the supposed
“victim” of Mr. Gerber’s alleged crimes.
CONCLUSION
The constitutional right to procreate is so
fundamentally important that the very existence and
survival of the human race depends upon it. Yet the en banc
majority casually dismissed this fundamental right without
requiring any showing whatsoever that the prison would be
burdened at all by allowing Mr. Gerber’s simple request: to
send his semen to a sperm bank so that his committed and
loyal wife can bear a child with her husband. The legally
and factually unsubstantiated conclusion of the en banc
majority conflicts with this Court’s landmark decision in
Skinner v. Oklahoma, and with numerous opinions in the
-29-
courts of appeals. Further, the erroneous decision seriously
undermines the important constitutional rights of marriage
and procreation.
The decision reaches far beyond the parties to this case.
It reaches to the spouses of inmates who want to solidify
their marriages through the bond of biological parenthood.
It reaches to the entire ancestral line of these families whose
dream it was to preserve their family lineage. And it reaches
to the indefinable but certain loss to humanity of children
who could offer their creativity, innocence, and love, to their
parents, to their grandparents, to a world so desperately in
need of all these things.
This Court should grant this petition to review and
correct the profoundly erroneous decision of the Ninth
Circuit Court of Appeals. °
Respectfully submitted,
TERESA L. ZUBER
Counsel of Record
LAW OFFICES OF TERESA L. ZUBER
P.O. BOx 160525
SACRAMENTO, CALIFORNIA 95816
(916) 456-1955
Attorney for Petitioner
-30-
APPENDIX
(291 F.3d 617)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM GERBER, Plaintiff-Appellant, |
V.
RODNEY HICKMAN, WARDEN, Defendant-Appellee.
No. 00-16494.
D.C. No. CV-99- 01315-FCD.
Appeal from the United States District Court
for the Eastern District of California;
Frank C. Damrell, District Judge, Presiding.
Argued and Submitted March 20, 2002— Phoenix, Arizona.
Filed May 23, 2002
Before: Mary M. Schroeder, Chief Judge, Alex Kozinski,
Diarmuid F. O’Scannlain, Pamela Ann Rymer, Michael Daly
Hawkins, A. Wallace Tashima, Barry G. Silverman, Ronald
M. Gould, Richard A. Paez, Marsha S. Berzon, and Johnnie
B. Rawlinson, Circuit Judges.
Opinion by Judge Silverman;
Dissent by Judge Tashima;
Dissent by Judge Kozinski
COUNSEL
*619 Teresa L. Zuber, Law Offices of Teresa L. Zuber,
Sacramento, CA, for the plaintiff-appellant.
Gregory S. Walston, Deputy Attorney General, Sacramento,
CA, for the defendant-appellee.
App. 1
OPINION
SILVERMAN, Circuit Judge.
William Gerber, an inmate in the California State
prison system, filed an amended complaint in federai court
in which he alleged: “Petitioner asserts that Mule Creek
State Prison is violating his Constitutional Rights by not
allowing him to provide his wife with a sperm specimen
that she may use to be artificially inseminated.” Gerber
sought an order vf the court directing the institution to
permit him to provide “a sample of sperm to artificially
inseminate his wife.”
The district court dismissed Gerber’s suit for failure to
state a claim, ruling that a prisoner does not have a
constitutional right to procreate while incarcerated. Gerber v.
Hickman, 103 F.Supp.2d 1214, 1216-18 (E.D. Cal. 2000).
Because we agree with the district court that the right to
procreate is fundamentally inconsistent with incarceration, —
we affirm.
I. BACKGROUND
We adopt the statement of facts from the district
court’s thoughtful opinion:
Plaintiff, a forty-one year old man, is an
inmate at Mule Creek State Prison serving a
sentence of 100 years to life plus eleven years.
Plaintiff's wife, Evelyn Gerber, is forty-four
years old. Plaintiff and his wife want to have
a baby. The California Department of
Corrections (“CDC”) prohibits family visits
for inmates “sentenced to life without the
possibility of parole [or] sentenced to life,
without a parole date established by the
Board of Prison Terms.” Cal. Code Regs. tit.
15 § 3174(e)(2). No parole date has been set
App. 2
for plaintiff, and according to plaintiff, due to
the length of his sentence, .no parole date
seems likely. Accordingly, he wishes to
artificially inseminate his _ wife. To
accomplish this, plaintiff requests that (1) a
laboratory be permitted to mail him a plastic
collection container at the prison along with a
prepaid return mailer, (2) he be permitted to
ejaculate into the container, and (3) the filled
container be returned to the laboratory in the
prepaid mailer by overnight mail.
Alternatively, plaintiff requests that his
counsel be permitted to personally pick up
the container for transfer to the laboratory or
health care provider. Plaintiff represents that
he and his wife will bear all of the costs
associated therewith, including any costs
incurred by the CDC. Defendant [Hickman]
refuses to accommodate plaintiff's request.
*620 Gerber, 103 FSupp.2d at 1216 (first alteration in
original).
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291, and we review de novo a district court's
dismissal for failure to state a claim. Monterey Plaza Hotel,
Ltd. v. Local 483, 215 F.3d 923, 926 (9th Cir. 2000).
Ill. ANALYSIS
A. Fundamental Rights in the Prison Setting
It is well-settled that “[p]rison walls do not form a
barrier separating prison inmates from the protections of the
Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). A state
could not, for example, decide to ban inmate access to mail
App. 3
or prohibit access to the courts. However, “while persons
imprisoned . . . enjoy many protections of the Constitution, it
is also clear that imprisonment carries with it the ... loss of
many significant rights.” Hudson v. Palmer, 468 U.S. 517,524,
(1984). The very fact of incarceration thus “withdraw[s] or
limit[s] . .. many privileges and rights,” and this. “retraction
[is] justified by the considerations underlying our penal
system.” Pell v. Procunier, 417 U.S. 817, 822 (1974) (internal
quotation marks omitted). Prisoners retain only those rights
“not inconsistent with [their] status as . . . prisoner[s] or with
the legitimate penological objectives of the corrections
system.” Hudson, 468 U.S. at 523 (quoting Pell, 417 U.S. at
’ 822) (first alteration in original).
Gerber challenges the prison’s refusal to allow him to
artificially inseminate his wife from prison. In 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. Turner, 482 U.S. at 94-96. If so, this ends our
inquiry. Prisoners cannot claim the protection of those
tights fundamentally inconsistent with their status as
prisoners.
' Only if we determine that the asserted right is not
inconsistent with incarceration do we proceed to the second
question: Is the prison regulation abridging that right
reasonably related to legitimate penological interests?
Turner, 482 U.S. at 96-99. If it is, the regulation is valid; if
not, it is unconstitutional.
B. Whether the Right to Procreate is Fundamentally
Inconsistent with Incarceration
i.
We begin our analysis by inquiring whether the right
to procreate is fundamentally inconsistent with
incarceration. Incarceration, by its very nature, removes an
App. 4
ee ee ne renee
inmate from society. Pell, 417 U.S. at 822-23. A necessary
corollary to this removal is the separation of the prisoner
from his spouse, his loved ones, his friends, family, and
children. Cf. Montanye v. Haymes, 427 U.S. 236, 242 n. 4
(1976) (noting that among the hardships that may result
from a prison transfer are separation of the inmate from
home and family). Once released from confinement, an
inmate “can be gainfully employed and is free to be with
family and friends and to form the other enduring
attachments of normal life.” Morrissey v. Brewer, 408 U.S.
471, 482 (1972). But not until then.
*621 During the period of confinement in prison, the
right of intimate association, “a fundamental element of
personal liberty,” Roberts v. United States Jaycees, 468 U‘S.
609, 618 (1984), is necessarily abridged. Intimate association
protects the kinds of relationships “that atterd the creation
_ and sustenance of a family--marriage, childbirth, the raising
and education of children, and cohabitation with one’s
relatives ....” Id. at 619 (citations omitted). The loss of the
right to intimate association is simply part and parcel of
being imprisoned for conviction of a crime.
“{M]any aspects of marriage that make it a basic civil
right, such as cohabitation, sexual intercourse, and the
bearing and rearing of children, are superseded by the fact
of confinement.” Goodwin v. Turner, 702 F.Supp. 1452, 1454
(W.D. Mo. 1988). Thus, while the basic right to marry
survives imprisonment, Turner, 482 U.S. at 96, most of the
attributes of marriage--cohabitation, physical intimacy, and
bearing and raising children--do not. “Rights of marital
privacy, like the right to marry and procreate, are necessarily
and substantially abridged in a prison setting.” Hernandez v.
Coughlin, 18 F.3d 133, 137 (2d Cir. 1994) (citing Turner, 482
U.S. at 95-96). Incarceration is simply inconsistent with the
vast majority of concomitants to marriage, privacy, and
personal intimacy.
Our view is informed by “the legitimate policies and
goals of the corrections system... .” Pell, 417 US. at 822.
We note that “confining criminal offenders in a facility
App. 5
where they are isolated from the rest of society” serves to
deter crime and’ protect the public. Id. Also, “by
quarantining criminal offenders for a given period of time
. . . the rehabilitative processes of the corrections system
work to correct the offender’s demonstrated criminal
proclivity.” Id. at 823. In this sense “[t]he curtailment of
certain rights is necessary, as a practical matter, to
accommodate a myriad of ‘institutional needs and
objectives’ of prison facilities ... .” Hudson, 468 U.S. at 524
(quoting Wolff v. McDonnell, 418 U.S. 539, 555 (1974)).
Furthermore, “these restrictions or retractions also serve...
as reminders that, under our system of justice, deterrence
and retribution are factors in addition to correction.”
Hudson, 468 U.S. at 524. “[I]ncarceration, by its very nature,
deprives a convicted individual of the fundamental right to
be free from physical restraint,” and this “in turn
encompasses and restricts other fundamental rights, such as
the right to procreate.” State v. Oakley, 629 N.W.2d 200, 209
(Wisc. 2001) (citing Meyer v. Nebraska, 262 U.S. 390, 399
(1923)).
For example, it is well-settled that prisoners have no
constitutional right while incarcerated to contact visits or
conjugal visits. See Kentucky Dep’t of Corrs. v. Thompson, 490
U.S. 454, 460 (1989) (no due process right to unfettered
visitation); Block v. Rutherford, 468 U.S. 576, 585-88 (1984)
(pretrial detainees have no constitutional due process right
to contact visits); Hernandez, 18 F.3d at 137 (no constitutional
right to conjugal visits); Davis v. Carlson, 837 F.2d 1318, 1319
(5th Cir. 1988) (same); Toussaint v. McCarthy, 801 F.2d 1080,
1113-1114 (9th Cir. 1986) (denial of contact visits does not
violate Eighth Amendment).! The fact that California prison
1. See also Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994) (per
curiam) (prisoner right to access to counsel not inconsistent with lack of
general right to contact visits); Bellamy v. Bradley, 729 F.2d 416, 420 (6th
Cir. 1984) (no absolute right to contact visits); Montana v. Commissioners
Court, 659 F.2d 19, 21 (5th Cir. 1981) (no constitutional right to conjugal
visits); Lynott v. Henderson, 610 F.2d 340, 342 (5th Cir. 1980) (no
constitutional right to visitation); Ramos v. Lamm, 639 F.2d 559, 580 n. 26
App. 6
*622 officials may choose to permit some -inmates the
privilege of conjugal visits is simply irrelevant to whether
there is a constitutional right to conjugal visits or a right to
procreate while in prison.
It is difficult, if not impossible, to_reconcile the
holdings of cases like Turner, Hudson, and Pell and an
understanding of the nature and goals of a prison system,
with a wholly unprecedented reading of the constitution
that would command the warden to accommodate Gerber’s
request to artificially inseminate his wife as a matter of right.
2.
One issue that arose during oral argument was the
effect of technological advancement on the issue before us.
If, for example, science progressed to the point where Gerber
could artificially inseminate his wife as easily as write her a
letter, would this change our analysis? It would not. Our
conclusion that the right to procreate is inconsistent with
incarceration is not dependent on the science of artificial
insemination, or on how easy or difficult it is to accomplish.
Rather, it is a conclusion that stems from consideration of
the nature and goals of the correctional system, including
isolating prisoners, deterring crime, punishing offenders,
and providing rehabilitation. See generally Jack B.
Weinstein & Catherine Wimberly, Secrecy in Law and Science,
23 Cardozo L.Rev. 1, 9-11 (2001) (discussing the interaction
between law and science).
3.
Gerber argues that the right to be free from forced
(10th Cir. 1980) (no constitutional right to contact visits); McCray v.
Sullivan, 509 F.2d 1332, 1334-35 (Sth Cir. 1975) (no constitutional right to
conjugal visits); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)
(no constitutional right to physical contact with family); Payne v. District of
Columbia, 253 F.2d 867, 868 (D.C. Cir. 1958) (per curiam) (no right to
conjugal visits in jail).
App. 7
surgical sterilization, Skinner v. Oklahoma, 316 U.S. 535
(1942), combined with the right to marry while in prison,
Turner, 482 U.S. at 96, inevitably leads to the conclusion that
inmates have a constitutional right to procreate while in
prison. This argument fails for two reasons.
First, Skinner stands only for the proposition that
forced surgical sterilization of prisoners violates the Equal
Protection Clause. The Court in Skinner recognized that
procreation is fundamental to the existence of the race, and
thus the state’s “power to sterilize, if exercised, may have
- subtle, farreaching and devastating effects.” Skinner, 316
U.S. at 541. Sterilization is intrusive, permanent, and
irreparable. By no stretch af the imagination, however, did
Skinner hold that inmates have the right to exercise their
ability to procreate while still in prison. The right to procreate
while incarcerated and the right to be free from surgical
sterilization by prison officials are two very different things.
“There is simply no comparison between sterilization . . .
and denial of the facilitation of artificial insemination.”
Goodwin, 702 F.Supp. at 1454 (citation omitted). The Second
Circuit in Hernandez, 18 F.5d at 136, has recognized this
crucial distinction, noting in its discussion of Skinner that
“inmates possess the right to maintain their procreative
abilities for later use once released from custody ....” Later
use, not current use.
*623 Second, the Supreme Court in Turner
recognized that an inmate’s right to marry while in prison
did not include the inmate’s right to consummate the
marriage while in prison or to enjoy the other tangible
aspects of marital intimacy. The Turner Court held that the
right to marry and “many important attributes of marriage”
survive incarceration, such as expressions of emotional
support and the exercise of religious faith. 482 U.S. at 95-96.
However, the Court clearly stated that the right to marry “is
subject to substantial restrictions as a_ result of
incarceration,” and that inmate marriages are formed “in the
expectation that they ultimately will be fully consummated.”
Id. at 96 (emphasis added). The Court plainly envisioned
App. 8
that while the intangible and emotional aspects of marriage
survive incarceration, the physical aspects do not. See
Hernandez, 18 F.3d at 137.
A holding that the State of California must
accommodate Gerber’s request to artificially inseminate his
wife as a matter of constitutional right would be a radical
and unprecedented interpretation of the Constitution. We
hold that the right to procreate while in prison is
fundamentally inconsistent with incarceration. Accordingly,
we do not reach the second part of the analysis to inquire
whether the prison’s regulation is related to a valid
penological interest.
C. State Law Claims
Gerber alleges that the Hickman’s failure to
accommodate his artificial insemination request violates Cal.
Penal Code §§ 2600 & 2601. Section 2600 provides that
“persons sentenced to imprisonment in state prison may
during that period of confinement be deprived of such rights
. . . reasonably related to legitimate penological interests.”
The test under § 2600 thus mirrors the Turner v. Safley
inquiry. Thompson v. Department of Corr., 25 Cal.4th 117, 130
(2001). We have already found that Gerber has no
constitutional right to procreate while in prison. Nor can he
show that the California constitution or California statutes
afford him this right. The most Gerber can point to is the
right to marry contained in § 2601 (permitting California
prisoners to marry). Thus, Gerber cannot satisfy Thompson
and fails to state a claim upon which relief can be granted.
We therefore affirm the dismissal of his state law claims.
D. Leave to Amend
Gerber argues that the district court abused its
discretion in dismissing his complaint without leave to
amend to add equal protection and Eighth Amendment
claims. We review a denial of leave to amend for an abuse
App. 9
of discretion. Simon v. Value Behavioral Health, Inc., 208 F.3d
1073, 1084 (9th Cir. 2000).
Gerber claims that the state’s refusal to allow him to
provide his wife with a sperm sample violates equal
protection principles, because the state allows conjugal visits
to some inmates but denies them to him... However, Gerber
is not similarly situated to inmates who are eligible for
conjugal visits. Inmates eligible for conjugal visits will
eventually be released from prison, Cal. Code Regs. tit. 15 §
3174(e)(2), while Gerber will not. We therefore apply
rationality review. Giannini v. Real, 911 F.2d 354, 359 (9th
Cir. 1990). Because it is completely rational for prison
officials to decide that maintaining contact with those
outside the prison is more important for inmates who will
eventually be released from prison than for those ineligible
for parole, the distinction Gerber challenges is rational and
his equal protection claim is without merit. Because leave to
allege a *624 violation of the Equal Protection Clause would
have been futile, the district did not abuse its discretion.
Gerber also argues that denial of his artificial
insemination request violates. the Eighth Amendment's
prohibition against cruel and unusual punishment. Because
the state’s denial of his request to artificially inseminate his
wife can by no means be considered a deprivation of “the
minimal civilized measure of life’s necessities,” Hudson v.
McMillian, 503 U.S. 1, 9 (1992), granting leave for Gerber to
allege an Eight Amendment claim would have been futile as
well. The district court therefore acted within its discretion
in dismissing Gerber’s complaint without permitting leave
to amend.
AFFIRMED.
TASHIMA, Circuit Judge, with whom KOZINSKI,
HAWKINS, PAEZ, and BERZON, Circuit Judges, join,
dissenting.
There is absolutely nothing in the record indicating
App. 10
that procreation simpliciter--the right to have a child-is
fundamentally inconsistent with the fact of incarceration.
The majority has cited no facts to support such a conclusion
and common sense does not lead to such a result. I therefore
respectfully dissent. <
The majority assumes that there is a fundamental
right to procreation and I agree. There can be no dispute
that such a right exists. See Carey v. Population Servs. Int'l,
431 U.S. 678, 685 (1977) (citing the right of personal privacy
in decisions relating to marriage, procreation, contraception,
family relationships, and child rearing and education, and
stating 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”); Skinner v. Oklahoma, 316 U.S. 535, 541
(1942) (describing procreation as “one of the basic civil rights
of man” and “fundamental to the very existence and
survival of the race”). Thus, the question is whether that
right is fundamentally inconsistent with incarceration. See
Hudson v. Palmer, 468 U.S. 517, 523 (1984) (stating that “we
have insisted that prisoners be accorded those rights not
fundamentally inconsistent with imprisonment itself or
incompatible with the objectives of incarceration”).
“It is settled that 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.’ “” Turner v. Safley, 482
U.S. 78, 95 (1987) (quoting Pell v. Procunier, 417 US. 817, 822
(1974)) (alteration in the original). However, relying “largely
on the repetition of glittering generalities” about the nature
of incarceration “that have little, if any, application” to the
facts of this case, Rice v. Cayetano, 528 U.S. 495, 527, 120 S.Ct.
1044, 145 L.Ed.2d 1007 (2000) (Stevens, J., dissenting), the
majority concludes that the right to procreate is inconsistent
with incarceration. Of course, it is true that incarceration
necessarily involves the curtailment of certain rights. The
tepetition of this vague principle in numerous ways,
however, does not explain why the right to procreate is
fundamentally inconsistent with incarceration, and the record
App. 11
before us offers no basis for that conclusion. 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.
The rights cited by the majority that are inconsistent
with incarceration--the right *625 to intimate association and
the right to privacy--are clearly inconsistent with basic
attributes of incarceration because of security concerns.
Procreation through artificial insemination, however,
implicates none of the restrictions on privacy and association
that are necessary attributes of incarceration. Being
separated from loved ones is certainly a necessary attribute
of incarceration; because of the technology of. artificial
insemination, however, procreation can be achieved without
compromising security. None of the rights that are
necessarily curtailed by incarceration are at issue here.
The majority relies for its conclusion on Turner,
Hudson, Pell, and “the nature and goals of a prison system.”
Maj. op. at 7588-89. None of these, however, supports its
position.
In Turner, the Supreme Court held that the
fundamental right to marry survived incarceration, even
though, “like many other rights, [it] is subject to substantial
restrictions as a result of incarceration.” 482 U.S. at 95-96.
The Court reasoned that “[m]any important attributes of
marriage remain ... after taking into account the limitations
imposed by prison life,” recounting elements of marriage
that “are unaffected by the fact of confinement or the pursuit
of legitimate corrections goals.” Id. In holding that the right
to marry survives incarceration, the Court therefore
examined whether there were elements of the marriage
relationship unaffected by incarceration “sufficient to form a
constitutionally protected marital relationship in the prison
context.” Id. at 96. Even though the Court noted that “most
inmate marriages are formed in the expectation that they
ultimately will be fully consummated,” id., this fact weighed
in favor of finding that the right to marry survived
incarceration, not against it. It twists logic to construe this
App. 12
statement as meaning that prisons can prohibit prisoners
from fathering children. It is merely a recognition of the
understandable restrictions on freedom of association and
privacy attendant with incarceration. This recognition does
not support a conclusion that procreation is fundamentally
inconsistent with incarceration.
Hudson merely holds that the Fourth Amendment
proscription against unreasonable searches does not apply
to prison cells, a reasonable conclusion in light of the
difficult safety and security concerns inherent in a prison.
468 U.S. at 526-27. By contrast, no such security concerns are
implicated by Gerber’s request. Hudson ‘s holding that
inmates’ privacy rights are abridged by the fact of
incarceration does not support the conclusion that -the
fundamental right to procreate is similarly abridged. The
majority has pointed to no facts to explain why the right to
procreate should be treated in the same manner as the right
to Fourth Amendment privacy.
Pell is also distinguishable. The issue in Pell was the
constitutionality of a prison’s prohibition on face-to-face
interviews between inmates and the media. The Court
emphasized that the prohibition involved “the entry of
people into the prisons for face-to-face communication with
inmates” in citing “security and related administrative
problems” that justified the prohibition. 417 U.S. at 826.
Unlike Pell, Gerber’s request does not involve the entry of
people into the prison or any other circumstance that
presents a security or administrative concern to make it per
se inconsistent with incarceration.! In *626 fact, the Warden
has conceded that he could not prevent prisoners from
sending samples of body fluids to a forensic laboratory in
1. Pell is also distinguishable because it relied on the fact that
alternative “reasonable and effective means of communication” remained
open to prison inmates in finding the prohibition constitutional. 417 U.S.
at 826. The fact that no alternative means of procreation are open to
Gerber weighs against a finding that the prohibition is reasonably related
to legitimate penological interests. See Turner, 482 U.S. at 90.
App. 13
order to establish their innocence. Gerber’s request involves
essentially the same procedure; yet, the Warden has failed to
explain why Gerber’s request is distinguishable. There is no
basis for the differing treatment of the two procedures.
The majority cites the “nature and goals of a prison
system,” but fails to identify even one way in which
accommodating Gerber’s request would be inconsistent with
the legitimate needs of prison facilities. Maj. op. at 7985.
The majority identifies correctional goals such as isolating
prisoners, deterring crime, punishing offenders, and
providing rehabilitation that are supposedly inconsistent
with the right to procreate, yet does not explain how the
right is inconsistent with any of these goals. If, in fact, the
purpose behind prohibiting procreation is to punish
offenders, this is a determination that should be made by the
legislature, not the Warden. Cf. Turner, 482 U.S. at 96
(distinguishing its decision in Butler v. Wilson, 415 U.S. 953,
(1974), summarily aff Johnson v. Rockefeller, 365 F. Supp. 377
(S.D.N.Y. 1973), on the basis that the prohibition on marriage
in Johnson was “part of the punishment for [the] crime,”
determined by the legislature).
Here, it appears that the California Legislature has
made no such determination. No state statute authorizes the
Warden’s prohibition. The only authority relied on by the
Warden to deny Gerber’s request is a regulation of the
Department of Corrections, Cal. Code Regs. tit. 15, § 3350(a),
which provides that prison officials “shall only provide
medical services for inmates which are based on medical
necessity.”2 Cal Code Regs. tit. 15, § 3350(a). Although the
Warden’s interpretation of the regulation is entitled to
deference, see People v. Goodloe, 44 Cal. Rptr. 2d 15, 20 (Ct.
2. At oral argument, counsel cited Cal. Code Regs. tit. 15, § 3354, which
requires that “facility-employed health care staff” provide health care
treatment for inmates. The Warden’s brief, however, referred to § 3350,
and his argument that he is required to provide only medically necessary
treatment indicates that he probably means to rely on § 3350. Neither
section supports his position.
App. 14
App. 1995) (granting the Department of Corrections’
interpretation of the Penal Code “great weight,” unless
clearly erroneous or unauthorized); In re Semons, 256 Cal.
Rptr. 641, 645 (Ct. App. 1989) (applying same principle to
the warden and the Department of Corrections’
interpretation of a regulation), the regulation on its face does
not authorize the Warden’s position. Nor is there any state
law supporting the Warden’s interpretation of § 3350 as
granting him authority to prohibit a prisoner from 7596
fathering a child. Section 3350 in no way addresses Gerber’s
request; it deals with the provision of medical care, and it is
not medical care that Gerber seeks. The only request he has
made is that prison authorities either mail the package
containing the receptacle or permit his lawyer to retrieve it
directly from him.
The majority emphasizes that, although California
prison officials permit some inmates the privilege of
conjugal visits, see Cal. Code Regs. tit. 15, § 3174, there is no
right to such visits. It fails to recognize, however, that
permitting conjugal visits gives rise to the strong possibility
of procreation *627 resulting from these conjugal visits for
hundreds, if not thousands, of inmates. Thus, permitting
conjugal visits gives rise to the question of whether
procreation truly is inconsistent with incarceration. If
numerous other prisoners are permitted to procreate, how
can procreation, per se, be fundamentally inconsistent with
incarceration?3 : .
The fact that prisoners have no constitutional right to
contact visits or conjugal visits while incarcerated is
irrelevant to the question of whether the concededly
fundamental right to procreate is per se inconsistent with
incarceration. The cases cited by the majority denying the
right to conjugal visits, Maj. op. at 7588 & n. 1, do not rely on
the principle that such visits are fundamentally inconsistent
3. I emphasize, again, that Gerber is not seeking a conjugal visit. He
seeks only to have the prison authorities either mail a package or allow his
privately-retained attorney to retrieve it from him.
App. 15
with incarceration, but on other principles, such as the
penological concerns that justify the restriction — an issue
the majority does not reach. See Hernandez v. Coughlin, 18
F.3d 133, 137 (2d Cir. 1994) (citing the “exigencies and
operational considerations of our penal system” in finding
no constitutionally protected right to conjugal visits);
Toussaint v. McCarthy, 801 F.2d 1080, 1113-14 (9th Cir. 1986)
(holding that denial of contact visitation did not violate
Eighth Amendment and reasoning that such denial is “based
on sound penological justifications”); see also Kentucky Dep’t
of Corr., 490 U.S. 454, 456-65 (1989) (finding that prison
regulations governing visitors did not create a liberty
interest protected by the due process clause); Block v.
Rutherford, 468 U.S. 576, 586 (1984) (addressing the “narrow”
question of “whether the prohibition of contact visits is
reasonably related to legitimate governmental objectives”);
Barnett v. Centoni, 31 F.3d 813, 817(9th Cir. 1994) (per curiam)
(citing Toussaint to uphold dismissal of claim of right to
contact visitation); Davis v. Carlson, 837 F.2d 1318, 1319 (5th
Cir. 1988) (per curiam) (stating without explanation that no
constitutional right to conjugal visits exists, citing McCray v.
Sullivan, 509 F.2d 1332 (5th Cir. 1975)); Bellamy v. Bradley, 729
F.2d 416, 420 (6th Cir. 1984) (stating that “[l]imitations upon
visitation may be imposed if they are necessary to meet
penological objectives such as the rehabilitation and the
maintenance of security and order”); Montana v. Comm’rs
Court, 659 F.2d 19, 21-22 (5th Cir. Unit A Sept. 1981) (per
curiam) (citing McCray to hold that there is no constitutional
right to conjugal visits, and stating that contact visits may be
denied for legitimate security reasons); Ramos v. Lamm, 639
F.2d 559, 580 n. 26 (10th Cir. 1980) (stating only that “we
think the weight of present authority clearly establishes that
_ there is no constitutional right to contact visitation”); Lynott
v. Henderson, 610 F.2d 340, 342 (5th Cir. 1980) (although there
is no constitutional right to visitation, limitations may be
imposed “only if they are necessary to meet legitimate
penological objectives”); Oxendine v. Williams, 509 F.2d 1405,
1407 (4th Cir. 1975) (per curiam) (stating without
App. 16
explanation or citation that the prisoner “has no
constitutional right to physical contact with his family”);
McCray, 509 F.2d at 1334 (stating that conjugal visits are not
a constitutional right because visitation privileges are “a
matter subject to the discretion of prison officials”); Payne v.
Dist. of Columbia, 253 F.2d 867, 868 (D.C. Cir. 1958) (per
curiam) (upholding without explanation the district court's
dismissal for failure to state a claim a prisoner’s *628 due
process claim regarding conjugal visits). Not one of the
cases cited by the majority addresses the question of
whether a fundamental right, such as procreation, is per se
inconsistent with incarceration.
Because the majority points to no facts in the record
to support the conclusion that procreation is fundamentally
inconsistent with incarceration, its position essentially rests
on the “impression” that prisoners simply should not have
the right to procreate by artificial insemination. Goodwin v.
Turner, 702 F. Supp. 1452, 1454 (W.D. Mo. 1988), affd, 908
F.2d 1395 (8th Cir. 1990). However, “[nJeither prisons nor
courts should deny a reasonable request for the exercise of a
constitutional right simply because it is novel.” Goodwin,
908 F.2d at 1407 (McMillian, J., dissenting). The majority’s
vague references to penological needs fail to support the
conclusion that the right to procreate is fundamentally
inconsistent with incarceration.‘
The majority relies on an extremely narrow reading
of Skinner, limiting it to the proposition that forced surgical
sterilization of prisoners violates the Equal Protection
Clause, Maj. op. at 7589-90, and ignoring the basis of that
holding, which is the fundamental importance of the right to
procreate. In fact, as in Skinner, the denial of Gerber’s request
does mean that Gerber “is forever deprived of a basic
liberty,” Skinner, 316 U.S. at 541, and to deprive him of that
basic liberty without so much as one fact to support the
4. Indeed, it is difficult to square the Warden’s allowance of private
medical examinations at which blood, urine, and stool samples may be
taken with the restriction at issue.
App. 17
deprivation is an “exaggerated response” to vague
penological objectives, Turner, 482 U.S. at 98.
The majority relies on Goodwin to state that there is
no comparison between sterilization and denial of the
facilitation of artificial insemination. Maj. op. at 7590. That
statement in Goodwin, however, was made in the context of
the district court’s reasoning that the denial would not
permanently deprive the petitioner of the opportunity to
father a child. See Goodwin, 702 F. Supp. at 1454
(distinguishing Skinner on the basis that it involved a
permanent deprivation, “rather than a mere delay”). Unlike
Goodwin, the deprivation in the instant case is permanent.
Furthermore, in Goodwin, the petitioner was seeking “the
facilitation of artificial insemination,” in the sense that the
prisoner was asking for the prison to provide him with a
clean container and the means to transport the container. Id.
By contrast, Gerber has made every arrangement to facilitate
the process, having contacted the laboratory himself and
asking the prison only to mail the package. Allowing this
procedure would implicate no concerns different from
allowing a prisoner to submit bodily fluids to a forensic
laboratory to establish his innocence. The majority’s “bald
assertions of security interests will not justify the loss of a
prisoner’s fundamental rights.” Bradbury v. Wainwright, 718
F.2d 1538, 1543 (11th Cir. 1983).
After taking a narrow view of Skinner, the majority
proceeds to take an extremely broad view of Turner,
expanding the meaning of one sentence in Turner to justify
its conclusion. As noted above, the Court's statement that
inmate marriages are formed “in the expectation that they
ultimately will be fully consummated,” Turner, 482 U.S. at
96, “[b]y no stretch of the imagination,” Maj. op. at 7590, is
an expression of the Court's view that the fundamental right
to procreate is per se inconsistent with incarceration. On the
contrary, as the majority notes, this is merely a recognition
that *629 “the physical aspects” of marriage do not survive
incarceration because of the limitations on privacy necessary
to incarceration. Maj. op. at 7590. Gerber’s request does not
App. 18
involve “the physical aspects” of marriage. He asks only
that prison officials either mail the package or allow his
lawyer to retrieve it from him.
Vague incantations about the _ restrictions
incarceration places upon privacy, intimate association, and
the marriage relationship in general do not support such a
broad prohibition on a right as fundamental as procreation.
The majority has offered no explanation as to how Gerber’s
request in any way implicates the rights that are necessarily
restricted by incarceration. The record before us does not
offer any basis on which to conclude that Gerber’s request is
inconsistent with incarceration. What this case requires is a
factual record from which it can be determined whether
exercise of the right to procreation simpliciter is
fundamentally inconsistent with incarceration and whether
any penologically-justified reason exists to justify the
Warden’s denial of Gerber’s request. For these reasons, I
would vacate the district court’s order dismissing the case
for failure to state a claim and remand for further
proceedings, including an evidentiary hearing to determine
whether legitimate penological concerns justify this
restriction. I therefore respectfully dissent.
KOZINSKI, Circuit Judge, with whom Judges PAEZ and
BERZON join, dissenting:
The majority hinges its opinion on the proposition
that “the right to procreate is fundamentally inconsistent
with incarceration,” Maj. Op. at 7584, but does not explain
how. Let's consider the possibilities. Gerber asks for
permission to: |
Ejaculate
into a plastic cup, which is then to be
mailed or given to his lawyer
for delivery to a laboratory
that will try to use its contents to artificially inseminate
PSY eS
App. 19
Mrs. Gerber.
I gather that the first step of this process is not
fundamentally inconsistent with incarceration and prison
guards don’t patrol cell blocks at night looking for inmates
committing Onan’s transgression. Similarly, the prison has
no penological interest in what prisoners do with their seed
once it’s spilt; a specimen cup would seem to be no worse a
receptacle, from the prison’s point of view, than any other.
Nor is there anything remotely inconsistent with
incarceration in mailing a package, or handing it to your
lawyer. Sure, the prison is entitled to make sure it doesn’t
contain prison escape plans, but Gerber is not claiming an
exemption from routine security checks. That a package
contains semen, rather than a book or an ashtray or some
other such object, would seem to make no rational difference
from the prison’s point of view.
Once the package is outside prison walls, the prison’s
legitimate interest in it is greatly diminished. That it is to be
delivered to a laboratory, rather than to any other willing
recipient, seems to make no difference to prison authorities;
certainly they have offered no proof that it does. Nor, I
would think, does the prison have a legitimate interest in
what the recipient does with the package. Whether it is used
to inseminate Mrs. Gerber, to clone Gerber or as a
paperweight has no conceivable effect on the safe and
efficient operation of the California prison system.
Thus, what Gerber seeks to do is not inconsistent
with incarceration the way it would be if he wanted to carry
a Glock or conduct nuclear fission experiments in his cell.
Production of the semen and delivery *630 to a laboratory
neither compromises security, nor places a strain on prison
resources beyond that required to mail any other package.
Perhaps the majority is talking about a different kind
of inconsistency altogether. Prison is meant to deny inmates
certain rights enjoyed by free people; loss of those rights is
the punishment. It would be inconsistent with Gerber’s
status as an inmate for him to vacation in Paris or spend the
App. 20
weekend at home, because the very point of incarceration is
to deny prisoners freedom of movement and the comforts of
home. When the legislature imposes imprisonment as
punishment for a crime, it necessarily curtails all those other
rights that require freedom of physical movement for their
exercise.
Is procreation one of those rights the exercise of
which is inconsistent with the prisoner's loss of his freedom
of locomotion? Apparently not, at least as Gerber proposes
to exercise it. Gerber is not asking to go home for a conjugal
visit, nor to enjoy such a visit within the prison; he does not
seek to loosen the strictures of his confinement in the least.
Gerber asks only to engage in activities that prisoners are
already free to engage in (see steps 1-3 above). That these
activities might result in the creation of a life outside prison
walls is no more inconsistent with Gerber’s status as a
prisoner than is any other consequence of mailing materials
from prison to the outside world. Thus, a prisoner might
become a best-selling author by sending out a manuscript
for a novel or biography. See, e.g., O.J. Simpson, I Want to
Tell You (1995); Simon & Schuster, Inc. v. Members of N.Y. State
Crime Victims Bd., 502 U.S. 105 (1991). Or, he might be a
graphic artist who sells his work by mail. See Michael
Wayne Hunter, Merchants of Death, Orange Coast, Feb. 1995,
at 80, 82-83, available at http:// www.compusmart.ab.ca/
deadmantalking/mhmerchant.htm (describing California
death row prisoners who sell artwork). Or, as Judge
Tashima points out, he might send out bodily fluids that
result in proving his innocence. See Tashima Dissent at 7595.
These activities may give the prisoner great wealth and
satisfaction, or may even result in his release from prison,
but they are not inconsistent with his status as a prisoner
because the physical acts required to accomplish them are
entirely consistent with incarceration.
This would be a different case if the legislature of
California had ordained that prisoners must lose the right to
procreate as punishment for their crimes, in addition to loss
of physical liberty. See Turner v. Safley, 482 U.S. 78, 96 (1987)
App. 21
(distinguishing Butler v. Wilson, 415 U.S. 953 (1974), in part
because “importantly, denial of the right [to marry] was part
of the punishment for crime”). But the legislature did no
such thing. The statute pursuant to which Gerber was
incarcerated merely provides for “imprisonment”; it says
nothing about abrogating additional rights. See Cal. Penal
Code § 667. When the California legislature wants to
remove additional rights, such as the right to vote, it knows
how to do so. See Cal. Elec. Code § 2212.
Nevertheless, could it be that, by ordering
imprisonment, the legislature also implicitly cut off a
prisoner's right to procreate? Even under the best of
circumstances, this would be a difficult argument for the
state to make, because the term “imprisonment” carries no
plausible implication as to any rights other than those
necessarily abridged by physical incarceration. Once we
started walking down this road, where would we stop?
Does the term “imprisonment” also implicitly *631 abridge
the right to speak? Or the right to own property? The right
to marry? To practice a religion? Absent some very
compelling evidence of legislative intent, I am reluctant to
conclude that, when the legislature uses a term meaning
“defendant shall be locked up in a cell,” it also implicitly
cuts off other fundamental rights that can be exercised
despite such incarceration.
But these are not the best of circumstances for the
state to make this argument because we know for a fact that,
by using the term “imprisonment,” the legislature of
California did not intend to cut off a prisoner's right to
procreate. How do we know this? Because the California
Department of Corrections, the agency charged by the
legislature with administering the prison system, see Cal.
Penal Code § 5054, has so interpreted the term
“imprisonment.” Title 15, section 3174 of the California
Administrative Code provides that some prisoners (not
including Gerber) are entitled to conjugal visits. Obviously,
some of these visits will result in procreation. If
“imprisonment” under California law abrogates the right to
App. 22
procreate, the Department of Corrections could not, by
regulation, restore that right, just as it could not restore the
right taken away by California Election Code § 2212 by
setting up voting booths in the prison yard. By making
arrangements for conjugal visits, the Department of
Corrections must have concluded that imprisonment does
not cut off a prisoner's right to procreate. We are required to
defer to state agencies in their interpretation of the law they
are charged with administering, see Clallam County v. Dep’t of
Transp., 849 F.2d 424, 429 (9th Cir. 1988), and so we must
accept the Department of Corrections’ entirely reasonable
interpretation of the term “imprisonment,” as not cutting off
the right to procreate.
So we have no explicit, or even implicit, decision by
the state legislature that imprisonment means loss of the
right to procreate; there is no statute or regulation on point.
And, as we have seen, there is also nothing inherently
inconsistent about the mechanics of procreation-at least as
Gerber proposes to practice them--that would compromise
prison security, unduly burden prison resources or
otherwise interfere with the safe and efficient operation of
the California prison system.
What then is ieft? It is nothing more than the ad hoc
decision of prison authorities that Gerber may not procreate.
But, as the majority seems to admit, and as Griswold v.
Connecticut, 381 U.S. 479 (1965), clearly holds, procreation (at
least within the marital relationship) is a fundamental right.
Such a right may be abrogated only pursuant to lawful
authority-and for compelling reasons. The reasons here
must be particularly strong because the burden of this
prohibition falls not only on Gerber but also on Mrs. Gerber,
who is precluded from bearing a child fathered by her
husband. As the Supreme Court noted in Turner, when a
prison regulation creates a “consequential restriction on the
[constitutional] rights of those who are not prisoners,” it will
be subjected to more searching scrutiny than when the
burden falls only on inmates. Turner, 482 US. at 85 (quoting
Procunier v. Martinez, 416 U.S. 396, 409 (1974), overruled on
App. 23
other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14
(1989)).
The majority suggests that abrogating the right to
procreate serves the goals of “isolating prisoners, deterring
crime, punishing offenders, and providing rehabilitation.”
Maj. Op. at 7589; id. at 7587 (“deterrence and retribution,”
quoting Hudson *632 v. Palmer, 468 U.S. 517, 524 (1984)). But
such judgments must be made by the legislature in setting
the nature and degree of punishment for particular crimes.
Prison administrators may not supplement the punishment
imposed by the legislature because they believe doing so
would enhance “deterrence and retribution.” By cutting off
Gerber’s fundamental right to procreate, prison authorities
have enhanced Gerber’s punishment beyond that authorized
by statute, and consigned Mrs. Gerber to a childless
marriage. These are rights far too important to be abrogated
based on nothing more than the personal opinion of prison
bureaucrats that we would be better off as a society if the
Gerbers were prevented from parenting an offspring. For
these reasons, and those stated by Judge Tashima, I
respectfully dissent.
App. 24
(277 F.3d 843)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM GERBER, Plaintiff-Appellant,
v.
RODNEY HICKMAN, Warden, Defendant-Appellee.
No. 00-16494.
D.C. No. CV-99- 01315-FCD.
Filed December 4, 2001
ORDER
Before: SCHROEDER, Chief Judge.
Upon the vote of a majority of nonrecused regular active
judges of this court, it is ordered that this case be reheard by
the en banc court pursuant to Circuit Rule 35-3. The three-
judge panel opinion shall not be cited as precedent by or to
this court or any district court of the Ninth Circuit, except to
the extent adopted by the en banc court.
[THIS PAGE INTENTIONALLY LEFT BLANK]
App. 26
264 F.3d 882
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM GERBER, Plaintiff-Appellant,
V.
RODNEY HICKMAN,* WARDEN, Defendant-Appellee.
No. 00-16494.
D.C. No. CV-99- 01315-FCD.
Appeal from the United States District Court for the Eastern
District of California;
Frank C. Damrell, Jr., District Judge, Presiding.
Argued and Submitted
Dec. 13, 2000 —San Francisco, California
Filed Sept. 5, 2001
Before: Myron H. Bright,** Stephen Reinhardt, and Barry G.
Silverman, Circuit Judges.
Opinion by Judge Bright;
Dissent by Judge Silverman
COUNSEL
*883 Teresa L. Zuber, Sacramento, California, for the
appellant.
* Defendant Roderick Hickman was erroneously named as Rodney
Hickman.
“* The Honorable Myron H. Bright, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
App. 27
Bill Lockyer; Attorney General, David P. Druliner, Chief
Assistant Attorney General, Paul D. Gifford, Senior Deputy
Attorney General, John M. Appelbaum, Supervising Deputy
Attorney General, and Gregory S. Walston, Deputy Attorney
General, Sacramento, California, for the appellee.
OPINION
*884
BRIGHT, Circuit Judge:
William Gerber, a prisoner incarcerated in the State
of California, appeals from a judgment in the district court
dismissing his complaint for failure to state a claim upon
which relief can be granted pursuant to FED. R. Clv. P.
12(b)(6). The complaint presents a claim under 42 U.S.C. §
1983 for alleged violation of his substantive due process
rights and under California state law for alleged violation of
his statutory rights. In the complaint, Gerber alleges that the
California Department of Corrections (“CDC”) denied his
fundamental right to procreate in violation of the Fourteenth
Amendment guarantee of substantive due process. On
appeal, Gerber principally contends that the district court
erred in concluding that the right to procreate does not
survive incarceration. The district court did not reach the
question of whether the prison may restrict Gerber’s exercise
of that right in the manner in which he seeks to exercise it
(i.e. by artificial insemination). We conclude that the right to
procreate survives incarceration and that the factually
unsupported arguments put forth by the Warden as
legitimate penological reasons to restrict Gerber’s exercise of
his right to procreate are insufficient to justify dismissal of
the complaint. Accordingly, we REVERSE and VACATE
the dismissal and REMAND for further proceedings.
App. 28
I. BACKGROUND!
This case concerns a life-term prisoner’s effort to
have a child by artificially inseminating his wife. Artificial
insemination is a noncoital process in which semen is
collected from a man under laboratory conditions and then
introduced into a woman’s body with a_needleless
hypodermic syringe at a favorable time in her ovulation
cycle. See generally Katheryn D. Katz, The Clonal Child:
Procreative Liberty and Asexual Reproduction, 8 Alb. L.J. Sci. &
Tech. 1, 23 (1997); Katheleen R. Guzman, Property, Progeny,
Body Part: Assisted Reproduction and the Transfer of Wealth, 31
U.C. Davis L. Rev. 193, 202 (1997) (noting a conservative
estimate that there have been more than 500,000 children
conceived by artificial insemination in the United States).
Appellant William Gerber desires to artificially
inseminate his wife because his particular circumstances
disallow the “natural” method of procreation. Gerber was
sentenced to 100 years to life imprisonment plus eleven
years pursuant to California’s three strikes law, Cal. Penal
Code § 667, after his 1997 conviction for discharging a
firearm and making terrorist threats. Prior to his conviction,
he and his now forty-six-year-old wife wished to conceive a
child. However, he is constrained in employing the usual
methods for achieving this goal because he is a life-term
prisoner incarcerated in California, and, under CDC
regulations, conjugal visits are prohibited for inmates
“sentenced to life without the possibility of parole [or]
sentenced to life, without a parole date established by the
Board of Prison Terms.” CAL. CODE REGS. tit. 15, §
3174(e)(2). Given Gerber’s sentence and his wife’s age, he
alleges that artificial insemination is the only method by
which they can conceive a child together.
1. When we review an order dismissing a claim pursuant to a Rule
12(b)(6) motion, we must view the relevant facts in the light most
favorable to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th
Cir.2001). :
App. 29
*885 Gerber requested that prison authorities permit
him to provide a semen specimen to a laboratory so that his
wife may be artificially inseminated with it. According to
Gerber, the University Andrology Laboratory and Sperm
Bank at the University of Illinois at Chicago Medical Center
would mail him a packet containing a plastic receptacle and
a postage-paid return mailer. Then, Gerber would ejaculate
into the receptacle, place it into the return mailer, and send it
by overnight mail back to the laboratory. Gerber’s privately
retained lawyer offered to retrieve the return mailer directly
from Gerber if prison authorities do not want Gerber to
place it in the mail himself. Gerber does not object to the
inspection of his return package in accordance with the
prison’s usual procedures. Furthermore, Gerber and his
wife are willing to bear all of the costs necessary to facilitate
the specimen collection, including paying for a licensed
physician to come on the premises to oversee the procedure.
The prison denied his request after determining that the
procedure was not medically necessary and that Gerber as a
prisoner had not shown that the CDC had violated any of
his constitutional rights.
This case has a complicated procedural history. On
July 8, 1999, following denial of his request and exhaustion
of his administrative remedies, Gerber filed an application
for a writ of habeas corpus, construed by the district court as
a civil action alleging violation of Gerber’s civil rights,
against the Warden of the Mule Creek State Prison where he
was incarcerated.2_ By order dated September 9, 1999, the
district court dismissed Gerber’s action with leave for
Gerber to file an amended complaint alleging a violation of
42 U.S.C. § 1983.
On October 7, 1999, Gerber filed the amended
complaint, naming Warden Rodney Hickman as the sole
defendant and seeking injunctive relief. In the complaint, he
alleged that the Warden’s policy violated his constitutional
2. During the pendency of this action Gerber was transferred to the
California State Prison in Lancaster.
App. 30
right to procreate under the Due Process Clause of the
Fourteenth Amendment and his statutory rights as a
California prisoner guaranteed by CAL. PENAL CODE §§ 2600
and 2601. The parties consented, under 28 U.S.C. § 636(c), to
conduct all proceedings before Magistrate Judge John F.
Moulds. On January 5, 2000, the Warden moved to dismiss
the complaint pursuant to FED R. Clv. P. 12(b)(6), for failure
to state a claim upon which relief can be granted, or,
alternatively, for summary judgment, on the basis that the
right to procreate does not survive incarceration and that,
even if it did, the restriction on artificial insemination is
reasonably related to the legitimate penological goals of
treating male and female inmates equally to the extent
possible, conserving prison resources, maintaining
institutional security interests, and preserving inmates’
rehabilitation.
The magistrate judge heard oral argument on the
Warden’s motion on March 2, 2000. On March 7, 2000, the
magistrate judge filed findings and recommendations,
recommending denial of the Warden’s motion to dismiss
and denial of both parties’ motions for summary judgment
without prejudice. The magistrate judge found that the
Warden failed to establish as a matter of law that the right to
procreate does not exist during incarceration, that an inquiry
into both the practical aspects of restrictions that arise as a
consequence of *886 an individual’s status as a prisoner and
the legitimate penological objectives of the corrections
system is best undertaken on a fully developed factual
record and not on a motion to dismiss, and that Gerber
made a substantial showing that numerous facts are
disputed underlying the determination of legal issues, thus
obviating summary judgment dismissal.
Subsequently, the district court rejected the
magistrate judge’s findings and recommendations and
dismissed the complaint for failure to state a claim upon
which relief can be granted. The district court made no
ruling on the motion for summary judgment. On June 23,
2000, the district court filed an amended memorandum and
App. 31
order and entered judgment that same day. The district
court concluded that:
Whatever right plaintiff has to artificial
insemination, it does not survive
incarceration.
Gerber v. Hickman, 103 F.Supp.2d 1214, 1218 (E.D. Cal.2000).
Gerber appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the district court's
judgment pursuant to 28 U.S.C. § 1291.
We review the district court’s dismissal for failure to
state a claim de novo. Wright v. Riveland, 219 F.3d 905, 912
(9th Cir. 2000). “[A] complaint should not be dismissed
unless it appears beyond a doubt that plaintiff can prove no
set of facts in support of his claim which would entitle him
to relief.” Id. (quoting Steckman v. Hart Brewing, Inc., 143
F.3d 1293, 1295 (9th Cir. 1998)).
III. DISCUSSION
A. Section 1983 Claim
To successfully bring a claim under 42 U.S.C. § 1983,
Gerber must establish that (1) the conduct complained of
was committed by a person acting under color of state law,
and (2) the conduct deprived [Gerber] of a constitutional
right. L.W. v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992).
The parties do not dispute that Defendant-Appellee
Warden Hickman is a state actor. Our focus, therefore, must
be on whether Warden Hickman deprived Mr. Gerber of a
right or interest granted by the Constitution.
In urging this court to reverse the district court's
dismissal, Gerber asserts that he set forth a violation of his
substantive due process rights by the CDC and that the
“App. 32
district court erred in its determination that the fundamental
right to procreate does not survive incarceration.3
We must undertake a two step analysis to determine
whether Gerber’s substantive due process rights were
violated. First, we must determine whether there is a
fundamental right involved (in this case, the right to
procreate) and whether that fundamental right is not
“inconsistent with [Gerber’s] status as a prisoner.” Pell v.
Procunier, 417 U.S. 817, 822 (1974). Second, if we decide that
the fundamental *887 right at issue survives incarceration,
we then ask whether there are legitimate penological
interests which justify the prison’s restriction of the exercise
of that fundamental right. See Turner v. Safley, 482 U.S. 78,
96-97 (1987).
The Supreme Court has recognized a fundamental
constitutional right to procreate on several occasions. Carey
v. Population Servs. Int'l, 431 U.S. 678, 684-85 (1977) (“It is
clear that among the decisions that an individual may make
without unjustified government interference are personal
decisions ‘relating to marriage ... [and] procreation.’ “)
(internal citations omitted); Stanley v. Illinois, 405 U.S. 645,
651 (1972) (“The rights to conceive and to raise one’s
children have been deemed ‘essential’ . . . [and] ‘basic civil
rights of man.’ “) (internal citations omitted); Skinner v.
Oklahoma, 316 U.S. 535, 541 (1942) (stating that legislation
deprived individuals “of a right which is basic to the
perpetuation of a race—the right to have offspring”). The
3. The district court concludes in part that a prisoner does not have a
fundamental right to artificial insemination. Gerber, 103 F. Supp. 2d at
1218. The district court erred in its framing of the fundamental right
involved in this case. The question of whether a prisoner retains a
fundamental right to procreate while in prison is a different question than
whether a constitutional right to artificial insemination exists and survives
incarceration. The district court goes on to state that “during
incarceration a prisoner loses his or her right to access to a means of
procreation.” Id. at 1219. We take this statement to mean that the district
court concluded that the fundamental right to procreation is inconsistent
with imprisonment and, thus, does not survive incarceration.
App. 33
right to procreate has been recognized in a number of other
cases outside the prison context.4 The question raised in this
case is whether this fundamental right survives
incarceration; that is, whether the fundamental right of
procreation exists for prisoners during their term of
imprisonment.
We apply a distinct constitutional analysis to cases
involving prisoner rights. Because “[nJo iron curtain
separates” prisoners from the Constitution, Hudson v.
Palmer, 468 U.S. 517, 523 (1984) (internal citation omitted), a
prisoner “retains those [constitutional] rights that are not
inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system.”
Pell v. Procunier, 417 U.S. 817, 822 (1974). The Supreme Court
has held that some constitutional rights survive
incarceration. See, e.g., O’Lone v. Estate of Shabazz, 482 U.S.
342 (1987) (affirming free exercise of religion retained during
incarceration); Bounds v. Smith, 430 U.S. 817 (1977) (affirming
access to courts retained); Estelle v. Gamble, 429 U.S. 97 (1976)
(holding prisoners have right of protection against cruel and
unusual punishment); Wolff v. McDonnell, 418 U.S. 539 (1974)
(holding prisoners have protections of due process clause);
Pell, 417 U.S. 817 (affirming right of free speech retained).
In this case, the district court determined that
“during incarceration a prisoner loses his or her right to
access to a means of procreation, be it conjugal visits,
artificial insemination, in vitro fertilization, etc.” Gerber, 103
F. Supp. 2d at 1219. The district court cited two other district
court opinions in support of this proposition. The cited
4. See Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (concerning
right to an abortion); Carey v. Population Services Int'l, 431 U.S. 678, 685
(1977) (finding right of minors to have access to birth control); Cohen v.
Chesterfield County Sch. Bd., 414 U.S. 632, 640 (1974) (concerning right of
school teacher not to be fired for becoming pregnant); Eisenstadt v. Baird,
405 U.S. 438, 453 (1972) (holding right of unmarried individuals to have
access to birth control); Stanley v. Illinois, 405 U.S. 645, 651-52 (1972)
(concerning right of unmarried father to have custody of his child after
death of child’s mother).
App. 34
cases, however, do not serve as binding precedent for our
decision, nor do *888 we find them particularly probative.5
Contrary to the district court’s conclusion, we hold that the
right to procreate does indeed survive incarceration.6
No case has directly addressed whether the right to
procreate is a right that prisoners possess during their time
in prison. There are a few cases, however, that shed light on
the question. In Turner v. Safley, 482 U.S. 78 (1978), the
Supreme Court established that the right to marry survives
incarceration. Id. at 96. The Court stated that prisoner
marriages are included within the fundamental right to
marry and that, although certain aspects of marriage could
not exist in a prison setting (e.g. cohabitation), sufficient
attributes of marriage remained to conclude that the right to
marry continues within the prison walls. Id. at 95-96
Although the Supreme Court has not yet decided
whether the right to procreate survives incarceration, in
Skinner v. Oklahoma, the Supreme Court stated that prisoners
have a constitutional right to maintain their procreative
5. Anderson v. Vasquez, 827 F. Supp. 617, 620 (N.D. Cal. 1992), was
reversed on appeal in an unpublished disposition by this court on the
ground that the portion of the decision regarding the right to procreate in
prison was not ripe for adjudication. In Goodwin v. Turner, 702 F. Supp.
1452, 1454 (W.D. Mo. 1988), although the district court stated that the right
did not survive incarceration, the Eighth Circuit on appeal assumed, but
did not decide that, the right to procreate was consistent with the status of
imprisonment. The court then affirmed on the basis that the regulation at
issue was reasonably related to legitimate penological interests. See
Goodwin v. Turner, 908 F.2d 1395, 1398 (8th Cir. 1990).
6. The dissent is incorrect when it states that we conclude that a prisoner
has a constitutional right “to mail his semen from prison so that his wife
can be artificially inseminated” or “to procreate from prison via FedEx.”
We do no such thing. As we make clear, the general fundamental right to
procreate, well-recognized by the federal courts, is the right we hold to
survive incarceration, not a more narrow manifestation of that right
involving a particular means of procreation. The narrower issue is one
that can be answered only after a record is developed and an examination
can be conducted of the penological reasons, if any, for prohibiting the
particular conduct at issue.
App. 35
abilities for use once released from custody.’ [FN7] Skinner,
316 US. at 536. The Supreme Court struck down
Oklahoma’s Habitual Criminal Sterilization Act, legislation
which authorized the sterilization of persons convicted three
times of a felony involving moral turpitude. Id. at 541
(invalidating statute on equal protection grounds). The
Court stated that
We are dealing here with legislation which
involves one of the basic civil rights of man.
Marriage and procreation are fundamental to
the very existence and survival of the race.
The power to sterilize, if exercised, may have
subtle, far-reaching and devastating effects.
In evil or reckless hands it can cause races or
types which are inimical to the dominant
group to wither and disappear. There is no
redemption for the individual whom the law
touches. Any experiment which the State
conducts is to his irreparable injury.
Id. While Skinner stands for the proposition that a prisoner
has a fundamental right to procreation following his
incarceration and therefore his ability to procreate *889 may
not be destroyed, the decision’s emphasis on the
fundamental notion of the right to procreate lends support
to the idea that prisoners retain some form of procreative
rights while in prison.
Taken together, Turner and Skinner suggest that the
fundamental right of procreation may exist in some form
while a prisoner is incarcerated, despite the fact that a
7. In cases involving family and marital rights outside the prison context,
Skinner has been cited as standing for the proposition that procreation is a
fundamental right and that choices surrounding when and whether to
have children are protected by the Constitution. See, e.g., Carey, 431 U.S. at
685; Cleveland Bd. of Educ., 414 U.S. at 639-40; Eisenstadt, 405 U.S. at 453;
Stanley, 405 U.S. at 651.
App. 36
prisoner necessarily will not be able to exercise that right in
the same manner or to the same extent as he would if he
were not incarcerated.§ Turner stands as an example of how
a right related to marriage and family may be exercised in
prison despite a prisoner's inability to carry out the “typical”
marriage while in prison. Skinner states that, at a minimum,
a prisoner while in prison cannot be deprived of his ability
to procreate upon release, which in turn tends to support the
notion that a person’s procreative rights survive while he is
in prison. The specific question, however, whether the right
of procreation is temporarily extinguished simply by virtue of
the fact of incarceration is a matter of first impression for
this circuit? Indeed, no circuit court has yet answered that
question.10
The issue of procreation while in prison has arisen in
the context of prisoners’ requests for conjugal visits. In
Hernandez v. Coughlin, 18 F.3d 133 (2d Cir. 1994), the Second
Circuit held that “[t]he Constitution . . . does not create any
protected guarantee to conjugal visitation privileges while
incarcerated.” Id. at 137. However, the language in the
opinion suggests that the court intended to reject the narrow
right to conjugal visitation without denying the possibility
8. Another case which supports the concept that procreative rights
survive incarceration is the Third Circuit's decision in Monmouth County
Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987). The court did not
question whether the right to choose to have an abortion survived
incarceration. Id. at 335. After stating that a woman has a fundamental
right to choose to terminate her pregnancy, the court proceeded directly to
determining whether the prison had compelling reasons to restrict the
exercise of that right. Id.
9. Of course, in Gerber’s case, the word “temporary” is not true in the
practical sense, since, barring exceptional circumstances, he is serving a
life sentence.
10. See Goodwin v. Turner, 908 F.2d 1395 (8th Cir. 1990) (assuming
existence of such a right, but upholding regulation at issue on the ground
that it was reasonably related to legitimate penological interests). Cf. id. at
1402 (McMillan, J., dissenting) (stating that “there is little question that the
procreative right survives incarceration” and basing its holding on Turner,
Skinner, and Monmouth County ).
App. 37
that a broader right to procreate survives incarceration. The ~
court stated that Hernandez argued for a “right to marital
intimacy . . . derived from the fundamental rights of
marriage and procreation.” Id. at 136. The court went on to
state that “Hernandez’s understanding of these two rights is
misguided” and subsequently held that there was no
protected right to conjugal visitation. Id.
It is unclear how much of the Hernandez court's
determination regarding the existence of the right to
conjugal visits was intertwined with its consideration of
penological concerns. The court stated: “Rights of marital
privacy, like the right to marry and procreate, are necessarily
and substantially abridged in a prison setting.” Id. at 137.
This language suggests, contrary to the district court's
position, that the right to procreate survives incarceration
but that the exercise of that right can be restricted for
legitimate penological reasons. We have no quarrel with
that proposition.
Similarly, in Toussaint v. McCarthy, 801 F.2d 1080 (9th
Cir. 1986), this court dismissed *890 a prisoner's claim of a
constitutional right to contact visitation. Id. at 1113 (finding
denial of contact visits does not violate 8th amendment).
However, again it is not clear whether we based our holding
on the argument that the “right to contact visitation” did not
survive incarceration or on the argument that the right did
survive but that its exercise could be restricted by the prison
authorities. The court stated that “the dfstrict court's
findings indicate that denial of contact visitation is based on
sound penological justifications.” Id. at 1114.
Other courts have also stated that there is no
constitutional right to contact visitation while
simultaneously framing the discussion in terms of legitimate
restrictions on a prisoner’s exercise of his rights. See, e.g.,
Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984) (stating
that although prisoners have no absolute constitutional right
to visitation, restrictions on that right must be “necessary to
meet penological objectives”); Lynott v. Henderson, 610 F.2d
340, 342 (5th Cir. 1980) (same); Bazzetta v. McGinnis, 902 F.
App. 38
Supp. 765, 769-70 (E.D. Mich. 1995) (stating that prisoners’
right to association is not “absolute [or] unfettered” and that
first amendment rights are “necessarily curtailed by
confinement”).
The contact visitation and conjugal visit cases do not
in any event preclude our finding that the right to procreate
survives incarceration. The recognition that a general right
to procreate exists during periods of imprisonment is not
inconsistent with a holding that there is no specific right to
conjugal or contact visits during such times, nor with the
idea that a prison can restrict the exercise of the right to
procreate in regard to conjugal visitation (a restriction
similar to that on the right of association). Procreation that
results from the employment of recently developed methods
or techniques that bypass physical contact with the
prisoner’s spouse is not inherently inconsistent with one’s
status as a prisoner. In fact, even conjugal visits and
childbirth are not inherently inconsistent with such status, as
the experience in California’s prisons demonstrates. See Cal.
Code Regs. tit. 15, § 3174 (2001) (regulation regarding family
overnight visits for prisoners); Cal.Code Regs. tit. 15, §
‘3074.3 (rehabilitation program for parenting or pregnant
prisoners); see also In re Cummings, 640 P.2d 1101, 1101 (Cal.
1982) (discussing prison’s overnight family visitation
policy); In re Monica C., 36 Cal. Rptr.2d 910, 911 (Cal. Ct.
App. 1995) (discussing appellant's birth of child in prison).
In sum, we conclude that the fundamental right to
procreate survives incarceration. The exercise of that right
by Gerber is, however, subject to restriction based on
legitimate penological interests. The next question,
therefore, is whether the existing prison regulation
prohibiting artificial insemination is reasonably related to
such interests.!! See Turner, 482 US. at 96-97.
In support of his argument for dismissal of Gerber’s
11. The district court failed to reach this prong of the analysis, after
concluding that the right to procreate did not survive incarceration.
Gerber, 103 F. Supp. 2d at 1219.
App. 39
claim, the Warden cites three governmental interests that he
claims are furthered by the policy of denying inmates the
right to provide semen to their spouses for artificial
insemination: the policy of treating men and women
prisoners the same, when possible; safety risks caused by
prisoners collecting semen; and concerns about the cost of
litigation relating to the procedure.
*891 First, the Warden argues that permitting men
to provide semen for artificial insemination would hamper
the prison’s efforts to treat male and female prisoners
similarly. He notes that if men were afforded this
opportunity, women would seek to be artificiaily
inseminated, and granting women such an opportunity
would lead to “obvious” and “prohibitive” burdens. The
Warden’s equal protection argument assumes matters not
before the court or in the limited record.!2
Further, Gerber does not seek to be artificially
inseminated. That right, to be artificially inseminated, which
certainly would apply to women, does not apply to Gerber
or other male prisoners. The two sexes are not similarly
situated here. In this case, we cannot ignore the biological
differences between men and women. Cf. Nguyen v. INS, 121
S. Ct. 2053, 2066 (2001) (holding no equal protection
violation and acknowledging women’s and men’s most basic
biological differences). But see Goodwin v. Turner, 908 F.2d
1395, 1400 (8th Cir. 1990) (holding that Warden’s desire to
treat men and women prisoners equally justified a rule
preventing male prisoners from donating their sperm).
Women cannot avail themselves of the opportunity Gerber
narrowly seeks--to provide a semen specimen to his mate so
that she can be artificially inseminated--and men cannot do
what Mrs. Gerber is likely capable of doing--conceive and
give birth to a child after receiving sperm from a marital
partner. Therefore, the policy of treating inmates “equally to
the extent possible” is not implicated. The Warden's
12. On remand, the parties are free to move for summary judgment again
on the basis of an amplified record.
App. 40
argument is rejected in the context of a FED. R. Civ. P.
12(b)(6) dismissal.13
Next, the Warden argues that the procedure for
collecting semen would create an unacceptable risk that
prisoners would misuse their semen by either throwing their
bodily fluids on others (a process called “gassing”), or
sending their semen through the mail to individuals who do
not want it. These concerns are argumentative only, in the
context of a motion for dismissal under Rule 12(b)(6) and the
lack of a full record. Gerber apparently has offered to pay
for medical supervision of the procedure for collecting his
semen specimen and Gerber’s private lawyer has offered to
pick up the laboratory mailer from the prison. The district
court on remand can consider on an appropriate record the
Warden’s contentions in light of Turner.
Lastly, the Warden asserts that permitting a prisoner
to provide a semen specimen would create an unacceptable
risk of liability for the prison, either because of mishandling
of the specimen by prison authorities or suits by women
inmates seeking to be artificially inseminated. The argument
that women prisoners would assert their Equal Protection
rights to challenge the denial of an opportunity for artificial
insemination, thereby imposing on prisons the burden of
defending against such suits, cannot justify denying men
their constitutional right to procreate. It is simply
impermissible to restrict the constitutional rights of one
group because of fear that another group will assert its
constitutionally protected rights as well. Moreover, it is
generally reprehensible to *892 suggest that restricting
protected fundamental constitutional rights is justified by
fear of increasing a party’s liability.14 |
13. A more apt parallel may be the question of whether a woman
prisoner has the right to donate an egg to her lesbian partner or to a
surrogate mother. The Warden has put forth no evidence that this
procedure has been requested by any prisoner, that it would be a burden
on the prison, or that these two procedures are similar enough as to raise
equal protection concerns.
14. There may be increased administrative costs with allowing the
App. 41
We conclude that, on the basis of the record before
us, none of the rationales offered by the Warden falls within
Turner's proscription—that the prison may only deny a
constitutional right if the regulation is “reasonably related to
legitimate penological interests.” Turner, 482 U.S. at 89. The
Turner court discusses several factors that are relevant in
determining the reasonableness of a regulation. Id. at 89-91.
The rationales offered by the Warden in this case fail under
the first factor discussed in Turner: there is no ” ‘valid,
rational connection’ between the prison regulation and the
legitimate governmental interest put forward to justify it.”15
[FN15] Id. at 89. Therefore, we reverse the district court's
decision dismissing Gerber’s § 1983 claim and remand that
claim for further consideration.
B. State Law Claim
We now turn to Gerber’s state law claim. Gerber
asserts that CAL. PENAL CODE §§ 2600 and 2601 bar the CDC
from preventing him from providing a semen specimen to
artificially inseminate his wife.
CAL. PENAL CODE § 2600 provides that “[a] person
sentenced to imprisonment in a state prison may during that
period of confinement be deprived of such rights, and only
such rights, as is reasonably related to legitimate penological
interests.” California prisoners retain the right to marry.
Cal. Penal Code § 2601(e).
In Thompson v. Dept. of Corrections, 18 P.3d 1198 (Cal.
2001), the California Supreme Court stated that, because the
language of the statute quotes the language the Supreme
procedure, such as increased safety and security costs. However, the
Warden has not, on the limited record before us, shown this to be the case
or that these costs would be overly burdensome.
15. It is unnecessary at this time to consider the other Turner factors.
Satisfying the first Turner factor is “necessary, though not necessarily
sufficient, to sustain a prison policy abridging constitutional rights.”
Casey v. Lewis, 4 F.3d 1516, 1523-24 (9th Cir. 1993).
App. 42
Court used in Turner, § 2600 is interpreted under the test set
forth in Turner. Id. at 1206.
Therefore, the analysis for the state law claim is
identical to the analysis of Gerber’s § 1983 claim. Under
California state law, the right to procreate is also a
fundamental protected right. See Johnson v. Calvert, 851 P.2d
776, 787 (Cal. 1993). Thus, we conclude that the right to
procreate does survive incarceration and that the arguments
advanced as valid reasons to restrict Gerber’s exercise of that
right fail as a matter of law, at this stage of the proceedings.
Therefore, we reverse the district court’s order granting the
Warden’s motion to dismiss Gerber’s state law claim and
remand that claim also for further consideration.
IV. CONCLUSION
The district court erred by concluding that the right
to procreate does not survive incarceration. Furthermore,
consideration of the Warden’s arguments requires the
development of a record to permit the court to determine
whether legitimate penological interests exist that would
justify a total ban on Gerber’s exercise of his procreative
rights during his period of incarceration (presumably for the
rest of his natural life).
Accordingly, we REVERSE the district court's
decision dismissing Gerber’s claims *893 and REMAND this
matter for further proceedings consistent with this opinion.
SILVERMAN, Circuit Judge, dissenting:
This is a seminal case in more ways than one.
Contrary to all precedent, the majority today holds that a
prison inmate--in this instance, an inmate serving a life
sentence--has a constitutional right to mail his semen from
prison so that his wife can be artificially inseminated. With
the utmost respect, the majority’s reading of the Constitution
is as unprecedented as it is ill- conceived.
App. 43
OO eee
Pe re ee ee ee
The majority simply does not accept the fact that
there are certain downsides to being confined in prison, and
that the interference with a normal family life is one of them.
Morrissey v. Brewer, 408 U.S. 471, 482 (1972). It is true that
inmates do not lose all constitutional rights upon
incarceration. It is true that they retain the right to marry.
Turner v. Safley, 482 U.S. 78 (1987). It is true that the Eighth
Amendment protects them against forced surgical
sterilization. Skinner v. Oklahoma, 316 U.S. 535 (1942). All of
that, however, is a far cry from holding that inmates retain a
constitutional right to procreate from prison via FedEx. The
Turner Court recognized that even though the right to marry
survives incarceration, the right to have the marriage “fully
consummated” is but an “expectation” postponed until the
inmate is released from custody. 482 U.S. at 96 That is why
the Second Circuit held that the Constitution does not
guarantee prison inmates a right to conjugal visits.
Hernandez v. Coughlin, 18 F.3d 133, 136-37
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.