# Petition for Writ of Certiorari — Gerber v. Hickman, Warden > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0420%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 1039 ## 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, ............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, ...........0000000 10 Inmate wants okay to post sperm, The Australian, ............00000+ 10 Postan nemzene az elitélt kaliforniai, ..00.00..00.00.0... 10 Prison Procreation Lawsuit Reinstated, ..........cccccccccees 10 Samen per Post: US-Haftling Will Sich Fortpflanzen, Rheinische Post, ................c.cce00008 10 Tahanan dilarang kirin sperma lewat surat, ......0....cccc0000- 11 Una sentencia permite ser padre a un condenado a cadena perpetua, El Mundo, ...............: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.) 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0420%3A1. Public record. Not legal advice.