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Inmate's Procreation Appeal Is Rejected by U.S. Justices

November 19, 2002|-- David G. Savage

The proposed constitutional right of prisoners to procreate from behind bars expired quietly at the Supreme Court on Monday.

The justices refused without comment to consider the issue, which had bitterly split the U.S. 9th Circuit Court of Appeals in California.

William Gerber, an inmate serving a life term under the state's three-strikes law, said he should be allowed to ship his sperm to his wife so she could be impregnated by artificial insemination.

Last year, he won a brief victory before a panel of the 9th Circuit. In a 2-1 ruling, it said the Constitution protected the fundamental right to procreate. Unless prison officials could show a strong reason why this would interfere with prison security, Gerber's claim should be honored, it ruled.

"This is the seminal case, in more ways than one," said Judge Barry Silverman in dissent at the time.

The full court took up the issue, and Silverman spoke for the 6-5 majority in May that rejected Gerber's claim and concluded that inmates lacked the same basic rights as others.

His lawyer, Teresa Zuber of Sacramento, appealed to the Supreme Court. She argued that the prison's refusal to allow Gerber to "send his semen out of the prison" to his wife, Evelyn, violated his rights to due process of law, the equal protection of the laws and his right against cruel and unusual punishment.

In a one-line order Monday, the justices refused to consider the case of William Gerber vs. Roderick Hickman, the warden of Mule Creek State Prison.

Many state inmates are permitted conjugal visits with their spouses, but this privilege is denied to those serving life terms.

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