Recently retired New York State Supreme Court Justice Penny Wolfgang is applauding the actions of a Monroe County Family Court judge who ordered an heroin-addicted prostitute to avoid more pregnancies. The order came after the woman's four children were taken away because of neglect.
Judge Wolfgang said in her thirty-five years on the bench, she saw far too many heartbreaking cases of addicted parents.
While Judge Wolfgang did not know if the ruling would "legally" stand up under appeal, she did feel it sent a strong message that judges are worried about the community and the effect that the opioid epidemic is having on everyone.
Across the state, all judges are feeling the impact of the opioid crisis, said Hon. Gerald Whalen, who is the Presiding Justice for the NYS Appellate Division, Fourth Department.
Judge Whalen could not comment directly on the Rochester case because it could come before him if it is appealed.
However, Judge Whalen told 7 Eyewitness News Reporter Ed Reilly that the court system is seeing a high number cases involving addicted parents, and the court system is always looking for new ways of dealing with these cases to get the best "possible outcome" for the family.
Ed Reilly has more in his reports.
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The following is CNN's story about the Rochester ruling:
A mother struggling with drug addiction has been placed under a court order to avoid getting pregnant.
The mother, a Rochester, New York, prostitute referred to as Brandy F. in court documents, had already been stripped of custody of her four children. She lost custody based on findings of child neglect.
Judge Patricia Gallaher, a Monroe County family court judge, handed down the order requiring that she regain custody of her infant son before conceiving any other children
The judge -- who issued the order December 27 -- has since retired. In her order she noted an uptick in cases coming before the court that involved heroin addiction
"This court has seen about a half dozen seemingly 'nice couples' show up as respondents in neglect cases where both are addicted to heroin and literally throwing their lives away -- and the lives of their children --- in just this year," Gallaher wrote.
While the judge specified that she did not expect that the woman would face jail time if she failed to comply with the order -- it's not clear what would happen in those circumstances. The case is not the first time a judge has tested constitutional boundaries by attempting to limit a person's right to bear children.
Attorney: Order violates woman's rights
Judges in Texas, Wisconsin, Indiana and Massachusetts have tried to regulate the right to reproduce.
In 2004, another Monroe County judge was overruled, after ordering a homeless, drug-addicted mother and father to avoid conceiving any more children until all seven of their children were returned from foster care.
In 1927, the US Supreme Court held in Buck v. Bell that a judge could require a mentally handicapped, "feeble-minded" woman to undergo sterilization. Although the ruling itself was never explicitly overturned, in 1947 the Court held compulsory sterilization laws unconstitutional.
Tim Donaher, a public defender who represents Brandy F., said the order is a violation of his client's constitutional rights.
"We think that Judge Gallaher's decision raises significant constitutional concerns regarding the right to privacy and the role of a state in telling people when or whether they can procreate," Donaher said.
Donaher plans to appeal the judge's decision.
