Sean Talty is required to make "reasonable" efforts to avoid conception during his five-year probation after he was convicted of not supporting three of his seven children by five women. If he violates the order, he could get six months to a year in prison.
"How in the world would a judge enforce this?" Justice Evelyn Stratton asked.
Talty, 32, pleaded no contest in 2002 to failing to pay $38,000 in child support for three of his children with his former wife and another woman.
Since then, he has paid the court-ordered $150 weekly in back child support and avoided fathering more children, according to his attorney, J. Dean Carro.
Prosecutors and Talty's attorney agree that reproduction is a right protected by the U.S. Constitution. But the state Supreme Court must decide whether that right may be curtailed for someone on probation or parole — the same way parolees may be ordered to provide urine samples for drug testing.
Justice Maureen O'Connor inquired whether the trial judge who issued the order was not "really trying to legislate morality." She also questioned the state's contention that the order does not affect other people, such as Talty's new wife, who could not have another child with Talty until the sentence is complete.
James Bennett, a Medina County assistant prosecutor, said the case is "about protecting children from their deadbeat dad."
Talty's attorney argued that the order is too vague. "The day the government tells us we can't procreate is a dark day indeed," he said after the hearing.
Medina County Common Pleas Judge James L. Kimbler issued the order, which was later upheld by a state appeals court.
The high court's decision is expected by fall.