dissenting:
This is a seminal case in more ways than one. Contrary to all precedent, the majority today holds that a prison inmate — in this instance, an inmate serving a life sentence — has a constitutional right to mail his semen from prison so that his wife can be artificially inseminated. With the utmost respect, the majority’s reading of the Constitution is as unprecedented as it is ill-conceived.
The majority simply does not accept the fact that there are certain downsides to being confined in prison, and that the interference with a normal family life is one of them. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 38 L.Ed.2d 484 (1972). It is true that inmates do not lose all constitutional rights upon incarceration. It is true that they retain the right to marry. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). It is true that the Eighth Amendment protects them against forced surgical sterilization. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). All of that, however, is a far cry from holding that inmates retain a constitutional right to procreate from prison via FedEx. The Turner Court recognized that even though the right to marry survives incarceration, the right to have the marriage “fully consummated” is but an “expectation” postponed until the inmate is released from custody. 482 U.S. at 96, 107 S.Ct. 2254. That is why the Second Circuit held that the Constitution does not guarantee prison inmates a right to conjugal visits. Hernandez v. Coughlin, 18 F.3d 133, 136-37 (2d Cir.1994):
Although it is clear that prisoners have a fundamental right to marry, this constitutionally protected guarantee is substantially limited as a result of incarceration. Similarly, inmates possess the right to maintain their procreative abilities for later use once released from custody, even though this right is restricted. [citing Skinner v. Oklahoma ] * * * Rights of marital privacy, like the right to marry and procreate, are necessarily and substantially abridged in a prison setting.
Citations omitted; emphasis added.
In no reported decision concerning a prisoner’s claim of a right to procreate from prison by artificial insemination has any court ever upheld such a right. Quite to the contrary:
Anderson v. Vasquez, 827 F.Supp. 617, 620 (N.D.Cal.1992) (“no constitutional right to have an inmate’s sperm preserved for artificial insemination exists”) aff'd in part, rev’d in part on other grounds, 28 F.3d 104 (9th Cir.1994) (unpublished mem. disposition).
Goodwin v. Turner, 702 F.Supp. 1452, 1453-54 (W.D.Mo.1988) (“The Court has approached this novel case fully cognizant of the legal parameters, but with a willingness to stretch those boundaries as necessary to satisfy any fundamental right that petitioner may have in regard to artificial insemination of his wife. There exists, however, an insurmountable obstacle — the fact of incarceration — that necessarily restricts any decision rendered herein. * * * Regardless of the marital rights that do survive incarceration, many 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, 908 F.2d 1395 (8th Cir.1990) (“Even assuming, without deciding, that the exercise of Goodwin’s right to *894procreate is not fundamentally inconsistent with his status as a prisoner, the restriction imposed by the Bureau [of Prisons] is reasonably related to achieving its legitimate penological interest.”).
See also State v. Oakley, 629 N.W.2d 200, 209 (Wis.2001) (“incarceration, by its very nature, deprives a convicted individual of the fundamental right to be free from physical restraint, which in turn encompasses and restricts other fundamental rights, such as the right to procreate.”).
Common sense also suggests that procreation is fundamentally inconsistent with incarceration. A lawful prison sentence “constitutionally deprive[s] the criminal defendant of his liberty to the extent that the State may confine him and subject him to the rules of its prison system.” Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). “[T]hese restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.” Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Because the right to procreate is “fundamentally incompatible with imprisonment itself’ (the standard applied in Hudson), the majority’s analysis of whether there is a legitimate penological reason to abridge that right is all beside the point. There is no such right. Prisoners do not have a right to procreate while in prison.
Charles H. Whitebread, the renowned and witty professor of constitutional law at the University of Southern California, is fond of saying that some people believe that inmates retain only two rights when they go to prison — the right to serve their time and the right not to be exposed to second-hand smoke. That is not my view. I fully recognize that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner, 482 U.S. at 84, 107 S.Ct. 2254. However, I do believe that “[c]ertainly most, if not all, reasonable minds would agree that a prohibition against artificial insemination does not subject a federal prisoner to a ‘fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment,’ ” Goodwin, 702 F.Supp. at 1455, or in this case, by the Fourteenth Amendment. And because prison inmates have no right to procreate while in prison, I would hold, as the district judge did, that the plaintiffs state law claim necessarily fails.
For these reasons, I would affirm the district court’s dismissal of the plaintiffs lawsuit, and therefore, respectfully dissent.