¶ 40. (dissenting). I begin by emphasizing the right that is at issue: the right to have children. The majority acknowledges this right, but certainly does not convey its significance and preeminence. The right to have children is a basic human right and an aspect of the fundamental liberty which the Constitution jealously guards for all Ameri*482cans. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 536 (1942).
¶ 41. Thus, the stakes are high in this case. The majority's decision allows, for the first time in our state's history, the birth of a child to carry criminal sanctions. Today's decision makes this court the only court in the country to declare constitutional a condition that limits a probationer's right to procreate based on his financial ability to support his children. Ultimately, the majority's decision may affect the rights of every citizen of this state, man or woman, rich or poor.
¶ 42. I wholeheartedly agree with the majority that the governmental interest at stake in this case is of great magnitude. The state has an interest in requiring parents such as Oakley to support their children. As the majority amply demonstrates, the lack of adequate support for children affects not only the lives of individual children, but also has created a widespread societal problem. However, when fundamental rights are at issue, the end does not necessarily justify the means. The majority concludes that the means of effecting the state's interest are sufficiently narrow in light of this governmental interest. I disagree.
¶ 43. The circuit court's order forbidding Oakley from having another child until he first establishes his ability to support all his children is unconstitutional. Even the circuit court judge who imposed the condition acknowledged that Oakley will be unable to meet this condition. The probation condition is not narrowly drawn to serve the governmental interest at stake. Additionally, aside from the constitutional infirmities, such a condition of probation entails practical problems and carries unacceptable collateral consequences.
*483¶ 44. The United States Supreme Court has described the right to have children as a "basic liberty" that is "fundamental to the very existence and survival of the [human] race." Skinner, 316 U.S. at 541. The right is embodied in the sphere of personal privacy protected from unjustified governmental intrusion by the Due Process Clause of the Fourteenth Amendment. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). This court, in a case involving involuntary sterilization, has emphasized that the right of a citizen to procreate is central to the zone of privacy protected by the Constitution:
"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
Eberhardy v. Circuit Court for Wood County, 102 Wis. 2d 539, 562, 307 N.W.2d 881 (1981) (quoting Eisenstadt, 405 U.S. at 453).
¶ 45. Because the right implicated by the condition of probation in this case is one that is central to the concept of fundamental liberty, the state action infringing upon that right is subject to heightened scrutiny. In Edwards v. State, 74 Wis. 2d 79, 84-85, 246 N.W.2d 109 (1976), we explained that conditions of probation may impinge upon constitutional rights so long as they are "not overly broad" and are reasonably related to the probationer's rehabilitation. In the non-probation context, any state action infringing upon a fundamental liberty interest can be justified only by a compelling state interest and must be "narrowly drawn" to express only the legitimate state interests at stake. Carey v. *484Population Servs. Int'l, 431 U.S. 678, 688-89 (1977). Because of the heightened importance of the liberty interest at stake, whether one chooses to frame the means-end inquiry in a case involving the right to procreate while on probation as "not overly broad" or as "narrowly drawn," I believe the essence of the inquiry is the same.
¶ 46. At oral argument, the State confessed confusion as to which party bears the burden of proving that this state action satisfies the strictures of due process. I do not share this confusion. Ordinarily, where a state action infringes upon a liberty interest that is deemed fundamental under the Fourteenth Amendment, it is " 'presumptively unconstitutional.'" Harris v. McRae, 448 U.S. 297, 312 (1980). The State must justify its action by establishing that it is narrowly drawn in light of the governmental interest at stake. See Carey, 431 U.S. at 684-85; see also Dunn v. Blumstein, 405 U.S. 330, 342-43 (1972).
¶ 47. It is important to bear in mind exactly what the circuit court order proscribed. The circuit court order forbids Oakley from fathering another child until he can first establish the financial ability to support his children. Oakley is not prohibited from having intercourse, either indiscriminately or irresponsibly. Rather, the condition of probation is not triggered until Oakley's next child is born.
¶ 48. Curiously, the condition the majority is upholding is not the condition that the circuit court imposed. Contrary to the majority's characterization of the condition of probation (compare majority op. ¶ 6 with ¶ 20), the circuit court imposed in its January 13, 1999, Judgment of Conviction and Sentence the following condition:
*485Defendant is ordered not to have any further children while on probation unless it can he shown to the Court that he is meeting the needs of his other children and can meet the needs of this one.
The majority and both concurrences frame the condition as if it only forbids an intentional refusal to pay support. This is not the case.
¶ 49. While on its face the order leaves room for the slight possibility that Oakley may establish the financial means to support his children, the order is essentially a prohibition on the right to have children. Oakley readily admits that unless he wins the lottery, he will likely never be able to establish that ability. The circuit court understood the impossibility of Oakley satisfying this financial requirement when it imposed the condition. The court explained that "it would always be a struggle to support these children and in truth [Oakley] could not reasonably be expected to fully support them." Stressing the realities of Oakley's situation, the circuit court explained:
[Y]ou know and I know you're probably never going to make 75 or 100 thousand dollar a year. You're going to struggle to make 25 or 30. And by the time you take care of your taxes and your social security, there isn't a whole lot to go around, and then you've got to ship it out to various children.
¶ 50. In light of the circuit court's recognition of Oakley's inability to meet the condition of probation, the prohibition cannot be considered a narrowly drawn means of advancing the state's interest in ensuring support for Oakley's children.1
*486¶ 51. In a similar context, the United States Supreme Court has explained that a statutory prohibition on the right to marry, a right closely aligned with the right at issue, was not a justifiable means of advancing the state's interest in providing support for children. Zablocki v. Redhail, 434 U.S. 374, 388-90 (1978). The Zablocki court addressed a Wisconsin statute that prohibited people from marrying until they established that their child support obligations had been met. The Court, in finding the statute unconstitutional, explained that Wisconsin law provided other available means of advancing the state's interest that did not infringe upon the liberty interest at stake:
[T]he State already has numerous other means for exacting compliance with support obligations, means that are at least as effective as the instant statute's and yet do not impinge upon the right to marry. Under Wisconsin law, whether the children are from a prior marriage or were born out of wedlock, court-determined support obligations may be enforced directly via wage assignments, civil contempt proceedings, and criminal penalties.
Id. at 389-90 (footnote omitted).
¶ 52. Rather than juxtapose the means chosen in the instant case with the alternatives suggested in Zablocki, the majority compares the infringement of Oakley's reproductive liberty with the loss of liberty he would suffer had the circuit court chosen to imprison him. It is true that if Oakley were imprisoned he would suffer an incidental inability to exercise his procreative rights. However, the fact of the matter is that Oakley has not been imprisoned. He is a probationer and has *487retained a degree of his liberty, including "a significant degree of privacy under the Fourth, Fifth and Fourteenth Amendments." People v. Pointer, 199 Cal. Rptr. 357, 363 (Cal. Ct. App. 1984).2 While the State has chosen not to exercise control over Oakley's body by depriving him of the freedom from restraint, it does not necessarily follow that the State may opt to exercise unlimited control over his right to procreate.
¶ 53. The narrowly drawn means described by the Supreme Court in Zablocki still exist today and are appropriate means of advancing the state's interest in a manner that does not impair the fundamental right to procreate. See, e.g., Wis. Stat. §767.265 (garnishment/wage assignment); § 767.30 (lien on personal property); § 785.03 (civil contempt). These means, as well as other conditions of probation or criminal penalties, are available in the present case.3
*488¶ 54. In light of these alternative means of advancing the compelling state interest at issue, the State has failed to justify that the elimination, or at best qualification, of the right to procreate is narrowly drawn, or in the words of Edwards, that it is "not overly broad." The State, and the majority, can do little more than "infer" that these "less drastic methods" will be ineffective in the case of David Oakley. Brief of Plaintiff-Respondent at 13; see also majority op. at n.27. Such an inference does not a constitutional justification make. In the absence of such a justification, the state action limiting Oakley's right to procreate is unconstitutional.
¶ 55. In addition to the obvious constitutional infirmities of the majority's decision, upholding a term of probation that prohibits a probationer from fathering a child without first establishing the financial wherewithal to support his children carries unacceptable collateral consequences and practical problems.
¶ 56. First, prohibiting a person from having children as a condition of probation has been described as "coercive of abortion." In People v. Pointer, 199 Cal. Rptr. 357 (1984), the court concluded that a condition of probation prohibiting a female probationer from becoming pregnant was unconstitutional. It advanced that such a condition fosters state-coerced abortion:
[I]n the event she became pregnant during the period of probation the surreptitious procuring of an abortion might be the only practical way to avoid *489going to prison. A condition of probation that might place a defendant in this position, and if so, be coercive of abortion, is in our view improper.
Id. at 366; see also State v. Mosburg, 768 P.2d 313, 315 (Kan. Ct. App. 1989).
¶ 57. If the tables are turned to the present case where the probationer is a man, a similar risk arises. Because the condition is triggered only upon the birth of a child, the risk of imprisonment creates a strong incentive for a man in Oakley's position to demand from the woman the termination of her pregnancy. It places the woman in an untenable position: have an abortion or be responsible for Oakley going to prison for eight years. Creating an incentive to procure an abortion in order to comply with conditions of probation is a result that I am not prepared to foster.
¶ 58. Second, by allowing the right to procreate to be subjected to financial qualifications, the majority imbues a fundamental liberty interest with a sliding scale of wealth. Men and women in America are free to have children, as many as they desire. They may do so without the means to support the children and may later suffer legal consequences as a result of the inability to provide support. However, the right to have a child has never been rationed on the basis of wealth.
¶ 59. Nevertheless, the majority has essentially authorized a judicially-imposed "credit check" on the right to bear and beget children. Thus begins our descent down the proverbial slippery slope. While the majority describes this case as "anomalous" and comprised of "atypical facts," the cases in which such a principle might be applied are not uncommon. The majority's own statistical data regarding non-payment of support belies its contention that this case is truly exceptional.
*490¶ 60. Third, the condition of probation is unworkable. David Oakley is not restrained, and realistically cannot be stopped, from having intercourse — protected or otherwise. The condition of probation will not be violated until the woman with whom he has sexual relations carries her pregnancy to term. Then, Oakley will be imprisoned, and another child will go unsupported. The Eight Circuit Court of Appeals noted this very problem with such a condition of probation, and concluded that it is unworkable:
Short of having a probation officer follow [the probationer] twenty-four hours a day, there is no way to prevent [the probationer] from fathering more children. If [the probationer] were to violate this condition of his probation, he may well be returned to prison, leaving him no way to provide for his dependents. This certainly would not serve the district court's goal of "adequately supporting] and sustaining]" [the probationer's] children.
United States v. Smith, 972 F.2d 960, 962 (8th Cir. 1992).
I — I HH H-1
¶ 61. In light of the constitutional problems and other dilemmas posed by a condition that limits a probationer's right to father a child without first establishing the financial ability to support his children, it is not surprising that the majority is the sole court in this country to conclude that the condition is constitutional. The majority fails to cite any case law in which a court has allowed the right to have children to *491be conditioned upon financial status.4 It does not because it cannot. There is no precedent to cite.
¶ 62. Ultimately, the positions of the majority opinion and concurrences actually undermine the values they seek to promote:
I, too, am concerned about children raised in poverty, as set forth in Justice Crooks' concurrence, but that cannot excuse a condition of probation that has the potential to be "coercive of abortion."5
I, too, am troubled by the societal problem caused by "deadbeat" parents as set forth in Justice Bablitch's concurrence, but that problem must be addressed in a workable manner that passes constitutional muster.
I, too, am mindful of the premise that no right is absolute as set forth in the majority opinion, but that premise does not justify making the basic human right to have children subject to financial qualification.
¶ 63. Let there be no question that I agree with the majority that David Oakley's conduct cannot be condoned. It is irresponsible and criminal. However, we must keep in mind what is really at stake in this case. The fundamental right to have children, shared by us all, is damaged by today's decision. Because I will *492not join in the majority's disregard of that right, I dissent.
¶ 64. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice DIANE S. SYKES join this dissent.
In discussing child support percentage guidelines, the majority continues to ignore that it is the circuit court's conclu*486sion that Oakley will be unable to support his children that is determinative.
Cf. Gagnon v. Scarpelli, 411 U.S. 778, 782 n.4 (1973) (stating that a probationer cannot be denied due process on the premise that probation is an "act of grace").
I do not set forth a list of other available conditions of probation or penalties, because they are too numerous to list. However, as the majority acknowledges, at sentencing Oakley requested an opportunity to maintain full employment, provide for his children, and make serious payments towards his child support arrearages. Given Oakley's ability to work, an alternative approach could have been as follows: sentence Oakley to eight years in prison; stay the sentence and place him on probation; a condition of probation is that he serve a substantial amount of time in jail with work release privileges; after getting work release hours extended, another condition of probation is that he maintain two full-time jobs, working a minimum of 70 hours per week; conditions of probation also include parenting classes and alcohol and drug assessment/counseling if deemed appropriate.
*488Of course, I am not suggesting that this is what the sentence should have been. I offer it only as an example of one of many alternatives.
The majority proffers a single appellate court case from the state of Oregon as analogous authority. It compares this case to State v. Kline, 963 P.2d 697 (Or. Ct. App. 1998), in which the Oregon Court of Appeals allowed a probationer's right to father children to be conditioned upon his completion of drug counseling and anger management classes. However, the case at hand would be entirely different had the circuit court merely required Oakley to take a course in financial responsibility or effective parenting, rather than conditioning the right to procreate on an unobtainable requirement of financial wherewithal.
People v. Pointer, 199 Cal. Rptr. 357, 366 (Cal. Ct. App. 1984).