Equality, Privacy, and the New Genetic Technologies

JB

In my newest article on Roe and new genetic technologies, I argue for a sex equality interpretation of Roe based on the Fourteenth Amendment's prohibition on class legislation. (The full argument for that proposition, based on the Constitution's original meaning, is here.). I argue that the sex equality interpretation is superior to the Roe's original theory based on a generalized reproductive privacy right. Here's a selection from the article that explains why the difference between these two theories matters (supporting citations have been removed)

The equality interpretation of Roe-and particularly the notion that limits on abortion are a form of class legislation-will be increasingly important as we encounter new reproductive technologies like cloning and genetic engineering and new forms of medical research like stem cell research. As the technological context changes, it will make a great deal of difference whether Roe is a decision about reproductive privacy per se, or whether the liberty it protects arises from considerations of sex equality and equal citizenship.

If Roe is about reproductive choice in the abstract, about the rights of people to reproduce (or not reproduce) without interference from the state, future litigants will demand that courts insulate new reproductive technologies from regulation on the grounds that individuals should be free to have children by any means that science permits. Currently, there is no clear boundary that makes a generalized right to reproductive autonomy inapplicable to new reproductive technologies like cloning or genetic engineering. One might argue that only traditional methods of reproduction are protected, but such arguments may be unavailing precisely because the technology never existed before. The question will be whether the privacy principle applies in the new technological context, just as courts have asked whether the free speech principles apply to the Internet, or whether the Fourth Amendment's prohibition against unreasonable searches applies to infrared sensors directed at people's homes. Nor can we easily draw lines between "natural" methods of reproduction protected by the right to privacy and technologically assisted methods that are not. By now, the process of reproduction for many couples is thoroughly imbued with various forms of medical and technological assistance, including fertility clinics and in vitro fertilization. Assuming for the moment that the right to reproduce extends to using fertility clinics and in vitro fertilization, it will be difficult for courts to draw lines. The privacy interpretation of Roe may have a stopping point, but it may not be the one we now imagine, or it may simply be unprincipled and ad hoc.

On the other hand, suppose we view the abortion right not as part of a generalized right to reproductive autonomy, but rather as a specific right designed to help secure women's equal citizenship in a world in which reproductive burdens and the life-altering obligations of parenthood fall particularly heavily on them. Then we obtain a very different perspective. Cloning and other genetic technologies are not necessary to ameliorate women's inequalities with men, and indeed, as described more fully below, one can easily imagine how these technologies might someday be used to undermine women's equality. To give only one example, existing biomedical research in cloning requires large numbers of eggs to produce even a single successful result. Researchers, and later on, biomedical companies who seek to profit from human genetic engineering will have to locate vast sources of human eggs to make genetic engineering both practical and commercially viable. That may lead them to pressure large numbers of women-including particularly poor women-to serve as professional human egg donors or incubators, possibly at risk to their health. Where new reproductive technologies do not further equality between the sexes, their connections to the underlying justification for the abortion right become greatly attenuated, and we should leave their regulation to the political process in most cases.

This point can be generalized: The feminist or sex equality interpretation of Roe is not the same as a libertarian interpretation, even though women's equality is secured through liberty. The two interpretations of Roe begin to come apart precisely when reproductive rights no longer serve the goal of establishing women's equal status with men.

The very expression "reproductive rights" hides an important ambiguity. Reproductive rights could refer either to women's ability to control their reproductive lives or to the ability to choose when and how to have offspring. In the former case, reproductive rights would help secure equality with men and avoid the subordination that comes from forced motherhood. In the latter case, reproductive rights might include the right to have a child engineered to lack a particular disease or disability, or more fancifully, the right to have a child with blonde hair and blue eyes, or even a clone of one's self. The latter account of reproductive rights may increase the personal liberties of parents without promoting the relative equality of women.

Indeed, an equality-based interpretation of reproductive rights may conflict with a libertarian interpretation in a number of different ways. Consider the following possible scenarios:
(1) Engineering genetically enhanced abilities in offspring, which only the rich can afford, thus perpetuating and entrenching social stratification;
(2) Creating men and women with exaggerated or stereotypical features designed to enhance sex differentiation;
(3) Using genetic engineering or abortion to choose the sex of a baby, leading to over-representation of males over females;
(4) Using genetic engineering or abortion to eliminate fetuses thought to have undesirable traits or predilections like homosexuality, to the extent these predispositions are genetically marked;

Finally, outside the realm of reproductive rights, but using related technologies:
(5) Using collection of DNA to mark people with undesirable traits, predispositions and health risks, and then passing laws that treat those persons differently on this basis.

Whether or not any of these scenarios come to pass, they all demonstrate that the liberty to choose the genes of one's offspring, or the freedom to discriminate on the basis of genetics, whether by the state or by private parties, does not necessarily promote equal status and equal citizenship. Quite the contrary: Technologies that require massive harvesting of eggs may lead to enormous pressures placed on women, and particularly poor women, to serve as sources of those eggs. Genetic engineering and the ability to locate and identify genetic markers can involve or can facilitate genetic discrimination, which, in turn, can produce new forms of inequality or new techniques for older forms.

The latter problem can arise in two distinct ways. First, the state might attempt to limit or prevent private parties-whether parents, researchers, or insurance companies-from engaging in genetic engineering or genetic discrimination that it regards as unfair and unjust. The question in this case is whether the Constitution prevents this regulation. Second, the state itself might engage in genetic manipulation or discrimination, or it might facilitate such manipulation or discrimination by private parties-like medical researchers or insurance companies-in ways sufficient to constitute state action. Here, the question is whether the state's actions violate the Constitution.

How we interpret Roe's three holdings bears on each of these questions. Start with the first question-the constitutionality of the government's attempts to regulate genetic manipulation, cloning, and other forms of genetic engineering by private parties. The reproductive privacy interpretation of Roe would not affect state regulations of medical research that do not limit individuals' rights to reproduce offspring-like cloning for biomedical research and embryonic stem cell research. However, it might limit the state's ability to regulate parents who want to clone themselves or genetically engineer their children. The reproductive privacy interpretation of Roe might restrict the state's ability to prohibit privately sponsored eugenics-- for example, a couple's decision to engineer a child with a particular hair or eye color or a decision by deaf parents to engineer a child who is also deaf.

The equality interpretation of Roe has a somewhat different effect. As long as the state does not try to promote invidious discrimination-a point to which I shall return shortly-the equality interpretation leaves the regulation of genetic manipulation by private parities to the political process. That makes Roe's first two holdings particularly important. Roe holds that fertilized ova, blastocysts, embryos and fetuses do not have independent constitutional rights, but that the state has legitimate and important interests in their protection. In addition, the state has legitimate and important interests in protecting the health of women who might donate (or be pressured into donating) their eggs. Under the equality interpretation of Roe there is no independent constitutional right to prevent the beneficial development of these new technologies; but equally important, governments may regulate these technologies in the public interest and in the interest of future generations. In short, an interpretation of the abortion right grounded in sex equality leaves most of the big issues of how to deal with new reproductive technologies to the political process rather than to the courts.

Now consider the second question: Suppose the state engages in genetic engineering or genetic discrimination, or facilitates private parties so that there is state action. A reproductive privacy theory would probably limit some of this activity. It might not prohibit genetic discrimination against people already born. However, it could prevent the government from using people's genetic materials to produce offspring against their will. It could prevent the government from requiring that people's offspring be genetically modified (to eliminate undesirable traits or markers for disease). It might also limit laws that prevent parents from choosing to have offspring with certain genetic characteristics or markers.

An equality interpretation of Roe would also restrict much of this state regulation, but for different reasons. It would be based on the prohibition against class legislation and the idea that the state may not limit reproductive liberty to subordinate a group or deny it equal standing. Under this approach, state-imposed genetic engineering and genetic discrimination might be a new twenty-first century form of class legislation. The state, either directly or through facilitating private parties, discriminates against people with certain genetic markers, either by treating them differently after they are born (including hijacking their genetic material for the state's purposes), or by preventing new people from being born with these genes in the first place. (Note that it is not necessary that the genetic markers targeted by the state reliably produce specific traits as long as state officials believe that they do. Genetic discrimination can justify itself with bad science as well as with good science, and indeed may be more likely to do so.) In this twenty-first century version of class legislation, the state picks out a particular group and imposes special disabilities on it, or, more alarmingly, simply engineers the group away.

In the original nineteenth-century conception of class legislation, the affected group did not have to exist as a separate entity or group prior to the state's singling it out; class legislation could simultaneously create the class and discriminate for or against it. The same is true of new forms of genetic discrimination. To violate the Equal Protection Clause under this interpretation, the state need not pick out an existing social group, like blacks, that understands itself as possessing a separate identity. Rather, by identifying a set of genetic markers, the state constructs a group that it then picks out for disparate treatment. Genetic groups, created by medical science and state policy, could well become the new classes of the future and the victims of a new form of class legislation that the Constitution should equally prohibit. Like homosexuals and (some) religious minorities, genetic groups will not necessarily be discrete and insular, or identifiable by outward appearance. Nevertheless, these new genetic groups will carry the information that can be used to discriminate against them in their genes. Like groupings by race and sex, groups marked by genetic characteristics are constituted by factors in place at the time of their birth. But they are not inevitably immutable characteristics-perhaps in time we will be able to change a person's genetic structure-and they do not necessarily have to correspond with any existing social group. That does not mean, however, that the state or private parties may not find reasons to pick them out for special regulation. Indeed, the more that we discover (or believe we have discovered) connections between our genes and our health, intelligence, and behavioral predispositions, the more the state will be tempted to categorize people into new groups based on their common genetic inheritance.

In a remarkable history of twentieth century eugenics centered around the 1942 case of Skinner v. Oklahoma, Victoria Nourse has argued that Skinner, one of Roe's antecedents, may be a key case for understanding the Constitution's role in the era of genetic engineering. For when the state picks out groups and eliminates them by reason of their purportedly inheritable traits, it violates equal protection in its most basic sense. In Skinner, the state decided to single out certain individuals as social undesirables and sterilize them so that they could not reproduce their genes, based on the assumption that criminal tendencies were inheritable. Notably, the state excluded people convicted of certain white-collar crimes like embezzlement from its sterilization program. With a single law, the state created a "race" of second-class citizens and simultaneously exacted the penalty of elimination. As Justice Douglas explained in Skinner, when the state makes the possession of certain traits the basis for sterilization, "it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment." "The power to sterilize," Douglas argued, "may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear."

Skinner, like Roe, is about both equality and liberty. We have become accustomed to thinking about Skinner as a case about reproductive liberty, in part because it helped justify the line of cases from Griswold through Eisenstadt and Roe. But if Roe itself is best understood as a case about equality, and particularly about the Constitution's ban on class legislation, Skinner's equal protection holding once again becomes particularly salient. The best way to understand Skinner and Roe in the future is as limits on the state's control over reproduction or genetic technologies that single out groups for special disabilities, or attempt to reduce them to a subordinate status. That interpretation preserves women's rights to reproductive choice, prohibits the state from invidious forms of genetic discrimination, and leaves to the democratic process regulation of new genetic and reproductive technologies in the public interest.
Posted 9:50 AM by JB [link]