Featured Guest Blogger: Justice Barry Schaller

How exciting to be chosen as the first guest voice in what I know will be a very successful blog.

For this opening post, Todd Brewster asked me to think about what questions I would like to ask Judge Sotomayor if I were considering her nomination. Of course, I went directly to one of my favorite bioethics topics, the new developments in biomedical science and technology.


STILL THINKING ONLY OF ROE? HOW SHORT-SIGHTED!
by Justice Barry Schaller

Every confirmation hearing of the last quarter century has focused directly or indirectly on what the nominee’s attitudes are about the landmark abortion rights decision of Roe v. Wade. Today that gets it only partly right. Most of the cases that capture the imagination of those of us who think about bioethics and the law rely on the privacy right asserted by the court when it decided Roe (and before that, Griswold v. Connecticut, a 1965 Supreme Court case that protected a right to privacy despite the absence of any "privacy" language in the Constitution), but to very different ends.

To find this right, the Roe Court relied mainly on the due process clause of the Fourteenth amendment. Yet in analyzing this, Roe and the later abortion cases (Webster and Casey, for instance) have examined the privacy right from a relatively limited perspective, as one held in competition with the rights of the fetus. At issue here, as we all know from the abortion debates, is when does the fetus constitute a “person” deserving of full protection? Justice Harry Blackmun, who wrote the decision in Roe, argued for a trimester approach that had the woman’s interest at its highest point at the outset of the pregnancy and the state’s interest at its lowest. That relationship then gradually reversed itself as the pregnancy became viable – for the 1970s, in the third trimester, but today, so much sooner – so that by the last days of the pregnancy, the state’s interest was at its greatest and the woman’s interest at its lowest.

Although still important to many people, these questions seem almost quaint when compared with the developments of biomedical science in the thirty-some years since Roe was decided. Just as the viability date for a pregnancy has steadily moved back from the third trimester, all manner of new human biotechnologies, including reproductive possibilities, have emerged rapidly to challenge our notion of the limits – and the very nature -- of human life and personhood. Think of some of them:

Cloning for reproduction as well as research; sex selection and “designer babies”; “personalized genomics”; race-specific drugs and race-based genetics; and global “markets” in kidneys, eggs, and wombs. Will human biotechnologies remake our sense of what we are and what our relationships are? Who will reap the benefits – and who will lose out – as these technologies gain greater foothold in our world? Who will regulate them – or will they be allowed to develop free of regulation, as many in the U.S. and abroad prefer?