Featured Guest Blogger: Justice Barry Schaller

A “constitutional right” to be Superman or Superwoman?
by Justice Barry Schaller

Speaking in the most general terms, it seems likely to me that among the issues that will be raised while the new Justice sits on the High Court will be claims by individuals seeking to assert their due process privacy rights well beyond the sphere originally outlined by Roe. Individuals, for example, will rely on the privacy right to assert their freedom to engage in or have the benefit of particular procedures or substances in the face of regulation efforts by Congress or state legislatures. This may well include genetic enhancement technologies as well as gene therapies and gene-based medicines for a host of diseases and defects, consumer genetics such as individual genome sequencing, "cognitive-enhancement drugs", and a wide variety of "inheritable genetic modification", otherwise known as "germline engineering."

Once a state legislature or Congress has attempted to restrict a practice, individuals will claim a due process (or other) privacy right to benefit from the practice. It will be on the order of “how can I be denied access to therapies that could prevent suffering and death merely because some foresee the potential for unethical misuse of those same therapies?” Along with privacy, individuals will turn to claims under the equal protection clause to enable others (perhaps guardians appointed by courts) to represent otherwise unprotected interests to enjoy equal protection of the laws. When claims are made under state constitutions, of course, state supreme courts have the final word but not as to federal constitutional claims, where federal courts prevail.

Given these preliminary observations, what can we expect to occur? Reproductive choices: a wide array of reproductive choices, including reproductive cloning , and selection at the embryonic stage for genetic characteristics, including potential for disability and gender, have taken a back seat to the political immediacy of the basic abortion issue but they are very real issues. Genetic selection is already well under way and we can expect it to expand in the future as the process of genetic testing develops with more and more sophistication and has the potential to eliminate or reduce risk of developing a wide range of disorders. Selection is bound to expand into other areas such as choice of embryos for intelligence, height, personal appearance, and other characteristics that will lead critics to object to creating designer babies. There is no end to the possibilities and, if the practice is pushed to an extreme, resistance may be encountered. If restrictive legislation is passed, the issues will be complicated, reflecting the competing interests of adult individuals, embryos as potential persons, not to mention the public interest in restricting the commodifying of human life.

Reproductive cloning, which, by widespread consensus, is not being pursued in this country, will raise all the same issues, heightened by what seems to be a prevailing distaste for the process. The momentum for cloning, however, may well gather strength when people in same sex marriages express their desire to have children of both partners. The scope of personal autonomy, elevated to a constitutional level, will be in direct conflict with claims of public policy and more specific claims of equal protection.

If strong public policy should come down on behalf of protection for embryos in this situation, the equal protection argument could very well carry over into other areas that are basically overlooked at present, such as the enterprise of creating and freezing embryos for later use. At present, it is estimated that enormous numbers of frozen embryos exist in storage; many of these are abandoned or eventually discarded (some are donated) when couples have no further use for them or dissolve their marriages. These could become fair game for lawsuits, thereby upsetting a widespread practice that has gone unchallenged to date.

A wise Supreme Court Justice will have many difficult decisions to make. Whether to grant certiorari in a case raising these issues at all and, if so, in which case or cases, are crucial decisions. If the Court hears the case, a Justice must decide, at the outset, whether to acknowledge (or not) the various Constitutional rights that will be asserted and then to tackle the question of how broadly or narrowly to decide the issues. For example, should personhood be defined for purposes of the particular case -- or other cases? How broadly should the scope of personal privacy and autonomy be defined? The claim is likely to be the constitutionality of a state (or federal) statute that restricts a reproductive technological practice. Even though some will argue that this Court (or any court) should leave these sensitive issues for the other branches, it is not easy to avoid the constitutional issue, once engaged.