| Text of
Printed Hearing The Committee on Energy and Commerce W.J. "Billy" Tauzin, Chairman Issues Raised by Human Cloning Research <DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:71495.wais]
ISSUES RAISED BY HUMAN CLONING RESEARCH
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
MARCH 28, 2001
__________
Serial No. 107-5
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
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COMMITTEE ON ENERGY AND COMMERCE
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
MICHAEL BILIRAKIS, Florida JOHN D. DINGELL, Michigan
JOE BARTON, Texas HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia SHERROD BROWN, Ohio
STEVE LARGENT, Oklahoma BART GORDON, Tennessee
RICHARD BURR, North Carolina PETER DEUTSCH, Florida
ED WHITFIELD, Kentucky BOBBY L. RUSH, Illinois
GREG GANSKE, Iowa ANNA G. ESHOO, California
CHARLIE NORWOOD, Georgia BART STUPAK, Michigan
BARBARA CUBIN, Wyoming ELIOT L. ENGEL, New York
JOHN SHIMKUS, Illinois TOM SAWYER, Ohio
HEATHER WILSON, New Mexico ALBERT R. WYNN, Maryland
JOHN B. SHADEGG, Arizona GENE GREEN, Texas
CHARLES ``CHIP'' PICKERING, KAREN McCARTHY, Missouri
Mississippi TED STRICKLAND, Ohio
VITO FOSSELLA, New York DIANA DeGETTE, Colorado
ROY BLUNT, Missouri THOMAS M. BARRETT, Wisconsin
TOM DAVIS, Virginia BILL LUTHER, Minnesota
ED BRYANT, Tennessee LOIS CAPPS, California
ROBERT L. EHRLICH, Jr., Maryland MICHAEL F. DOYLE, Pennsylvania
STEVE BUYER, Indiana CHRISTOPHER JOHN, Louisiana
GEORGE RADANOVICH, California JANE HARMAN, California
CHARLES F. BASS, New Hampshire
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska
David V. Marventano, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Oversight and Investigations
JAMES C. GREENWOOD, Pennsylvania, Chairman
MICHAEL BILIRAKIS, Florida PETER DEUTSCH, Florida
CLIFF STEARNS, Florida BART STUPAK, Michigan
PAUL E. GILLMOR, Ohio TED STRICKLAND, Ohio
STEVE LARGENT, Oklahoma DIANA DeGETTE, Colorado
RICHARD BURR, North Carolina CHRISTOPHER JOHN, Louisiana
ED WHITFIELD, Kentucky BOBBY L. RUSH, Illinois
Vice Chairman JOHN D. DINGELL, Michigan,
CHARLES F. BASS, New Hampshire (Ex Officio)
W.J. ``BILLY'' TAUZIN, Louisiana
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Boisselier, Brigitte, Scientific Director, Clonaid........... 52
Cameron, Nigel M. de S., Principal, Strategic Futures Group.. 103
Caplan, Arthur L., Director, Center of Bioethics, University
of Pennsylvania............................................ 95
Eibert, Mark D., the Law Offices of Mark Eibert.............. 107
Hanson, Jayde, Assistant General Secretary, General Board of
Church and Society, the United Methodist Church............ 129
Jaenisch, Rudolph, Professor of Biology, Massachusetts
Institute of Technology.................................... 44
Murray, Thomas H., National Bioethics Advisory Commission.... 81
Okarma, Thomas B., President and CEO, Geron Corporation...... 34
Pence, Gregory, Professor of Philosophy, School of Medicine
and Humanities, University of Alabama at Birmingham........ 100
Rael, Leader, Raelian Movement............................... 132
Soules, Michael R., President, American Society of
Reproductive Medicine...................................... 120
Terry, Sharon F., Genetics Alliance, Inc..................... 118
Westhusin, Mark E., Associate Professor, Texas A&M
University, College of Veterinary Medicine................. 38
Wicker, Randolfe H., Founder, Clone Rights United Front,
spokesman for the Human Cloning Foundation................. 124
Zavos, Panos Michael, Founder, Director and Chief
Andrologist, Andrology Institute of America................ 47
Zoon, Kathryn C., Director, Center for Biologics Evaluation
and Research, Food and Drug Administration................. 78
Material submitted for the record by:
Best, Robert A., President, Culture of Life Institute,
prepared statement of...................................... 145
Mitchell, C. Ben, prepared statement of...................... 148
(iii)
ISSUES RAISED BY HUMAN CLONING RESEARCH
----------
WEDNESDAY, MARCH 28, 2001
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Oversight and Investigations,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 2123, Rayburn House Office Building, James C. Greenwood
(chairman) presiding.
Members present: Representatives Greenwood, Stearns,
Largent, Burr, Whitfield, Bass, Tauzin (ex officio), Deutsch,
Strickland, DeGette, John, and Rush.
Staff present: Alan Slobodin, majority counsel; Julie
Corcoran, majority counsel; Ray Shepherd, majority counsel;
Robert Simison, professional staff member; Chris Knaur,
minority investigator; and John Ford, minority counsel.
Mr. Greenwood. All right, the hearing before the Oversight
and Investigations Subcommittee will now come to order. We
thank the witnesses for their indulgence and the Chair
recognizes himself for 5 minutes for the purposes of an opening
statement.
Nearly 80 years ago, Aldous Huxley wrote his literary
masterpiece Brave New World. In that book he posited a future
where genetic engineering is commonplace and human beings,
aided by cloning, are mass produced. Controllers and
predestinators replaced mothers and fathers. The words
themselves considered smut.
As the new authors of human life in an uncompromising
search for human happiness and stability, the possibility of
human individuality had been entirely jettisoned. For most of
its 80 years, Brave New World could be seen as a disturbing
work of science fiction. That is no longer the case. The
possible cloning of human beings is now relegated to the
world--not relegated to the world of fiction. The question we
must now ask is this: what should we do with this science? That
is what brings us here today.
Several scientists claim that they are poised to take the
fateful next step and actually produce a human clone. We in
this subcommittee will focus not only on the scientific, but on
the moral and ethical questions raised by the astonishing
possibility that an exact copy of a human being might be cloned
in the near future.
What then is cloning? The World Book Encyclopedia describes
cloning as a process that involves ``destroying the nucleus of
an egg cell of the species to be cloned. The nucleus is then
removed from a body cell of an animal of the same species. This
donor nucleus is injected into the egg cell. The egg, with its
new nucleus, develops into an animal that has the same genetic
makeup as the donor.''
Just 4 years ago, the Scottish researcher Ian Wilmot and
his colleagues, announced that they had successfully cloned a
lamb they called Dolly from a single cell of an adult sheep.
Since then various other mammals have been cloned. Recently,
however, two groups of scientists have announced their
intention to manufacture the first human clone. One group, the
Raelians, a Canadian-based religious cult, announced late last
year that it had found an American couple willing to pay
$500,000 to clone their deceased child. The Raelians claim to
be conducting experiments in a laboratory in the United States.
Several publications including Wired Magazine and the New York
Times, have published in-depth stories which take the Raelians
announcement quite seriously.
The other group, an international consortium of scientists
led by Dr. Panos Zavos, a reproduction researcher, and his
partner, Severino Antinori, an Italian fertility doctor, have
stated their intent to develop clones for infertile couples. In
January of this year, Dr. Zavos' group announced that within 2
years it intends to clone the first human being at a site
outside the United States.
Capitalizing on the fascination with human cloning, other
groups have established websites offering cloning services. We
have a demonstration of that.
Although federally funded human cloning research is
prohibited, such privately funded research is not. In fact, no
definitive Federal statute governs privately funded human
cloning experiments. Experimentation in science has outpaced
the law on the underlying issues raised by human cloning.
As one of our witnesses, Dr. Arthur Caplan recently put it,
``the science horse ran out of the barn, jumped over the fence
and has gone down the highway and the law is still hanging
around the barn.''
The FDA has asserted that it has jurisdiction over human
cloning, based on the Public Health Service Act and the Food,
Drug and Cosmetic Act. Is this a sufficient safeguard?
Although there is no Federal ban on human cloning, a number
of states, 26 other countries and the United Nations have seen
the need to enact some form of ban on human cloning. But to
craft a meaningful and reasonable statute that is both sound in
its science and consistent with human dignity, the Congress
needs to ask the hard questions posed by human cloning
research.
The technique to clone other mammals has proved difficult
and dangerous. Before scientists successfully produced Dolly,
there were 276 failures. Last week, my staff and I met with Dr.
Simon Best, a member of the Dolly research team. Extrapolating
from its results, he told us the data suggests that it might
take a thousand surrogate mothers to successfully clone a human
being at the cost of 990 miscarriages, still births and infants
born with serious and unpredictable birth defects.
The rate of failure in animal cloning should serve as a
fire bell in the night. Behind the headlines of apparent
success in animal cloning lies a failure rate as high as 95 to
97 percent.
Would human cloning lessen the worth of individuals and
diminish respect for human life by turning procreation into a
manufacturing process?
Is there a bright line between the joining of a man and a
woman's reproductive cells and the replication of just one
person's genetic material?
Is the one creation and the other mere construction?
The Christian philosopher G.K. Chesterton wrote, ``The
whole difference between construction and creation is exactly
this, that a thing constructed can only be loved after it is
constructed, but a thing created is loved before it exists.''
We also, in fairness, need to listen to the arguments in
favor of human cloning. There are those who argue that
reproductive freedom includes human cloning, perhaps as a means
to address the problem of male infertility. Others advocate
cloning as a means to replicate a deceased loved one. For yet
others, human cloning is justified because it may provide
important advances in scientific knowledge.
In examining these arguments, I believe we must exercise a
substantial degree of healthy skepticism and we would do well,
I think, to keep in mind the powerful message contained in the
simple saying that hung in Albert Einstein's office at
Princeton, ``Not everything that counts can be counted and not
everything that can be counted counts.''
This committee has a responsibility to ask these difficult
questions because we are dealing with the most profound of
human responsibilities, the future of our species.
The witnesses we have assembled represent a broad cross
section of opinions and expertise on these complex issues. We
will hear from experts in animal cloning research and
bioethics, the FDA and the National Bioethics Advisory
Commission, among others. The NIH, National Institutes of
Health was invited to participate in this hearing, but
deferred, owing to a lack of expertise in this area.
We will also hear from controversial witnesses. We hope to
learn from their testimony whether the projects they envision
are credible scientifically.
Other esteemed bodies can hold meetings and write reports
and issue voluntary guidelines, but only the Congress can write
the laws for our nation. It is said that Huxley borrowed the
title for his book from these lines found in Act V of
Shakespeare's play The Tempest: ``Oh brave new world that has
such people in it.'' And he compounded the irony by envisioning
a world in which Shakespeare himself was outlawed. In fact,
when one of the characters asks, ``But why is it prohibited?''
he is told ``because it is old. That's the chief reason. We
haven't any use for old things here.'' ``Even when they are
beautiful?'' he then asks. ``Particularly when they are
beautiful'' comes the reply.
But if we are wise, before we open the floodgates to a new
kind of human being, we might recall the lines in The Tempest
that preceded the ones Huxley used in his title. ``How many
goodly creatures are there here? How beauteous is mankind.'' I
want to express my appreciation to the subcommittee ranking
minority Congressman Peter Deutsch for working with me on this
hearing. I'm also grateful to the full committee Chairman Billy
Tauzin for his support of this hearing. I thank all of the
witnesses for participating in this hearing and I look forward
to their testimony.
I recognize the ranking member, Mr Deutsch for 5 minutes
for an opening statement.
Mr. Deutsch. Thank you, Mr. Chairman. I have a statement
that I'd like to submit for the record. I'm anxious to hear the
witnesses' testimony.
Mr. Greenwood. Without objection.
Mr. Deutsch. And I'll just maybe summarize a couple of
points. One is I think it's important that we're having this
hearing, obviously. I appreciate the chairman's work in setting
this up and his staff work as well.
I would make one comment that as you are well aware, no one
from NIH is here today and I find that lacking in the sense
that the Nation's premiere health organization is not here, but
hopefully if we follow up in additional hearings that's
something that we can basically rectify.
I also believe that it's imperative that we go about our
work in this important matter in a manner that does not curtail
or chill research in other fields and I know that the
biotechnology industry is concerned about this and I'm glad
that they're here today.
As you know, there are some tremendously important fields
that are not human cloning. These fields are recombinant
technology that hold out the hope for prevention, treatment and
cure for a host of diseases and conditions. These include
Parkinson's, diabetes, Alzheimer's, leukemia and other cancers,
heart disease, liver failure and many others. Anything that we
do in the name of prohibiting the cloning of humans should not
delay or deny the important work that is being done with stem
cells and related fields of science.
Finally, I would also mention that if we are talking about
the FDA itself being the agency that theoretically would be
enforcing the ban that arguably exists, there's a question
about not providing additional resources to the FDA we're
talking about providing additional responsibilities and in
terms of the President's budget, there's no acknowledgement of
this additional research or this additional enforcement by the
FDA. And I think that's a real concern I have.
But finally, and really in a sense, I have spent time
reading through testimony, reading through projects and I would
say to you and I think it's important to say even at the start
of this hearing that I agree with you completely, that it is
our job to legislate and we are the only entity able to
legislate and I think it is imperative, in fact, that we make
clear that human cloning is not legally acceptable in the
United States of America. And I look forward to working with
you to create legislation that would, in fact, do that,
balancing the concerns that I think both of us share not to
interfere with some of the incredibly significant research that
can be done regarding other issues here. And I believe that we
will be able to craft legislation to that effect and I yield
back the balance of my time.
Mr. Greenwood. The Chair thanks the gentleman and
recognizes the chairman of the full committee, Mr. Tauzin.
Chairman Tauzin. Thank you, Mr. Chairman, let me first
congratulate and salute you, Mr. Chairman, Congressman James
Greenwood for holding this hearing and for shining the light on
this issue of great public concern, that of human cloning.
This hearing is a great example of how Congress, especially
the House of Representatives, serves as both a voice and a fact
finder for the American people.
As you saw in the film, a religious sect called the Raelian
Movement and an international group of scientists have recently
announced their intent to conduct experiments on human beings
to create a cloned baby. As far as we can tell, one of these
experiments has already started and both are being conducted
outside the scrutiny of government regulatory bodies and
institutional review boards.
The issue of human cloning and these announced experiments
raise scientific, medical, ethical, moral and ultimately policy
questions that we as a country must confront. Cloning may
literally threaten the character of our human nature. We are
all imperfect beings as we often find out. All of us. And that
requires us to learn and develop certain traits such as
forgiveness and understanding and love and character. How is
all that threatened when we produce perfect human beings
through this cloning technology?
Other institutions can issue reports and hold hearings and
announce voluntary policy, but only the Congress, particularly
through this committee can write the laws that could regulate
or even ban the cloning of human beings. This oversight hearing
can be the start for an honest appraisal of the science behind
human cloning, a fair inquiry to hear from the parties
themselves on how they plan to conduct their human cloning
experiments and a thoughtful discussion of the issues.
While we all should withhold judgment on whatever
legislation may come forward, I personally feel there are
problems with human cloning from a safety, legal, and ethical
standpoint. I believe the burden is going to be on the
proponents of human cloning to make the moral and scientific
case for these experiments. The question is why do we need
human cloning?
This hearing must also address whether current Federal law
and regulation is adequate for monitoring human cloning
experiments. The Food and Drug Administration has asserted its
authority over human cloning intended to create a human being
and we support the FDA and want to assist them in the
considerable skills they have in overseeing the matter.
However, the jurisdictional claim of the FDA may suffer from
being a square peg in a round hole.
FDA says it can regulate human cloning because the agency
has interpreted old Federal laws to cover new cloning
activities. The FDA argues that old Federal laws regulating new
drugs cover a human cell or human fetus. I frankly do not find
it obvious that a human fetus is a drug. And while a court may
find this argument facially plausible, I would not want to rely
upon the single reed of Federal regulation to address
experiments intended to create a baby from cloning technology.
In addition, FDA's authority is based only on safety
concerns, not on ethical or moral concerns. This leaves open
the question of whether FDA would permit the cloning of human
beings, if it became satisfied that it was safe. And since FDA
generally does not have the authority to ban cloning on moral
and ethical grounds, we should all be concerned that 1 day the
FDA may simply approve the process on a safety basis.
Congress may need to pass legislation to ban human cloning
or take other actions to firm up FDA's policies or grant
enforcement authority to another agency. We will deliberate
carefully and thoughtfully. We'll hear some very distinguished
scientists and ethicists today. We'll also have controversial
witnesses, including those from the Raelian Movement. The
media, including Time Magazine and the TV show 60 Minutes, as
you saw, covered the Raelians' announced efforts to clone a
human being. If the Raelians are to be believed, they are only
weeks away from implanting a human embryo into a surrogate
mother. Through this hearing, the public will hopefully learn
whether the Raelian experiment is a hoax or whether as Time
Magazine reported, ``this group may even be further along in
human cloning than the competition.''
If the facts and the consensus emerge to support
legislation to ban the cloning experiments intended to make
babies, we are going to have to be prepared to act. I will work
with Chairman Greenwood and every member of the committee,
Democrats and Republicans to legislate on a good bill. I
welcome the witnesses and look forward to their testimony and I
thank again the chairman for this very important hearing.
Mr. Greenwood. The Chair thanks the chairman of the full
committee and yields 3 minutes to the gentle lady, Ms. DeGette,
for her opening statement.
Ms. DeGette. Thank you, Mr. Chairman. The questions posed
by human cloning span the range of legal, ethical and medical
frontiers. Who is responsible for a wrongful birth or an
abnormal human being born as the result of the cloning
procedure, the parent, the cloners or the physician who
supervises the pregnancy? Can a dead person be cloned without
giving pre-death consent? Can a loved one clone a relative in a
coma without consent, and if so, who is responsible for the
complications that may arise out of the procedure?
As the science and medical communities continue to make
incredible strides in the areas of genetic discovery as
recently occurred with the mapping of the human genome, it's of
paramount importance that we carefully examine the issues
surrounding human reproductive cloning.
As we've heard, human cloning will receive a lukewarm at
best reception today in this committee. However, the complexity
of the issues, moral, scientific and ethical argues for a
thoughtful and complete discussion of the issue before we pass
legislation.
This analysis must examine the impact any new legislation
would have on work currently underway by scientists across the
globe whose goal is to further medical therapies to eradicate
disease. To be clear, these two types of research are very
different.
As co-chair of the Congressional Diabetes Caucus, I'm a
strong advocate of medical research as the prevention and
treatment of many diseases have been achieved through
university, private sector and government-funded research. In
particular, I'm interested in the advancement of research in
the areas of stem cell therapy and cell therapy and beta cell
development as one means of further reducing or eliminating
dependence on insulin for Type 1 diabetes. This research not
only has implications for diabetes, but may provide profound
breakthroughs for the millions of people affected by genetic
diseases such as sickle cell anemia, Parkinson's, Cystic
Fibrosis and Alzheimer's Disease.
A concern for people involved in medical research has also
led me to introduce the Human Subject Protections Act which
would, of course, apply to anyone involved in private research
on human cloning and I intend to reintroduce this bill soon in
the 107th. I hope I can count on co-sponsorship from the
chairman and many members of this committee.
Over the years, clinical research has become increasingly
complex. Human cloning adds to the complexity. Before any
humans are cloned in the United States, I know we all want to
ensure the ramifications of this project are fully known and
that all medical and research guidelines and safeguards have
been carefully followed.
Most scientists, however, tell us that today neither animal
nor human reproductive cloning can be done safely,
efficaciously, reliably or frankly, morally. We cannot and
should not proceed without those safeguards.
Mr. Chairman, I look forward to hearing from the witnesses
today and learning more about human cloning, including whether
really cloning is on the horizon or if it's just a lot of talk.
I'd like to hear the process and the legal and regulatory
issues surrounding it and with that, I yield back the balance
of my time.
Mr. Greenwood. The Chair thanks the lady for her statement
and recognizes the vice chairman of the subcommittee, the
gentleman from Kentucky, Mr. Whitfield for 3 minutes for his
opening remarks.
Mr. Whitfield. Thank you very much, Mr. Chairman. In
preparation for this hearing I went back to 1998 and read the
transcript of the hearing we held at that time on this very
subject matter, even though it was not the Oversight Committee
and in reading that material I came across a statement from
Cardinal William Keeler, Archbishop of Baltimore, and I might
add that I'm certainly not a member of the Catholic faith, but
I thought he touched on some very important issues that we need
to think about as we proceed in the discussion of this
important issue.
He stated that ``cloning is presented as a means for
creating life, not destroying life. Yet it shows disrespect
toward human life and the very act of generating it. Cloning
completely divorces human reproduction from the context of a
loving union between man and woman, producing children with no
parents in the ordinary sense. Here, human life does not arise
from an act of love, but is manufactured to predetermined
specifications. A developing human being is treated as an
object, not as an individual with his or her own identity and
rights.''
I don't think there is any subject that this Congress can
be taking up that is more important than this issue and the
many complex aspects to it.
I know we have a distinguished panel of witnesses today,
three panels, and while I find myself agreeing with the
Cardinal's testimony in 1998, I am still approaching this with
an open mind and do look forward to the testimony here today. I
yield back the balance of my time.
Mr. Greenwood. The chairman thanks the gentleman for his
opening remarks and recognizes the gentleman from Illinois, Mr.
Rush for 3 minutes for his opening remarks.
Mr. Rush. Thank you, Mr. Chairman. Mr. Chairman, I want to
commend you and thank you for holding this hearing on this
very, very important and critical issue. I do have some
statements that I will enter into the record at a later date
and I'll attempt to summarize my position right now.
With the Scottish scientist Ian Wilmot's cloning of an
adult sheep, Dolly, in February 1997, we all knew that it only
was a matter of time before attempts would be made to clone a
human. I am indeed an ordained Baptist minister and based on my
calling, my personal, moral and religious views, I know that
human cloning raises serious ethical, religious and moral
concerns. However, as the co-chair of the House Biotech Caucus,
I'm well aware of the amazing advances science and technology
have made in both the medical and agricultural fields to
prolong and improve the quality of human life.
As an African-American, I'm keenly aware of racist
prejudices and biases. The expansion of science can never be an
end unto itself. The expansion of science must be viewed in the
light of the agenda of those who espouse it and the impact it
has on our public, on our way of life and on our God.
Efficacy is also a major concern. Even if we simply view
cloning from a purely scientific perspective, devoid of moral
considerations, there are major problems. Many prominent
scientists have reported that cloning has resulted in
development delays, heart defects, lung problems and
malfunctioning immune systems in mammals. Also, the errors
created by a cloning are random and may not surface, indeed,
until the cloned individual is much older, later in the cloned
individual's life.
Thus, until long term research is done on cloning, we will
not know the impact of cloning as cloned species age. The FDA
would not release a drug for human consumption which causes
major birth defects in lab animals and could therefore harm
humans. Based on this same logic, cloning should not be
considered for humans, not now, and never in the future. The
danger of cloning as a public health concern reaches beyond the
cloned infant. The physical and genetic abnormalities of a
cloned infant poses serious threats to all concerned,
particularly a surrogate mother.
While it is clear that there are serious problems with
human cloning due to moral and public health concerns, I don't
think that prudence is warranted. As noted, science and the
biotech field has brought us great successes. We must not take
action which will impede the legitimate and safe use of
biotechnology. Many argue that Congress is slow to act or react
to changes in science and technology. However, I would argue
that we must act with caution to ensure that future scientific
successes which will make this world healthier and more
productive while tightly regulating and indeed banning those
practices which pose a clear threat to the health, the safety
and the moral condition of our citizens. Human cloning must be
banned now and forever.
Thank you and I yield back the balance of my time.
Mr. Greenwood. The Chair thanks the gentleman for his
statement and recognizes for 3 minutes the gentleman from
Florida, Mr. Stearns for his opening statement.
Mr. Stearns. Thank you, Mr. Chairman. No mother, no father,
no parents, no family. That's what will happen if we allow
human cloning. Human cloning is a form of playing God, since it
intervenes with the natural order of creation. We have reached
that point in our human history where human cloning is an
unethical use of technology. Ever since the world was made
aware of Dolly, and the infamous Dr. Seed and the possibility
of cloning human beings, significant actions have been taken to
outlaw this practice.
Mr. Chairman, in the 105th and 106th Congresses, I
introduced legislation to prohibit the expenditure of Federal
funds to conduct or support research on the cloning of humans
and to express the sense of Congress that other countries
should establish substantially equivalent restrictions.
Even though the President called for a ban on the use of
Federal funds for research on cloning of human beings, I
believe legislation to ban Federal funding of research on human
cloning is still necessary. Let me explain why.
Currently, in the United States, four states prohibit
cloning and eight more States have legislation pending to ban
human cloning. But let's take a look at the California law for
a moment. It imposes a 5-year moratorium on cloning of an
entire human being. The word ``entire'' is key because some of
us consider an embryo to be a human being. That is why we must
be very cautious in the terminology that is used because you
will hear the words ``entire human'' being used frequently in
debates about cloning. That is just one of many problems
associated with technology that may be used to clone humans.
I would like to share with my colleagues what Lori B.
Andrews who teaches the legal aspects of genetics at Chicago
Kent College has to say about the bans on human cloning. She
has analyzed the bans under consideration in 20 states. Here's
what she has to say. ``Once again, technology may be running
circles around the law. At least seven States ban and prohibit
transferring the nucleus from a human cell into a human egg,
but that doesn't address the possibility of transferring a
human nucleus into a non-human egg.''
There are many issues raised by the possibility of cloning
humans. There are lots of risk as my colleagues have talked
about. Of the 273 tries to develop Dolly, 272 were failed,
either aborted, destroyed or maimed. Obviously, we cannot go
down that line.
There are also compelling and serious ethical and moral
implications involved with cloning of humans. Theologians have
raised three broad objections. Cloning humans could lead to a
new eugenics movement where even if cloning begins with a
benign purpose, it could lead to the establishment of
scientific categories of superior and inferior people. Cloning
is a form of playing God since it interferes with the natural
order of creation. Cloning could have long-term effects that
are unknown and harmful. People have a right to their own
identity and their own genetic makeup which should not be
replicated.
So Mr. Chairman, I look forward to this hearing. We have a
lot to learn and also the Food and Drug Administration's role
is something we should explore. Also, Mr. Chairman, by
unanimous consent, I'd like to place the testimony of Attorney
Clark D. Forsythe who is President of Americans United for Life
in the record. Mr. Forsythe's testimony discusses the
constitutional issues related to cloning of human beings which
is an important part of the debate surrounding this complex
subject.
Mr. Greenwood. Without objection, the testimony so
referenced will be included in the record.
[The prepared statement of Clarke D. Forsythe follows:]
Prepared Statement of Clarke D. Forsythe <SUP>1</SUP>
---------------------------------------------------------------------------
\1\ B.A. Allegheny College (1980); J.D., Valparaiso University
(1983); President, Americans United for Life (AUL). Copies of two of my
professional articles have been submitted to the Subcommittee: Clarke
D. Forsythe, Human Cloning and the Constitution, 32 Val. U.L. Rev. 469
(1998); Clarke D. Forsythe, Homicide of the Unborn Child: The Born
Alive Rule and Other Legal Anachronisms, 21 Val. U.L. Rev. 563 (1987).
---------------------------------------------------------------------------
EXECUTIVE SUMMARY
Substantive due process does not restrict governmental prohibitions
on human cloning. There is no constitutionally-protected right to non-
coital, asexual reproduction. This is due to (1) the demonstrated
authority of the state and federal governments to protect human life at
every stage of development, (2) the limits of substantive due process,
and (3) the compelling interests in prohibiting human cloning, which
are addressed in order below.
The history of legal protection of developing human life is
important because it shapes substantive due process, informs the limits
of Roe v. Wade, 410 U.S. 113 (1973), and undergirds protection for the
developing human being in non-abortion circumstances today.
Governmental authority to protect human life at every stage of
development is deeply rooted in English and American history, and--at
least outside the context of abortion--is broadly and increasingly
exercised today. Throughout American history, legal protection of human
life has grown as medical knowledge has grown. State protection of
human life at every stage of development has grown in criminal law and
civil (tort) law throughout the 20th century. In particular, at least
38 states have affirmed, as a matter of public policy, that human life
begins at fertilization (conception). There are only two exceptions to
this general trend: abortion jurisprudence and state judicial decisions
relating to custody decisions involving cryopreserved human embryos.
Throughout the development of Anglo-American law protecting
developing human life, legal protection required medical knowledge of
the existence of a human life. The common law relied on two types of
medical evidence: quickening--the first sign of fetal movement--and the
location of the developing child inside or outside the womb (birth).
Human cloning--a byproduct of in vitro fertilization (IVF)--is
conducted extracorporeally, outside the human body, in vitro. As with
IVF, only after the cloned human embryo is allowed to divide would the
embryo be implanted in a woman's uterus. There is no ``pregnancy'' to
be terminated, and no right to ``terminate pregnancy'' is affected by
state protection of the extracorporeal human zygote or human embryo.
Since extracorporeal human embryos are outside the womb they are, for
all intents and purposes, born, and as developing human beings, are
entitled to the full protection of the law.
The constitutional right of privacy--or substantive due process
more specifically--does not prevent legal prohibitions or regulations
on human cloning. There is no fundamental right to human cloning.
Supreme Court privacy cases preceding Roe v. Wade protect family
interests related to coital reproduction. In 1973, in Roe v. Wade, the
Supreme Court created a right to ``terminate pregnancy.'' In the
discrete area of abortion, the Supreme Court has broadly prohibited
governmental regulation, as exemplified by Planned Parenthood v. Casey,
505 U.S. 873 (1992), and Stenberg v. Carhart, 120 S.Ct. 2597 (2000).
But this has never been expanded beyond abortion into a broad right of
``procreative liberty.'' Nothing in Supreme Court case law establishes
non-coital reproduction, much less asexual reproduction, as a
constitutionally protected right. None of the values deeply rooted in
the nation's history and tradition or implicit in the concept of
ordered liberty--such as marital intimacy, marital sexual relations,
bodily integrity--are implicated by non-coital, asexual reproduction
like cloning.
Finally, there are compelling reasons to prohibit human cloning. In
addition to the pervasive destruction of human life inevitably caused
by cloning research, cloning: (1) creates confusion of identity and
individuality, (2) represents a giant step toward ``transforming
procreation into manufacture,'' (3) represents a form of despotism of
the cloners over the cloned and thus is a blatant violation of the
inner meaning of parent-child relations, and (4) would constitute an
unethical experiment upon the resulting child.
I. LEGAL PROTECTION OF HUMAN LIFE
The legal issues surrounding human cloning research in the United
States are the grandchild of the Supreme Court's 1973 decision in Roe
v. Wade, which legalized abortion for any reason, at any time of
pregnancy, in every state. Legalized abortion fostered in vitro
fertilization (IVF) and embryo experimentation, which now have led to
(reported) attempts at human cloning. IVF technology was first widely
publicized in 1978 with the birth of Louise Brown, the first ``test
tube baby,'' in Britain.<SUP>2</SUP> IVF typically involves the
fertilization of a number of eggs resulting in several human embryos in
hopes of successfully implanting at least one in a woman's uterus, and
IVF researchers conduct embryo experimentation in order to increase the
success rates of IVF. Human cloning, in a sense, is a type of IVF and
will inevitably involve embryo experimentation. Hence, the legal status
of the human embryo is directly relevant to constitutional issues
affecting human cloning.<SUP>3</SUP>
---------------------------------------------------------------------------
\2\ Gina Kolata, Clone: The Road to Dolly and the Path Ahead 180
(1998).
\3\ For purposes of this testimony, I adopt Congress' definition of
``human embryo'' in Pub. L. No. 106-554, sec. 510(b) (``any organism--
that is derived by fertilization, parthenogenesis, cloning, or any
other means from one or more human gametes or human diploid cells'').
---------------------------------------------------------------------------
For much of the public and for many scholars, the legal and moral
status of the developing human being begins and ends with Roe v. Wade,
410 U.S. 113 (1973), the Supreme Court's decision which legalized
abortion nationwide for any reason, at every stage of gestation, a
quarter of a century ago. Much public discussion today about the unborn
revolves around the issue of abortion. Legal commentators who write on
the legal status of the embryo commonly demonstrate only the most
superficial understanding of the history of legal protection of the
developing human being.<SUP>4</SUP> For example, in justifying human
cloning and ``the manipulation and destruction of embryos that cloning
research, if not the procedure itself, will inevitably cause,''
Professor John A. Robertson, a leading advocate of reproductive
technologies including cloning, contends that there is a ``prevailing
moral and legal consensus that views early embryos as too rudimentary
in neurological development to have interests or rights.'' <SUP>5</SUP>
Whether such a consensus exists in fact and history requires a detailed
review of American legal history and contemporary legislation and
caselaw. Hence, the history of the legal protection of developing human
life is important because it shapes substantive due process, informs
the limits of Roe v. Wade, and undergirds protection for the developing
human being in non-abortion circumstances today.
---------------------------------------------------------------------------
\4\ See e.g., John A. Robertson, Embryos, Families, and Procreative
Liberty: The Legal Structure of the New Reproduction, 59 S. Cal. L.
Rev. 942, 973 (1986) (``With the exception of former laws that
prohibited abortion, the law has never regarded fetuses as rights-
bearing entities''); John A. Robertson, In the Beginning: The Legal
Status of Early Embryos, 76 Va. L. Rev. 437, 450 n.38 (1990) (citing
four articles for legal background, all of which contain only a
sketchy, incomplete, and superficial review of the history of the legal
protection for the unborn: Lori B. Andrews, The Legal Status of the
Embryo, 32 Loyola L. Rev. 357, 361 (1986) (citing Roe v. Wade for the
legal status of the human embryo in history); Patricia A. King, The
Juridical Status of the Fetus: A Proposal for Legal Protection of the
Unborn, 77 Mich. L. Rev. 1647 (1979); Robertson, Embryos, 59 S. Cal.;
Marcia Joy Wurmbrand, Note, Frozen Embryos: Moral, Social, and Legal
Implications, 59 S. Cal. L. Rev. 1079 (1986) (citing Robertson,
Embryos, supra, and John A. Robertson, Procreative Liberty and the
Control of Conception, Pregnancy, and Childbirth, 69 Va. L. Rev. 405
(1983)).
\5\ Robertson, The Question of Human Cloning, Hastings Ctr. Rep.
Mar.-Apr. 1994, at 6.
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A. Common Law Protection of Human Life
Anglo-American law has always considered human beings and the human
species special. There has always been an important distinction in
American law between the human species and all other species. The basic
law protecting the inviolability of human life--the law of homicide--is
reserved for human beings. The principle of the natural rights of human
beings, the equal creation of human beings, and the inalienability of
the right to life is deeply imbedded in the American political and
legal tradition. The founding political document of the United States,
the Declaration of Independence, proclaims that all are created equal,
endowed by their Creator with certain inalienable rights, including a
right to life, and that government is instituted to secure (not create)
that right. These were considered--by Jefferson, Madison, Adams,
Franklin and the entire founding generation--to be ``self-evident''
truths.
At common law, the basic law protecting human life was the law of
homicide. The protection of the law of homicide was very broad--
extending its protection to ``the killing of any human creature,''
according to Blackstone, the leading authority on the common
law.<SUP>6</SUP> Contemporary debate over the moral status of the human
embryo, however, forgets that the homicide law, by definition, protects
human beings, not persons. This confuses the 14th Amendment (and the
Court's discussion of ``person'' in Roe v. Wade) with the criminal
code.<SUP>7</SUP> Even if a human being is not considered by the courts
to be a person under the 14th Amendment, that human being still may be
protected under state homicide law. Homicide law does not protect only
mature or developed persons, but all human beings as human beings--all
offspring of human parents. It is species-directed. Roe v. Wade merely
created a constitutional exception to the general rule when it
stipulated that that protection may not interfere with a woman's right
to ``terminate pregnancy.''
---------------------------------------------------------------------------
\6\ 4 William Blackstone, Commentaries on the Laws of England 177
(U. Chicago Reprint 1979) (hereafter Blackstone). See also 4 Blackstone
188 (``Felonious homicide'' defined as ``the killing of a human
creature''); 6 The New Encyclopaedia Britannica 26 (15th ed. 1995)
(``homicide, the killing of one human being by another'').
\7\ See e.g., Robertson, 76 VA L. Rev. at 444 n.24 (``The abortion
debate has often been confused by loose use of terms such as person,
human life, human being, etc. Clearly the fertilized egg, embryo, and
fetus are human and are living. The question is whether they merit the
moral protection accorded to clearly defined persons.'').
---------------------------------------------------------------------------
The common law protected unborn human life to the greatest extent
possible given contemporary medical knowledge. The law was informed by
medicine, and legal protection was extended as medical knowledge
progressed. The right to life was ``a right inherent by nature in every
individual; and it begins in contemplation of law as soon as an infant
is able to stir in the mother's womb.'' <SUP>8</SUP> But what was most
important was not ``personhood'' but its status as a ``human
creature.'' In the face of the limitations of primitive medical
knowledge, every consideration was given to protect the life and rights
of the unborn child. Thus, as Blackstone wrote, ``An infant in ventre
sa mere, or in the mother's womb, is supposed in law to be born for
many purposes.'' <SUP>9</SUP> The common law protection of the unborn
child had direct antecedents in the Roman civil law's protection of the
unborn child from the time the mother was known to
conceive.<SUP>10</SUP>
---------------------------------------------------------------------------
\8\ 1 Blackstone 125.
\9\ 1 Blackstone 126. See also Stemmer v. Kline, 19 N.J.Misc. 15,
17 A.2d 58, 59 (1940) (``At common law, a child en ventre sa mere was
separate entity entitled to recognition and protection by courts and
recognized as a 'person'.'').
\10\ See e.g., Dennis J. Horan, Clarke D. Forsythe & Edward R.
Grant, Two Ships Passing in the Night: An Interpretavist Review of the
White-Stevens Colloquy on Roe v. Wade, 6 St. Louis U. Pub. L. Rev. 229,
276 & n.276 (1987) (citing writings of Paulus and Marcianus in Corpus
Juris Civilis).
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That English medical-legal authorities considered abortion at any
stage of gestation to be the taking of human life, and thus a crime,
influenced the development of English legislation.<SUP>11</SUP> As
Glanville Williams observed, with Lord Ellenborough's Act of 1803,
Parliament ``made not merely a legal pronouncement but an ethical and
metaphysical one, namely that human life has a value from the moment of
impregnation.'' <SUP>12</SUP> Why these laws arose in the nineteenth
century and not before is clear: Parliament only then learned of the
medical evidence concerning human development.<SUP>13</SUP>
---------------------------------------------------------------------------
\11\ John Keown, Abortion, Doctors and the Law 26-48 (1988).
\12\ Glanville Williams, The Sanctity of Life and the Criminal Law
227 (1957); Keown, supra note 10, at 20.
\13\ Keown, supra note 10, at 26-48.
---------------------------------------------------------------------------
Anglo-American society's consideration of the unborn human being is
also seen in legal reference to the unborn human being as a ``child''
or ``unborn child'' stretching back over centuries. At common law, the
unborn human being was commonly called a ``child.'' <SUP>14</SUP> The
term has been used by legal commentatories for centuries, by Fleta,
Staunford, Lambarde, Dalton, Coke, Blackstone, Hawkins, and
Hale.<SUP>15</SUP> This is also seen in the common phrase, being ``with
child.'' <SUP>16</SUP> Early texts on midwifery, medicine, and
jurisprudence used the term ``child'' at any time of
pregnancy.<SUP>17</SUP>
---------------------------------------------------------------------------
\14\ 1 Blackstone 450 (``his child, either born or unborn'')
\15\ Horan, Forsythe & Grant, 6 St. Louis at 289-90 & nn.359-378.
\16\ 1 Blackstone 446 (``declares herself with child'')
\17\ Horan, Forsythe & Grant, 6 St. Louis at 290 n.369; 1st Cite
Forsythe, 21 Val. U.L. Rev. at 563.
---------------------------------------------------------------------------
Though limited by contemporary medicine, American law incorporated
a general rule of protection. Thus, the Massachusetts Supreme Judicial
Court stated, ``[t]o many purposes, in reference to civil rights, an
infant in ventre sa mere is regarded as a person in being.''
<SUP>18</SUP> Or, as the New Jersey Supreme Court stated as long ago as
1849 in State v. Cooper, ``[i]t is true, for certain civil purposes,
the law regards an infant as in being from the time of conception . .
.'' <SUP>19</SUP>
---------------------------------------------------------------------------
\18\ Parker, 50 Mass. at 266 (citing 1 Blackstone 129).
\19\ 22 N.J. 52, 56-57 (1849). The court finished this statement by
saying that ``yet it seems no where to regard it as in life, or to have
respect to its preservation as a living being.'' Id. The answer here is
the difference between different burdens of proof in civil and criminal
law, as well as the evidentiary issues involved.
---------------------------------------------------------------------------
The centuries during which legal protection was burdened by the
limitations of medical knowledge dwarf the relatively few, recent years
during which heightened medical knowledge has allowed treatment and
surgery in utero. The novelty of medical technology that allows
treatment and visualization of the unborn human being was highlighted
by the famous Swedish photographer, Lennard Nilsson. ``New technology
has made it possible to see the actual events surrounding fertilization
and to visualize the growing fetus more clearly. At the same time, new
medical knowledge has reduced the risks of pregnancy . . .''
<SUP>20</SUP>
---------------------------------------------------------------------------
\20\ Lennart Nilsson, A Child Is Born 15 (1990).
---------------------------------------------------------------------------
B. Quickening As An Evidentiary Line
Quickening was established centuries ago as the most reliable
medical line showing evidence of life. From the fourteenth through the
nineteenth centuries, quickening was the only reliable evidence that a
woman was pregnant or that the unborn human being was alive. As late as
1800, a standard text on midwifery (the forerunner to obstetrics)
concluded that ``there appears to be no unequivocal sign, whereby that
state [pregnancy] can with certainty be determined, till between the
fourth and fifth months,when the child quickens, that is, when its
motions are distinctly felt.'' <SUP>21</SUP> Texts of midwifery
typically contained chapters on the ``signs of pregnancy,'' in which
quickening was emphasized.<SUP>22</SUP> Thomas Denman, a widely cited
authority on the subject, expressed the developing understanding of
quickening in his 1829 text:
---------------------------------------------------------------------------
\21\ Valentine Seaman, The Midwives Monitor and the Mothers Mirro
70-72 (1800).
\22\ See Forsythe, 21 Val. U.L. Rev. at 571 n.42, 572-73.
---------------------------------------------------------------------------
The changes which follow quickening have been attributed to
various causes. By some it has been conjectured, that the child
then acquired a new mode of existence; or that it was arrived
to such a size as to be able to dispense with the menstrous
blood, before retained in the constitution of the parent, which
it disturbed by its quantity or malignity. But it is not now
suspected, that there is any difference between the aboriginal
life of the child, and that which it possesses at any period of
pregnancy, though there may be an alteration in the proofs of
its existence, by the enlargment of its size, and the
acquisition of greater strength.<SUP>23</SUP>
---------------------------------------------------------------------------
\23\ Thomas Denman, An Introduction to the Practice of Midwifery
287 (3d ed. 1829).
---------------------------------------------------------------------------
Beck, in his Elements of Medical Jurisprudence--one of the primary
authorities in the 19th century--emphasized the same understanding:
It is important to understand the sense attached to this word
[quickening] formerly, and at the present day. The ancient
opinion, on which indeed the laws of some countries have been
founded, was, that the foetus became animated at this period--
that it acquired a new mode of existence. This is altogether
abandoned. The foetus is certainly, if we speak
physiologically, as much a living being immediately after
conception, as at any other time before delivery; and its
future progress is but the development and increase of those
constituent principles which it then received.<SUP>24</SUP>
---------------------------------------------------------------------------
\24\ 1 John Beck, Elements of Medical Jurisprudence 276 (11th ed.
1860).
---------------------------------------------------------------------------
Wharton and Stille emphasized the same point:
This symptom [quickening] was formerly given much weight,
because at that time the child was supposed to receive its
spiritual nature--to become animate. Such ideas have now become
entirely obsolete in the scientific world. The time perfecting
the child is at its conception. After then, in all ways, it is
merely a question of growth and development.<SUP>25</SUP>
---------------------------------------------------------------------------
\25\ 3 Wharton and Stille, Medical Jurisprudence 7 (5th ed. 1905).
---------------------------------------------------------------------------
Based on the primitive medical knowledge of the day, the common law
adopted the presumption that the fetus first became alive at
quickening.<SUP>26</SUP>
---------------------------------------------------------------------------
\26\ 6 St. Louis at 279-280 (collecting authorities); 21 Val. U.L.
Rev. at nn. 39-53 (collecting authorities).
---------------------------------------------------------------------------
At the earliest time of the common law, in the thirteenth century,
Bracton and Fleta held that the killing of a ``quickened child'' in the
womb was homicide without any explicit requirement of live
birth.<SUP>27</SUP> However, there is substantial common law authority
that abortion was a crime at common law without regard to quickening
and without regard to the time of gestation. As the highest court in
Maryland stated in 1887, ``[A]s the life of an infant was not supposed
to begin until it stirred in the mother's womb [quickening], it was not
regarded as a criminal offense to commit an abortion in the early
stages of pregnancy. A considerable change in the law has taken place
in many jurisdictions by the silent and steady progress of judicial
opinion; and it has been frequently held by Courts of high character
that abortion is a crime at common law without regard to the stage of
gestation.'' <SUP>28</SUP>
---------------------------------------------------------------------------
\27\ 6 St. Louis Pub. L. Rev. at 285 & n.338. For a description of
the common law history of abortion, see Horan, Forsythe & Grant, 6 St.
Louis at 278-300; Robert Bryn, An American Tragedy: The Supreme Court
on Abortion, 41 Fordham L. Rev. 807 (1973); Robert Destro, Abortion and
the Constitution: The Need for a Life-Protective Amendment, 63 Cal. L.
Rev. 1250 (1975); Joseph Dellapenna, The History of Abortion:
Technology, Morality and Law, 40 U. Pitt. L. Rev. 359 (1979); Shelley
Gavigan, The Criminal Sanction as it Relates to Human Reproduction: The
Genesis of the Statutory Prohibition of Abortion, 5 J. Legal Hist. 20
(1984).
\28\ Lamb v. State, 10 A. 208, 208 (Md. Ct. App. 1887).
---------------------------------------------------------------------------
Prior to this Maryland decision, two of the most prestigious
criminal law scholars of the 19th century, Bishop and Wharton, also
criticized the quickening rule, concluding that abortion was a crime at
common law regardless of the stage of gestation.<SUP>29</SUP> Wharton's
discussion revealed the dynamic between medical evidence and increasing
protection for unborn human life:
---------------------------------------------------------------------------
\29\ Joel Prentiss Bishop, Bishop on Statutory Crimes sec. 744, at
447 (2d ed. 1883); Frances Wharton, American Criminal Law secs. 1220-
30, at 210-218 (6th rev. ed. 1868).
---------------------------------------------------------------------------
There is no doubt that at common law the destruction of an
infant unborn is a high misdemeanor, and at an early period it
seems to have been deemed murder. If the child dies
subsequently to birth from wounds received in the womb, it is
clearly homicide, even though the child is still attached to
the mother by the umbilical cord. It has been said that it is
not an indictable offense to administer a drug to a woman, and
thereby to procure an abortion, unless the mother is quick with
child, though such a distinction, it is submitted, is neither
in accordance with the result of medical experience, nor with
the principles of the common law. The civil rights of an infant
in ventre sa mere are equally respected at every stage of
gestation; and it is clear that no matter at how early a stage
he may be appointed executor, is capable of taking as a
legatee, or under a marriage settlement, may take specifically
under a general devise, as a ``child''; and may obtain an
injunction to stay waste . . . It appears, then, that
quickening is a mere circumstance in the physiological history
of the foetus, which indicates neither the commencement of a
new stage of existence, nor an advance from one stage to
another--that it is uncertain in its periods, sometimes coming
at three months, sometimes at five, sometimes not at all--and
that it is dependent so entirely upon foreign influences as to
make it a very incorrect index, and one on which no
practitioner can depend, of the progress of pregnancy. There is
as much vitality, in a physical point of view, on one side of
quickening as on the other, and in a social and moral point of
view, the infant is as much entitled to protection, and society
is as likely to be injured by its destruction, a week before it
quickens as a week afterwards.<SUP>30</SUP>
---------------------------------------------------------------------------
\30\ Wharton, supra note 28, at secs. 1220-1230 (cit. omit.).
---------------------------------------------------------------------------
Today, for obvious reasons, quickening ``provides only corroborative
evidence of pregnancy and itself is of little diagnostic value.''
<SUP>31</SUP>
---------------------------------------------------------------------------
\31\ J. Pritchard, P. MacDonald & N. Gant, Williams Obstetrics 218
(17th ed. 1985).
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C. The Evidentiary Meaning of the Born Alive Rule
The born alive rule was a rule of medical
jurisprudence.<SUP>32</SUP> It was an evidentiary rule, a bright-line
rule of evidence used to eliminate cases of uncertain evidence in the
killing of a child.<SUP>33</SUP> As a leading 19th century legal
authority described the purpose of the born alive rule:
---------------------------------------------------------------------------
\32\ See generally, Forsythe, Homicide of the Unborn Child: The
Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L. Rev. 563
(1987).
\33\ 21 Val. U.L. Rev. 563; 6 St. Louis Pub. L. Rev. at 285-88.
---------------------------------------------------------------------------
It is well known that in the course of nature, many children
come into the world dead, and that others die from various
causes soon after birth. In the latter, the signs of their
having lived are frequently indistinct. Hence, to provide
against the danger of erroneous accusations, the law humanely
presumes that every newborn child has been born dead, until the
contrary appears from medical or other evidence. The onus of
proof is thereby thrown on the prosecution; and no evidence
imputing murder can be received, unless it be made certain by
medical or other facts, that the child survived its birth and
was actually living when the violence was offered to
it.<SUP>34</SUP>
---------------------------------------------------------------------------
\34\ A. Taylor, Medical Jurisprudence 411 (7th ed. 1861).
---------------------------------------------------------------------------
It was generally recognized at common law that pre-viable children
could be born alive.<SUP>35</SUP> The medical purpose of the born alive
rule 400 years ago has been completely eliminated by modern medical
science and technology. It is outmoded, and its existence no longer
makes sense in the law.<SUP>36</SUP>
---------------------------------------------------------------------------
\35\ Forsythe, 21 Val. U.L. Rev. at 568 & n.28.
\36\ See Forsythe, 21 Val. U.L. Rev. 563.
---------------------------------------------------------------------------
The Supreme Court in Roe v. Wade misconstrued the born alive rule
and converted it from an evidentiary rule dependent on location (in or
out of the womb) into a gestational rule (fullterm). This is indicated
by the Court's statement that the rights of persons do not begin until
term birth, after the third trimester. <SUP>37</SUP>
---------------------------------------------------------------------------
\37\ 410 U.S. at 161-162, 163.
---------------------------------------------------------------------------
The evidentiary nature of the born alive rule is also seen in the
congruence between injury in the womb and death after birth outside the
womb. As a renowned 19th century commentator stated the rule: ``If a
person intending to procure abortion does an act which causes a child
to be born so much earlier than the nature time that it is born in a
state much less capable of living, and afterwards dies in consequence
of its exposure to the external world, the person who by her misconduct
so brings the child into the world, and puts it thereby into a
situation in which it cannot live, is guilty of murder.'' <SUP>38</SUP>
If the born alive rule was a gestational rule and a moral rule, both
the injury and death would have had to occur after birth. Russell's
explication shows both the evidentiary nature of the born alive rule
and the irrelevance of viability. Modern courts have increasingly
recognized this congruence.<SUP>39</SUP> This demonstrates that the
born alive rule recognized biological and existential continuity
between the unborn child (at any stage of gestation) and the born
child.
---------------------------------------------------------------------------
\38\ 2 Walter Russell, A Treatise on Crimes and Misdemeanors 671-72
(Garland Pub. reprint 1979) (1865).
\39\ State v. Cotton, 197 Ariz. 584, 5 P.3d 918, 922 (Ariz.App.
2000) (adopting rule that ``the death of an infant who is born alive
from injuries inflicted in utero constitutes homicide,'' citing United
v. Spencer, 839 F.2d 1341 (9th Cir. 1988); Ranger v. Georgia, 249 Ga.
315, 290 S.E.2d 63 (1982); Illinois v. Bolar, 109 Ill.App.3d 384, 440
N.E.2d 639 (1982); Williams v. Maryland, 316 Md. 677, 561 A.2d 216
(1989); New Jersey v. Anderson, 135 N.J.Super. 423, 343 A.2d 505
(1975), reversed on other grounds, 173 N.J.Super. 75, 413 A.2d 611
(1980); People v. Hall, 158 A.D.2d 69, 557 N.Y.S.2d 879 (1990); Cuellar
v. State, 957 S.W.2d 134 (Tex. Ct. App. 1997); Wisconsin v. Cornelius,
152 Wis.2d 272, 448 N.W.2d 434 (1989)).
---------------------------------------------------------------------------
What the common law demonstrates is that law and medicine had a
dynamic relationship with regard to the unborn child. As medical
knowledge of fetal development increased, legal protection increased.
The law considered the offspring of human parents to be a human being,
and the law considered the unborn child to be a human being whenever it
could be determined to be alive. Evidence of life--a living human
being--was what was important for legal protection, not personhood. The
modern debate about ``personhood'' began with the Supreme Court's
consideration of the 14th Amendment liberty clause (protecting
``persons'') in Roe v. Wade in 1973 and subsequent philosophical
discussions about Roe. The common law protected unborn human life to
the greatest extent possible given contemporary medical
knowledge.<SUP>40</SUP> The common law protection encompassed living
members of the human species.
---------------------------------------------------------------------------
\40\ Mark Scott, Quickening in the Common Law: The Legal Precedent
Roe Attempted and Failed to Use, 1 Mich. Law & Pol. Rev. 199, 261
(1996) (legal protection extended to ``a living member of the human
species''); Forsythe, 21 Val. U.L. Rev. at 265ff.
---------------------------------------------------------------------------
D. The Irrelevance of Viability
The common law placed significance on quickening and live birth.
Viability, was not a concern of the common law.<SUP>41</SUP> It played
no role in the development of the common law and its protection of the
unborn child.<SUP>42</SUP> A leading 19th century legal authority
confirmed this:
---------------------------------------------------------------------------
\41\ See Horan, Forsythe & Grant, 6 St. Louis at 281-82 n.306-311
(collecting authorities).
\42\ Forsythe, 21 Val. U.L. Rev. at 569 & n.33.
---------------------------------------------------------------------------
The English law does not act on the principle that a child,
in order to become the subject of a charge of murder, should be
born viable, i.e., with the capacity to live . . . The capacity
of a child continuing to live has never been put as a medical
question in a case of alleged child murder; and it is pretty
certain, that if a want of capacity to live were actually
proved, this would not render the party destroying it
irresponsible for the offense.<SUP>43</SUP>
---------------------------------------------------------------------------
\43\ A. Taylor, Medical Jurisprudence 413 (7th ed. 1861).
---------------------------------------------------------------------------
In American law, viability first began as a judicially-imposed
gloss on the law, with Oliver Wendell Holmes' 1884 opinion in Dietrich
v. Inhabitants of Northampton <SUP>44</SUP> for the Massachusetts
Supreme Judicial Court. Dietrich denied recovery for the death of a
child born alive but premature from a miscarriage and created a
viability requirement for civil recovery that had no basis in statute
or common law.<SUP>45</SUP>
---------------------------------------------------------------------------
\44\ 138 Mass. 14, 16 (1884).
\45\ See generally, Clarke D. Forsythe, The Legacy of Oliver
Wendell Holmes, 69 U. Det. Mercy L. Rev. 677, 685-89 (1992).
---------------------------------------------------------------------------
As the ``dean of torts,'' William Prosser made clear, some American
courts followed Dietrich for about 50 years, but with developing
medical knowledge in the 20th century and the 1946 decision in Bonbrest
v. Kotz, 65 F.Supp. 138 (D.D.C. 1946), Americans courts increasingly
rejected the viability rule until the Supreme Court's decision in 1973
in Roe v. Wade placed such great emphasis on viability. Relying on Roe,
some state courts limited legal protection for the unborn to viability.
More recently, other courts have recognized that Roe--and its emphasis
on viability--does not apply outside abortion law.
F. Modern Criminal and Tort Law Developments
1. Tort Law--Until modern scientific advances allowed greater
knowledge of human life in utero, abortion law was the primary--but not
exclusive--legal field for the protection of unborn human life. Until
nearly the 20th century, homicide and abortion law proceeded on two
different, evidentiary tracks based on location of the child--homicide
law applied to human beings outside the womb, abortion law applied to
human beings inside the womb.
Dean Prosser explained both the evidentiary reasons for the born
alive rule in tort law and the advancements in medical science that
eliminated its rationale:
When a pregnant woman is injured, and as a result the child
subsequently born suffers deformity or some other injury,
nearly all of the decisions prior to 1946 denied recovery to
the child. Two reasons usually were given: First, that the
defendant could owe no duty of conduct to a person who was not
in existence at the time of his action; and second, that the
difficulty of proving any causal connection between negligence
and damage was too great, and there was too much danger of
fictitious claims.
So far as duty is concerned, if existence at the time is
necessary, medical authority has recognized long since that the
child is in existence from the moment of conception, and for
many purposes its existence is recognized by the law . . . So
far as causation is concerned, there will certainly be cases in
which there are difficulties of proof, but they are no more
frequent, and the difficulties are no greater, than as to many
other medical problems. All writers who have discussed the
problem have joined in condemning the old rule, in maintaining
that the unborn child in the path of an automobile is as much a
person in the street as the mother, and in urging that recovery
should be allowed upon proper proof.<SUP>46</SUP>
---------------------------------------------------------------------------
\46\ William Prosser, Law of Torts 335-36 (4th ed. 1971) (emphasis
added); Prosser & Keeton on Torts 367-72 (5th ed. 1984); Prosser Wade &
Schwartz, Torts 421-36 (9th ed. 1994).
---------------------------------------------------------------------------
The Court in Roe cited Prosser to support its erroneous description
that courts had granted recovery for prenatal injuries only where the
fetus was viable or at least ``quick.'' <SUP>47</SUP> But Prosser
stated just the opposite, pointing out that, in fact, most states
permitted recovery for prenatal injuries regardless of the stage of
gestation in which the injuries are inflicted:
---------------------------------------------------------------------------
\47\ 410 U.S. at 161 162.
---------------------------------------------------------------------------
Most of the cases allowing recovery have involved a fetus
which was then viable . . . Many of them have said, by way of
dictum, that recovery must be limited to such cases, and two or
three have said that the child, if not viable, must at least be
``quick.'' But when actually faced with the issue for decision,
almost all of the jurisdictions have allowed recovery even
though the injury occurred during the early weeks of pregnancy,
when the child was neither viable nor quick.<SUP>48</SUP>
---------------------------------------------------------------------------
\48\ Prosser, Law of Torts, at 337 (4th ed. 1971) (emphasis added).
---------------------------------------------------------------------------
As Professor David Louisell summarized the law two years before Roe:
[T]he progress of the law in recognition of the fetus as a
human person has been strong and steady and roughly
proportional to the growth of knowledge of biology and
embryology. For centuries the law of property has recognized
the unborn as living persons and the criminal law, although
unevenly, has accorded them substantial protection. The law of
torts, because of biological misconceptions among judges and
practical difficulties of medical proof, was something of a
laggard, but since World War II there has been an explosive
recognition ``that the unborn child in the path of an
automobile is as much a person in the street as the mother.''
Judicial adknowledgment ``that the unborn child is entitled to
the law's protection'' has resulted in ordering blood
transfusion necessary to save his life, over the cogent
countervailing claims to the free exercise of religion. In a
word, the unborn child is a person to be protected in his
property rights and against negligence, and to be afforded the
reach of equity's affirmative arm for support and
sustenance.<SUP>49</SUP>
---------------------------------------------------------------------------
\49\ David W. Louisell, Biology, Law and Reason: Man as Self-
Creator, 16 Am. J. Juris. 1, 19-20 (1971).
---------------------------------------------------------------------------
Although abortion law was virtually abolished by the Supreme Court
in 1973, Roe did not touch assaults on the unborn child outside the
context of abortion. Roe may have stifled an ongoing process of
increasing state protection for unborn human life in the field of
criminal and tort law, <SUP>50</SUP> but that process has progressively
continued outside the immediate context of abortion despite
Roe.<SUP>51</SUP> The upshot of this progressive protection has been a
gradual abolition of the artificial born alive rule and a growth in
protection of the unborn child, even if stillborn, and without regard
to the stage of gestation.
---------------------------------------------------------------------------
\50\ Some courts concluded that Roe prevented protection of the
unborn child even outside the context of abortion. See e.g., Bopp &
Coleson, The Right to Abortion: Anomalous, Absolute, and Ripe for
Reversal, 3 B.Y.U. J. Pub. L. at 256-57 (citing cases). But that
erroneous understanding has been abandoned in recent years. See e.g.,
People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50 872 P.2d 591 (1994).
\51\ See e.g., People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50
872 P.2d 591 (1994); State v. Merrill, 450 N.W.2d 318 (Minn. 1990),
cert. denied sub. nom. Merrill v. Minnesota, 496 U.S. 931 (1990). For
various surveys of the current status of legal developments protecting
the unborn child in criminal and tort law, see Forsythe, 32 Val. U.L.
Rev. at 494-501; Bopp & Coleson, The Right to Abortion: Anomalous,
Absolute, and Ripe for Reversal, 3 B.Y.U. J. Pub. L. 247-261; Horan,
Forsythe & Grant, 6 St. Louis Pub. L. Rev. at 307-309.
---------------------------------------------------------------------------
In tort law today, virtually all states allow suits for prenatal
injuries for children later born alive. (Obviously, if the child is not
born alive, the suit would be for wrongful death.) Today, at least
thirty-six jurisdictions allow wrongful death actions for a stillborn
child, while a dwindling minority of eight to ten states reject the
cause of action.<SUP>52</SUP> A majority of state courts have expressly
or implicitly rejected viability as a limitation for liability for
nonfatal prenatal injuries.<SUP>53</SUP> As recently as 1993, the
Pennsylvania Supreme Court pointed out that ``no jurisdiction accepts
the . . . assertion that a child must be viable at the time of birth in
order to maintain an action in wrongful death'' (where the child is
born alive and dies thereafter).<SUP>54</SUP>
---------------------------------------------------------------------------
\52\ See generally, Sheldon R. Shapiro, Annotation, Right to
Maintain Action or to Recover Damages for Death of Unborn Child, 84
A.L.R.3d 411 (1978 & Supp. 1997).
\53\ Paul B. Linton, Planned Parenthood v. Casey: The Flight from
Reason in the Supreme Court, 13 St. Louis U. Pub. L. Rev. 15, 47-48
n.141 (1993) (citing 28 states).
\54\ Hudak v. Georgy, 634 A.2d 600, 602 (Pa. 1993).
---------------------------------------------------------------------------
2. Criminal Law--Progressive development has continued in criminal
law as well. At the time of Roe, several states treated the killing of
an unborn child as a homicide at some stage of gestation without regard
to live birth. The born alive rule, created as a bright line
evidentiary rule in a time of primitive medicine, became illogical when
medical science advanced to the point that the elements of homicide
could be reliably demonstrated even if the child died before birth
(stillborn). The born alive rule has been discarded by an increasing
number of states at some stage of gestation. Today, more than half of
the states treat the killing of an unborn human being as a form of
homicide, even though not born alive (stillborn), at some stage of
gestation. Eleven states, including Illinois and Minnesota, define (by
statute) the killing of an unborn child as a form of homicide,
regardless of the stage of pregnancy.<SUP>55</SUP> One state defines
(by statute) the killing of an unborn human being after eight to ten
weeks gestation as a form of homicide.<SUP>56</SUP> Eight states define
(by statute) the killing of an unborn child after quickening as a form
of homicide.<SUP>57</SUP> Five states define (by statute or caselaw)
the killing of an unborn human being after viability as a form of
homicide.<SUP>58</SUP> Constitutional challenges to statutes of this
type, include statutes applying throughout gestation, have been
rejected in several decisions.<SUP>59</SUP>
---------------------------------------------------------------------------
\55\ Ariz. Rev. Stat. 13-1103(A)(5) (West 1989 & Supp. 1995); Ill.
Comp. Stat. ch. 720, 5/9-1.2, 5/9-2.1, 5/9-3.2 (1994); Ind. Code Ann.
35-42-1-6 (Burns 1994) (feticide); La. Rev. Stat. Ann. tit. 14, 32.5-
32.8 (read in conjunction with tit. 14, 2(11) (West 1996 Supp.); Minn.
Stat. Ann. 609.266, 209.2661-609.2665, 609.268(1) (1987 & Supp. 1996);
Mo. Rev. Stat. 1.205, 565.024 (Vernon 1996 Supp.)(see State v. Knapp,
843 S.W.2d 345 (Mo. 1992); N.D. Cent. Code 12.1-17.1-01 to 12.1-17-04
(1995 Supp.); Ohio Sub. Senate Bill No. 239 (1996); PA Senate Bill No.
45 (1997); S.D Cod. Laws Ann 22-17-6 (1988); 22-16-1, 22-16-1.1, 22-16-
4, 22-16-15, 22-16-20, 22-16-41, read in conjunction with 22-1-2(31),
22-1-2(50A) (1996 Supp.); Utah Code Ann. 76-5-201 (1995). Prosecutions
under the Illinois law, without regard to time of gestation, are
common. See e.g., Steven J. Stark, ``Boyfriend, 21, is charged in
pregnant teen's slaying,'' Chicago Tribune, Sunday, March 8, 1998, sec.
4, p. 3, col. 5 (defendant charged with ``intentional homicide of an
unborn child'').
\56\ Cal. Pen Code 187(a) (1988). See People v. Davis, 7 Cal.4th
797, 30 Cal.Rptr.2d 50, 872 P.2d 591 (1994).
\57\ Fla. Stat. Ann. 782.09 (West 1992); Ga. Code Ann. 16-5-80, 40-
6-393.1 (Harrison 1994), 52-7-12.3 (Harrison 1996 Supp.); Mich. Comp.
Laws Ann. 750.322 (West 1991)(limited by judicial decision to
viability, Larkin v. Cahalan, 389 Mich. 533, 208 N.W.2d 176 (1973);
Miss. Code Ann. 97-3-37 (1994); Nev. Rev. Stat. 200.210 (1995); Okla.
Stat. Ann. tit. 21, 713 (West 1983); Wash. Rev. Code Ann.
9A.32.060(1)(b) (1988); Wis. Rev. Stat. 940.04(2)(a) (West 1996).
\58\ Iowa Code Ann. 707.7 (West 1993) (as amended by H.F. 2109
(1996)); Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984),
Commonwealth v. Lawrence, 404 Mass. 378, 536 N.E.2d 571 (1989); State
v. Horne, 282 S.C. 444, 319 S.E.2d 7093 (1984); Tenn. Code Ann. 39-13-
201 (Michie 1991 & Supp. 1995); R.I. Gen. Laws 11-23-5 (Michie 1994).
\59\ People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50, 872 P.2d
591 (1994); Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994);
Brinkley v. State, 253 Ga. 541, 322 S.E.2d 49 (1984); Smith v. Newsome,
815 F.2d 1386 (11th Cir. 1987); People v. Ford, 221 Ill.App.3d 354, 581
N.E.2d 1189 (1991); People v. Campos, 227 IllApp.3d 434, 592 N.E.2d 83
(1992); People v. Shum, 117 Ill.2d 317, 512 N.E.2d 1183 (1987), cert.
denied sub nom. Shurn v. Illinois, 484 U.S. 1079 (1988); State v.
Merrill, 450 N.W.2d 318 (Minn. 1990), cert. denied, 496 U.S 931 (1990);
State v. Bauer, 471 N.W.2d 363 (Minn.App. 1991); State v. Knapp, 843
S.W.2d 345 (Mo. 1992); State v. Black, 188 Wis.2d 639, 526 N.W.2d 132
(1994).
---------------------------------------------------------------------------
As medical science has developed, and the cause of the death of the
unborn human being is more easily determined, the born alive rule has
come under increasing criticism and has been increasingly rendered
meaningless. It is important to remember that even under the
application of the born alive rule, the killing of an early developing,
human being was still counted as a homicide if the assault on the
mother resulted in a miscarriage that produced expulsion from the womb
and death after that expulsion, at any stage of development. In the
course of things, the unborn human being might not survive the initial
assault or the miscarriage, but if it did, it did not matter to the law
of homicide how premature the human being was, as long as it survived
expulsion from the womb and was observed outside.
By eliminating the born alive rule in the 20th century, state
homicide law has abandoned the arbitrary matter of location (outside or
inside) because location no longer matters to medical determination.
This has allowed the law to focus on the cause of death at any stage of
development, without regard to location. As a result, cases like the
Merrill case in Minnesota have followed.<SUP>60</SUP> Merrill involved
a double homicide, when a man killed his estranged girlfriend when she
was pregnant with a 28-day-old embryonic human being, who died in the
womb. The assailant was charged with a double homicide and that
indictment was upheld on appeal. Many similar cases involving previable
unborn human beings have arisen in Illinois, another state with a
similar law that has abandoned the born alive rule without establishing
arbitrary gestational limitations.
---------------------------------------------------------------------------
\60\ State v. Merrill, 450 N.W.2d 318 (Minn. 1990), cert. denied,
496 U.S 931 (1990).
---------------------------------------------------------------------------
In California, because of the supreme court's May, 1994 decision in
People v. Davis <SUP>61</SUP> a charge of homicide can be brought for
the killing of an unborn human being at any time after 8-10 weeks
gestation. The court arrived at this result from a strict, biological
reading of the legislative term, ``fetus,'' even though the term
``fetus'' is commonly used to denote a developing human being at any
stage of development.<SUP>62</SUP>
---------------------------------------------------------------------------
\61\ People v. Davis, 7 Cal. 4th 797, Cal. Rptr. 2d 50, 872 P. 2d
591 (1994).
\62\ See e.g., J.M. Tanner, Fetus into Man: Physical Growth from
Conception to Maturity (Harvard University Press 1978) (where
conception and fertilization are properly treated as equivalent, and
``true foetal age'' is counted as beginning with fertilization (p.38-
39)).
---------------------------------------------------------------------------
These developments in homicide law continue. Recently, Indiana
became the 26th state to treat the killing of an unborn human being as
a homicide at some stage of gestation when it enacted a law, over the
Governor's 1997 veto, to treat the killing of a unborn child as a
homicide, whether born alive or not.<SUP>63</SUP> Because the
publicized incidents that gave rise to the legislation involved the
shooting of a pregnant woman carrying a presumably viable child, the
legislation contained a viability limitation. In addition, Michigan
enacted legislation to protect the unborn child (``embryo'' and
``fetus'') at all stages of gestation. Legal protection of the unborn
human being throughout gestation is a dynamic process that continues.
Outside the context of abortion, there is a remarkable legal and
legislative consensus across at least thirty-eight states that the life
of a human being is considered to begin at fertilization
(conception).<SUP>64</SUP>
---------------------------------------------------------------------------
\63\ Indiana House Bill 1160.
\64\ Paul Linton, 13 St. Louis U. Pub. L. Rev. at 120 (Appendix B,
collecting legislation and caselaw from 38 states).
---------------------------------------------------------------------------
II. THE LIMITS OF ROE V. WADE AND ITS PROGENY
A. The Limits of the Supreme Court Privacy Cases Before Roe
Whether human cloning is a constitutional right involves an
application of, as Michael McConnell has phrased it, ``the most
fundamental question of modern constitutional theory: when, and under
what conditions, may courts invalidate duly enacted state or federal
laws on the basis of unenumerated constitutional rights?''
<SUP>65</SUP> The Supreme Court's 1973 decision in Roe v. Wade has
spawned 25 years of litigation, legislation, scholarship, cultural
change, and public discussion concerning sexual reproduction and the
scope of a constitutional right to sexual reproduction. Proponents of a
expansive right to sexual reproduction have given it various names and
descriptions, among them ``procreative liberty,'' ``a right of the
couple to reproduce,'' ``a right to form a family.'' Professor John A.
Robertson, one of the foremost advocates of a broad ``procreative
liberty,'' claims that ``reproductive freedom'' has traditionally been
a right taken for granted. Of course, this begs a definition of
``reproductive freedom.'' ``Procreative freedom'' is too broad a
description of what the Supreme Court has actually held to be
constitutionally protected from popular, democratically-approved limits
and constraints.
---------------------------------------------------------------------------
\65\ Amicus Brief for Senator Orrin Hatch et al. at 1, Vacco v.
Quill, 117 S.Ct. 2293 (1997) (No. 95-1858), 1996 WL 657755. See also
Michael W. McConnell, The Right to Die and the Jurisprudence of
Tradition, 1997 Utah L. Rev. 665 (1997).
---------------------------------------------------------------------------
The Supreme Court's substantive due process decisions of the
twentieth century do not support a broad right to ``procreative
liberty'' that encompasses using technology for non-coital, asexual
reproduction like cloning. Prince v. Massachusetts <SUP>66</SUP>
involved traditional family relationships. Two other cases relating to
parenting rights are deeply based in the common law: Meyer v. Nebraska
<SUP>67</SUP> dealt with the education of children, and Pierce v.
Society of Sisters <SUP>68</SUP> concerned the decision of parents to
send their child to a private school. Skinner v. Oklahoma <SUP>69</SUP>
dealt with liberty against coerced sterilization of ``habitual
criminals,'' a negative liberty that could be based in deeply-rooted,
common law principles involving battery and informed consent. Loving v.
Virginia <SUP>70</SUP> dealt with marriage, a union deeply based in
Anglo-American law. Eisenstadt v. Baird <SUP>71</SUP> involved the use
of contraceptives and emphasized their use by individuals, not married
couples.
---------------------------------------------------------------------------
\66\ 321 U.S. 158 (1944).
\67\ 262 U.S. 390 (1923).
\68\ 268 U.S. 510 (1925).
\69\ 316 U.S. 535 (1942).
\70\ 388 U.S. 1 (1967).
\71\ 405 U.S. 438 (1972).
---------------------------------------------------------------------------
In sum, it may be said that Skinner (a case sometimes referred to
as involving ``procreation'' broadly <SUP>72</SUP>) is to cloning as
Cruzan v. Director, Missouri Dept. of Health <SUP>73</SUP> is to
assisted suicide. Both Skinner and Cruzan involved negative liberties
of refusing treatment that are based in concepts of battery and
informed consent; they did not involve positive liberties to an
activity or power. In this regard, it diminishes the strength of a
``right'' to cloning that cloning does not alleviate infertility, but
rather circumvents it, and that cloning cannot be said to be
therapeutic.
---------------------------------------------------------------------------
\72\ See e.g., Justice Stewart's reference to Skinner as involving
``procreation'' in a footnote in Harris v. McRae, 448 U.S. at 312 n.18.
\73\ 497 U.S. 261 (1990).
---------------------------------------------------------------------------
The substantive due process cases that preceded Roe in the area of
family law and reproduction are distinquishable in a number of
ways.<SUP>74</SUP> First and foremost, with the exception perhaps of
Eisenstadt v. Baird, the rights recognized there have historical
antecedents deeply rooted in American law and were explicitly
recognized as such.<SUP>75</SUP> It is also important to point out that
Justice Harlan's opinion in Poe v. Ullman was limited to marital use of
contraception. (Justice Souter's concurrence in Washington v.
Glucksberg ignores the limitations of Poe, enormously expands its
implications and thereby seriously distorts Harlan's
opinion.<SUP>76</SUP>) Nothing in the substantive due process cases
preceding Roe provides any basis for a right to non-coital, asexual
reproduction.<SUP>77</SUP>
---------------------------------------------------------------------------
\74\ Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v.
Nebraska, 262 U.S. 390 (1923); Skinner v. Oklahoma, 316 U.S. 535
(1942); Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v.
Baird, 405 U.S. 438 (1972).
\75\ Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (``to enjoy those
privileges long recognized at common law as essential to the orderly
pursuit of happiness by free men''); Pierce v. Society of Sisters, 268
U.S. 510, 534-35 (1925) (``the liberty of parents and guardians to
direct the upbringing and education of children under their control'',
``engaged in a kind of undertaking . . . long regarded as useful and
meritorious''); Moore v. City of East Cleveland, 431 U.S. 494, 503-04
(1977) (``the Constitution protects the sanctity of the family
precisely because the institution of the family is deeply rooted in
this Nation's history and tradition'').
\76\ Michael W. McConnell, The Right to Die and the Jurisprudence
of Tradition, 1997 Utah L. Rev. 665 (1997).
\77\ See also Marc Lappe, Four reasons to step back from cloning,
Chicago Tribune, March 8, 2001, sec. 1, p. 21 (``No one has an
inalienable right to reproduce, much less perpetuate her own genetic
makeup, no matter how unique.''); Lori Andrews, 11 Harv. J.L. & Tech.
643, 666 (1998) (quote); George Annas, Human Cloning: A Choice or an
Echo?, 23 U. Dayton L. Rev. 247, 254 (1998) (``Asexual cloning by
nuclear substitution represents such a discontinuity in the way humans
reproduce . . . This discontinuity means that although the
constitutional right not to reproduce would seem to apply with equal
force to a right not to replicate, to the extent that there is a
constitutional right to reproduce if one is able, no existing liberty
doctrine would extend this right to replication by cloning.''); George
Annas, Human Cloning: Should the United States Legislate Against It?,
A.B.A.J. at 80 (May 1997) (``Cloning is replication, not reproduction,
and represents a difference in kind, not in degree, in the way humans
continue the species.).
---------------------------------------------------------------------------
Professor Robertson's vision of parenthood is the ``wish to
replicate themselves, transmit genes, gestate, and rear children
biologically related to them.'' <SUP>78</SUP> Robertson posits a right
to ``produce a child for rearing that is genetically or gestationally
related to one or both partners.'' <SUP>79</SUP> Entailed in such a
right would be ``discretion to create, freeze, donate, transfer and
discard embryos, because these maneuvers are necessary to overcome
coital infertility.'' He argues for ``the right of persons to use
technology in pursuing their reproductive goals'' <SUP>80</SUP> and for
``presumptive moral and legal protection for reproductive technologies
that expand procreative options.'' <SUP>81</SUP> But Robertson's
argument is declaratory and conclusory, not reasoned: ``If the moral
right to reproduce presumptively protects coital reproduction, then it
should protect noncoital reproduction as well.'' <SUP>82</SUP>
---------------------------------------------------------------------------
\78\ John A. Robertson, Children of Choice: Freedom and the New
Reproductive Technologies 32 (1994).
\79\ 28 Jurimetrics Journal 285, 292 (1988).
\80\ John A. Robertson, Children of Choice at 42.
\81\ John A. Robertson, Children of Choice at 220.
\82\ Id. at 32.
---------------------------------------------------------------------------
Quite clearly, a constitutional right to cloning cannot be
logically derived from the two sets of two sets of substantive due
process cases that Professor Robertson posits as a basis for a right to
non-coital reproduction.<SUP>83</SUP> The first line of cases involves
contraception and abortion, both of which involve a person's physical
integrity against a physical imposition by a third-party and a right to
avoid procreation. These involve a right not to procreate, as Robertson
points out. From these, Robertson states that a positive right to
procreate by non-coital techniques exists, but without any reasoning:
``This well-established right [not to procreate] implies the freedom
not to exercise it and, hence, the freedom to procreate.'' The right to
use contraception, as developed by American courts, may well assume a
right not to use contraception, but this leads only to coital
reproduction, nothing more.
---------------------------------------------------------------------------
\83\ Robertson, 69 VA L. Rev. at 415.
---------------------------------------------------------------------------
The second line of cases involves rearing children, or the
``assignment of rearing rights,'' in Robertson's words, from which he
infers ``a right to bring children into the world.'' Parental rights,
however, are deeply rooted in American law and tradition and the common
law, involving relationships between living parents and living
children. There are several limitations on these rights that do not
imply any right to non-coital, asexual reproduction. First, the
parental relationship is founded in duty, not ownership. Second, these
rights presume the existence of children from coital reproduction and
nothing more. Third, parental rights are limited by the interests of
the children, and while Roe establishes a right to end the life of a
child conceived but not yet born, it says nothing about ending the life
of children conceived in vitro. Roe involves a right to be free of the
physical burden of pregnancy.
Hence, nothing in Supreme Court case law jumps the gap between
coital and non-coital reproduction--to say nothing of the gap from
sexual to asexual reproduction--and the reliance of the cases involving
coital reproduction on physical integrity cannot be extended to the
extracorporeal use of germ cells to achieve in vitro fertilization.
Finally, it is apparent in Robertson's construction of his procreative
liberty that the essence of this parental right is the exertion of
parental will and desire, a notion of ownership, the imposition of
personal will, a conditional love or care. It is exactly this notion
that characterized the complete autonomy of the Roman father and was
repudiated by the common law.
B. The Limits of Roe's Right to ``Terminate Pregnancy''
Roe v. Wade, properly understood on its own terms, dealt with a
right to ``terminate pregnancy'' and nothing more.<SUP>84</SUP> It was
entirely based on the physical impact of pregnancy on a woman and her
desire to rid herself of the pregnancy.<SUP>85</SUP> To use Professor
Robertson's words, Roe involved ``the physical burdens of bearing and
giving birth.'' <SUP>86</SUP> As the Court noted in Harris v. McRae,
``the Court in Wade emphasized the fact that the woman's decision
carries with it significant personal health implications--both physical
and psychological.'' <SUP>87</SUP> Roe created a negative right to
terminate a pregnancy without social (governmental) limits; it did not
establish a positive liberty to procreation or a positive liberty in
non-coital reproduction. Roe created a right to avoid procreation, not
a right to procreate. This characterization was reaffirmed in Carey v.
Populations Services International, <SUP>88</SUP> and Planned
Parenthood v. Casey.<SUP>89</SUP> The central discussion of
``terminating pregnancy'' in Casey is concluded by a reference to
``these considerations of the nature of the abortion right . . .''
<SUP>90</SUP> Likewise, when the Court in Eisenstadt v. Baird refers to
``the decision whether to bear or beget a child,'' <SUP>91</SUP> it was
understood to refer to the literal physical burden of
pregnancy.<SUP>92</SUP> ``Terminating pregnancy'' is the concept of the
Roe liberty held by Justice Blackmun himself.<SUP>93</SUP>
---------------------------------------------------------------------------
\84\ See 410 U.S. at 170 (Stewart, concurring) (``the right of a
woman to decide whether or not to terminate her pregnancy'').
\85\ Roe, 410 U.S. at 150 (discussing the risk to the woman, state
has interest in protecting the woman's own health and safety; 153
(detailing ``detriment'' to pregnant woman by ``denying this choice''),
162 (``the rights of the pregnant woman at stake''). See also Casey,
112 S.Ct. at 2807 (``The mother who carries a child to full term is
subject to anxieties, to physical constraints, to pain that only she
must bear''), 2816 (``the urgent claims of the woman to retain the
ultimate control over her destiny and her body'').
\86\ Robertson, 69 VA L. Rev. at 416.
\87\ 448 U.S. at 316.
\88\ 431 U.S. 678, 688 (1977) (``an individual's right to decide to
prevent conception or terminate pregnancy . . .'').
\89\ 112 S.Ct. at 2804 (``the legitimate authority of the State
respecting the termination of pregnancies by abortion procedures''),
Id. (referring to ``essential holding'' of Roe as including ``right of
the woman to choose to have an abortion''), 2806 (``the profound moral
and spiritual implications of terminating a pregnancy''), 2807 (``the
woman's interest in terminating her pregnancy''), 2810 (describing Roe
as ``a rule . . . of personal autonomy and bodily integrity''), 2816
(``freedom to terminate her pregnancy''), 2816 (``the right of the
woman to terminate her pregnancy''), 2816 (``the woman's liberty to
determine whether to carry her pregnancy to full term''), 2816 (``a
right to choose to terminate her pregnancy''), 2817 (``[t]he woman's
right to terminate her pregnancy''), 2818 (``a right to choose to
terminate or continue her pregnancy''), 2820 (``the right to decide
whether to terminate a pregnancy'').
\90\ 112 S.Ct. at 2819.
\91\ 405 U.S. 438, 453 (1972).
\92\ See Casey, 112 S.Ct. at 2819 (quoting passage from
Eisenstadt).
\93\ See e.g., Casey, 112 S.Ct. at 2486-87 (``a woman's right to
terminate her pregnancy'') (``continue pregnancies they might otherwise
terminate'') (``the right to terminate pregnnacies'').
---------------------------------------------------------------------------
Under the regime of Roe v. Wade, it is enough that legislation
intervenes to protect human beings--the traditional function of the
criminal law and homicide law. It is not necessary that the human
beings be ``persons'' within the meaning of the 14th Amendment.
Legislation does not need any other justification, if the exercise of
legislative authority does not interfere with woman's right to
abortion. The states can protect any extracorporeal human being under
the homicide code. Protecting that extracorporeal embryo or human being
does not interfere with the Court's limited abortion right. The right
to ``procreative liberty'' is a negative right and does not extend to
power over extracorporeal embryos or human beings.
The limits of Roe are seen as well in the abortion-funding line of
cases. In Maher v. Roe,<SUP>94</SUP> the Court held that ``the right
protects the woman from unduly burdensome interference with her freedom
to decide whether to terminate her pregnancy.'' <SUP>95</SUP> In Harris
v. McRae,<SUP>96</SUP> the Supreme Court again referred, more than
once, to the Roe liberty as ``the freedom of a woman to decide whether
to terminate a pregnancy.'' <SUP>97</SUP> The funding cases demonstrate
that the states may ``make a value judgment favoring childbirth over
abortion'' and ``implement that judgment'' by the use of public
funding.
---------------------------------------------------------------------------
\94\ 432 U.S. 464, 473-74 (1977) (``the right protects the woman
from unduly burdensome interference with her freedom to decide whether
to terminate her pregnancy'').
\95\ 432 U.S. at 473-74.
\96\ 448 U.S. 297 (1980).
\97\ 448 U.S. at 312. See also Id. at 316 (``the freedom of a woman
to decide whether to terminate her pregnancy'') (three times on the
same page).
---------------------------------------------------------------------------
The Roe abortion liberty is also severely limited by the fact that
it expressly and forcefully excludes men, even married men, from any
right whatsoever in the abortion decision. The father of ``the
developing child'' (as Casey used the phrase <SUP>98</SUP>), even the
woman's husband, has no right to consent (Danforth) or even notice
(Casey). Many efforts by men to intervene in and stop abortions have
been summarily rejected by the courts.<SUP>99</SUP> Men have no legal
right to be involved in abortion decisionmaking. Formally, the decision
is the woman's. Roe saw the decisionmaking as between the woman and her
doctor only, <SUP>100</SUP> and, as the plurality stated in Casey,
``what is at stake is the woman's right to make the ultimate
decision.'' <SUP>101</SUP> The plurality in Casey went on, at great
length, describing the total exclusion of the father or spouse from
decisionmaking.<SUP>102</SUP> Legal commentators rejecting legal
regulation of in vitro fertilization are inclined to wax eloquent over
the involvement of ``couples'' in ``decisions about whether and when to
bear children'' but fathers (and spouses) are strictly and absolutely
excluded from the Roe framework and abortion decision
making.<SUP>103</SUP>
---------------------------------------------------------------------------
\98\ 112 S.Ct. at 2817.
\99\ See e.g., Conn v. Conn, 525 N.E.2d 612 (Ind. Ct. App), aff'd,
526 N.E.2d 958 (Ind.), cert. denied, 488 U.S. 955 (1988); Smith v. Doe,
530 N.E.2d 331 (Ind. Ct. App. 1988), cert. denied, 492 U.S. 919 (1989).
\100\ 410 U.S. at 156.
\101\ 112 S.Ct. at 2821.
\102\ 112 S.Ct. at 2826-31.
\103\ See e.g., Lori Andrews, The Legal Status of the Embryo, 32
Loyola L. Rev. 357, 359 (1986).
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The limits of Roe are fairly admitted even by proponents of a broad
right of non-coital procreation. Thus, such a familiar advocate as John
Robertson states:
In the United States, the right to avoid reproduction by
contraception and abortion is now firmly established. Whether
single or married, adult or minor, a woman has a right to
terminate pregnancy up to viability <SUP>104</SUP> and both men
and women have the right to obtain and use contraceptives. The
right to procreate--to bear, beget and rear children--has
received less explicit legal recognition . . . [N]o cases (with
the possible exception of Skinner v. Oklahoma) turn on the
recognition of such a right. However, dicta in cases ranging
from Meyer v. Nebraska to Eisenstadt v. Baird clearly show a
strong presumption in favor of marital decisions to found a
family . . . What then about married couples who cannot
reproduce coitally? . . . The values and interests that
undergird the right to coital reproduction clearly exist with
the coitally infertile. Their interest in bearing, begetting or
parenting offspring is as worthy of respect as that of the
coitally fertile. It follows that restrictions on noncoital
reproduction by an infertile married couple should be subject
to the same rigorous scrutiny to which restrictions on coital
reproduction would be subject.<SUP>105</SUP>
---------------------------------------------------------------------------
\104\ This misrepresents the scope of the Roe-Casey liberty. Roe
did not limit the abortion liberty to viability. Instead, with the
companion decision of Doe v. Bolton, 410 U.S. 179 (1973), Roe
established a right to a ``health'' abortion throughout pregnancy
(defined as ``all factors--physical, emotional, psychological,
familial, and the woman's age--relevant to the well-being of the
patient. All these factors may relate to health''). Id. at 192. Several
federal courts have given such a broad reading to the ``health''
exception after viability. See e.g., Women's Med. Prof. Corp. v.
Voinovich, 130 F.3d 187 (6th Cir. 1997), cert. denied, 118 S.Ct. 1347
(1998) (Thomas, J., dissenting from the denial of certiorari); American
College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283,
298-99 (3d Cir. 1984), aff'd, 476 U.S. 747 (1986); Margaret S. v.
Edwards, 488 F.Supp. 181 (E.D. La. 1980); Schulte v. Douglas, 567
F.Supp. 522 (D.Neb. 1981), aff'd per curiam, sub nom. Women's Servs.,
P.C. v. Douglas, 710 F.2d 465 (8th Cir. 1983). The breadth of this
``health'' exception after viability was not altered in the Casey
decision. Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992)
(reaffirming ``State's power to restrict abortion after fetal
viability, if the law contains exceptions for pregnancies which
endanger a woman's life or health''), Id. at 878 (reaffirming Roe's
holding ``that subsequent to viability, the State . . . may . . .
regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or
health of the mother.''), Id. at 871 (``when the fetus is viable,
prohibitions are permitted provided the life or health of the mother is
not at stake'').
\105\ John A. Robertson, Decisional Authority over Embryos and
Control of IVF Technology, 28 Jurimetrics J. 285, 290 (1988).
---------------------------------------------------------------------------
Again, Robertson has noted the limits to Roe elsewhere, referring to
``a woman's decision not to conceive or bear a child.''
Even though the Court has eliminated most of the legal
limitations on the right to avoid pregnancy, the freedom not to
procreate is still circumscribed by a number of restrictions.
One such restriction derives from the negative nature of
constitutional protections, which shield individuals from state
interference with their liberty but do not guarantee them the
means to exercise those rights.<SUP>106</SUP>
---------------------------------------------------------------------------
\106\ Robertson, Procreative Liberty and the Control of Conception,
Pregnancy, and Childbirth, 69 VA L. Rev. 405, 405 n.3 (1983).
---------------------------------------------------------------------------
In sum, as one scholar has phrased it, ``to characterize some or all of
the cases on which the Court relies in reaffirming Roe [in Casey] as
standing for an abstract right to 'personal autonomy' simply creates an
artificial common denominator among a very disparate and largely
unrelated group of cases while at the same time denying what makes
abortion unique.'' <SUP>107</SUP>
---------------------------------------------------------------------------
\107\ Linton, 13 St. Louis U. Pub. L. Rev. at 31.
---------------------------------------------------------------------------
The issue, though, is not coital versus noncoital as much as
corporeal versus extracorporeal reproduction (occurring outside the
living body). The negative liberty that has been recognized by the
Supreme Court is grounded in personal physical integrity, and the Court
has on several occasions explicitly disavowed a right to use one's body
in whatever way desired.<SUP>108</SUP> The ``values and interests'' of
the ``coitally infertile'' may be conceded, but it does not follow that
these may be pursued by whatever means or ``techniques'' possible. Some
techniques may be legitimate, while others are wholly illegitimate. And
it does not follow that any of the techniques are necessarily of a
constitutional dimension that overrides other social and ethical
judgments made by society through the democratic process. Still less is
it clear that the judiciary is empowered to override the authority and
decisions of society through the democratic process.
---------------------------------------------------------------------------
\108\ Roe, 410 U.S. at 154 (``it is not clear to us that the claim
asserted by some amici that one has an unlimited right to do with one's
body as one pleases bears a close relationship to the right of privacy
previously articulated in the Court's decisions''); Jacobson v.
Massachusetts, 197 U.S. 11 (1905) (vaccination).
---------------------------------------------------------------------------
Robertson's analysis begs all of these questions by focusing on one
consideration to the exclusion of all others. Richard McCormick has
mounted an insightful critique of Robertson's utilitarian approach to
the status of the human embryo and ethical defense of human cloning by
blastomere separation (despite McCormick's use of the term ``pre-
embryo'' and his general agreement that a human embryo is not a
person).<SUP>109</SUP> In McCormick's words, Robertson's defense is
``breathtaking in the speed with which it subordinates every
consideration to its [cloning by blastomere separation] usefulness in
overcoming infertility. [Robertson's] thesis can be summarized as
follows: if it aids otherwise infertile couples to have children, it is
ethically acceptable . . . anything that is useful for overcoming
infertility is ethically acceptable.'' <SUP>110</SUP> McCormick points
out that Robertson is trying to create a consensus, not protect an
existing one.
---------------------------------------------------------------------------
\109\ Cf. Robertson, The Question of Human Cloning, 24 Hastings
Center Report No. 2 at 6 (1994), with McCormick's response, Richard A.
McCormick, Blastomere Separation: Some Concerns, 24 Hastings Center
Report No. 2 at 14 (1994).
\110\ McCormick, supra note 82, at 14.
---------------------------------------------------------------------------
The limits of Roe are apparent, as well, from the Joint Opinion in
Casey, where the plurality of Justices O'Connor, Kennedy and Souter
shifted the basic rationale of the abortion liberty from privacy to the
sociological grounds of abortion as a backup for failed contraception
and the ``reliance interests'' of Americans.<SUP>111</SUP> The Joint
Opinion again put the emphasis on terminating pregnancy, a backup to
contraception, not a positive liberty to ``procreate'' by any means,
much less a liberty in extracorporeal reproduction.
---------------------------------------------------------------------------
\111\ 112 S.Ct. at 2809 (``for two decades of economic and social
developments, people have organized intimate relationships and made
choices that define themselves and their places in society, in reliance
on the availability of abortion in the event that contraception should
fail'').
---------------------------------------------------------------------------
It may be said that American law establishes a privacy interest in
marital coital reproduction. But even this is limited to marriage. The
precedents leading to Roe fairly establish this. Harlan's specific
emphasis in Poe v. Ullman was that the state statute in question
criminalized marital use of contraception.<SUP>112</SUP> While there
may be a right to the use of contraceptives, even by minors, there is
still no established liberty in premarital or extramarital sexual
relations.<SUP>113</SUP>
---------------------------------------------------------------------------
\112\ 367 U.S. 497, 554-55 (Harlan, J., dissenting from dismissal
on jurisdictional grounds). See also Griswold v. Connecticut, 381 U.S.
479, 499 (Harlan, J., concurring in the judgment).
\113\ Indeed, in Eisenstadt v. Baird, the Court implicitly
acknowledged the state's authority to prohibit ``extramarital and
premarital sexual relations.'' 405 U.S. at 448. And Eisenstadt was
based on the Equal Protection Clause, not the Due Process Clause.
Likewise, Carey v. Population Services Inter'l, 431 U.S. 678 (1977),
decided after Roe, did not create a right to premarital or extramarital
sexual activity. 431 U.S. at 688 n.5, 694 & n.17. See also Id. at 702
(White, J., concurring in part and concurring in the judgment), Id. at
713 (Stevens, J., concurring in part and concurring in the judgment).
---------------------------------------------------------------------------
Roe itself identified abortion as unique and ``inherently different
from marital intimacy, or bedroom possession of obscene material, or
marriage, or procreation, or education, with which Eisenstadt and
Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were
respectively concerned.'' <SUP>114</SUP> The courts have not gone
beyond Roe's formulation since 1973. As Casey demonstrates, Roe and
abortion have both been treated as ``sui generis.'' <SUP>115</SUP> In
fact, the Casey plurality frankly stated that ``abortion is a unique
act.'' <SUP>116</SUP>
---------------------------------------------------------------------------
\114\ 410 U.S. at 159.
\115\ 112 S.Ct. at 2810.
\116\ Id. at 2807 (``the liberty of the woman is at stake in a
sense unique to the human condition and so unique in the law'').
---------------------------------------------------------------------------
No court has held that there is a constitutional right to in vitro
fertilization. Two lower federal courts have struck down fetal
experimentation statutes, but on vagueness grounds alone, while a third
has upheld a fetal experimentation statute.<SUP>117</SUP>
---------------------------------------------------------------------------
\117\ Lifchez v. Hartigan, 735 F.Supp. 1361 (N.D.Ill.), aff'd, 914
F.2d 260 (7th Cir. 1990), cert. denied, 498 U.S. 1069 (1991); Margaret
S. v. Edwards, 794 F.2d 994 (5th Cir. 1986); Jane L. v. Bangerter, 794
F.Supp. 1537 (D. Utah 1992).
---------------------------------------------------------------------------
The broader formulation of a positive liberty in ``procreation'' by
various scholars is based on contemporary moral philosophy, rather than
caselaw, or legal or constitutional history. Some would ground the
procreative liberty and its scope on the subjectivity of the ``choice''
rather than physical integrity. For example, John Robertson has written
that ``[t]he personal importance of a decision or activity, rather than
its secrecy from the gaze of others, determines its status as part of
protected privacy (or liberty, to be more precise.).'' <SUP>118</SUP>
The Supreme Court expressly rejected such a formulation in Washington
v. Glucksberg.
---------------------------------------------------------------------------
\118\ Robertson, 28 Jurimetrics J. at n.16.
---------------------------------------------------------------------------
C. Differentiating Cruzan, Vacco, Glucksberg
Proponents of an unlimited procreative autonomy have relied on the
expansive language of autonomy in Planned Parenthood v.
Casey,<SUP>119</SUP> sometimes called the ``mystery'' passage. There,
the plurality opinion stated: ``At the heart of liberty is the right to
define one's own concept of existence, of meaning, of the universe, and
of the mystery of human life. Beliefs about these matters could not
define the attributes of personhood were they formed under compulsion
of the State.'' <SUP>120</SUP> But it was aptly argued by scholars that
this passage must be considered within the context of the plurality's
entire opinion and its emphasis on stare decisis.<SUP>121</SUP> Within
that context, the passage should be most accurately understood as
rhetorical and not as prescriptive of any specific rights.
---------------------------------------------------------------------------
\119\ 505 U.S. 833 (1992).
\120\ 505 U.S. at 851.
\121\ See e.g., Yale Kamisar, Against Assisted Suicide--Even a Very
Limited Form, 72 U. Det. Mercy L. Rev. 735, 765-68 (1995); Richard S.
Myers, An Analysis of the Constitutionality of Laws Banning Assisted
Suicide from the Perspective of Catholic Moral Teaching, 72 U. Det.
Mercy L. Rev. 771, 777-78 (1995).
---------------------------------------------------------------------------
The scope of Casey was demonstrated to be narrow in the Supreme
Court's landmark decision in Washington v. Glucksberg,<SUP>122</SUP>
where the Court held that the Due Process Clause does not protect any
right to assisted suicide. First, the Court in Glucksberg specified the
two strict requirements of substantive due process. The Due Process
Clause protects ``those fundamental rights and liberties which are,
objectively, `deeply rooted in this Nation's history and tradition'
[cit. omit.] and `implicit in the concept of ordered liberty,' such
that `neither liberty nor justice would exist if they were sacrificed.'
'' And a ``careful description'' of ``the asserted fundamental liberty
interest'' is required.<SUP>123</SUP> It must first be established that
an asserted interest is fundamental so as to ``avoid[] the need for
complex balancing of interests in every case.'' <SUP>124</SUP>
---------------------------------------------------------------------------
\122\ 117 S.Ct. 2258 (1997).
\123\ 117 S.Ct. at 2268.
\124\ Id. at 2268.
---------------------------------------------------------------------------
Second, the Court specifically emphasized the limited nature of the
passage from Casey. Referring to this passage, the Court stated:
By choosing this language, the Court's opinion in Casey
described, in a general way and in light of our prior cases,
those personal activities and decisions that this Court has
identified as so deeply rooted in our history and traditions,
or so fundamental to our concept of constitutionally ordered
liberty, that they are protected by the Fourteenth Amendment.
The opinion moved from the recognition that liberty necessarily
includes freedom of conscience and belief about ultimate
considerations to the observation that `though the abortion
decision may originate within the zone of conscience and
belief, it is more than a philosophic exercise.' [cit. omit.]
That many of the rights and liberties protected by the Due
Process Clause sound in personal autonomy does not warrant the
sweeping conclusion that any and all important, intimate, and
personal decisions are so protected [cit. omit.], and Casey did
not suggest otherwise.<SUP>125</SUP>
---------------------------------------------------------------------------
\125\ 117 S.Ct. at 2271.
---------------------------------------------------------------------------
Two of the three Justices who joined the Casey plurality opinion joined
this opinion in Glucksberg (O'Connor and Kennedy).
The Court in Glucksberg also reaffirmed the limits of Cruzan v.
Director, Missouri Dept of Health.<SUP>126</SUP> The right recognized
by the Supreme Court in Cruzan was a right to ``refuse unwanted medical
treatment,'' not a ``right to treatment'' and not a ``right to die.''
<SUP>127</SUP> The right is properly seen as a right to refuse medical
treatment, based in bodily integrity and the common law doctrine of
informed consent, and not a right to ``bodily expression.'' As the
Court stated in Glucksberg, ``[t]he right assumed in Cruzan . . . was
not simply deduced from abstract concepts of personal autonomy. Given
the common-law rule that forced medication |