Regulating eugenics

Harvard Law Review

Volumn 121, Issue 6, 2008, Pages 1578-1599

[No Author Info available]

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; BIOETHICS; CIVIL RIGHTS; CONTRACEPTION; ETHICS; GENETIC ENGINEERING; GENETIC ENHANCEMENT; GOVERNMENT; HISTORY; HUMAN; INFERTILITY THERAPY; JURISPRUDENCE; LEGAL ASPECT; MEDICAL ETHICS; MEDICAL GENETICS; PERSONAL AUTONOMY; POLICY; UNITED STATES;

BIOETHICAL ISSUES; CIVIL RIGHTS; ETHICS, MEDICAL; EUGENICS; GENETIC ENGINEERING; GENETIC ENHANCEMENT; HISTORY, 19TH CENTURY; HISTORY, 20TH CENTURY; HISTORY, 21ST CENTURY; HUMANS; PERSONAL AUTONOMY; PUBLIC POLICY; REPRODUCTIVE TECHNIQUES, ASSISTED; STATE GOVERNMENT; STERILIZATION, INVOLUNTARY; SUPREME COURT DECISIONS; UNITED STATES;

EID: 43749108580     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (201)

1. See, e.g., KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 557 (15 th ed. 2004).
2. See, e.g., Albert Gore, Jr. & Steve Owens, The Challenge of Biotechnology, 3 YALE L. & POL'Y REV. 336, 338 (1985).
3. See, e.g., NICHOLAS AGAR, LIBERAL EUGENICS: IN DEFENCE OF HUMAN ENHANCEMENT (2004);
4. ALLEN BUCHANAN ET AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE (2000);
5. RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 427-52 (2000).
6. For a more precise formulation of what liberal eugenics entails, see Part II, pp. 1582-86.
7. Compare the sources cited in note 3 with JÜRGEN HABERMAS, THE FUTURE OF HUMAN NATURE (William Rehg et al. trans., 2003) (arguing against liberal eugenics),
8. and MICHAEL J. SANDEL, THE CASE AGAINST PERFECTION: ETHICS IN THE AGE OF GENETIC ENGINEERING (2007) (same).
9. Rare efforts to analyze the legal questions surrounding liberal eugenics include John B. Attanasio, The Constitutionality of Regulating Human Genetic Engineering: Where Procreative Liberty and Equal Opportunity Collide, 53 U. CHI. L. REV. 1274 (1986);
10. and Cass R. Sunstein, Is There a Constitutional Right To Clone?, 53 HASTINGS L.J. 987 (2002).
11. While the cases emphasizing substantive due process do pay some attention to public safety concerns and vice versa, see B. Jessie Hill, The Constitutional Right To Make Treatment Decisions: A Tale of Two Doctrines, 86 TEX. L. REV. 277, 295 (2007),
12. the Supreme Court has consistently placed heavy emphasis in a given case on one or the other, see id., essentially deciding the case by categorization. This Note refers to these doctrines as the "substantive due process doctrine" and the "police power doctrine" for ease of reference.
13. By "regulation," this Note refers both to laws that restrict and to laws that promote eugenics practices.
14. FRANCIS GALTON, INQUIRIES INTO HUMAN FACULTY AND ITS DEVELOPMENT 24 n.1 (New York, MacMillan 1883). Though the word "eugenics" was coined in 1883, the concept of eugenics is far more venerable.
15. See, e.g., 5 PLATO, THE REPUBLIC 459d-460c.
16. See BUCHANAN ET AL., supra note 3, at 40. This fear is alive and well today.
17. See, e.g., IDIOCRACY (Twentieth Century Fox 2006).
18. See NICOLE H. RAFTER, WHITE TRASH: THE EUGENIC FAMILY STUDIES 1877-1919, at 12-17 (1988).
19. See BUCHANAN ET AL., supra note 3, at 31.
20. ROBERT W. RYDELL, WORLD OF FAIRS: THE CENTURY-OF-PROGRESS EXPOSITIONS 53 (1993).
21. SANDEL, supra note 5, at 64.
22. DANIEL J. KEVLES, IN THE NAME OF EUGENICS 90 (1995).
23. SANDEL, supra note 5, at 65;
24. James B. O'Hara & T. Howland Sanks, Comment, Eugenic Sterilization, 45 GEO. L.J. 20, 34 (1956).
25. MODEL EUGENICAL STERILIZATION LAW (1922), reprinted in HARRY HAMILTON LAUGHLIN, EUGENICAL STERILIZATION IN THE UNITED STATES 445, 445-52 (1922).
26. SANDEL, supra note 5, at 66, 68.
27. E.g., Davis v. Berry, 216 F. 413, 419 (S.D. Iowa 1914) (invalidating compulsory sterilization statute as a bill of attainder);
28. Haynes v. Lapeer, 166 N.W. 938, 941 (Mich. 1918) (invalidating compulsory sterilization statute as violating equal protection);
29. Smith v. Bd. of Exam'rs of Feeble-Minded, 88 A. 963, 966-67 (N.J. 1913) (same);
30. Osborn v. Thomson, 169 N.Y.S. 638, 645 (Sup. Ct. 1918) (same),
31. aff'd, 171 N.Y.S. 1094 (App. Div. 1918);
32. In re Hendrickson, 123 P.2d 322, 325, 327 (Wash. 1942) (en banc) (invalidating compulsory sterilization statute as violating procedural due process).
33. 274 U.S. 200 (1927).
34. Id. at 205.
35. The Virginia statute was modeled on the MODEL EUGENICAL STERILIZATION LAW. Paul Lombardo, Eugenic Sterilization Laws, http://www.eugenicsarchive.org/html/ eugenics/essay8text.html (last visited March 8, 2008).
36. Buck clearly presented this issue to the Court. See Brief for Plaintiff in Error at 9-11, Buck, 274 U.S. 200 (No. 292),
37. reprinted in 25 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 491, 500-02 (Philip B. Kurland & Gerhard Casper eds., 1975).
38. Buck, 274 U.S. at 207.
39. Pub. L. No. 139, 68 Stat. 153.
40. See id. § 11.
41. See id. § 13(c);
42. JOHN B. TREVOR, AN ANALYSIS OF THE AMERICAN IMMIGRATION ACT OF 1924, at 19 (1924);
43. Letter from M. Hanihara, Japanese Amb. to the United States, to Charles E. Hughes, Sec'y of State (May 31, 1924), in TREVOR, supra, at 64, 65.
44. STEPHEN JAY GOULD, THE MISMEASURE OF MAN 187, 261-62 (rev. ed. 1996);
45. see also Paul A. Lombardo, Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia, 21 U.C. DAVIS L. REV. 421, 423 (1988).
46. For example, Senator Ellison DuRant Smith had this to say about the Immigration Act of 1924: I would like for the Members of the Senate to read that book just recently published by Madison Grant, The Passing of a Great Race. Thank God we have in America perhaps the largest percentage of any country in the world of the pure, unadulterated Anglo-Saxon stock; certainly the greatest of any nation in the Nordic breed. It is for the preservation of that splendid stock that has characterized us that I would make this not an asylum for the oppressed of all countries, but a country to assimilate and perfect that splendid type of manhood that has made America the foremost Nation in her progress and in her power .... 65 CONG. REC 5960, 5961 (1924);
47. see also GOULD, supra note 27, at 262.
48. See BUCHANAN ET AL., supra note 3, at 44-45;
49. Nancy Ehrenreich, The Colonization of the Womb, 43 DUKE L.J. 492, 515 (1993) ("African-American women, along with Latina (especially Puerto Rican) and Native American women, were subjected to forced sterilization in appalling numbers up through the 1970s, a practice that continues in 'milder' forms today." (footnotes omitted)).
50. This term includes everything from selective mating to genetic engineering.
51. This requirement, in addition to ensuring that eugenic interventions enhance the child's autonomy, also ensures that the expected benefits of an intervention outweigh its risks, because an intervention that is more likely to harm the child than to benefit her cannot reasonably be calculated to promote her autonomy.
52. See JOHN RAWLS, A THEORY OF JUSTICE 92 (rev. ed. 1999).
53. Id.
54. DWORKIN, supra note 3, at 448.
55. Id. at 449.
56. Id. at 452.
57. BUCHANAN ET AL., supra note 3, at 302.
58. Id. at 160.
59. See id. at 170 (advocating a child's "right to an open future" (internal quotation marks omitted)).
60. Id. at 168. Improved memory is one example of such an enhancement.
61. Id.
62. See id. at 96.
63. Id. at 181-82.
64. Id. at 278.
65. AGAR, supra note 3, at vi.
66. Id. at 5-6.
67. Id. at 99.
68. Id. at 113.
69. Id. at 104.
70. This condition is similar to Professors Buchanan, Brock, Daniels, and Wikler's dictum that a child has a right to an open future. See supra note 39.
71. AGAR, supra note 3, at 159-60.
72. Id. at 162.
73. Id. at 163.
74. HABERMAS, supra note 5, at 40-42.
75. See id. at 54-55.
76. Id. at 66.
77. See SANDEL, supra note 5, at 82-83.
78. See id. at 45. Professor Sandel calls this capacity "openness to the unbidden."
79. Id.
80. Id. at 87.
81. Id.
82. See id. at 89-92.
83. See id. at 96.
84. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 920-21 (2000);
85. Carey v. Population Servs. Int'l, 431 U.S. 678 (1977);
86. Griswold v. Connecticut, 381 U.S. 479 (1965);
87. Skinner v. Oklahoma, 316 U.S. 535 (1942).
88. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992);
89. see also Griswold, 381 U.S. at 485-86.
90. To reiterate an earlier point, "regulations" in this Note refers to both restrictions on the practice of eugenics as well as affirmative mandates to practice it. The analysis in this Part does not address regulations incidental to eugenics, like those setting standards for sanitary conditions where eugenic abortions are performed or requiring genetic counselors to have certain credentials. Of course, there may well be regulations ostensibly incidental to the practice of eugenics that nonetheless would prove fatal to the practice of liberal eugenics. Assuming a substantive due process right to practice liberal eugenics exists, such regulations would be unconstitutional if they constituted an undue burden on the exercise of the right to engage in liberal eugenic techniques. Cf. Casey, 505 U.S. at 874 (discussing such regulations in the context of abortion).
91. Lawrence v. Texas, 539 U.S. 558, 574 (2003)
92. (citing Casey, 505 U.S. at 851).
93. Casey, 505 U.S. at 846.
94. John A. Robertson, Genetic Selection of Offspring Characteristics, 76 B.U. L. REV. 421, 427 (1996).
95. See id. The right to utilize genetic screening is a negative right -the state has no obligation to fund or otherwise make available such screening.
96. Id. at 427 n.26.
97. E.g., Webster v. Reprod. Health Servs., 492 U.S. 490, 523 (1989) (O'Connor, J., concurring);
98. Note, Assessing the Viability of a Substantive Due Process Right to In Vitro Fertilization, 118 HARV. L. REV. 2792, 2793 (2005).
99. Lifchez v. Hartigan, 735 F. Supp. 1361, 1376-77 (N.D. 111. 1990).
100. 521 U.S. 702 (1997).
101. Id. at 720-21 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)) (internal quotation marks omitted).
102. Id. at 721.
103. See id. at 720.
104. Maher v. Roe, 432 U.S. 464, 472 n.7 (1977)
105. (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
106. Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925);
107. accord Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
108. Robertson, supra note 66, at 424 n.12
109. (deriving such a right from Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972)).
110. Glucksberg, 521 U.S. at 720
111. (citing Griswold v. Connecticut, 381 U.S. 479 (1965)).
112. Roe v. Wade, 410 U.S. 113, 152-53 (1973) (citations omitted);
113. see Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) ("[F]reedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.");
114. Stanley v. Illinois, 405 U.S. 645, 651 (1972) ("The rights to conceive and to raise one's children have been deemed essential, basic civil rights of man, and rights far more precious than property rights." (alterations omitted) (citations omitted) (internal quotation marks omitted)).
115. See Griswold, 381 U.S. at 485-86 (holding that the right to use contraceptives is protected by substantive due process);
116. see also Lifchez v. Hartigan, 735 F. Supp. 1361, 1376-77 (N.D. Ill. 1990) (holding that the reproductive freedom granted by Roe v. Wade includes the right to use experimental procreative technologies). This right to use new procreative technologies can also be inferred from other Supreme Court precedent.
117. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court held that "[i]f the right of privacy means anything, it is the right of the individual ... to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
118. Id. at 453 (emphasis removed). That decision may well hinge on access to reproductive technologies, such as in vitro fertilization, caesarean sections, amniocentesis, and oral contraceptives. And when that is the case, the Court has found a substantive due process right to employ reproductive technologies.
119. See Griswold, 381 U.S. at 485-86;
120. see also Webster v. Reprod. Health Servs., 492 U.S. 490, 523 (1989) (O'Connor, J., concurring) (implying that prohibiting the use of in vitro fertilization would be unconstitutional);
121. Maker, 432 U.S. at 472 n.7 ("[T]he right of procreation without state interference has long been recognized as 'one of the basic civil rights of man ....'"
122. (quoting Skinner, 316 U.S. at 541));
123. cf. J.R. v. Utah, 261 F. Supp. 2d 1268, 1298 (D. Utah 2003) (holding unconstitutional a Utah statute that prevented the genetic parents of a child born to a surrogate mother from being recognized as the child's legal parents).
124. See Laurence H. Tribe, Reflections on Unenumerated Rights, 9 U. PA. J. CONST. L. 483, 489-90 (2007) (describing prophylactic rights as "rights recognized (or, in truth, boldly posited) . . . to prevent the 'specific rights' expressly identified and enumerated in constitutional texts from becoming 'less secure'"). Furthermore, the Court wrote of the right to control one's children's upbringing in broad terms.
125. Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" that Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1934-35 (2004) ("[Meyer and Pierce's] language bespoke the authority of parents to make basic choices directing the upbringing of their children. Those judicial decisions did not describe what they were protecting merely as the personal activities of sending one's child to a religious school (Pierce v. Society of Sisters) or a private military academy (Pierce v. Hill Military Academy) or of hiring a teacher to educate one's child in the German language (Meyer)." (footnotes omitted)).
126. See Eisenstadt, 405 U.S. at 453;
127. see also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 34 n.76 (1973)
128. ("[T]he right of procreation is among the rights of personal privacy protected under the Constitution." (citing Roe, 410 U.S. at 152)).
129. 539 U.S. 558 (2003).
130. See id. at 578-79 ("Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.");
131. Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 96 (2003) ("[Lawrence] simply shatters, with all the heartfelt urgency of deep conviction, the paralyzing carapace in which Glucksberg had sought to encase substantive due process.").
132. Post, supra note 83, at 96;
133. see also Randy E. Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 2002-2003 CATO SUP. CT. REV. 21, 36 (noting that Lawrence employed "a presumption of liberty that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow fundamental") (internal quotation marks omitted).
134. Lawrence, 539 U.S. at 577-78
135. (citing Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
136. See, e.g., Buck v. Bell, 274 U.S. 200 (1927) (upholding compulsory eugenic sterilization statute).
137. This result accords with the account of Professors Buchanan, Brock, Daniels, and Wikler, which disdains biotechnological solutions to social problems like racism. See BUCHANAN ET AL., supra note 3, at 83-84, 283-84.
138. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-43 (1968).
139. Of course, if this is true, why could Congress not mandate that the children of black parents be genetically engineered to be white? That mandate, by eradicating race, would substantially lessen if not totally eradicate the badges and incidents of slavery. Of course, this possibility is deeply disturbing. See infra Part V, pp. 1595-99.
140. Cf. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2797 (2007) (Kennedy, J., concurring in part and concurring in the judgment) ("A compelling interest exists in avoiding racial isolation .... The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds.");
141. Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (finding a substantial state interest in promoting cross-racial understanding and breaking down racial stereotypes, and holding that these interests, coupled with other educational benefits, allowed a narrowly tailored affirmative action program to survive strict scrutiny).
142. See Craig v. Boren, 429 U.S. 190, 197 (1976).
143. See, e.g., Attanasio, supra note 6, at 1342.
144. Poelker v. Doe, 432 U.S. 519 (1977);
145. Maher v. Roe, 432 U.S. 464 (1977);
146. Beal v. Doe, 432 U.S. 438 (1977).
147. Harris v. McRae, 448 U.S. 297 (1980).
148. Id.
149. See id. at 316.
150. Robertson, supra note 66, at 424 n.12.
151. See Harris, 448 U.S. at 316 ("[A] woman's interest in protecting her health was an important theme in [Roe v.] Wade.");
152. cf. Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (forbidding postviability regulation of abortion when "it is necessary ... for the preservation of the life or health of the mother"
153. (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992)) (internal quotation marks omitted)).
154. Roe v. Wade, 410 U.S. 113, 158 (1973).
155. Washington v. Glucksberg, 521 U.S. 702, 720 (1997)
156. (citing Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278-79 (1990)).
157. See Casey, 505 U.S. at 877-78.
158. Similarly, the state could likely tout the dangers and disadvantages if it wished to oppose eugenics.
159. To genetically screen or engineer a naturally conceived embryo, a DNA sample would have to be taken from the embryo, requiring some sort of penetration of the woman's body. Further-more, there is substantial psychic invasiveness in forcing a woman to confront her child's genotype.
160. A law requiring genetic screening would resemble laws that require a woman to view a sonogram of her fetus before aborting it. The trouble with sonogram requirements is that some women are unable to abort after seeing a sonogram, see Neela Banerjee, Church Groups Turn to Sonogram To Turn Women from Abortions, N.Y. TIMES, Feb. 2, 2005, at AI, which arguably makes sonogram requirements substantial (and hence unconstitutional) burdens. The only court to have addressed such a statute struck it down, but the decision predated Casey.
161. See Margaret S. v. Treen, 597 F. Supp. 636, 650 (E.D. La. 1984),
162. aff'd sub nom. Margaret S. v. Edwards, 794 F.2d 994 (5th Cir. 1986).
163. 197 U.S. 11 (1905).
164. Id. at 36.
165. See id. at 38.
166. Id. at 27-31.
167. See Gonzales v. Carhart, 127 S. Ct. 1610, 1636 (2007) ("The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.").
168. Recall Buck v. Bell, 274 U.S. 200, 207 (1927), in which the Supreme Court upheld eugenic sterilization laws by analogy to Jacobson. Nearly a century ago, the New Jersey Supreme Court realized that allowing the state to use its police powers to pursue eugenic ends allowed power without limit.
169. See Smith v. Bd. of Exam'rs of Feeble-Minded, 88 A. 963, 966 (N.J. 1913) ("If the enforced sterility of [the feeble-minded and epileptics] be a legitimate exercise of governmental power, a wide field of legislative activity and duty is thrown open to which it would be difficult to assign a legal limit.").
170. Buck theoretically remains good law. See Vaughn v. Ruoff, 253 F.3d 1124, 1129 (8th Cir. 2001).
171. O'Connor v. Donaldson, 422 U.S. 563, 583 (1975).
172. Id.
173. E.g., Kelley v. Johnson, 425 U.S. 238, 247-48 (1976)
174. (upholding a state's regulation of police officer hair length because the state's police power trumped the officers' Fourteenth Amendment liberty interests); Compagnie Française de Navigation à Vapeur v. La. State Bd. of Health, 186 U.S. 380, 393 (1902) (dismissing a Fourteenth Amendment challenge to a state quarantine law).
175. Current research suggests this may be the case. See Essi Viding & Uta Frith, Genes for Susceptibility to Violence Lurk in the Brain, 103 PROC. NAT'L ACAD. SCI. 6085, 6085 (2006), available at http://www.pnas.org/cgi/reprint/103/16 (discussing research on the monoamine oxidase A gene).
176. Professors Buchanan, Brock, Daniels, and Wikler suggest the answer is "yes." BUCHANAN ET AL., supra note 3, at 173.
177. If the state has an interest in protecting merely potential human life from harm, see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992), then a fortiori it has an interest in protecting life that is slated to be born from harm.
178. See, e.g., Wilkins v. Ferguson, 928 A.2d 655, 667 (D.C. 2007) (noting, in a dispute over the visitation rights of an abusive father, that "the court must act as parens patriae in the child's interest, and must not expose her to serious risk of harm"
179. (quoting In re S.L.E., 677 A.2d 514, 519 (D.C. 1996) (alteration omitted))).
180. See Prince v. Massachusetts, 321 U.S. 158, 169-70 (1944) (upholding a child labor law against a free exercise challenge).
181. The Child Abuse Prevention and Treatment Act, codified as amended at 42 U.S.C. §§ 5101-5116i (2000), defines "child abuse and neglect" as "at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm."
182. Id. § 5106g(2). Thirty-six states define abuse to include "acts or circumstances that threaten the child with harm or create a substantial risk of harm to the child's health or welfare."
183. CHILD WELFARE INFO. GATEWAY, U.S. DEP'T OF HEALTH AND HUMAN SERVS., DEFINITIONS OF CHILD ABUSE AND NEGLECT SUMMARY OF STATE LAWS 2 (2007), available at www.childwelfare.gov/systemwideAaws_policies/statutes/define.pdf;
184. see also BUCHANAN ET AL., supra note 3, at 240-41 (arguing that the greater the risk of the child being born with a serious genetic defect, the greater the moral wrong in not testing for and correcting that defect).
185. State standards vary, but the typical statute allows for termination of parental rights when the parent seriously injures the child by conduct or neglect; some statutes allow for termination of parental rights for exposing the child to a substantial risk of harm. See CHILD WELFARE INFO. GATEWAY, U.S. DEP'T OF HEALTH AND HUMAN SERVS., GROUNDS FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS: SUMMARY OF STATE LAWS 5-54 (2004), available at www.childwelfare.gov/systemwide/laws_policies/statutes/groundtermin.pdf.
186. See SANDEL, supra note 5, at 96.
187. A variety of paternalistic laws are widely accepted, from seat belt laws to compulsory education laws, but there is admittedly heightened concern when the state seeks to make a paternalistic decision regarding a very personal subject, such as childbearing. Still, this is not a problem with eugenics as such, but rather with invasive paternalism.
188. Singapore experimented with this approach in an attempt to boost national IQ. It offered university graduates tax breaks for having children, while giving poor and uneducated women $5,000 toward buying an apartment if they agreed to be sterilized. See Sharon M. Lee et al., Fertility Decline and Pronatalist Policy in Singapore, 17 INT'L FAM. PLAN. PERSP. 65, 67 (1991).
189. See HABERMAS, supra note 5, at 40-41;
190. see also AGAR, supra note 3, at 132.
191. ALDOUS HUXLEY, BRAVE NEW WORLD (1932).
192. Cf. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 319 (1987) (noting the difficulty in establishing a state's discriminatory intent with respect to racial discrimination).
193. For example, a private Aryan supremacy group advocating for Aryan-Aryan marriages would be permissible under this analysis.
194. See supra Part I, pp. 1579-82.
195. Steven Pinker, Why Nature & Nurture Won't Go Away, DÆDALUS, Fall 2004, at 5, 14-15.
196. But see BUCHANAN ET AL., supra note 3, at 160.
197. The standard liberal argument for the social necessity of education is the instruction of values that underpin liberal society, such as autonomy and justice. See, e.g., RAWLS, supra note 32, at 450-52;
198. see also 2 PLATO, THE REPUBLIC 376c-376d (agreeing that education is strongly related to basic social values like justice and implying that proper education is required to create a just society).
199. Cf. Engel v. Vitale, 370 U.S. 421 (1962) (holding compelled prayer in public schools unconstitutional).
200. RAWLS, supra note 32, at 266.
201. OLIVER WENDELL HOLMES, JR., THE COMMON LAW I (Transaction Publishers 2005) (1881). There is delicious irony in deploying Holmes, the legal thinker, against Justice Holmes, the author of Buck v. Bell.