Assessing the constitutionality of reproductive technologies regulation: A bioethical approach

Hastings Law Journal

Volumn 61, Issue 4, 2010, Pages 997-1034

  Grant, Elyse Whitney ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77952400677     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (255)

1. Amy Harmon, Genetic Testing + Abortion =, N.Y. TIMES, May 13,2007, §4. at 1.
2. Kirstin M. Finning & Lyn S. Chitty, Non-Invasive Fetal Sex Determination: Impact on Clinical Practice, 13 SEMINARS FETAL & NEONATAL MED. 69, 69-70 (2008).
3. 2 and MCIR May Influence Human Pigmentation Phenotype, 73 ANNALS HUM. GENETICS 160,164-165 (2009).
4. Id. at 164.
5. Id. at 165.
6. Ulla Sovio et al., Genetic Determinants of Height Growth Assessed Longitudinally from Infancy to Adulthood in the Northern Finland Birth Cohort 1966, PLoS GENETICS, Mar. 2009, at 1, 2.
7. Per Guldberg et al., Phenylalanine Hydroxylase Gene Mutations in the United States: Report from the Maternal PKU Collaborative Study, 59 AM. J. HUM. GENETICS 84, 88-89 (1996). People with phenylketonuria lack the enzyme necessary to metabolize phenylalanine. Id. at 84. Accumulation of phenylalanine can lead to mental retardation and brain damage.
8. Id.
9. M. Sagi et al., Preimplantation Genetic Diagnosis for BRCA1/2 - A Novel Clinical Experience, 29 PRENATAL DIAGNOSIS 508, 508-512 (2009).
10. Michael M. Kaback, Population-Based Genetic Screening for Reproductive Counseling: The Tay-Sachs Disease Model, 159 EUR. J. PEDIATRICS S192, S192-93 (2000).
11. Carolyn S. Richards & Wayne W. Grody, Prenatal Screening for Cystic Fibrosis: Past, Present, and Future, 4 EXPERT REV. MOLECULAR DIAGNOSTICS 49,50 (2004).
12. 550 U.S. 124, 157-58 (2007). Despite prior jurisprudence that disallowed pre-viability regulation of abortion procedures,
13. see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 870 (1992) (plurality opinion), the Supreme Court in Gonzales held that previability regulation of intact dilation and extraction abortion procedures was permissible because the procedure "implicates additional ethical and moral concerns that justify a special prohibition."
14. 505 U.S. at 158. In other words, the Supreme Court recognized "morality" as a justification for governmental regulation of access to a certain previability abortion procedure. Interpreted broadly, the Gonzales decision epitomized the tug-of-war between government regulation of, and respect for, reproductive rights. This tug-of-war has been carried over from the abortion context into the area of reproductive technologies. Parents could thus selectively discard embryos or abort fetuses with genetic makeups not to their liking.
15. See, e.g., June Carbone, If I Say "Yes" to Regulation Today, Will You Still Respect Me in the Morning?, 76 GEO. WASH. L. REV. 1747, 1749 (2008) ("[T]he issue becomes the role of regulation in setting appropriate norms that are accepted by the public rather than imposed from above.");
16. Marsha Garrison, Regulating Reproduction, 76 GEO. WASH. L. REV. 1623, 1625 (2008)
17. ("[S]ome [assisted reproductive technology] regulation is both constitutionally permissible and desirable.");
18. Jaime King, Predicting Probability: Regulating the Future of Preimplantation Genetic Screening, 8 YALE J. HEALTH POL'Y L. & ETHICS 283, 323 (2008) ("The government should put in the political infrastructure to balance the potential benefits to parents of unrestricted use against the probability and severity of the risks associated with [preimplantation genetic screening]."). Indeed, state legislatures have already begun to react to the availability of these technologies. For example, the Oklahoma House of Representatives recently approved a measure prohibiting sex-selective abortions.
19. See Dale Wetzel, North Dakota House Gives Fertilized Egg Full Rights, HUFFINGTON POST, Feb. 18, 2009, http://www.huffingtonpost.com/2009/02/18/north- dakota-house-gives-n-167884.html
20. See Roe v. Wade, 410 U.S. 113,153 (1973).
21. Casey, 505 U.S. at 851.
22. See Gonzales v. Carhart, 550 U.S. 124,146 (2007) (quoting Casey, 505 U.S. at 879 (plurality opinion), for the proposition that the State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy").
23. 505 U.S. at 872 (plurality opinion).
24. Id. at 874 ("Only where state regulation imposes an undue burden on a woman's ability to make this decision [to have an abortion] does the power of the State reach into the heart of the liberty protected by the Due Process Cause."). Impliedly, state-enacted obstacles to the exercise of this right are constitutional so long as they do not unduly burden the exercise of a woman's right to obtain an abortion.
25. Id. at 877.
26. 18 U.S.C. § 1531 (2006). In promulgating the Act, Congress found that "a partial-birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed and is outside the standard of medical care."
27. PartialBirth Abortion Ban Act, Pub. L. No.108-105, § 2(5), 117 Stat. 1201, 1202 (2003).
28. Congress further explained, (K) Thus, by aborting a child in the manner that purposefully seeks to kill the child after he or she has begun the process of birth, partial-birth abortion undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world, in order to destroy a partially-born child. (L) The gruesome and inhumane nature of the partial-birth abortion procedure and its disturbing similarity to the killing of a newborn infant promotes a complete disregard for infant human life that can only be countered by a prohibition of the procedure. Id. § 2(14)(K)-(L). 117 Stat at 1205-1206
29. See Gonzales, 550 U.S. at 157-158
30. Id. at 158.
31. See id. at 181-182 (Ginsburg, J., dissenting) (discussing other procedures).
32. Sonia M. Suter, The "Repugnance" Lens of Gonzales v. Carhart and Other Theories of Reproductive Rights: Evaluating Advanced Reproductive Technologies, 76 GEO. WASH. L. REV. 1514, 1519 (2008).
33. See Gonzales, 550 U.S. at 157-158 (discussing the State's interest in protecting society against moral "coarsen[ing]"); see also infra note 27.
34. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850 (1992) ("Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision.");
35. Roe v. Wade, 410 U.S. 113,116 (1972) ("Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.").
36. Casey, 505 U.S. at 860 (discussing Roe, 410 U.S. 113).
37. See Suter, supra note 23, at 1519,1580-83. Suter explains, What Kennedy wants to legitimate as a justification for abortion regulations has more to do with "moral concerns" and protecting the sensibilities of the community. Kennedy fails to acknowledge he has introduced an entirely new justification for prohibiting certain abortion procedures, one that Casey and Roe neither discussed nor legitimized. ... Indeed, given the ultimately unpersuasive grounds for upholding an abortion ban with no health exception, Gonzales suggests that such repugnance can be sufficient justification for limiting abortion rights. Id. at 1580-1581,1583 (footnote omitted).
38. Although preimplantation genetic screening provides information about in vitro embryos while prenatal genetic testing provides information about in utero fetuses, I deal with these technologies largely in the same manner. Selective discard of an embryo and selective abortion of a fetus differ procedurally and ethically; however, they remain similar in terms of the ultimate decision each involves. Both procedures implicate a parental choice of whether to have a particular child, and both preimplantation genetic screening and prenatal genetic testing provide the information necessary to make that decision. See Garrison, supra note 12, at 1639 ("[T]he regulatory issues posed by sex selection are not unique to ART [assisted reproductive technology, such as preimplantation genetic diagnosis]; regulation that restricts trait determination in ART thus should logically apply to the abortion context as well---[S]ex selection through abortion and sex selection through [preimplantation genetic diagnosis] pose the same public concerns---"). Thus, the broad procreative liberty right discussed in this Note encompasses access to genetic information about both embryos and fetuses.
39. See TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 12 (5th ed. 2001).
40. See id.
41. Susannah Baruch et al., Genetic Testing of Embryos: Practices and Perspectives of US In Vitro Fertilization Clinics, 89 FERTILITY & STERILITY 1053, 1054 (2008).
42. Id.
43. Id.
44. Id.
45. See id.
46. GENETICS & PUB. POL'Y CTR., PREIMPLANTATION GENETIC DIAGNOSIS: A DISCUSSION OF CHALLENGES, CONCERNS, AND PRELIMINARY POLICY OPTIONS RELATED TO THE GENETIC TESTING OF HUMAN EMBRYOS 3 (2004); Baruch et al., supra note 31, at 1054.
47. Finning & Chitty, supra note 2, at 69-70.
48. Branicki et al., supra note 3, at 164-165
49. Id. at 164.
50. Id. at 165.
51. Sovio et al., supra note 6, at 2.
52. Sagi et al., supra note 8, at 510-512
53. For an interesting discussion of the creation of children with disabilities, see generally Kirsten Rabe Smolensky, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, 60 HASTINGS L.J. 299 (2008). In response to Smolensky's piece,
54. see I. Glenn Cohen, Intentional Diminishment, the Non-Identity Problem, and Legal Liability, 60 Hastings L.J. 347 (2008).
55. Accord Jaime King, Duty to the Unborn: A Response to Smolensky, 60 HASTINGS L.J. 377 (2008);
56. Alicia R. Ouellette, Insult to Injury: A Disability-Sensitive Response to Smolensky's Call for Parental Tort Liability for Preimplantation Genetic Interventions, 60 HASTINGS L.J. 397 (2008). For Smolensky's rebuttal,
57. see Kirsten Rabe Smolensky, Parental Tort Liability for Preimplantation Genetic Interventions: Technological Harms, the Social Model of Disability, and Questions of Identity, 60 HASTINGS L.J. 411 (2008).
58. 4 Domain 0f MYO15A Are a Common Cause ofDFNB3 Hearing Loss, 119 LARYNGOSCOPE 727,727-728 (2009).
59. See Michael J. Friez & Joseph AP Wilson, Letter, Novel FGFR3 Mutations in Exon 7 and Implications for Expanded Screening of Achondroplasia and Hypochondroplasia: A Response to Heuertz et al, 16 EUR. J. HUM. GENETICS 277,277 (2008) (discussing mutations causing achondroplasia and hypochondroplasia, types of dwarfism).
60. Baruch et al., supra note 31, at 1055.
61. Yury Verlinsky et al., Preimplantation Diagnosis for Fanconi Anemia Combined with HLA Matching, 285 JAMA 3130, 3130-3131 (2001).
62. Baruch et al., supra note 31, at 1055.
63. Id. at 1056.
64. Id.
65. King, supra note 12, at 286.
66. American Pregnancy Association, Chorionic Villus Sampling, http://www.americanpregnancy.org/prenataltesting/cvs.html (last visited Mar. 17,2010).
67. Id.
68. American Pregnancy Association, First Trimester Screen, http://www.americanpregnancy.org/prenataltesting/firstscreen.html (last visited Mar. 17,2010).
69. Id. Trisomy-18 is a chromosomal disorder characterized by physical birth defects and medical problems, which include, most notably, congenital heart defects.
70. See SOFT: Nonprofit Volunteer Organization for Children with Trisomy 13 and Trisomy 18, Trisomy 18 Facts, http://www.trisomy18.php (last visited Mar. 17 ,2010).
71. American Pregnancy Association, Chorionic Villus Sampling, supra note 52;
72. American Pregnancy Association, First Trimester Screen, supra note 54.
73. See American Pregnancy Association, Triple Screen Test, http://www.americanpregnancy.org/prenataltesting (follow
74. "Triple Screen Test: Multiple Marker Screen" and "Quad Screen" hyperlinks) (last visited Mar. 17,2010) (defining the triple and quad screens as maternal blood screening tests that look for potential neural tube defects, Trisomy 21, Trisomy 18, and other chromosomal abnormalities).
75. American Pregnancy Association, Amniocentesis, http://www. americanpregnancy.org/prenataltesting/amniocentesis.html (last visited Mar. 17,2010) (explaining the examination of amniotic fluid to detect neural tube defects, genetic disorders, and chromosomal abnormalities such as Down syndrome).
76. American Pregnancy Association, Cordocentesis, http://www. americanpregnancy.org/prenataltesting/cordocentesis.html (last visited Mar. 17, 2010) (explaining the examination of blood from the fetus to detect malformation of the fetus, fetal infections, and fetal anemia).
77. See, e.g., King, supra note 12, at 300 (discussing, within the context of preimplantation genetic screening, the probability that improvements in understanding gene function will "provide information on non-disease-related genetic traits, such as height, hair color, skin color, eye color, and possibly some behavioral characteristics").
78. See Robin Elise Weiss, Finding out the Sex of Your Baby, http://www.childbirth.org/articles/decide.html (last visited Mar. 17, 2010);
79. see also American Pregnancy Association, Amniocentesis, supra note 58.
80. H. Christina Fan et al., Noninvasive Diagnosa of Fetal Aneuploidy by Shotgun Sequencing DNA from Maternal Blood, 105 PROC. NAT'L ACAD. Sa. 16266, 16266 (2008). Already, an early pregnancy (as early as the seventh week of pregnancy) blood test can be used to determine fetal sex.
81. Amy Norton, Blood Test Tells Fetal Sex in Early Pregnancy, REUTERS, Jan. 18, 2010,
82. http://www.reuters.com/article/idUSTRE60H4CW20100118 ("Determin[ing] fetal sex...has traditionally meant invasive tests, like amniocentesis--- ").
83. See, e.g., King, supra note 12, at 323 ("[T]he government no longer has the luxury of delaying consideration of regulation and oversight....The development of [reproductive technologies] will expand the demand for the procedure[s] and [their] use for controversial ends....");
84. Michael J. Malinowski, Choosing the Genetic Makeup of Children: Our Eugenics Past-Present, and Future?, 36 CONN. L. REV. 125, 204-205 (2003) (proposing regulation in order to avoid eugenics-like consequences of a "carte blanche" procreative liberty right to use these technologies).
85. See Baruch et al., supra note 31, at 1056.
86. Id.
87. Id. at 1057.
88. See supra note 63 and accompanying text.
89. Harmon, supra note 1 (emphasis added).
90. GENETICS & PUB. POL'Y CTR., PUBLIC AWARENESS AND ATTITUDES ABOUT REPRODUCTIVE GENETIC TECHNOLOGY 5 tbl.1 (2004).
91. Id.
92. Harmon, supra note I.
93. Id. (quoting Caplan).
94. Suter, supra note 23, at 1516-1517 (footnote omitted).
95. Harmon, supra note 1.
96. Malinowski, supra note 63, at 187 (quoting Jesudason).
97. Suter, supra note 23, at 1518.
98. Id. at 1536 (emphasis added).
99. 316 U.S. 535, 541 (1942).
100. Id. at 536,543.
101. Id. at 541.
102. 381 U.S. 479, 485-486 (1965).
103. 405 U.S. 438,453 (1972)
104. 410 U.S. 113, 153 (1973) ("This right of privacy... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.").
105. 505 U.S. 833, 845-846 (1992).
106. Id. at 851. The Court noted, "Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects." Id. at 848.
107. Id. at 883 (plurality opinion) ("[Requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the mother to choose childbirth over abortion.").
108. Id. at 886 ("Yet, as we have stated, under the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest").
109. Id. at 899 ("[A] State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure.").
110. Id. at 900-901 (majority opinion) ("At most [these requirements] might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us.").
111. Id. at 851; Suter, supra note 23, at 1521-22 ("[I]n 1991,
112. Planned Parenthood of Southeastern Pennsylvania v. Casey affirmed Roe's 'essential holding.' In so doing, Casey, even more than Roe, emphasized the individualistic and self-defining aspects of reproductive autonomy---" (footnotes omitted)).
113. 521 U.S. 702, 720-721 (1997)
114. (quoting Moore v. Cty of East Ceveland, 431 U.S. 494, 503 (1977) (plurality opinion)).
115. Id. at 728 ("The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.").
116. Id. at 720-21 (quoting Collins v. Harker Heights, 503 U.S. 115,125 (1992)).
117. Id. at 724.
118. Id. at 722 (quoting Compassion in Dying v. Washington, 79 F. 3d 790,801 (9th Cir. 1996)).
119. Id. at 727-28 (internal citation omitted); Suter, supra note 23, at 1541.
120. 530 U.S. 914,920-921 (2000).
121. Id. at 929-930
122. 550 U.S. 124, 166-167 (2007)
123. Id. at 137.
124. Id. at 147.
125. Id. at 162; see also id. at 177 (Ginsburg, J., dissenting) ("During the District Court trials, 'numerous' 'extraordinarily accomplished' and 'very experienced' medical experts explained that, in certain circumstances and for certain women, [the banned abortion procedure] is safer than alternative procedures and necessary to protect women's health.").
126. Id. at 160, 164 (majority opinion).
127. Suter, supra note 23, at 1568.
128. Gonzales, 550 U.S. at 146 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992) (plurality opinion)).
129. See Suter, supra note 23, at 1525.
130. 107- If the Court did adopt such an approach, petitioners challenging the constitutionality of these regulations would be best served by argument detailing the lengthy history of the right to procure an abortion.
131. Justice Blackmun articulated such an argument in Roe v. Wade.
132. See 410 U.S. 113, 129-41 (1973); iee also, e.g., id. at 140 ("[Historically,] a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.").
133. 521 U.S. 702, 765-766 (1997) (Souter, J., concurring) (citing Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)).
134. John A. Robertson, Genetic Selection of Offspring Characteristics, 76 B.U. L. REV. 421,426-427 (1996).
135. See infra Part IV.A (discussing the Court's recognition of a broad procreative liberty interest) 111. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
136. Id.
137. Jack M. Balkin, How New Genetic Technologies Will Transform Roe v. Wade, 56 EMORY L.J. 843, 848 (2007);
138. see also Roe v. Wade, 410 U.S. 113, 154 (1973) ("We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.").
139. Roe, 410 U.S. at 153.
140. Id. at 162-63; Balkin, supra note 113, at 848-849
141. 410 U.S. at 163 ("With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability.").
142. Id. at 163-164
143. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992) (plurality opinion).
144. Id. at 875 ("Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in the trimester framework: even in Roe's terms, in practice it undervalues the State's interest in the potential life within the woman.").
145. See id. at 869 ("The woman's liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted." (emphasis added)).
146. Garrison, supra note 12, at 1626.
147. David D. Meyer, The Paradox of Family Privacy, 53 VAND. L. REV. 527,538 (2000).
148. Casey, 505 U.S. at 870 (plurality opinion).
149. Note, Assessing the Viability of a Substantive Due Process Right to In Vitro Fertilization, 118 HARV. L. REV. 2792, 2808 (2005).
150. 550 U.S. 124, 163 (2007) ("The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty."); see also Suter, supra note 23, at 1568 ("[T]he Court [in Gonzales] weakens the undue burden test").
151. Gonzales, 550 U.S. at 166-167
152. Id. at 164; see also id. at 177 (Ginsburg, J., dissenting) ("During the District Court trials, 'numerous' 'extraordinarily accomplished' and 'very experienced' medical experts explained that, in certain circumstances and for certain women, [the banned abortion procedure] is safer than alternative procedures and necessary to protect women's health.").
153. Id. at 158 (majority opinion) (emphasis added).
154. In her dissent, Justice Ginsburg noted that "[i]nstead of the heightened scrutiny we have previously applied, the Court determines that a 'rational' ground is enough to uphold the Act." Id. at 187 (Ginsburg, J., dissenting) (citation omitted).
155. Id. at 158 (majority opinion) (emphasis added).
156. Id.
157. Id. at 159-160
158. Id. at 160.
159. Suter, supra note 23, at 1519 (second alteration in original) (quoting Gonzales, 550 U.S. at 157).
160. See Gonzales, 550 U.S. at 158.
161. See, e.g., id. at 171 (Ginsburg, J., dissenting) ("It blurs the line, firmly drawn in Casey, between previability and postviability abortions.").
162. See 505 U.S. 833,872 (1992) (plurality opinion) ("Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term .... ").
163. Id. at 883 ("[Requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the mother to choose childbirth over abortion.").
164. Id. at 886 ("Yet, as we have stated, under the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest").
165. Id. at 899 ("[A] State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure.").
166. Id. at 900-901 (majority opinion) ("At most [these requirements] might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us.").
167. Id. at 870 (plurality opinion).
168. Gonzales v. Carhart, 550 U.S. 124, 181 (2007) (Ginsburg, J., dissenting) ("The law saves not a single fetus from destruction, for it targets only a method of performing abortion.").
169. Id. at 182, 186.
170. See id. at 181-182
171. Suter, supra note 23, at 1598.
172. Malinowski, supra note 63, at 204-205 (first alteration in original).
173. See BEAUCHAMP & CHILDRESS, supra note 29. Dr. Tom Beauchamp is a professor of philosophy at Georgetown University. He is also a senior research scholar at Georgetown's Kennedy Institute of Ethics. He has published over one hundred scholarly articles and specializes in research on biomedical ethics.
174. See Tom L. Beauchamp, Georgetown Univ., General Profile, http://explore.georgetown.edu/people/beauchaf?PageTemplateID=79 (last visited Mar. 17, 2010).
175. Dr. James Childress is the John Allen Hollingsworth Professor of Ethics and a professor of medical education at the University of Virginia. He also directs the Institute for Practical Ethics and Public Life. He has similarly published numerous articles and books on the subject of biomedical ethics.
176. See Home Page for James F. Childress, Virginia Law, http://www.law. virginia.edu/lawweb/faculty.nsf/FHPbl/1152928?OpenDocument& ExpandSection=4 (last visited Mar. 17. 2010).
177. BEAUCHAMP & CHILDRESS, supra note 29.
178. Id. at 64.
179. Id. at 65.
180. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,870 (1992) (plurality opinion);
181. Roe v. Wade, 410 U.S. 113,164-65 (1973).
182. See Casey, 505 U.S. at 870 (plurality opinion).
183. See Gonzales v. Carhart, 550 U.S. 124,156 (2007).
184. BEAUCHAMP & CHILDRESS, supra note 29, at 58.
185. See discussion supra Part III.A.
186. BEAUCHAMP - CHILDRESS, supra note 29, at 63.
187. Id. at 77-80.
188. For example, the Court has recognized an autonomy interest in refusing life-saving treatment. See Cruzan v. Dir., Mo. Dep't of Health 497 U.S. 261, 279 (1990). Furthermore, the Court has recognized that even an incompetent person can refuse such life-saving treatment upon a showing of clear and convincing evidence that the person, while competent, expressed a wish to refuse such treatment.
189. Id. at 285.
190. See discussion supra Part III.A.
191. Robertson, supra note 109, at 426-427
192. See id.
193. BEAUCHAMP & CHILDRESS, supra note 29, at 113.
194. Id. at 114.
195. Id. at 115.
196. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992) ("[Viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.");
197. iee abo id. at 870 (plurality opinion), 879 (majority opinion). However, the Gonzales decision has arguably eradicated some of these distinctions.
198. See supra Part III.B (discussing how the Gonzales decision altered the previability-postviability framework).
199. See, e.g., Gonzales v. Carhart, 550 U.S. 124,145 (2007) ("[T]he government has a legitimate and substantial interest in preserving and promoting fetal life....");
200. iee abo supra Part III.B (discussing promotion of life and banning abortion). For further discussion of promotion,
201. see infra Part lV.C
202. Cfliey, 505 U.S. at 869,872 (plurality opinion) ("Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage [the mother] to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy.....").
203. Id. at 883.
204. Id. at 886.
205. Id. at 899.
206. Id. at 860,879 (majority opinion);
207. id. at 870 (plurality opinion).
208. See 550 U.S. 124, 145 (2007)
209. (sustaining the Partial-Birth Abortion Ban Act against constitutional objections).
210. Id. at 136-137,156.
211. Id. at 158.
212. Id. at 163.
213. Id.
214. BEAUCHAMP & CHILDRESS, supra note 29, at 115.
215. 179- Id. at 167.
216. See discussion supra Part IV.B.
217. See 505 U.S. 833,872 (1992) (plurality opinion).
218. See 550 U.S. at 163.
219. See supra notes 86-89 and accompanying text
220. See Jaime Staples King & Benjamin W. Moulton, Rethinking Informed Consent: The Case for Shared Medical Decision-Making, 32 AM. J.L. & MED. 429,432,436 (2006).
221. 550 U.S. at 164.
222. Id. at 177 (Ginsburg, J., dissenting).
223. King & Moulton, supra note 184, at 436.
224. BEAUCHAMP - CHILDRESS, supra note 29, at 226. 189.
225. Id.
226. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,877 (1992) (plurality opinion).
227. Id. at 852 (majority opinion).
228. See Roe v. Wade, 410 U.S. 113,153 (1973) ("The detriment that the State would impose upon the pregnant woman by denying this choice [to have an abortion] altogether is apparent....Maternity, or additional offspring, may force upon the woman a distressful life and future.").
229. 550 U.S. 124,172 (2007) (Ginsburg J., dissenting).
230. Casey, 505 U.S. at 856.
231. 195- See, e.g., King, supra note 12, at 296-297 ("One cycle of IVF ranges in price from $10,000 to $12,000. While a handful of states require insurance companies to cover all or a portion of the costs associated with IVF, a substantial percentage of IVF patients remain uncovered by insurance and are forced to pay for the procedure out of pocket." (footnote omitted)).
232. See, e.g., Malinowski, supra note 63, at 131-33. "[T]here are compelling arguments that support immediate infusion of comprehensive regulation into the field of ART [assisted reproductive technologies]."
233. Id. at 197. "[W]e have a moral obligation to reflect on our not-too-distant eugenics past...."
234. Id. at 203.
235. 197- See Sagi et al., supra note 8;
236. Guldberg et al., supra note 7.
237. See Branicki et al., supra note 3, at 164.
238. 199- Anne Marie Roe & Natasha Shur, From New Screens to Dbcovered Genes: The Successful Past and Prombing Present of Single Gene Dborders, 145C AM. J. MED. GENETICS 77,78-81 (2007).
239. See Tay-Sachs Disease Information Page: National Institute of Neurological Disorders and Strok, http://www.ninds.nih.gov/disorders/taysachs/ taysachs.htm (last visited Mar. 17,2010).
240. See supra Part IV.A (discussing autonomy).
241. For an interesting argument that women should not be forced to endure any of the burdens associated with pregnancy, see Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. - PUB. AFF. 47, 48-49 (1971), arguing that the law should not force a woman to use her body to sustain the life of another, just as people are not required to donate their organs to save the Uves of others. Professor Thomson also stressed: I am not arguing that people do not have a right to life- quite to the contrary, it seems to me that the primary control we must place on the acceptability of an account of rights is that it should turn out in that account to be a truth that all persons have a right to life. I am arguing only that having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person's body- even if one needs it for life itself.
242. Id. at 56.
243. Cf. King, supra note 43, at 393 ("[T]he creation of a regulatory agency that works with representatives from the disability community to develop regulations for the use of reproductive genetic testing could bring more light to their experiences, values, and concerns ...... ").
244. Sagi et al., supra note 8, at 508.
245. See, e.g., BreastCancer.org BreastCancer Statistics http://www. breastcancer.org/symptonis/understand-bc/statistics.jsp (last visited Mar. 17,2010).
246. Compare Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (discussing the State's interest in protecting society against moral "coarsenpng]"),
247. with Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,850 (1992) ("Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision."),
248. and Roe v. Wade, 410 U.S. 113, 116 (1972) ("Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.").
249. Justice Ginsburg recognized the danger of a rational basis, morality-based test of constitutionality. She worried that such a deferential balancing prong could effectively serve to uphold any prohibition on abortion. See Gonzales, 550 U.S. at 182,186-187 (Ginsburg, J., dissenting).
250. See 505 U.S. at 878 (plurality opinion);
251. iee abo id. at 869 ("The woman's liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted." (emphasis added)).
252. See 550 U.S. at 163 ("The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.").
253. See 505 U.S. at 860.
254. See supra notes 20-21 and accompanying text.
255. Professor Malinowski has emphasized the importance of viewing reproductive technologies regulations through a scientific lens: "[T]he United States should enact legislation that creates sufficient regulatory jurisdiction over this technology implemented by those with scientific expertise, who should become directly engaged in ART through the dynamism of ongoing regulation reflective of the changing nature of the underlying science and public opinion." Malinowski, supra note 63, at 216.