Is there a constitutional right to select the genes of one's offspring?

Hastings Law Journal

Volumn 63, Issue 1, 2011, Pages 233-295

  Coan, Andrew B ^a  

^a UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

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EID: 84855943954     PISSN: 00178322     EISSN: None     Source Type: Journal    
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References (236)

1. The most reliable is flow cytometry, which uses a fluorescent dye to sort sperm by sex. All eggs carry a female sex chromosome, so it is the sex chromosome of the fertilizing sperm that determines the sex of any resulting child. See John A. Robertson, Procreative Liberty and Harm to Offspring in Assisted Reproduction, 30 AM. J. L. & MED. 7, 12 (2004)
2. [hereinafter Robertson, Harm to Offspring].
3. Preimplantation genetic diagnosis, or PGD, involves the biopsy and genetic or chromosomal analysis of a single cell from an embryo created through in vitro fertilization. In vitro fertilization, in turn, involves harvesting eggs from a woman's ovaries and fertilizing them in a Petri dish for later implantation in the uterus. See Jaime King, Predicting Probability: Regulating the Future of Preimplantation Genetic Screening, 8 YALE J. HEALTH POL'Y L. & ETHICS 283, 290-91 (2008).
4. The most familiar is amniocentesis, which involves the needle extraction of amniotic fluid from the uterus and analysis of the genetic material therein. See Amniocentesis, AM. PREGNANCY ASS'N, http://www.americanpregnancy.org/ prenataltesting/amniocentesis.html (last visited Oct. 31, 2011).
5. See Robertson, Harm to Offspring, supra note 1, at 12.
6. See, e.g., FRANCIS FUKUYAMA, OUR POSTHUMAN FUTURE 17 (2002) (coining this memorably alarmist term);
7. cf. Sonia M. Suter, A Brave New World of Designer Babies?, 22 BERKELEY TECH. L. J. 897, 922-23 (2007)
8. [hereinafter Suter, A Brave New World] (discussing the term "neoeugenics").
9. See generally PRESIDENT'S COUNCIL ON BIOETHICS, BEYOND THERAPY: BIOTECHNOLOGY AND THE PURSUIT OF HAPPINESS (2003).
10. See, e.g., Leon R. Kass, The Wisdom of Repugnance: Why We Should Ban the Cloning of Humans, 32 VAL. U. L. REV. 679, 687 (1998).
11. See, e.g., MICHAEL J. SANDEL, PUBLIC PHILOSOPHY 207-09 (2005) (arguing that some forms of genetic selection may "erode our appreciation of life as a gift");
12. Michael J. Sandel, The Case Against Perfection, ATLANTIC MONTHLY, Apr. 2004, at 50, 54 (similar).
13. See, e.g., Tim Stainton, Missing the Forest for the Trees? A Disability Rights Take on Genetics, 13 J. DEVELOPMENTAL DISABILITIES 50 (2007).
14. But see Adrienne Asch, Disability Equality and Prenatal Testing: Contradictory or Compatible?, 30 FLA. ST. U. L. REV. 315, 341 (2003) (expressing grave concerns about the implications of PGD for disabled persons but ultimately "accepting consumerism in the reproductive marketplace").
15. See, e.g., JANICE G. RAYMOND, WOMEN AS WOMBS: REPRODUCTIVE TECHNOLOGIES AND THE BATTLE OVER WOMEN'S FREEDOM ix (1993);
16. Radhika Rao, Equal Liberty: Assisted Reproductive Technology and Reproductive Equality, 76 GEO. WASH. L. REV. 1457 (2008).
17. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833, 846 (1992);
18. Carey v. Population Servs. Int'l, 431 U. S. 678, 684-85 (1977);
19. Roe v. Wade, 410 U. S. 113, 164 (1973);
20. Eisenstadt v. Baird, 405 U. S. 438, 454 (1972).
21. See NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 49 (1994)
22. [hereinafter KOMESAR, IMPERFECT ALTERNATIVES] ("An analysis based solely on goal choice can never reach conclusions about law and public policy. Any institutionally sophisticated reader confronted with a goals-based analysis... can always offer a valid two-word response: 'So what?'");
23. ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 1 (2006) (similar).
24. For an assessment of the promise and limitations of her reproductive equality approach, see generally Andrew Coan, Assisted Reproductive Equality: An Institutional Analysis, 60 CASE W. RES. L. REV. 1143 (2010).
25. 274 U. S. 200, 207-08 (1927) (rejecting procedural and substantive due process challenges to mandatory sterilization of the "feeble-minded").
26. Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833, 923 (1992);
27. see also Webster v. Reproductive Health Servs., 492 U. S. 490, 565 (1989);
28. Roe v. Wade, 410 U. S. 113, 169-70 (1973);
29. Eisenstadt v. Baird, 405 U. S. 438, 453 (1972).
30. Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942);
31. see also Maher v. Roe, 432 U. S. 464, 472 n. 7 (1977).
32. Lawrence v. Texas, 539 U. S. 558, 574 (2003).
33. See, e.g., Carey v. Population Servs. Int'l, 431 U. S. 678, 694 (1977);
34. Roe, 410 U. S. at 164;
35. Eisenstadt, 405 U. S. at 453-54;
36. Griswold v. Connecticut, 381 U. S. 479, 485 (1965).
37. Lawrence, 539 U. S. at 574 (invalidating a criminal prohibition on homosexual sodomy);
38. Wisconsin v. Yoder, 406 U. S. 205, 234 (1972) (upholding the right of the Amish to withdraw their children from public schools);
39. Skinner, 316 U. S. at 541-42 (invalidating a mandatory sterilization law that applied to chicken thieves but not embezzlers);
40. Pierce v. Soc'y of Sisters, 268 U. S. 510, 534-35 (1925) (invalidating a compulsory public education law as applied to students of Catholic parochial school);
41. Meyer v. Nebraska, 262 U. S. 390, 400-01 (1923) (invalidating a state law against teaching German to elementary students).
42. Fed. Deposit Ins. Corp. v. O'Neil, 809 F.2d 350, 354 (7th. Cir. 1987). Compounding the uncertainty is a competing line of authority-competing, that is, with the Griswold/Roe/Casey line-that would deny recognition of any new liberty rights not firmly grounded in long-standing tradition.
43. See Washington v. Glucksberg, 521 U. S. 702, 720 (1997);
44. Michael H. v. Gerald D., 491 U. S. 110, 123 (1989) (plurality opinion);
45. Bowers v. Hardwick, 478 U. S. 186, 192 (1986)
46. overruled by Lawrence, 539 U. S. at 558.
47. 521 U. S. at 727.
48. To take an extreme example, imagine a couple deciding whether or not to have a third child where both prospective parents are known carriers of a devastating autosomal recessive disorder like Tay-Sachs disease. The resulting child would have a one-in-four chance of suffering from the disease. How many such couples would have another child without the option of some type of genetic screening? Surely a sizeable number would be unwilling to take the risk. Cf. John A. Robertson, Genetic Selection of Offspring Characteristics, 76 B. U. L. REV. 421, 424-25 (1996)
49. [hereinafter Robertson, Genetic Selection] (noting the potentially decisive impact of genetic-selection technologies on the decision whether to reproduce).
50. Meyer, 262 U. S. at 400.
51. Pierce, 268 U. S. at 515.
52. Yoder v. Wisconsin, 406 U. S. 205, 232 (1972).
53. See Robertson, Genetic Selection, supra note 24, at 436.
54. See, e.g., JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES 157-60 (1994);
55. Carter J. Dillard, Rethinking the Procreative Right, 10 YALE HUM. RTS. & DEV. L. J. 1, 6 (2007);
56. Robertson, Genetic Selection, supra note 24, at 478-79;
57. 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, 1520 (2008)
58. [hereinafter Suter, The Repugnance Lens].
59. See, e.g., RONALD DWORKIN, LAW'S EMPIRE 413 (1986) ("Law's attitude is constructive: it aims, in the interpretive spirit, to lay principle over practice to show the best route to a better future.").
60. See, e.g., John A. Robertson, Assisting Reproduction, Choosing Genes, and the Scope of Reproductive Freedom, 76 GEO. WASH. L. REV. 1490, 1490 (2008)
61. [hereinafter Robertson, Assisting Reproduction].
62. See, e.g., Radhika Rao, Reconceiving Privacy: Relationships and Reproductive Technology, 45 UCLA L. REV. 1077, 1101-07 (1998);
63. Suter, The Repugnance Lens, supra note 29, at 1598.
64. Suter, The Repugnance Lens, supra note 29, at 1530-36 (same). Dworkin, of course, insists that the existing right to procreative liberty (or any other right) is defined by the best moral justification of the cases and consequently requires whatever that justification requires. This is his famous "one right answer" thesis.
65. See, e.g., Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057, 1081-82 (1975). It is their deviation from this thesis that makes the leading arguments in the reproductive technologies literature only loosely Dworkinian.
66. I use the term in its original, small "1" sense, as in "one who approves of or advocates liberty." OXFORD ENGLISH DICTIONARY 884 (2d ed. 1989). Robertson is not a libertarian in the sectarian political or strict philosophical sense.
67. Robertson, Harm to Offspring, supra note 1, at 32.
68. Robertson, Genetic Selection, supra note 24, at 431.
69. Robertson, Assisting Reproduction, supra note 31, at 1490.
70. John A. Robertson, Procreative Liberty in the Era of Genomics, 29 AM. J. L. & MED. 439, 474 (2003)
71. [hereinafter Robertson, Era of Genomics].
72. Robertson, Genetic Selection, supra note 24, at 428.
73. Suter, The Repugnance Lens, supra note 29, at 1598;
74. see also Suter, A Brave New World, supra note 6, at 954.
75. It might be objected that this assumption is justified-perhaps even required-by Marbury v. Madison, 5 U. S. (1 Cranch) 137 (1803), and the well-settled place of judicial review in the American constitutional order. On this view, questions of comparative institutional competence have already been settled in favor of courts on a wholesale basis and therefore need not be reexamined retail. One could certainly imagine a system of constitutional review organized in this fashion. But in the system we have, neither Marbury nor the nominally settled practice of judicial review takes one very far. Nothing in either the case or the practice resolves the standard of review courts should apply to the constitutional decisions of political actors. Nor does either identify with any precision the class of decisions subject to review in the first place. It should not be terribly surprising, then, that courts refuse to subject the vast majority of political decisions to any meaningful degree of constitutional scrutiny.
76. KOMESAR, IMPERFECT ALTERNATIVES, supra note 13, at 232. Moreover, in determining which small fraction of decisions should receive such scrutiny, institutional considerations are pervasive.
77. Robertson, Genetic Selection, supra note 24, at 431.
78. See Robertson, Assisting Reproduction, supra note 31, at 1490.
79. See, e.g., BUREAU OF INT'L INFO. PROGRAMS, U. S. DEP'T OF STATE, OUTLINE OF THE U. S. LEGAL SYSTEM 154-55 (2004).
80. This, of course, is a core tenet of public choice theory, on which the classic statement is made by George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. MGT. SCI. 3, 3 (1971).
81. See generally MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS (1996);
82. ARTHUR LUPIA & MATTHEW D. MCCUBBINS, THE DEMOCRATIC DILEMMA: CAN CITIZENS LEARN WHAT THEY NEED TO KNOW? (1998);
83. JOHN R. ZALLER, THE NATURE AND ORIGINS OF MASS OPINION (1992).
84. Cf. Cass R. Sunstein, Is There a Constitutional Right to Clone?, 53 HASTINGS L. J. 987, 996, 1005 (2002) (discussing the scientific misconceptions that appear to underlie public unease about reproductive cloning).
85. See, e.g., Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 889 (2003) ("[I]nstitutional analysis may... allow interpreters who hold different commitments to converge on particular interpretive rules while bracketing disagreements about their preferred first-best accounts.").
86. Abigail Alliance for Better Access to Dev. Drugs v. Von Eschenbach, 495 F.3d 695, 697 (D. C. Cir. 2007);
87. cf. United States v. Rutherford, 442 U. S. 544, 558-59 (1979) (rejecting a terminally ill patient's claimed statutory right to access unapproved drugs).
88. Vacco v. Quill, 521 U. S. 793, 808-09 (1997) (upholding a state criminal prohibition against "assisting" a suicide);
89. Washington v. Glucksberg, 521 U. S. 702, 735-36 (1997) (similar holding).
90. Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833, 851 (1992).
91. 367 U. S. 497, 542 (1961) (Harlan, J., dissenting).
92. Glucksberg, 521 U. S. at 720-21 (internal quotation marks omitted).
93. See generally Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under Stale Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7 (2008).
94. I have adapted this handle from Richard Primus. See Richard Primus, The Necessity and Peril of Ethical History, CONSTITUTION IN 2020 (Sept. 18, 2009, 10:09 AM), http://www.constitution2020.org/node/82 ("History deployed as positive authority purports to settle the meaning of clauses or doctrines by reference to things that happened in the past.").
95. See, e.g., Cass R. Sunstein, Due Process Traditionalism, 106 MICH. L. REV. 1543, 1550 (2008) (noting the "epistemic credential" of historical traditions).
96. Glucksberg, 521 U. S. at 722.
97. Compare District of Columbia v. Heller, 554 U. S. 570, 570 (2008)
98. See generally BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
99. Roper v. Simmons, 543 U. S. 551, 568 (2005) (juvenile offenders);
100. Atkins v. Virginia, 536 U. S. 304, 321 (2002) (the mentally retarded).
101. 539 U. S. 558 (2003).
102. Corinna Barrett Lain, The Unexceptionalism of "Evolving Standards" 57 UCLA L. REV. 365, 374-75 (2009) ("[T]he Court [has] polled the states in deciding the right to physician-assisted suicide for terminally ill competent adults, the right to refuse unwanted medical treatment, the right to parental recognition of a child born into another couple's marriage, and the right of custodial parents to make visitation decisions regarding their children and natural grandparents.").
103. See, e.g., Washington v. Glucksberg, 521 U. S. 702, 711 (1997) ("[T]he primary and most reliable indication of [a national] consensus is... the pattern of enacted laws.")
104. (quoting Stanford v. Kentucky, 492 U. S. 361, 373 (1989)).
105. In its simplest form, the Condorcet Jury Theorem holds as follows: Where each member of a group makes an independent judgment about a binary question, each of which is more than fifty percent likely to be correct, the chance that a majority of the group will be right approaches one hundred percent as the group gets larger. See, e.g., Adrian Vermeule, Many-Minds Arguments in Legal Theory, 1 J. LEGAL ANALYSIS 1, 4-6 (2009). At least one prominent commentator has suggested that this "wisdom of crowds" could explain the Court's practice of counting states.
106. See Cass R. Sunstein, If People Would Be Outraged by Their Rulings, Should Judges Care?, 60 STAN. L. REV. 155 (2007).
107. See Andrew B. Coan, Well Should They? A Response to If People Would be Outraged by Their Rulings, Should Judges Care?, 60 STAN. L. REV. 213, 225 (2007).
108. Cf. Richard Primus, Double-Consciousness in Constitutional Adjudication, 13 REV. CONST. STUD, 1, 2 (2007) ("[T]he strongly held view of the public is sometimes an ingredient of the right answer to a constitutional question, just like text, precedent, history, structure, social science, and normative theory.");
109. See Graham v. Florida, 130 S. Ct. 2011, 2023-26 (2010) (invalidating juvenile life without parole for nonhomicide offenses based on a survey of state sentencing practices rather than state sentencing laws).
110. See, e.g., Tonja Jacobi, The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus, 84 N. C. L. REV. 1089, 1091-92, 1106 (2006) ("Constitutionally enshrining the views of a majority of states robs the remaining states of their capacity to determine policy in a central area of constitutional law.").
111. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 68-69 (1980) ("[I]t makes no sense to employ the value judgments of the majority as the vehicle for protecting minorities from the value judgments of the majority.").
112. See generally DAVID L. FAIGMAN, CONSTITUTIONAL FICTIONS: A UNIFIED THEORY OF CONSTITUTIONAL FACTS (2008) (discussing the pervasiveness of legislative fact disputes in constitutional cases).
113. See Gonzales v. Carhart, 550 U. S. 124, 163 (2007) (collecting cases giving "state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty").
114. Abigail Alliance for Better Access to Dev. Drugs v. Von Eschenbach, 495 F.3d 695, 697 (D. C. Cir. 2007).
115. See generally Cass R. Sunstein, The Right to Die, 106 YALE L. J. 1123 (1997) (arguing against a constitutional right to physician-assisted suicide on this ground).
116. For a helpful overview of this judicial practice and the complex comparative institutional judgments that underlie it, see Stephanie Tai, Uncertainty About Uncertainty: The Impact of Judicial Decisions on Assessing Scientific Uncertainty, 11 U. PA. J. CONST. L. 671 (2009).
117. See 539 U. S. 558, 583 (2003) (O'Connor, J., concurring) ("The Texas sodomy law 'raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.'");
118. See, e.g., Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 319-28 (2007);
119. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 276-77, 350, 371-79 (1992);
120. see also Gonzales v. Carhart, 550 U. S. 124, 172 (2007) (Ginsburg, J., dissenting).
121. But see Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555, 1566, 1569 (2004) (criticizing this "misinterpretation" of the child-rearing liberty decisions for obscuring their original foundations in the liberty of contract).
122. 262 U. S. 390 (1923).
123. 68 U. S. 510 (1925).
124. 406 U. S. 205 (1972).
125. A similar but less famous example is Farrington v. Tokushige, 273 U. S. 284 (1927) (invalidating a federal law banning Japanese-language schools in the Hawaiian territory).
126. 316 U. S. 535, 541 (1942).
127. See VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR TRIUMPH OF AMERICAN EUGENICS (2008) (recovering this forgotten history).
128. Griswold v. Connecticut, 381 U. S. 479 (1965)
129. may seem like an exception to this pattern. But of course, a ban on contraceptives, like the abortion laws struck down in Roe v. Wade, 410 U. S. 113 (1973), increases the risk of unwanted pregnancies, the burden of which is born predominantly by women.
130. See generally, e.g., Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410 (1994).
131. United States v. Carolene Prods. Co., 304 U. S. 144, 152-53 n. 4 (1938);
132. 304 U. S. at 152-53 n. 4.
133. For an attempt to recover and rehabilitate a somewhat different institutional role for constitutional equality, see V. F. Nourse & Sarah A. Maguire, The Lost History of Governance and Equal Protection, 58 DUKE L. J. 955, 965 (2009) ("The idea is not simply that the law has misclassified or used spurious generalizations (modern notions of equality); the idea is that general laws are superior to special ones because of what they do within the legislative process-they link representatives to those they represent.").
134. Cf. Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 723-24 (1985) ("Other things being equal, 'discreteness and insularity' will normally be a source of enormous bargaining advantage, not disadvantage, for a group engaged in pluralist American politics.").
135. Indeed, severe political malfunctions can themselves make it substantially more difficult, and in some cases impossible, for courts to improve on the political process. See NEIL K. KOMESAR, LAW'S LIMITS: THE RULE OF LAW AND THE SUPPLY AND DEMAND OF RIGHTS 76 (2001)
136. [hereinafter KOMESAR, LAW'S LIMITS].
137. The one exception is amniocentesis, which has been used for prenatal screening for more than fifty years and is thoroughly embedded in American obstetric practice. Ruth Schwartz Cowan, Women's Roles in the History of Amniocentesis and Chorionic Villi Sampling, in WOMEN AND PRENATAL TESTING: FACING THE CHALLENGES OF GENETIC TECHNOLOGY 35, 36 (Karen H. Rothenberg & Elizabeth J. Thomson eds., 1994). Up to this point, I have tried to put the issue of prenatal testing to one side, due to its close entanglement with abortion. But it is not entirely possible to do so here. Amniocentesis has been in use long enough and widely enough without substantial regulation (at least separate from abortion) that one could plausibly argue that the right to use it is deeply rooted in history and tradition. Of course, for these same reasons, no state is likely to prohibit amniocentesis or similar forms of prenatal testing, so the issue is unlikely to come before the Court. Nevertheless, it might seem odd to permit regulation of genetic-selection techniques that do not require the destruction of a fetus (which is most of them) while techniques that do (all forms of prenatal testing) are in widespread and unchallenged use (and are perhaps constitutionally protected as part of the abortion right). The appearance is deceiving. Although there is certainly some overlap, abortion in conjunction with amniocentesis obviously involves different interests than other forms of genetic selection, most notably bodily integrity and gender equality. It is also used almost exclusively to avoid the birth of children with very serious heritable diseases and would be highly impractical for genetic enhancement uses. Any tradition of permitting it would therefore provide at most limited support for a constitutional right to engage in other forms of genetic selection.
138. Washington v. Glucksberg, 521 U. S. 702, 721 (1997)
139. (quoting Moore v. East Cleveland, 431 U. S. 494, 503 (1977));
140. 521 U. S. at 721.
141. This is not to suggest that the history in either case was uncomplicated or one-sidedly proregulation. As to abortion, see Roe v. Wade, 410 U. S. 113, 129 (1973) ("[R]estrictive criminal abortion laws... are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.").
142. As to same-sex intimacy, see Lawrence v. Texas, 539 U. S. 558, 569-72 (2003) (noting that laws specifically targeting same-sex sodomy are a relatively recent phenomenon in the United States);
143. see also William N. Eskridge, Jr., Hardwick and Historiography, 1999 U. ILL. L. REV. 631, 643-65.
144. See Samantha Luks & Michael Salamone, Abortion, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 80, 85-86 (Nathaniel Persily et al. eds., 2008) (documenting that there has been at least plurality support for Roe v. Wade since 1974);
145. Frank Newport, Six Out of 10 Americans Say Homosexual Relations Should be Recognized as Legal, GALLUP NEWS SERVICE, May 15, 2003, http://www.gallup.com/ poll/8413/six-americans-say-homosexual-relations-should-recognized-legal.aspx (reporting poll results demonstrating sixty percent support for decriminalizing same-sex sodomy).
146. With respect to Roe v. Wade, this statement requires some qualification. While the basic conflict raised by abortion regulation-between fetal life and a woman's personal liberty-is empirically relatively uncomplicated, two aspects of the Court's decision in Roe have required courts to confront complex medical questions. The first is the need to fix the point of fetal viability, at which Roe and subsequent decisions have held that the state's interest in protecting fetal life supersedes a woman's liberty interest in terminating her pregnancy. See, e.g. Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833, 878-79 (1992);
147. Roe, 410 U. S. at 164-65. The second is the need to determine the proper scope of the maternal health exception Roe and subsequent decisions have required even for postviability abortions.
148. See, e.g., Casey, 505 U. S. at 878-79;
149. Roe, 410 U. S. at 163-65. As to viability, the Court has mostly avoided the need to grapple with complicated medical questions itself by requiring that viability be determined by a physician case by case (though it has upheld some state regulation of this process, without getting into the science).
150. See Webster v. Reproductive Health Servs., 492 U. S. 490, 530 (1989) (O'Connor, J., concurring). As to the maternal health exception, the Court has historically taken a similar (if less explicit) approach of delegating medical judgments to physicians.
151. See Roe, 410 U. S. at 164-65.
152. In Stenburg v. Carhart, however, the Court allowed itself to be drawn into a medical controversy over whether intact dilation and extraction (so-called "partial birth") abortions are ever necessary to protect maternal health. 530 U. S. 914, 937-38 (2000).
153. The Court backed off somewhat in Gonzales v. Carhart, reviewing congressional fact findings on this question "under a deferential standard" but also insisting on its obligation to render independent judgment. 550 U. S. 124, 165 (2007). These limited and equivocal interventions in complex empirical disputes suggest that the Court's commitment to correcting gender bias in the political process is strong enough to overcome its general deference on technical scientific matters, at least at times.
154. A variety of polls conducted between 1993 and 2003 showed widespread opposition to human cloning. See Matthew C. Nisbet, Public Opinion About Stem Cell Research and Human Cloning, 68 PUB. OPINION Q. 131, 150-53 (2004).
155. See, e.g., Kathy L. Hudson, Preimplanlation Genetic Diagnosis: Public Policy and Public Attitudes, 85 FERTILITY & STERILITY 1638, 1641 (2006) (reporting forty-five percent male support and thirty-five percent female support for nonmedical sex selection).
156. See, e.g., Jay Belsky et al., For Better and For Worse: Differential Susceptibility to Environmental Influences, 16 CURRENT DIRECTIONS PSYCHOL. SCI. 300 (2007).
157. For an elegant popular treatment, see generally David Dobbs, Orchid Children, ATLANTIC MONTHLY, Dec. 2009, at 50.
158. The one exception is reproductive cloning, which is banned in thirteen states. See Human Cloning Laws, NAT'L CONF. ST. LEGISLATURES, http://www.ncsl.org/IssuesResearch/Health/HumanCloningLaws/tabid/14284/Default. aspx (last visited Oct. 31, 2011).
159. This explains why state polling, where it is invoked to invalidate legislation, is almost always wielded against fairly long-standing practices that have over time come to seem outmoded, unjust, or even barbaric. Lawrence v. Texas, 539 U. S. 558 (2002)
160. and Roper v. Simmons, 543 U. S. 551 (2005), are good examples.
161. See Devereux N. Sailer, Jr. & Jacob A. Canick, Current Methods of Prenatal Screening for Down Syndrome and Other Fetal Abnormalities, 51 CLINICAL OBSTETRICS & GYNECOLOGY 24, 25 (2008).
162. Preimplantation aneuploidy screening is simply a form of preimplantation genetic diagnosis that screens for chromosomal abnormality, or aneuploidy, rather than specific genetic traits. See P. Donoso et al., Current Value of Preimplantation Genetic Aneuploidy Screening in IVF, 13 HUMAN REPRODUCTION UPDATE 15, 15 (2007).
163. See, e.g., Dorothy C. Wertz & John C. Fletcher, A Critique of Some Feminist Challenges to Prenatal Diagnosis, 2 J. WOMEN'S HEALTH 173 (1993) (making a similar argument in the context of prenatal testing).
164. But see Marsha Saxton, Why Members of the Disability Community Oppose Prenatal Diagnosis and Selective Abortion, in PRENATAL TESTING AND DISABILITY RIGHTS 147, 156-57 (Erik Parens & Adrienne Asch eds., 2000) ("Selective abortion will not challenge the sexism of the family structure where women provide most of the care for children in general, for elderly parents, and for those disabled in accidents or from nongenetic diseases.").
165. The market for assisted reproductive technologies has been estimated at three billion dollars and growing. See Kimberly D. Krawiec, Price and Pretense in the Baby Market, in BABY MARKETS: MONEY AND THE NEW POLITICS OF CREATING FAMILIES 41, 42 (Michele Bratcher Goodwin ed., 2010).
166. A possible exception is the right of disabled persons to engage in so-called intentional diminishment in order to have children who share their condition. Deafness and dwarfism are the two most commonly discussed examples. See, e.g., I. Glenn Cohen, Intentional Diminishment, the Non-Identity Problem, and Legal Liability, 60 HASTINGS L. J. 347, 349 (2008). This is one form of genetic selection that it is easy to imagine the political process regulating to the detriment of a politically vulnerable group, arguably out of insufficient sensitivity to the distinctive culture and sense of identity associated with disabilities like deafness. As explored in the next Part, however, courts seem unlikely to be more sympathetic than the political process on this issue.
167. Specifically, the Court is prone to fallaciously attributing the characteristics and motives of individual officials to institutions as a whole, as in the assumption that the judiciary will make rational, principled, or ideological decisions if individual judges are rational, principled, or ideological. Cf. Adrian Vermeule, Foreword: System Effects and the Constitution, 123 HARV. L. REV. 4, 52 (2009) (discussing fallacies of composition and division in American public law).
168. See generally KOMESAR, IMPERFECT ALTERNATIVES, supra note 13.
169. See, e.g., Douglas Laycock, A Syllabus of Errors, 105 MICH. L. REV. 1169, 1174-75 (2007) ("Legislators can do serious investigations, but they rarely do.").
170. See generally KOMESAR, IMPERFECT ALTERNATIVES, supra note 13.
171. The extent, and even the existence, of such tradeoffs depends on the overall capacity of the judiciary. For a variety of structural reasons, chiefly stemming from the hierarchical appellate structure of the adjudicative process, that capacity is likely to be starkly limited as compared to other decisionmaking institutions. See KOMESAR, LAW'S LIMITS, supra note 99, at 40-41. At any given time, of course, there may be a certain amount of slack in the system; the present caseload of the Supreme Court suggests as much.
172. See David R. Stras, The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation, 27 CONST. COMMENT. 151, 152 (2010) (describing the recent decline in the Court's plenary docket as "extraordinary"). But the question remains: of the innumerable social problems toward which that unused capacity might be directed, on which could courts make the most meaningful positive impact?
173. See, e.g., MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 81 (2008).
174. See, e.g., Mathew D. McCubbins & Michael F. Thies, Rationality and the Foundations of Positive Political Theory, 19 LEVIATHAN 7 (1996).
175. See generally KOMESAR, IMPERFECT ALTERNATIVES, supra note 13. I have selected Komesar's approach because it is relatively accessible and jargon-free and because Komesar has gone further than any other theorist in applying the basic rational choice model to problems of comparative institutional analysis.
176. This proposition has become something close to a truism in legal scholarship, but in fact, it is true only as a rough empirical generalization, as a moment's reflection on successful mass movements (not to mention majoritarian oppression) should suffice to demonstrate. The basis for this generalization is not the logical, prisoners' dilemma structure of collective action, which in one-shot situations should prevent cooperation by small groups as well as large, and in iterative games should in theory permit cooperation by large groups as well as small. Rather, it is the practical costs-mostly information costs-of communicating, coordinating on a joint course of action, and making credible commitments to cooperate (commitments that depend on the ability of the group to monitor individual actors), which are often, though not always, prohibitive for large groups. See generally STEVEN P. CROLEY, REGULATION AND PUBLIC INTERESTS: THE POSSIBILITY OF GOOD REGULATORY GOVERNMENT (2008);
177. RUSSELL HARDIN, COLLECTIVE ACTION (1982).
178. Unlike many public choice theorists, Komesar does not assume that either officials or citizens are "narrowly rational" (that is, motivated purely by material self-interest). Rather, he assumes that individuals act instrumentally from an indeterminate mix of selfish, ideological, and altruistic motives. The content of this mix in any given context obviously has an effect on institutional outputs, but that effect is always mediated by the same dynamics of participation: individuals participate when the benefits to them (including altruistic and ideological benefits) exceed the costs (most significantly, the costs of effectively organizing group action). Officials, for their part, may act for partially or wholly altruistic reasons, but they will remain in office (and indeed obtain office in the first place) only if those reasons are sufficiently pleasing to the mobilized interest groups that fund campaigns and turn out voters. See KOMESAR, IMPERFECT ALTERNATIVES, supra note 13, at 65.
179. At least one organization already exists to represent the interests of this group. See Resolve, NAT'L INFERTILITY ASS'N, www.resolve.org (last visited Oct. 31, 2011).
180. This group is represented by two professional organizations: the Society for Assisted Reproductive Technology and the American Society for Reproductive Medicine. See Vision of ASRM, AM. SOC'Y FOR REPROD. MEDICINE, http://www.asrm.org/detail.aspx?id=35 (last visited Oct. 31, 2011);
181. Mission Statement, SOC'Y FOR ASSISTED REPROD. TECH.,
182. On the divide between libertarian and egalitarian factions, see, for example, Carol Mason, Who's Afraid of Virginia Dare? Confronting Anti-Abortion Terrorism After 9/11, 6 U. PA. J. CONST. L. 796, 801-02 (2004);
183. Joan Williams, Gender Wars: Selfless Women in the Republic of Choice, 66 N. Y. U. L. REV. 1559, 1574-76, 1588, 1591 (1991).
184. One prominent example, among hundreds, is Operation Rescue. See Who We Are, OPERATION RESCUE, http://www.operationrescue.org/about-us/who-we-are/(last visited Oct. 31, 2011).
185. David Ruebain, What Is Prejudice as It Relates to Disability Anti-Discrimination Law?, DISABILITY RTS. EDUC. & DEF. FUND, http://www.dredf.org/international/paper-ruebain.html (last visited Oct. 31, 2011) ("The inescapable consequence of [genetic selection] is that disabled people, as a distinct group, are specifically targeted before they can even be born. "). It is important to emphasize that not all members of the disability-rights community share these concerns or agree on the appropriate governmental response to them.
186. See, e.g., FEMINIST INT'L NETWORK OF RESISTANCE TO REPROD. & GENETIC ENGINEERING, http://www.finrrage.org (last visited Oct. 31, 2011). As with the disability-rights community, it is important to emphasize that not all feminists or feminist groups share these concerns.
187. See, e.g., CGS: About Us, CTR. FOR GENETICS & SOC'Y, http://www.geneticsandsociety.org/article.php?list=type&type=10 (last visited Oct. 31, 2011);
188. History, COUNCIL FOR RESPONSIBLE GENETICS, http://www. councilforresponsiblegenetics.org/Help/History.aspx (last visited Oct. 31, 2011).
189. See Lynn B. Davis et al., A Cost-Benefit Analysis of Preimplantation Genetic Diagnosis for Carrier Couples of Cystic Fibrosis, 93 FERTILITY & STERILITY 1793, 1793 (2010) ("In vitro fertilization costs $10, 000 or more, and intracytoplasmic sperm injection (ICSI), embryo biopsy, and PGD add costs of approximately $1, 500-$2, 500 each....[M]ore than one cycle is usually necessary to achieve a live birth.").
190. Such organizations may create what public choice theorists call "selective effects"-in other words, private benefits that make membership worthwhile to individual members quite apart from the collective benefits conferred by efficacious group action. Examples in the medical context would include intragroup referrals, advertising, and professional development. See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 137-38 (2nd prtg. 1971).
191. See KOMESAR, IMPERFECT ALTERNATIVES, supra note 13, at 224-25. The numbers advantage of genetic-selection opponents is likely to be enhanced in practical terms by the fact that many persons who may wish to use genetic-selection techniques in the future will be unaware of this fact until the need arises. On the other hand, many individuals who will never use such techniques may place value-and potentially quite significant value-on preserving their option to do so.
192. The fear that religious conservatives might use genetic-selection regulation as a stalking horse for restricting abortion rights (perhaps through increased legal protection for embryos) seems likely to increase the political potency of such a linkage. Cf. Tara Kole & Laura Kadetsky, Recent Developments: The Unborn Victims of Violence Act, 39 HARV. J. ON LEGIS. 215, 216 (2002) (expressing similar concerns about the Unborn Victims of Violence Act as an incremental assault on abortion rights).
193. See KOMESAR, IMPERFECT ALTERNATIVES, supra note 13, at 225 ("Insularity and discreteness make the minority a safe target and often increase the possibility of majority activity by making the presence of simple symbols more likely.");
194. United States v. Carolene Prods. Co., 304 U. S. 144, 152-53 n. 4 (1938).
195. See KOMESAR, IMPERFECT ALTERNATIVES, supra note 13, at 63-64.
196. But cf. History, OPERATION RESCUE, http://www.operationrescue.org/about- us/history/(last visited Oct. 31, 2011). This pro-life organization claims to have purchased and closed a women's health clinic where abortions were provided.
197. The strength of religious conservatives in the Deep South makes it seem like particularly fertile ground. Indeed, the Georgia State Senate recently considered legislation that, by requiring the implantation of all embryos created in a given in vitro fertilization cycle, would effectively have banned preimplantation genetic screening (which by definition involves discarding embryos). Though the bill appears to have died in committee, it produced an intense legislative fight, which shaped up much as the analysis of this Article would have predicted, with religious conservatives (and pro-life groups in particular) mobilizing in support of the bill and fertility specialist and patient advocacy groups (successfully) mobilizing against it. See William Saletan, The IVF Battlefield, SLATE (Mar. 8, 2009, 11:22 AM), http://www.slate.com/blogs/blogs/humannature/archive/2009/03/08/ me-ivf-battlefield.aspx.
198. Roughly similar coalitions have succeeded in obtaining very strong regulations in Germany and Italy and somewhat weaker regulations in the United Kingdom, though the political and cultural contexts are obviously quite different from the United States. See John A. Robertson, Reproductive Technology in Germany and the United States: An Essay in Comparative Law and Bioethics, 43 COLUM. J. TRANSNAT'L L. 188, 205 (2004)
199. [hereinafter Robertson, Reproductive Technology].
200. See JENNIFER BAUMGARDNER, ABORTION & LIFE 16 (2008). Social ostracism of abortion providers (and seekers) is probably the most important mechanism for this influence.
201. Note that this runs contrary to the basic normative tenet of public choice theory: that the political influence of concentrated interest groups justifies leaving most issues to the market. One of Komesar's most enduring insights is that concentrated interests will enjoy outsized influence in both the political process and the market, and that indeed, that influence may be even greater in the market. See Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L. J. 31, 43, 46 (1991) (making a similar point).
202. See KOMESAR, LAW'S LIMITS, supra note 99, at 161 ("Strong rights in constitutional law-such as old-fashioned (and always fatal) strict scrutiny under equal protection law or the absolutist position on free speech-allocate significant responsibility away from political processes to informal processes-With weak rights, the sweeping allocation is to the political process rather than the informal process (markets, communities, individuals).").
203. This is a simple corollary of the strong-though conceptually suspect-American commitment to a constitution of negative, rather than positive, liberties. Cf. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U. S. 189, 204 (1988). In Germany, which has a strong constitutional tradition of positive liberties, courts have affirmatively required regulation of in vitro fertilization (and by extension, genetic selection) to protect the dignity of human embryos.
204. See Robertson, Reproductive Technology, supra note 167.
205. But see Bundesgerichtshof [BGH] [Federal Court of Justice] July 6, 2010 (holding that German law permits preimplantation testing to screen for serious genetic diseases). U. S. courts could logically reach a similar result by reading the word "person" in the Equal Protection Clause to include embryos, but for now at least, such a result is jurisprudentially unthinkable.
206. Cf. Michael Stokes Paulsen, Michael Stokes Paulsen (dissenting), in WHAT ROE V. WADE SHOULD HAVE SAID 196 (Jack M. Balkin ed., 2005) (arguing that the Fourteenth Amendment obligates state governments to accord fetuses equal protection of the laws).
207. See Thomas W. Merrill, Institutional Choice and Political Faith, 22 LAW & SOC. INQUIRY 959, 968 (1997) (making this point).
208. Cf. ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY (1956);
209. See, e.g., Justin Crowe & Christopher F. Karpowitz, Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice 1 (Princeton Law & Pub. Affairs Working Paper Series, Paper No. 06-014, 2006), available at http://ssrn.com/abstract=948813 (finding that the mean tenure of Supreme Court Justices has reached twenty-five years).
210. See Norman Dorsen, The Selection of U. S. Supreme Court Justices, 4 INT'L J. CONST. L. 652, 662-63 (2006) (noting the ideological unpredictability of many twentieth-century Supreme Court appointments).
211. Occasionally that divergence can be quite extreme, as in decisions like Hammer v. Dagenhart, 247 U. S. 251, 251 (1918) (invalidating a federal ban on interstate shipment of goods produced through child labor)
212. Engel v. Vitale, 370 U. S. 421, 424 (1962)
213. (holding that recitation of an official school prayer violates the Establishment Clause), and Citizens United v. FEC, 130 S. Ct. 876, 886 (2010) (striking down federal limits on corporate campaign expenditures).
214. On the unpopularity of these decisions, see Alison Gash & Angelo Gonzales, School Prayer, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 62, 62 (Nathaniel Persily et al. eds. 2008) (in regards to Engel);
215. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747, 775 (1991) (in regards to Hammer);
216. Dan Eggen, Poll: Large Majority Opposes Supreme Court's Decision on Campaign Financing, WASH. POST, Feb. 17, 2010, http://www.washmgtonpost.com/wp- dyn/content/article/2010/02/17/AR2010021701151.html (last visited Oct. 31, 2011) (in regards to Citizens United).
217. See generally CROLEY, supra note 140; DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991); DONALD P. GREEN & IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE (1994).
218. I am hardly the only one to hold this view. See, e.g., Gregory Shaffer, A Structural Theory of WTO Dispute Settlement: Why Institutional Choice Lies at the Center of the GMO Case, 41 N. Y. U. J. INT'L L. & POL. I, 1 (2008) (describing Komesar's work on comparative institutional analysis as "pathbreaking");
219. see also Susan Freiwald, Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation, 14 HARV. J. LAW & TECH. 569, 575 (2001) (same);
220. Wendy Wagner, When All Else Fails: Regulating Risky Products Through Tort Litigation, 95 GEO. L. J. 693, 697 (2007) (same).
221. See Ronald Dworkin, The Forum of Principle, 56 N. Y. U. L. REV. 469, 510 (1981) (advancing this critique of John Hart Ely's representation-reinforcement theory of judicial review).
222. Komesar supplements the participation-centered approach in much this way, especially in his discussions of the adjudicative process. See, e.g., KOMESAR, LAW'S LIMITS, supra note 99, at 38-39 (comparing judicial and juror competence); id. at 39-40 (analyzing constraints on the growth adjudicative process imposed by its hierarchical structure). A better understanding of the normative gap and its causes should help to identify other opportunities for supplementation.
223. See KOMESAR, IMPERFECT ALTERNATIVES, supra note 13, at 5;
224. VERMEULE, supra note 13, at 6-7.
225. That this must be so is underscored by the willingness of libertarians to permit interference with most other forms of personal liberty whenever a minimally rational basis can be offered for doing so. See, e.g., Robertson, Era of Genomics, supra note 38, at 472-73. As a first-best normative position, this would be truly bizarre. To normatively justify interference with personal liberty-on any plausible view-requires an adequate justification, not merely a conceivably rational one. But on institutional grounds, it is perfectly defensible for courts to apply the rational-basis rule to less important liberties or liberties the political process is better suited to protect. Indeed, given the judiciary's sharply constrained time and material resources, this is practically inevitable, though which liberty interests fall into each of these categories is subject to debate.
226. Compare RONALD DWORKIN, JUSTICE IN ROBES 75-104 (2006) (arguing in the affirmative)
227. with Richard A. Posner, 1997 Oliver Wendell Holmes Lectures: The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637, 1668-75 (1998) (arguing in the negative).
228. This is a specific instance of a more general problem that psychologists refer to as "biased assimilation. " See Charles G. Lord et al., Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J. PERSONALITY & SOC. PSYCHOL. 2098, 2099 (1979).
229. See generally VERMEULE, supra note 13.
230. But cf. Frederick Schauer, Instrumental Commensurability, 146 U. PA. L. REV. 1215, 1231-32 (1998) (making a similar point in the course of defending value incommensurability as a potentially useful heuristic for administrative decisionmaking). (Pubitemid 128443679)
231. See KOMESAR, LAW'S LIMITS, supra note 99, at 30 (explaining the participation-centered approach's "bottom-up" focus on participants in institutional decisionmaking processes in contrast to a "top-down" focus on official decisionmakers).
232. See, e.g., David McGowan, (So) What If It's All Just Rhetoric?, 21 CONST. COMMENT. 861, 885-86 (2004) (reviewing EUGENE GARVER, FOR THE SAKE OF ARGUMENT: PRACTICAL REASONING, CHARACTER, AND THE ETHICS OF BELIEF (2004)) ("As the country accepts creative decisions, they become more accustomed to such decisions, making creativity less costly in the future, and therefore more likely.").
233. See generally JAMES L. GIBSON & GREGORY A. CALDEIRA, CITIZENS, COURTS, AND CONFIRMATIONS: POSITIVITY THEORY AND THE JUDGMENTS OF THE AMERICAN PEOPLE (2009); PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY (Nathaniel Persily et al. eds. 2008).
234. As an example, consider the possibility that the high public salience of social issues like abortion and gay marriage-at least partially a byproduct of Roe v. Wade, 410 U. S. 113, 113-14 (1973)
235. and Lawrence v. Texas, 539 U. S. 558, 558-59 (2003)-made it easier for President George W. Bush to appoint justices hostile to federal regulatory power. Better yet, consider the possibility that the salience of these issues made it easier for Bush to get elected in the first place. See Coan, supra note 74, at 236-37.
236. See KOMESAR, LAW'S LIMITS, supra note 99, at 163 (discussing the benefits of stability in institutional choice and the costs of cycling from one highly problematic regime to another).