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«Fordham Urban Law Journal Volume 30, Issue 1 2002 Article 4 Assisted Reproductive Technologies and the Constitution Carl H. Coleman∗ ∗ Seton Hall ...»

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In the abortion context, the Court has upheld indirect restrictions on procreative liberty as long as those restrictions do not pose an "undue burden" on the individual's choice.60 Moreover, the Court's application of the undue burden standard suggests that the restrictions must "substantially limit[ ]" the decisions of individuals in general; it is not enough to show that a law makes it difficult for a particular person to exercise her constitutional rights.6 ' Thus, in Casey, the Court upheld a twenty-four hour waiting period for obtaining abortions, despite the fact that some women would not be able to travel to abortion clinics twice within a twenty-four hour period.62 The Court concluded that waiting periods do not place substantial obstacles in the path of women in general, even though concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society.").

58. See Roe v. Wade, 410 U.S. 113, 148, 153 (1973).

59. See ROBERTSON, CHILDREN OF CHOICE, supra note 28, at 152-53.

60. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 878 (1992).

61. Id. at 875 (citing Carey v. Population Servs. Int'l, 431 U.S. 678, 688 (1977)).

62. Id. at 886-87.

2002] ASSISTED REPRODUCTIVE TECHNOLOGIES 67 they might affect access to abortion for particular women.63 Regarding restrictions on trait selection technologies, the Court is also likely to ask whether such restrictions are substantial limitations for the average person seeking to have a child, not whether they interfere with the willingness of particular persons to reproduce.

Indeed, the Court's application of the "undue burden" standard in the context of procreative decisions may turn out to be at least as important as its determination of the type of reproductive activities that trigger heightened scrutiny. Before Casey, the Court applied "strict scrutiny" to laws that interfered with the right to abortion, which requires the government to show that its actions 6 are "narrowly drawn" to achieve a "compelling state interest.

Applying this standard of review, commentators have questioned the constitutionality of many indirect restrictions on reproductive decisions, such as laws prohibiting payments to surrogate mothers,65 or laws that do not permit men to "opt out" of parental rights and responsibilities when donating sperm to unmarried women, which arguably reduce these women's access to donor sperm. 66 However, under the "undue burden" standard, a constitutional challenge to these indirect restrictions would be far more difficult. While the Court struck down Pennsylvania's spousal notification requirement under the undue burden standard, it did so because of its belief that the requirement would effectively preclude a "significant number of women" from obtaining abortions "as surely as if the Commonwealth had outlawed abortion in all cases." 67 If the undue burden standard requires proof that a governmental action would make it impossible for a significant number of people to engage in protected activities, government could place substantial limits on ARTs even if they are found to implicate constitutionally protected rights.

III. CONSTITUTIONAL ANALYSIS AND PUBLIC POLICY

While the current Supreme Court is unlikely to interpret the principle of procreative liberty in a manner that embraces most forms of ARTs, it is not difficult to envision a differently constiId. at 886.

64. Roe v. Wade, 410 U.S. 113, 155 (1973).

65. See ROBERTSON, CHILDREN OF CHOICE, supra note 28, at 141.

66. See Janet E. Durkin, Reproductive Technology and the New Family: Recognizing the Other Mother, 10 J. CONTEMP. HEALTH L. & POL'Y 327, 341-42 (1994) ("[Tjhe inability of donors to 'opt out' could deny the single woman her constitutionally protected right to procreate with the aid of artificial insemination.").

67. Casey, 505 U.S. at 893-94.

[Vol. XXX

FORDHAM URBAN LAW JOURNAL

tuted Court adopting a broader view. Like all questions about the scope of substantive due process protections, the concept of procreative liberty is susceptible to multiple interpretations, depending on the level of generality at which the principle is defined.68 Precedent alone cannot determine the appropriate level of generality at which to define a particular principle; both Robertson's broad interpretation and Massie's narrow view could easily be reconciled with the prior case law, depending on how those cases are read. Ultimately, whether ARTs should be considered part of procreative liberty is as much about values and policy as it is about precedent. The question cannot be answered without considering the larger purposes that heightened judicial scrutiny of governmental actions is designed to promote.

One reason to subject certain governmental actions to heightened judicial scrutiny is that they affect personal decisions that are deeply important to the individuals making them. Yet, subjective importance to the individual cannot be the sole requirement for heightened constitutional protection. Numerous activities are deeply important to particular individuals, ranging from smoking marijuana to polygamous marriage, yet restrictions on these activities need not, and should not have to, pass the test of heightened scrutiny. A constitutional system that required heightened scrutiny of all laws affecting decisions that individuals subjectively deem important would have profoundly undemocratic implications, as it would give judges expansive powers to second-guess a broad range of legislative and regulatory actions.





John Hart Ely's process-based theory of constitutional adjudication seeks to overcome this dilemma by focusing on the core democratic values our constitutional system is designed to promote.69 According to Ely, judges should not apply heightened scrutiny to impose particular substantive values, but instead to correct defects in the political process that close out disadvantaged minorities.70 Viewed in this light, the argument for an expansive definition of procreative liberty loses much of its force. There is no reason to believe that persons seeking to use ARTs lack the ability to pursue their interests effectively in the political process. Such individuals are not only disproportionately white and wealthy,71 but their in

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terests also overlap with those of organized medicine and the pharmaceutical industry, two interest groups with considerable influence in the political process. The lack of any significant limits on access to ARTs in this country suggests that infertile people can effectively pursue their interests without enhanced constitutional protection. 2 Constitutional protection of ARTs also cannot be justified by the equality concerns that underlie some of the Court's recent abortion jurisprudence. In Casey, for example, the plurality linked the right to abortion to women's equality and noted that, "[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."' 73 Restrictions on access to abortion and contraception raise significant concerns for gender equality, if for no other reason than it is only women who must endure the physical burdens of unwanted pregnancies. Restrictions on access to ARTs, however, affect both women and men.74 Indeed, granting constitutional protection to ARTs may actually impede efforts to promote social equality. For example, one of the primary arguments for regulating the use of germline modification is to avoid creating a self-perpetuating "genetic divide," in which the descendents of the wealthy will have inborn advantages not available to children of the poor.75 Equality considerations also underlie efforts to restrict the prices charged for human eggs.

Recognizing a broad constitutional principle of procreative liberty might frustrate societal efforts to limit the inequitable conseThe fact that many states require private health insurers to cover infertility treatment, despite the absence of mandates for other important medical service, demonstrates that people with infertility do not lack power in the political process. See generally Lisa M. Kerr, Can Money Buy Happiness?An Examination of the Coverage of Infertility Services Under HMO Contracts, 49 CASE W. RES. L. REV. 599, 606 (1999).

73. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 856 (1992).

74. Indeed, some feminists believe that ARTs are actually harmful to women, "by reinforcing sex-role stereotypes in which a woman's worth is dependent upon her reproductive capacity and also by reinforcing the power of men in the reproductive sphere." Karen Lebacqz, Feminism and Bioethics: An Overview, 17 SECOND OPINION 10, 11 (1991).

75. See Mehlman, supra note 7, at 553 (expressing concern that such modifications "could eventually create a political system dominated by a genetic aristocracy or 'genobility'").

76. See Ethics Comm. of the Am. Soc'y for Reprod. Med., FinancialIncentives in Recruitment of Oocyte Donors, 74 FERTILITY & STERILITY 216, 217 (2000) (suggesting that high payments to egg donors "could be used to promote the birth of persons with traits deemed socially desirable, which is a form of positive eugenics," and also "make donor oocytes available only to the very wealthy").

FORDHAM URBAN LAW JOURNAL [Vol. XXX quences of particular ARTs, to the extent that effective regulations might require some restrictions on individual choice.

The above discussion suggests that an expansive definition of procreative liberty may not be necessary to promote the core values that heightened due process protection is designed to protect.

It is also worth considering whether such a definition would be desirable as a matter of sound health care policy. As with any new technological development, a cautious approach to introducing new ARTs is likely to maximize the benefits of these technologies while minimizing the harms. Even many of the most ardent supporters of procreative liberty note the wisdom of adopting a goslow approach. For example, in the context of preconception gender selection, Robertson has argued that the most desirable public policy would be to introduce the practice "to increase the variety of offspring gender before extending it to firstborn gender preferences," rather than simply making the technology available immediately to anyone on demand." Similarly, he has suggested that reproductive cloning, if it ever becomes feasible, first should be limited to individuals unable to have children through other means. 78 Such a cautious approach would permit us to assess the implications of these technologies on a small-scale level and, if necessary, to develop mechanisms for minimizing any previously unforeseen harms. Yet, if all restrictions on ARTs are subjected to heightened scrutiny, this approach might be difficult to sustain.

Given the limited and murky precedents in this area, it would not be inappropriate to consider these policy implications in defining the scope of constitutional review.

77. Robertson, Preconception Gender Selection, supra note 6, at 7.

78. See Robertson, Two Models, supra note 32, at 638 (arguing that cloning is best suited for couples who have "no other way than cloning to have a genetic kinship

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