Sonia M. Suter · September 2008
76 GEO. WASH. L. REV. 1298 (2008)
Reproductive decisionmaking has always raised ethical and legal issues. With scientific advances, reproductive decisions are even more complex and the legal and moral issues even more complicated. Some advanced technologies, such as in vitro fertilization (“IVF”) assist procreation. Other technologies, such as amniocentesis and chorionic villus sampling (“CVS”), help future parents gather information about the fetus to make decisions about whether to continue a pregnancy. A technique called preimplantation genetic diagnosis (“PIGD”) involves genetic testing of embryos created through IVF, which allows people to get information about the embryo to decide whether or not to implant it. Finally, gene transfer, a technology of the future, may allow us to make reproductive decisions of an altogether different nature—decisions about whether to alter the fetus or embryo genetically, either to eliminate disease or to “enhance” certain traits.
States have become increasingly active in regulating or banning reproductive technologies. Sometimes these efforts are especially aggressive, for example, directly challenging constitutionally protected rights by banning abortion outright. Other efforts are more subtle: imposing requirements for an abortion such as waiting periods, parental or spousal notifications, mandating the receipt of particular information, or more recently, requiring that ultrasounds be offered or given to women seeking abortions.
Determining whether and when the state may interfere with decisions to use advanced reproductive technologies depends both on how we characterize the reproductive interests protected in the contraception and abortion cases and how those interests compare to our interests in the new reproductive technologies. Although contraception, abortion, IVF, PIGD, prenatal testing, and genetic modification of the fetus or embryo all concern reproduction, the interests at stake in each instance are quite different. Contraception and abortion allow people to prevent procreation. IVF allows people to procreate noncoitally, raising the question whether we have an affirmative right to procreate and whether such a right includes the right to do so noncoitally. Prenatal testing helps people make decisions about whether to continue a pregnancy based on information about the health, or possibly even traits, of the fetus. It raises the question whether reproductive rights encompass the right to any method of obtaining information that influences such decisions, and if so, whether it encompasses the right to any and all information, including information about fetal traits. Finally, genetic modification would allow parents to alter fetal or embryonic genes, either to improve health or to alter traits. This raises the question whether we have a right to manipulate the fetus or embryo genetically.
To determine whether the state may limit the ability to use advanced reproductive technologies, we must be attentive not only to the different kinds of interests with respect to each technology, but also to the lens through which we interpret Supreme Court cases dealing with reproduction. Since 1925, the Court has explored the constitutionality of state efforts to control reproduction, including laws mandating involuntary sterilization, laws banning contraception, and laws prohibiting or regulating abortion. How we should interpret these cases and the reproductive interests they protect is a source of debate. One might read these cases to establish a right to procreative liberty, grounded in a libertarian conception of autonomy and self-definition. Alternatively, one might interpret these cases more circumspectly as protecting rights that are rooted in our nation’s history and tradition. These cases are also consistent with a right of privacy that primarily encompasses an interest in bodily integrity—the right to privacy of person. One might also interpret these cases as creating a relational right to privacy, in particular, a right of parental or familial privacy. Finally, the cases might be read to prevent state intervention when reproductive choices promote equality, generally or between the sexes. And, of course, one might use more than one of these lenses when interpreting these cases.
Each of these interpretations results in a different conclusion as to whether the various advanced reproductive technologies should be granted constitutional protection. The first Part of this piece explores how the different understandings of reproductive rights play out with respect to IVF, prenatal testing, PIGD, and genetic modification. Because this body of law is subject to so many different interpretations, and because the interests at stake with respect to these newer technologies are not precisely the same as those of contraception, abortion, and the avoidance of mandatory sterilization, it remains largely unclear whether and when the state can regulate or ban some of these technologies.
Gonzales v. Carhart, the Court’s latest word on abortion, presents yet another approach to evaluating reproductive rights, which challenges the various interpretations of Supreme Court jurisprudence I explore in Part I. As I argue in Part II, although claiming to preserve the fundamental holdings of Casey and Roe, Gonzales undercuts them in important ways. By justifying and upholding an abortion ban with no health exception, even before viability, the Court directly challenges Casey’s notion of self-defining liberty. In addition, Gonzales broadens the range of state interests that can justify limiting reproductive decisions to include the state interest in protecting society and the medical profession against moral “coarsen[ing]”—an approach I call the “repugnance” approach. As I argue in Part II.B, the Court’s willingness to draw sharp lines between different abortion procedures based on their effect on the sensibility of the community suggests it might easily distinguish between many forms of advanced reproductive technologies and “ordinary” reproductive decisions, particularly where moral concerns exist.
Finally, I argue in Part II.C that Casey and Gonzales reflect two extremes of constitutional analysis, a heightened individualism and a heightened focus on community concerns, respectively. I end by briefly suggesting that neither extreme gets it right; each oversimplifies the issue, and each leaves out important considerations. Instead, we need a more balanced approach that understands autonomy in terms of the relationships that define us, balancing social as well as individual concerns.
