Liberty’s Limits & Editing Humanity

Abstract

Any debate about the effects of Lawrence v. Texas on American society notwithstanding, the Court’s opinion is a landmark in its own right. Lawrence’s logic placed an indelible mark on the Constitution’s central — though certainly elusive — protections of liberty. Particularly after Lawrence, substantive due process might amount to something beyond the sum of its parts. By defining liberty not merely as a collection of disconnected rights, but as a larger whole, Lawrence invites a more flexible substantive due process analysis. The foreseeable consequence of this flexible approach in fact manifested. Justice Scalia’s vision of Lawrence — that the decision would lead to a flood of litigation in the lower courts — materialized, with litigants advocating for the recognition of new fundamental rights. But even Justice Scalia would never have included in his parade of horribles the most recent effort to expand liberty’s definition: a call for the recognition of a fundamental right to edit humanity.

The argument for a fundamental right to edit humanity stems from the Court’s jurisprudence on procreative, parental, and privacy rights. The flexible language in Lawrence, too, lends its support. This Article asserts that a fundamental right to edit humanity should not be recognized. While not necessarily inconsistent with precedent, the arguments for the right to engage in therapeutic germline genome editing don’t flow naturally from the Court’s previous holdings. Further, entitling parents to use germline genome editing also poses insurmountable practical and policy-based obstacles. Most poignantly, the line-drawing method that’s been proposed will prove intractable. And, in any case, our legislative and executive branches of government are far better positioned to handle the issues raised by germline genome editing than the courts.

Keywords: CRISPR, Substantive Due Process, Genetics, Constitutional Law, Privacy, GGE, Gene Editing, Bioethics