Substantive Due Process and a Right to Clone

Congressional research reportMay 21, 2002

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Order Code RL31422

Report for Congress

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Substantive Due Process

and a Right to Clone

May 21, 2002

name redacted

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Substantive Due Process and a Right to Clone

Summary

As Congress continues to explore whether restrictions on cloning should be

imposed, this report will consider whether a right to clone may be found under the

Due Process Clauses of the Fifth and Fourteenth Amendments. In past cases, the

U.S. Supreme Court has recognized certain personal rights as being fundamental and

protected from government interference. Some of those cases involve various

reproductive matters, including procreation and childbearing. If a right to clone is

found to be fundamental, any infringement on that right would be evaluated with

strict scrutiny, the most rigorous form of judicial review, if challenged. Because

government action often fails to withstand strict scrutiny, the judicial recognition of

a fundamental right to clone could raise questions about legislation that would

prohibit or limit cloning. However, if a fundamental right to clone is not found,

government regulation of cloning would be subject to rational basis review, the most

deferential level of judicial review.

Contents

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Substantive Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Reproductive Cloning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Therapeutic Cloning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Substantive Due Process

and a Right to Clone

In 1997, scientists in Scotland reported the first successful cloning of an adult

mammal, a sheep named Dolly. Since that time, debate over the use of cloning for

both reproductive and therapeutic purposes has steadily increased.1 The possibility

that a cloned human being may be forthcoming has generated additional concern.2

In July 2001, the U.S. House of Representatives passed H.R. 2505, the Human

Cloning Prohibition Act of 2001. The Act would make it unlawful for any person or

entity, public or private, to knowingly perform or attempt to perform human cloning,

to knowingly participate in an attempt to perform human cloning, or to ship or

receive an embryo produced by human cloning or any product derived from such

embryo.3 The Senate is expected to consider a similar measure, as well as a bill that

would prohibit reproductive cloning, but allow medical research, including stem cell

research, to continue.4 Therapeutic cloning, which generally involves medical

research to develop new therapies and treatments, would seem to be distinguished

from reproductive cloning, where a cloned embryo is transferred to a womb to

produce a cloned human being.

As Congress continues to explore whether restrictions on cloning should be

imposed, this report will consider whether a right to clone may be found under the

Due Process Clauses of the Fifth and Fourteenth Amendments. In past cases, the

U.S. Supreme Court has recognized certain personal rights as being fundamental and

protected from government interference. Some of these cases involve various

reproductive matters, including procreation and childbearing. If a right to clone is

found to be fundamental, any infringement on that right would be evaluated with

strict scrutiny, the most rigorous form of judicial review, if challenged. Because

government action often fails to withstand strict scrutiny, the existence of a

See (name redacted), Human Cloning, CRS Rept. RL31358 (2002).

See David Brown, Human Clone’s Birth Predicted, Wash. Post, May 16, 2002, at A8; Rick

Weiss, Free to Be Me: Would-Be Cloners Pushing the Debate, Wash. Post, May 12, 2002,

at A1.

H.R. 2505, 107th Cong. § 2 (2001). The term “human cloning” is defined to mean “asexual

reproduction, accomplished by introducing nuclear material from one or more human

somatic cells into a fertilized or unfertilized oocyte whose nuclear material has been

removed or inactivated so as to produce a living organism (at any stage of development) that

is genetically virtually identical to an existing or previously existing human organism.”

See Adriel Bettelheim, Divided Senate Examining Research Value, Moral Issues As It

Ponders Vote on Cloning, CQ Wkly., May 4, 2002, at 1154 (discussing S. 1899, the Human

Cloning Prohibition Act of 2001, and S. 2439, the Human Cloning Prohibition Act of 2002).

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fundamental right to clone would raise questions about legislation that limits or

prohibits human cloning.

Background

Although federal law does not currently prohibit cloning, it does restrict the

availability of federal funds for cloning research. Since 1996, Congress has included

riders in appropriations measures for the Departments of Labor, Health and Human

Services, and Education that prohibit the use of appropriated funds for the creation

of human embryos for research purposes or for research in which human embryos are

destroyed.5 In general, the riders define human embryos as any organism “derived

by fertilization, parthenogenesis, cloning, or any other means from one or more

human gametes or human diploid cells.”6

Federal funds for human cloning research have been similarly restricted. In

1997, President Clinton issued a memorandum to the heads of the executive

departments and agencies that addressed the funding of human cloning.7 The

memorandum stated that federal funds would not be used for the cloning of human

beings. In remarks to the press, President Clinton urged the private sector to adopt

a voluntary moratorium on the cloning of human beings: “Of course, a great deal of

research and activity in this area is supported by private funds. That is why I am

urging the entire scientific and medical community, every foundation, every

university, every industry that supports work in this area to heed the federal

government’s example.”8

Bills to restrict cloning have been introduced since the 105th Congress.9 Early

cloning bills sought to restrict either the federal funding of cloning research or the

cloning of a human being.10 These bills appear to have received little legislative

action. H.R. 2505 is the first substantive cloning bill to have been passed by a

congressional chamber.

Balanced Budget Downpayment Act, I, Pub. L. No. 104-99, 110 Stat. 34 (1996). See

Johnson, supra note 1 at 5 n.11 (identifying the relevant appropriations measures between

1996 and 2002).

Departments of Labor, Health and Human Services, and Education, and Related Agencies

Appropriations Act, Pub. L. No. 107-116, 115 Stat. 2219 (2002).

Memorandum on the Prohibition on Federal Funding For Cloning of Human Beings, 33

Weekly Comp. Pres. Doc. 281 (Mar. 4, 1997).

Remarks Announcing the Prohibition on Federal Funding For Cloning of Human Beings

and an Exchange With Reporters, 33 Weekly Comp. Pres. Doc. 278 (Mar. 4, 1997).

See Lori B. Andrews, Is There a Right to Clone? Constitutional Challenges to Bans on

Human Cloning, 11 Har. J.L. & Tech. 643, 675-76 (1998) (discussing early cloning bills).

Id.

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Substantive Due Process

The Due Process Clauses of the Fifth and Fourteenth Amendments provide that

no person shall be deprived of “life, liberty, or property, without due process of

law.”11 The U.S. Supreme Court has understood due process to protect both

procedural and substantive rights. Under the doctrine of substantive due process, the

Court has held that certain rights, while not expressly recognized in the text of the

Constitution, are subsumed within the notion of liberty in the Due Process Clauses.

One aspect of the liberty interest protected by the Due Process Clauses is a right of

personal privacy or “a guarantee of certain areas or zones of privacy.”12 The Court

has found that certain personal rights that can be deemed “fundamental” are included

in this guarantee of personal privacy.13

If the Court determines that a right is fundamental, any government

infringement on that right will be subject to strict scrutiny. Strict scrutiny is the most

rigorous form of judicial review applied by a reviewing court. Government action

will survive strict scrutiny only if such action is narrowly tailored to achieving a

compelling government interest.14 Where there is no fundamental right involved, the

government must show simply that there is a rational basis for its action. This level

of judicial review, referred to as rational basis review, is characterized by its

deference to legislative judgment. Because of the distinction between strict scrutiny

and rational basis review, a determination on whether there is a fundamental right to

clone is critical.

The Court’s recent substantive due process jurisprudence illustrates its

reluctance to find new fundamental rights.15 The Court has indicated that it has

always been reluctant to expand the doctrine of substantive due process “because

guideposts for responsible decisionmaking in this unchartered area are scarce and

open-ended.”16 In Washington v. Glucksberg, the Court identified two features of its

U.S. Const. amend. V; U.S. Const. amend. XIV, § 1.

Roe v. Wade, 410 U.S. 113, 152 (1973).

See Pierce v. Society of the Sisters, 268 U.S. 510 (1925) (recognizing the right of parents

to control their children’s education); Skinner v. Oklahoma, 316 U.S. 535 (1942)

(recognizing right of marriage and procreation); Eisenstadt v. Baird, 405 U.S. 438 (1972)

(finding a right to contraceptives for unmarried persons); Roe v. Wade, 410 U.S. 113 (1973)

(finding a woman’s right to decide whether or not to terminate her pregnancy); Zablocki v.

Redhail, 434 U.S. 374 (1978) (recognizing the right to marry).

Roe, 410 U.S. at 155. See also Carey v. Population Services Int’l, 431 U.S. 678, 686

(1977).

See Bowers v. Hardwick, 478 U.S. 186 (1986) (no fundamental right conferred on

homosexuals to engage in sodomy); Washington v. Glucksberg, 521 U.S. 702 (1997) (no

fundamental right to assisted suicide). But see Cruzan v. Director, Missouri Dept. of

Health, 497 U.S. 261 (1990) (recognizing right to refuse lifesaving hydration and nutrition

as fundamental).

Collins v. Harker Heights, 503 U.S. 115, 125 (1992).

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substantive due process analysis.17 First, the Court noted that the Due Process Clause

protects those rights and liberties which are deeply rooted in the nation’s history and

tradition and are “‘implicit in the concept of ordered liberty,’ such that ‘neither

liberty nor justice would exist if they were sacrificed.’”18 Second, the Court

maintained that a careful description of the asserted fundamental liberty interest is

required in substantive due process cases.19

The Court’s consideration of the nation’s history and tradition in its substantive

due process analysis could make it difficult to find a fundamental right to clone.

Some argue flatly that a right to clone does not emerge from our nation’s tradition.20

They maintain that cloning is a “radical new technology” that is not deeply rooted in

national tradition.21 On the other hand, proponents of a fundamental right to clone

have identified examples from the nation’s history that they believe support

recognition of such a right.

Reproductive Cloning

In attempting to show that a right to clone for reproductive purposes is deeply

rooted in the nation’s history and tradition, proponents have referenced the nation’s

experience with reproductive technologies. They have identified reports of artificial

insemination dating back to the 1790s to argue that assisted reproduction has been

a part of the nation’s history.22 Proponents also contend that the absence of state bans

on in vitro fertilization (“IVF”) illustrate a continued unwillingness on the part of

state legislatures to prevent infertile couples from exploring new reproductive

technologies.23

The inactivity of state legislatures could provide support for recognizing a

historical acceptance of the use of new reproductive technologies. In Glucksberg, the

Court discussed the existence of state bans on assisted suicide in almost every state

before upholding a similar ban in Washington. The Court noted that the bans

represented longstanding expressions of the states’ condemnation of suicide. The

Court engaged in a similar discussion in Bowers v. Hardwick.24 In that case, the

Court reviewed the historical and continued existence of criminal sodomy laws

Glucksberg, 521 U.S. at 720-21.

Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)).

Glucksberg, 521 U.S. at 721.

See Cass R. Sunstein, Is There a Constitutional Right to Clone? 3 (Apr. 5, 2002) (Chicago

Public Law and Legal Theory Working Paper), available at http://papers.ssrn.com/

sol3/papers.cfm?abstract_id=304484 (“If the right to clone must emerge from such

traditions, the case is simple: There is no such right.”).

Anne Lawton, The Frankenstein Controversy: The Constitutionality of a Federal Ban on

Cloning, 87 Ky. L.J. 277, 351 (1999).

See Note, Human Cloning and Substantive Due Process, 111 Harv. L. Rev. 2348, 2360

(1998).

Id. at 2361.

478 U.S. 186 (1986).

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before concluding that the Due Process Clause does not confer a fundamental right

on homosexuals to engage in sodomy.25 In contrast, the absence of bans on IVF

could be offered to show a lack of condemnation for the use of new reproductive

technologies.

Although states have not passed bans on IVF, some have passed laws that

prohibit reproductive cloning.26 A court would likely consider the existence of such

laws to determine whether they reflect a traditional and historical rejection of

reproductive cloning. However, because only six states appear to have bans on

reproductive cloning, it is possible that the cloning laws would be given less

consideration than the assisted suicide and criminal sodomy statutes.27 While a

majority of states adopted assisted suicide and criminal sodomy laws, it seems that

only six have adopted bans on reproductive cloning.

However, those who oppose finding a fundamental right to clone for

reproductive purposes could argue that more states have not adopted cloning statutes

because a reasonable ability to clone was not established until 1997. Thus, a

comparison between the number of cloning statutes and the number of assisted

suicide and criminal sodomy laws is inappropriate. Moreover, opponents would

likely contend that the recent adoption of state cloning laws emphasizes that cloning

is not deeply rooted in the nation’s history and tradition. They would probably

distinguish between cloning and other reproductive technologies.

Even if it could be established that a right to clone for reproductive purposes is

deeply rooted in the nation’s history and tradition of allowing the use of reproductive

technologies, it is not certain that such a right is “implicit in the concept of ordered

liberty.” The Court’s past cases involving procreation, contraception, and other

deeply personal matters suggest that cloning could be similarly included in the

constitutional guarantee of personal privacy. However, some argue that because

cloning is replication and not reproduction, the Court’s decisions on the right of

privacy should have little influence.28

The Court’s decisions on procreation and contraception appear to demonstrate

its recognition of such matters as fundamental. In Skinner v. Oklahoma, the Court

invalidated Oklahoma’s Habitual Criminal Sterilization Act, which provided for the

sterilization of criminals who have been convicted “two or more times for crimes

Bowers, 478 U.S. at 192 (“Sodomy was a criminal offense at common law and was

forbidden by the laws of the original thirteen States when they ratified the Bill of Rights.”).

See Cal. Health & Safety Code § 24185; 2001 IA S.F. 2118 (enacted Apr. 26, 2002); La.

Rev. Stat. Ann. § 40:1299.36.2; Mich. Comp. Laws § 750.430a; R.I. Gen. Laws § 23-16.4-2;

Va. Code Ann. § 32.1-162.22.

See Glucksberg, 521 U.S. at 710 n.8 (identifying forty-four states as prohibiting or

condemning assisted suicide); Bowers, 478 U.S. at 193-94 (recognizing that twenty-four

states prohibit sodomy, but also noting that until 1961, sodomy was outlawed in all fifty

states).

See Andrews, supra note 9 at 666.

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‘amounting to felonies involving moral turpitude.’”29 The Court noted: “We are

dealing here with legislation which involves one of the basic civil rights of man.

Marriage and procreation are fundamental to the very existence and survival of the

race.”30

In Griswold v. Connecticut, the Court invalidated a Connecticut law that

prohibited the use or the aiding and abetting of the use of contraceptives.31 The Court

maintained that the law offended the notions of privacy surrounding the marital

relationship. In Eisenstadt v. Baird, the Court concluded that the right to

contraceptives is also maintained by unmarried persons.32 The Court noted that “[i]f

the right of privacy means anything, it is the right of the individual, married or single,

to be free from unwarranted governmental intrusion into matters so fundamentally

affecting a person as the decision whether to bear or beget a child.”33 This concept

was explored further in Carey v. Population Services International.34 In that case,

the Court discussed Griswold in the context of its decisions in Eisenstadt and Roe v.

Wade: “Griswold may no longer be read as holding only that a State may not prohibit

a married couple’s use of contraceptives. Read in light of its progeny, the teaching

of Griswold is that the Constitution protects individual decisions in matters of

childbearing from unjustified intrusion by the State.”35

If cloning for reproductive purposes can be characterized simply as a new form

of childbearing, the Court’s decisions could be instructive. Some maintain that

cloning may be distinguished from traditional reproduction “only insofar as the

genetic relationship between the parent and the child is identical rather than

derivative and the child is conceived in vitro rather than in utero.”36 However, others

contrast traditional reproduction and cloning by recognizing that cloning does not

involve the mixing of genes to produce a unique individual.37 Instead, cloning is

characterized as genetic duplication.38

Despite the scientific differences between traditional reproduction and cloning,

it is possible that a court would recognize cloning for reproductive purposes as

implicating the same personal interests that exist with procreation, contraception, and

childbearing in general. For individuals that cannot reproduce in the traditional

manner, the availability of reproductive cloning might seem to be instrumental in the

decision of whether to “bear or beget a child.”

316 U.S. 535 (1942).

Skinner, 316 U.S. at 541.

381 U.S. 479 (1965).

405 U.S. 438 (1972).

Eisenstadt, 405 U.S. at 453.

431 U.S. 678 (1977).

Carey, 431 U.S. at 687.

Note, supra note 22 at 2356.

Andrews, supra note 9 at 666.

Id.

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Recognition of a fundamental right to clone for reproductive purposes would

require the government to demonstrate a compelling interest to justify any

infringement on that right. Scholars have identified at least two interests that are

likely to be articulated. First, government could contend that a ban on reproductive

cloning is necessary to prevent the conception of babies that would be plagued by

physical disorders.39 Second, government could argue that a ban is necessary because

cloned children would suffer social stigma and psychological harm.40

Concern over the physical health of cloned babies may be complicated by the

Court’s decision in Roe.41 In that case, the Court found that the government’s interest

in protecting potential life becomes “compelling” only at the point of fetal viability.42

Thus, it is possible that the government could not justify a restriction on reproductive

cloning by asserting the interests of pre-viable human beings. However, opponents

contend that questions about viability and fetal development should have no impact

on the government’s interest in preventing disease and deformity.43

If it is determined that there is not a fundamental right to clone for reproductive

purposes, it is likely that the government’s interests in preventing harm to cloned

children would adequately justify regulation.44 The articulated interests would

probably survive rational basis review. However, if a fundamental right is found, the

outcome would seem to be less certain.45

Therapeutic Cloning

Proponents of a fundamental right to clone for therapeutic purposes have

characterized the right as one of scientific inquiry.46 They maintain that scientific

inquiry has been “an enduring American value.”47 In attempting to establish that

therapeutic cloning is deeply rooted in the nation’s history and tradition, they identify

See Note, supra note 22 at 2362. See also Sunstein, supra note 20 at 9.

Id.

Note, supra note 22 at 2362.

Roe, 410 U.S. at 163 (1973).

Note, supra note 22 at 2362.

See Sunstein, supra note 20 at 11.

Id. Funding restrictions on human cloning research, as well as research involving

therapeutic cloning, may survive strict scrutiny. The Court has held that restrictions on the

use of public funds to perform abortions are permissible. In Rust v. Sullivan, 500 U.S. 173

(1991), the Court reasoned that the government has no duty to subsidize an activity simply

because it is constitutionally protected. For additional discussion of Rust, see Karen J.

Lewis et al., Abortion: Legislative Response, CRS Issue Brief IB95095 (2002).

Andrews, supra note 9 at 661.

Id.

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the nation’s system of patents as evidence of our tradition of promoting scientific

inquiry and invention.48

However, a right to clone for therapeutic purposes would seem unlike other

rights recognized by the Court. In Meyer v. Nebraska, the Court did conclude that

the liberty guaranteed by the Due Process Clause encompasses the right “to acquire

useful knowledge.”49 However, the facts underlying that case are different from

those involved with therapeutic cloning. In Meyer, the Court found unconstitutional

a Nebraska statute that prohibited the teaching of any language other than English to

students below the eighth grade. The acquisition of information by students may be

distinguished from research or experimentation conducted by scientists. In fact, in

two lower court cases involving fetal research, the courts found, with little

discussion, that the rights of medical researchers are not fundamental under the

Constitution.50

Those who oppose recognition of a fundamental right to clone for therapeutic

purposes would also likely contend that therapeutic cloning does not involve the kind

of personal decisions that would suggest inclusion within the right of personal

privacy. Unlike reproductive cloning, which could involve fundamental childbearing

issues, therapeutic cloning does not implicate similarly personal matters for scientists

and other researchers.

Government regulation of therapeutic cloning would likely respond to the belief

that personhood begins at conception and that the cloning of embryos is morally

wrong.51 This justification for regulation would appear to be sufficient to withstand

rational basis review.52 However, if a fundamental right to clone for therapeutic

purposes is found, a reviewing court would likely undertake a more searching inquiry

and an outcome would be less certain.

Id.

262 U.S. 390, 399 (1922).

See Wynn v. Scott, 449 F.Supp. 1302 (N.D. Ill. 1978), aff’d sub nom., Wynn v. Carey, 599

F.2d 193 (7th Cir. 1979); Margaret S. v. Edwards, 488 F.Supp. 181 (1981).

See Sunstein, supra note 20 at 13-14.

Id.

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