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Biology and the Bill of Rights: Can Science Reframe the Constitution?

Published online by Cambridge University Press:  24 February 2021

Sheila Jasanoff
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Extract

The American public firmly believes both in the rule of law and in the progressive and beneficial effects of science. Public opinion polls show that legal and scientific institutions continue to command wide respect, even in a period of diminished trust. According to a recent survey conducted by the Office of Technology Assessment (OTA), the Supreme Court and the scientific community each received higher confidence ratings than political institutions, the media, education, and even organized religion. Yet the impacts of science and the law can at times be profoundly antithetical, for the former acts as a force for social transformation, while the latter seeks to maintain the stability and continuity of societal institutions and norms of conduct. Vannevar Bush's famous metaphor “the endless frontier“ captured the sense of limitless aspiration associated with science and technology through much of this century.

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Articles
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American Journal of Law & Medicine , Volume 13 , Issue 2-3: Justice Harry A. Blackmun: The Supreme Court and the Limits of Medical Privacy , 1987 , pp. 249 - 289
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Copyright © American Society of Law, Medicine and Ethics and Boston University 1987

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Footnotes

*

This article is based on a background paper prepared for the Office of Technology Assistance in connection with a project to commemorate the bicentennial of the United States Constitution in 1987.

References

1 OFFICE OF TECHNOLOGY ASSESSMENT, THE REGULATORY ENVIRONMENT FOR SCIENCE 135 (1986)(table representing public confidence in science and selected other institutions).

2 V. BUSH, SCIENCE THE ENDLESS FRONTIER (1945).

3 The vogue for technology assessment in the mid-1970s prompted a number of detailed inquiries into the legality of governmental action using newly emerging biological techniques, such as behavior modification and testing for violent behavior, as well as the legal implications of potential breakthroughs such as cloning. Originally published in Southern California Law Review, several of these articles have been collected and republished in BIOLOGICAL AND BEHAVIORAL TECHNOLOGIES AND THE LAW (M. Shapiro, ed. 1982) [hereinafter Shapiro].

4 The material in this section is based in part on B. Davis, The New Biology (April 1987)(unpublished paper prepared for the Office of Technology Assessment).

5 See, e.g., Burst of Discoveries Reveals Genetic Basis for Many Diseases, N.Y. Times, Mar. 31, 1987, at Cl, col. 4.

6 Genetic Abnormality Seen As Link With Alzheimer's, N.Y. Times, Mar. 13, 1987, at A14, col. 1; Defective Gene Tied to Form of Manic-Depressive Illness, N.Y. Times, Feb. 26, 1987, at Al, col. 5.

7 Saltus, , Biotech Firms Compete in Genetic Diagnosis, 234 SCIENCE 1318-20 (1986)CrossRefGoogle Scholar.

8 OFFICE OF TECHNOLOGY ASSESSMENT, THE ROLE OF GENETIC TESTING IN THE-PREVENTION OF OCCUPATIONAL DISEASE 33-40 [hereinafter GENETIC TESTING]; see also Murray, , Genetic Testing at Work: How Should it be Used?, 88 TECH. REV. (May/June 1985)Google Scholar.

9 OFFICE OF TECHNOLOGY ASSESSMENT, HUMAN GENE THERAPY (1984) [hereinafter HUMAN GENE].

10 See, e.g.. Medical Journal Assails the Use of an Experimental Cancer Drug, N.Y. Times, Dec. 12, 1986, at Al, col: 2.

11 Robinson, , Neurosciences Advance in Basic and Clinical Realms, 234 SCIENCE 1324 (1986Google Scholar

12 Murray, supra note 8.

13 Tribe, , Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality, 46 So. CAL. L. REV. 617, 648-49 (1973)Google Scholar.

14 Kaye, , The Biological Revolution and Its Cultural Context, 2 INT'L J. TECHN. ASSESSMENT IN HEALTH CARE 275, 276-77 (1986)CrossRefGoogle Scholar.

15 Id. at 278; see also Tribe, supra note 13, at 649 n.108.

16 U.S. CONST. Art. I, § 8, cl. 8.

17 THE FEDERALIST NO, 34 at 207 (A. Hamilton) (W. Kendall & G. Carey eds. 1966).

18 See, e.g. Rehnquist, , The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976)Google Scholar.

19 Marbury v. Madison., 5 U.S. (1 Cranch) 137, 177-80 (1803).,

20 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 353 (1819).

21 H.P. Hood & Sons v. DuMond, 336 U.S. 525, 535 (1949).

22 Attorney General Edwin Meese Ill sparked a nationwide debate on this issue by calling for a “Jurisprudence of Original Intention” in a speech before the American Bar Association on July 9, 1985 in Washington, D.C. Excerpts from this speech and related speeches by Justices Brennan and Stevens, Judge Bork, and President Regan have been published by the Federalist Society: FEDERALIST SOCIETY, OCCASIONAL PAPERS NO. 2, THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITION (1986). For additional views on the debate over original intent, see Beeger, , Original Intention in Historical Perspective, 54 GEO. WASH. L. REV. 296 (1986)Google Scholar; Bork, , The Constitution, Original Intent and Economic Rights, 23 SAN DIEGO L. REV. 823 (1986)Google Scholar; Brest, , The Misconceived Quest for the Original Understanding, 60 B.U.L. REV. 204 (1980)Google Scholar; Powell, , The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985)CrossRefGoogle Scholar.

23 Rehnquist, , The Notion of a Living Constitution, 54 TEXAS L. REV. 693 (1976)Google Scholar.

24 Olmstead v. U.S., 277 U.S. 438, 478 (1927)(Brandeis, J., dissenting).

25 Katz v. United States, 389 U.S. 347, 356-59 (1967); see generally OFFICE OF TECHNOLOGY ASSESSMENT, ELECTRONIC SURVEILLANCE AND CIVIL LIBERTIES (1985).

26 Griswold v. Connecticut, 381 U.S. 479 (1965).

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

28 Edwards v. Aguillard, 476 U.S. 1103 (1987).

29 See, e.g., Mack v. Califano, 447 F. Supp. 668 (D.D.C. 1978); Foundation on Econ. Trends v. Heckler, 587 F. Supp. 753 (D.D.C. 1984), aff'd, 756 F.2d 143 (D.C. Cir. 1985); Foundation on Economic Trends v. Thomas, 637 F. Supp. 25 (D.D.C. 1986).

30 447 U.S. 303 (1980).

31 Kaye, supra note 14 at 279.

32 See, e.g., Geduldig v. Aiello, 417 U.S. 484,494 (1974)(state insurance scheme excluding coverage for pregnancy upheld against equal protection challenge on ground that it did not discriminate on the basis of gender); Michael M. v. Superior Court, 450 U.S. 464, 473-76 (1981)(state statutory rape law criminalizing sex acts involving unwed, underage women upheld although it did not criminalize acts involving unwed, underage males); see generally L. TRIBE, CONSTITUTIONAL CHOICES 238-45 (1985).

33 NATIONAL ACADEMY OF SCIENCES, GENETIC SCREENING — PROGRAMS, PRINCIPLES AND RESEARCH (1975); see also PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, SPLICING LIFE (1982).

34 See, e.g., J. LIEBERMAN, THE LITIGIOUS SOCIETY 80-82 (1981).

35 Id.

36 Id.

37 Interpreting such laws in the light of modern scientific knowledge may call for inquiries into legislative intent which are as difficult as attempting to fathom the original intent of the framers. For example, in two recent cases which arose under the post-Civil War civil rights, statutes, 42 U.S.C. §§ 1981, 1982, and 1985(3), the Supreme Court had to grapple with the question whether Jews and Arabs might claim protection under statutory provisions that grant all citizens of the United States the same rights as are enjoyed by “white citizens.” Share Tefila Congregation v. Cubb, 107 S. Ct. 2019 (1987); Saint Francis College v. Al-Khazraji, 107 S. Ct. 2022 (1987). The questioning of the Justices focused upon whether the courts had to use modern notions of race or those notions of race which had been held by the legislature in 1866. Cobb, 107 S. Ct. at 2021-22; Saint Francis College, 107 S. Ct. at 2026-28.

38 42 U.S.C. §§ 2000a to 2000e-15 (1982).” *

39 29 U.S.C. §§ 701-796i (1982).

40 15 U.S.C. §§ 2601-2629 (1982)(testing and notification of industrial chemicals).

41 29 U.S.C. § 651-678 (1982)(worker protection).

42 7 U.S.C. § 136a-136y(1982) (pesticide regulation).

43 For an analysis of the constitutional issues posed by compulsory mass screening to detect propensities to violent criminal behavior, see Brown, Guilt by Physiology, in SHAPIRO, supra note 3, at 181. Brown concludes that the administration of such tests would not be barred on the basis of protections offered by either the fourth or the fifth amendments. He argues, however, that the three most logical applications of such tests — coerced treatment, preventive confinement, and surveillance — would all infringe impermissibly on constitutionally protected values.

44 Goodman & Goodman, The Overselling of Genetic Anxiety, 12 HASTINGS CENTER REP. 20-21 (Oct. 1982).

45 42 U.S.C. §§ 300b to 300c-22 (1982)(repealed 1981).

46 MILUNSKY, A. & G., ANNAS, GENETICS AND THE LAW 174 (1976)Google Scholar.

47 Gary, The Sickle Cell Controversy, in HEREDITY AND SOCIETY 363-64 (A. Baer ed., 2d ed. 1977).

48 Id. at 366.

49 Panel Favors Sickle Cell Tests for All Babies, N.Y. Times, Apr. 11, 1987, at A9, col. 1.

50 See, e.g. Altman, U.S. in Considering Much Wider Tests for Aids Infection, N.Y. Times, Feb. 4, 1987, § 1 at 1, col. 6; 2,100 in Pentagon Tests Said to Have Aids Virus, N.Y. Times, Feb. 27, 1987 at B12, col.4. U.S. Considers Extending Reach of AIDS Testing, N.Y. Times, Feb. 8, 1987, § 4, at 7, col. 1. In January 1988, Illinois became the first state to require premarital AIDS testing, but initial experiences under the Illinois law provoked controversy. Of about 12,000 Illinois residents who received marriage licenses in the first four months after mandatory testing went into effect, only four tested positive. Wilkerson, Illinoisans Fault Prenuptial AIDS Tests, N.Y. Times, Apr. 16, 1988, § 1, at 6, col. 4.

51 Boffey, Bush Favors Requiring AIDS Test for Marriage License Applicants, N.Y. Times, Apr. 9, 1987, at B8, col. 5.

52 See, e.g., W. WADLINGTON & M. PAULSON, DOMESTIC RELATIONS 166-67 (1978).

53 See, e.g., Bayer & Levine, Risks of Federal Screening, N.Y. Times Jan. 12, 1987, at A21, col. 3

54 See infra notes 55-59 and accompanying text.

55 Streich v. Board of Educ, 34 S.D. 169, 182, 147 N.W. 779, 783 (1914).

56 Peterson v. Widule, 157 Wis. 641, 656, 147 N.W. 966, 971 (1914).

57 State v. Superior Ct. in & for County of Pima, 143 Ariz. 45, 49, 691 P.2d 1073, 1077 (1984).

58 384 U.S. 757, 759(1966).

59 795 F.2d 1136, 1144 (3d Cir. 1986).

60 643 F. Supp. 1057 (D.N.J. 1986).

61 Lovvorn v. City of Chattanooga, 647 F. Supp. 875 (E.D. Tenn. 1986).

62 Note that the criteria of intrusiveness in the context of genetic screening would look quite different from those discussed in connection with genetic therapy or behavior modification. In the former case, the criteria would focus primarily on the tested individual's privacy expectations with respect to the information sought, whereas in the latter case the criteria would focus mainly on the effects of the physical intrusion. For an analysis of criteria of intrusiveness that might apply to behavior control therapies, see Shapiro, , Legislating Behavior Control: Autonomy and the Coercive Use of Organic Therapies, 47 So. CAL. L. REV. 237 (1974)Google Scholar.

63 Thus the radio-immunoassay screening of blood may yield a false positive rate of as much as 43% for cocaine, while the “enzyme multiplied immunoassay technique” of urinalysis may have a false positive rate as high as 10%. Panner, & Christakis, , The Limits of Science in On-the-Job Drug Screening, 16 HASTINGS CENTER REP. 7, 8 (Dec. 1986.CrossRefGoogle Scholar

64 GALTON, , Hereditary Talent and Character, 12 MACMILLAN's MAC. 157-66, 318-27 (1985)Google Scholar.

65 Eugenic means “good in birth.“

66 See D. KEVLES, IN THE NAME OF EUGENICS 70-84 (1985).

67 KEVLES, supra note 66, at 93.

68 8 U.S.C. §§ 1101-1525 (1982).

69 D. KEVLES, supra note 66, at 97.

70 Kevles, supra note 66, at 99.

71 See Cynkar, , Buck v. Belli “Felt Necessities” v. Fundamental Values, 81 COLUM. L. REV. 1418, 1433 n.76(1981)CrossRefGoogle Scholar.

72 274 U.S. 200(1927).

73 Id. at 207.

74 Cynkar, supra note 71, at 1458.

75 See J. AREEN, P. KING, S. GOLDBERG, & A. CAPRON, LAW, SCIENCE AND MEDICINE 1280 (1984).

76 197 U.S. 11 (1905).

77 Buck, 274 U.S. at 207.

78 274 U.S. 200 (1927).

79 316 U.S. 535, 538 (1942).

80 Id.

81 Id. at 539. By 1942 when Skinner was decided, the Justices were conscious that eugenic theories rested on a foundation of dubious scientific merit. The majority and concurring opinions in Skinner dealt with this issue in different ways.

Writing for the majority, Justice Douglas found fault with the state's failure to make the biological findings that might have supported unequal treatment of similarly situated offenders: “Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks.” Id. at 541.

In a concurring opinion, Justice Stone was prepared to go along with the legislature's presumptive finding that “the criminal tendencies of some classes of offenders are more likely to be transmitted than those of others.” Id. at 544. He condemned the statute, however, on due process grounds because it failed to provide for an individualized determination concerning the inheritable tendencies of particular offenders. Id. at 544-45.

Justice Jackson expressed the strongest reservations about the weak scientific basis for the Oklahoma law. In view of the scientific uncertainties surrounding eugenics, he saw sterilization as verging on the experimental. He noted, as a constitutional problem for the future, that there may be “limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority.” Id. at 546.

82 410 U.S. 113 (1973).

83 Id.

84 In re Sterilization of Moore, 289 N.C. 95, 103, 221 S.E.2d 307, 312 (1976).

85 Stump v. Sparkman, 435 U.S. 349, 364 n.13 (1978).

86 See D. KEVLES, supra note 66, at 297-301.

87 Id. at 291.

88 Id.

89 Id. at 277; see also text accompanying note 50.

90 Robertson, , Surrogate Mothers: Not So Novel After All, 13 HASTINGS CENTER REP. 28 (Oct. 1983)CrossRefGoogle Scholar.

91 462 U.S. 455 (1983).

92 Id. at 459.

93 See Kolder, , Gallagher, & Parsons, , Court-Ordered Obstetrical Interventions, 316 NEW ENG. J. MED. 1192 (1987)CrossRefGoogle Scholar; Annas, , Protecting the Liberty of Pregnant Patients, 316 NEW ENGLAND J. MED. 1213 (1987)CrossRefGoogle Scholar.

94 410 U.S. 113.

95 See generally LEGAL LIABILITY AND QUALITY ASSURANCE IN NEWBORN SCREENING (L. Andrews ed. 1985); Capron, , Tort Liability in Genetic Counseling, 79 COLUM. L. REV. 618 (1979)CrossRefGoogle Scholar; Rogers, , Wrongful Life and Wrongful Birth: Medical Malpractice in Genetic Counseling and Prenatal Testing, 33 So. CAL. L. REV. 713 (1982)Google Scholar.

96 See, e.g., Mahowald, , Silver, , & Ratcheson, , The Ethical Options in Transplanting Fetal Tissue, 17 HASTINGS CENTER REP. 9 (Feb. 1987)CrossRefGoogle Scholar.

97 For further discussion of this point, see G. CALABRESI, IDEALS, BELIEFS, ATTITUDES, AND THE LAW 87-117 (1985).

98 In re Baby M, 217 N.J. Super. 313, 525 A.2d 1128 (1987). This case arose when Mary Beth Whitehead, Baby M's biological mother, refused to surrender the baby upon birth and to relinquish her parental rights in accordance with the surrogate parenting contract she had entered into with the biological father and his wife, Mr. and Mrs. William Stern.

99 Id. at 387, 525 A.2d at 1165.

100 Id at 375, 525 A.2d at 1159.

101 217 N.J. Super. 313, 525 A.2d 1128.

102 Surrogate Parenting Assoc, v. Com. Ex. Rel. Armstrong, 704 S.W.2d 209 (Ky. 1986).

103 Bills containing such provisions are now under consideration in several states, including New York and New Jersey. See generally ‘Baby M’ decision creates flurry of legislative activity, 13 FAM. L. REP. 1295, 1295-96 (1987).

104 GENETIC TESTING supra note 8, at 8.

105 Id.

106 Canter, , Employment Discrimination Implications of Genetic Screening in the Workplace Under Title VII and the Rehabilitation Act, 10 AM. J.L. MED. 325-26 (1984)Google Scholar.

107 OFFICE OF TECHNOLOGY ASSESSMENT supra note 104.

108 GENETIC TESTING, supra note 8, at 10-11.

109 A 1982 survey by the Office of Technology Assessment (OTA) found that although only 6 out of 366 companies already were using these techniques, another 55 stated that they might do so within the next five years. Id. at 34.

110 Kevles, supra note 67, at 278.

111 Id. at 278, 300.

112 42 U.S.C. §§ 1981, 1983 (1982).

113 Title VII of the Civil Rights Act may afford a remedy to workers in certain protected groups (e.g., women, ethnic or racial minorities) who are denied employment as a result of genetic testing. See Canter, supra note 108, at 328-36. Title VII prohibits overt discrimination based on such categories except where the employer can show that disparate treatment is correlated with a “bond fide occupational qualification” (BFOQ). Most genetic traits associated with hypersusceptibility to disease are not restricted to particular ethnic or racial groups, so that overt discrimination against such classes would be difficult to justify. Title VII also protects employees against practices that have a discriminatory impact, even though illegal discrimination was not intended. The employer may defend against such a charge by showing that the practice is “job related” and is a “business necessity.” Griggs v. Duke Power Co., 401 U.S. 424,429-31 (1971). The test of business necessity has been interpreted to mean that the employer should have “an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.” Robinson v. Lorillard, 444 F.2d 791, 798 (4th Cir. 1971). The Equal Employment Opportunity Commission (EEOC) guidelines on employee selection provide that screening tests should be genuinely predictive of behavior relevant to the job for which a worker is being evaluated. In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Supreme Court held that a test failing to meet this standard could not be justified by the business necessity defense. Id. at 435-36.

114 The scope of the Rehabilitation Act is narrower than that of Title VII, since it applies only to employers receiving federal assistance. However, because the statute protects all “qualified handicapped individuals,” rather than only enumerated social groups, it may afford relief to some workers excluded from jobs as a result of genetic screening. The Act defines a “handicapped individual” as any person who “has a physical or mental impairment which substantially limits one or more of such person's major life activities.” 29 U.S.C. § 706(7) (B)(i) (1982). The Department of Health and Human Services (DHHS) regulations implementing the Act have defined “physical impairment” to include a wide range of intrinsically harmful physicalconditions: 45 C.F.R. § 84.3(j)(2)(i)(A) (1983). To bring genetic traits within the definition of impairment would require a broader reading, since such traits are not harmful per se, but only after exposure to hazardous workplace conditions. The recent Supreme Court decision in School Bd. of Nassau County v. Arline, 475 U.S. 1183 (1980), aff'd 107 S.Ct. 1123, reh'g denied, 107 S. Ct. 1913 (1987), provides for such an expansive reading. The case involved a claim for job reinstatement by a school teacher suffering from tuberculosis. The decision was widely regarded as relevant to similar claims by AIDS victims. 107 S. Ct. at 1128, n.7. The Court confirmed that a disease, including a contagious disease, could be regarded as a handicap within the meaning of the statute and that working was a “major life activity.” Id. at 1127. Most relevant to the case of genetic testing was the Court's confirmation that a handicap may include not merely an actual impairment, but also a social perception that substantially limits a person's major life activities. In the Court's view, the Rehabilitation Act is structured “to replace … reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments.” Id. at 1129.

115 U.S. CONST. Amend. XIV, § 1.

116 See, e.g., Murray, The Perils of Prediction, GENETIC ENGINEERING NEWS 6-7 (Jan. 1985).

117 Treatment to cure genetic defects may be available in a limited range of cases. See, e.g., Bruce, and Cowell, , The Prevention of Genetically Determined Orthopaedic Defects, 222 CLINICAL ORTHOPAEDICS AND RELATED RESEARCH 85 (1987)Google Scholar.

118 HUMAN GENE, supra note 9, at 5.

119 Id. at 34.

120 See, e.g., T. HOWARD & J. RIFKIN, WHO SHOULD PLAY GOD? (1977).

121 Rosenberg, Can We Cure Genetic Disorders, in GENETICS AND THE LAW Ill 6 (A. Milunsky & G. Annas eds. 1984).

122 HUMAN GENE, supra note 9, at 44-45.

123 J. AREEN, P. KING, S. GOLDBERG & A. CAPRON, supra note 75, at 168-69.

124 HUMAN GENE, supra note 9, at 46.

125 Jacobson v. Massachusetts, 197 U.S. 11 (1905).

126 It has been argued, in fact, that public intervention may be the logical consequence of increasing the degree of private choice in reproductive decision-making. According to one analyst, the more medical science can assist people with genetic disease to survive, the greater the cost that will be placed upon the socio-medical system. The more that people with heritable disorders can and do practice “reproductive compensation,” the higher will rise the frequency of the genes for such disorders in the human gene pool. Private decision-making in the realm of genetic disorder and disease may ultimately lead to public demands for regulation of reproductive behavior. See Kevles, supra note 67, at 300.

127 Numerous state and federal courts have upheld legislation mandating the use of automobile seatbelts and motorcycle helmets. See Simon v. Sargent, 346 F. Supp. 277 (D. Mass. 1972), aff'd, 400 U.S. 1020 (1972); Love v. Bell, 171 Colo. 27, 465 P.2d 118 (1970); but see American Motorcycle Assoc, v. Davids, 381 Mich. 763, 158 N.W.2d 72 (Mich. App. 1968)(state motorcycle helmet law invalidated on libertarian grounds).

128 See text accompanying note 93.

129 Merritt, , The Constitutional Balance Between Health and Liberty, 16 HASTINGS CENTER REP. 2, 6-9 (Special Supp. Dec. 1986)CrossRefGoogle Scholar.

130 PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, SPLICING LIFE 66 (1982).

131 20 U.S.C. §§ 1232, 1401, 1405-1406, 1411-1420, 1453 (1982).

132 347 U.S. 483 (1954).

133 Id. at 494.

134 It should be noted, however, that the Court grounded its analysis of the psychological impact of segregation on contemporary social science research, citing a number of supporting authorities in a famous footnote. Id. at 494 n.11. One may ask, therefore, how a future Court would handle the issue of equal educational opportunity if the natural and social sciences were to provide a radically different picture of the abilities of different groups, as well as of the probable effects of separate education.

135 Genetic technologies could complicate the issues of resource distribution and equal treatment still further by making it possible to enhance the merit attributes of individuals. For an inquiry into the problems of distributing educational resources if merit becomes a technologically alterable attribute, see Shapiro, Who Merits Merit: Problems in Distributive Justice and Utility Posed in the New Technology, in SHAPIRO, supra note 3, at 245-74.

136 See, e.g., Cronbach, Five Decades of Public Controversy over Mental Testing, in CONTROVERSIES AND DECISIONS: THE SOCIAL SCIENCES AND PUBLIC POLICY 123-47 (C. Frankel ed. 1976).

137 See, e.g., SCIENCE IN CONTEXT Part 5 (B. Barnes & D. Edge eds. 1982).

138 Volkow, & Tancredi, , Positron Emission Tomography: A Technology Assessment, 2 INT'L J. TECH. ASSESSMENT IN HEALTH CARE 577-94 (1986)CrossRefGoogle Scholar.

139 See SHAPIRO, supra note 62, at 240-43.

140 Blocker v. United States, 288 F.2d 853, 865 (D.C. Cir. 1961) (Burger, J., concurring).

141 Volkow, & Tancredi, , Neural Substrates of Violent Behavior: Implications for Law and Public Policy, 11 INT'L J. L. & PSYCHIATRY 13 (1988)Google Scholar.

142 The use of biological information to negate charges of criminal responsibility is not new to the courts. In the mid-1970s, for example, a number of criminal defendants sought to introduce evidence that their aggressive behavior was genetically induced by a chromosomal abnormality termed the XYY syndrome. Early studies suggested that XYY males displayed a predisposition to deviant violent behavior. At least one U.S. court has held that “the genetic imbalance theory of crime causation has not been satisfactorily established and accepted in either the scientific or legal communities to warrant its admission in criminal trials.” People v. Yukl, 83 Misc. 2d 364, 372 N.Y.S.2d 313 (1975). The court noted, however, that the XYY syndrome had been accepted by an Australian court as part of a valid insanity defense and that a French court had permitted its use in mitigating a sentence. Id. at 371, 372 N.Y.S.2d at 320.

143 463 U.S. 880 (1983). The Court approvingly cited the District Court's opinion that it is a fundamental premise of our entire system of criminal jurisprudence that the purpose of the jury is to sort out the true testimony from the false, the important matters from the unimportant, and, when called upon to do so, to give greater credence to one party's expert witness than to another's. Id. at 902. The Supreme Court took note of the American Psychiatric Association's position that psychiatric testimony predicting dangerousness is “almost entirely unreliable.” Id. at 899 (quoting Amicus Curiae Brief of American Psychiatric Ass'n at 11). But the Court refused to convert this professional judgment into a constitutional rule barring an entire category of expert testimony. The correct approach, in the Court's view, was to confront the jury with testimony on both sides of the issue of dangerousness, including testimony that such evidence is generally so unreliable that it should be ignored. Id. at 898.

144 Id. at 903.

145 See generally LIMITS OF SCIENTIFIC INQUIRY (G. Holton & R. Morison eds. 1979)(collection of essays dealing with the legal and ethical implications of current biological research).

146 Goldberg, The Constitutional Status Of American Science, 1979 Ill. L.F. 1, 4.

147 Diamond v. Chakrabarty, 447 U.S. 303 (1980).

148 The NIH guidelines for recombinant DNA research defined four levels of physical containment, termed P1, P2, P3, and P4. Each P value corresponds to a set of physical conditions and procedures in the laboratory. For an analysis of the logic of the NIH guidelines, see S. KRINSKY, GENETIC ALCHEMY 181-93 (1982). The recombinant DNA controversy in Cambridge and its sequel, including the recommendations of the citizen advisory committee, are described in The Cambridge Experimentation Review Board, 33 BULLETIN OF THE ATOMIC SCIENTISTS 22 (May 1977)CrossRefGoogle Scholar.

149 Protection of Human Subjects, 45 C.F.R. §§ 46.101-.409 (1987).

150 Department of Health and Human Services, General Administration, Part 46-Protection of Human Subjects, 145 C.F.R. § 46.210 (1987); National Institutes of Health Guidelines for Research Involving Recombinant DNA Molecules: June 1983, 48 C.F.R. § 24566 (1983).

151 The term “Big Science” is generally used to describe monumental research projects and facilities requiring huge expenditures of public resources. See Weinberg, Impact of Larger Scale Science on the United States, 134 SCIENCE 161-64 (1961); see also D. DE SOLLA PRICE, LITTLE SCIENCE, BIG SCIENCE (1963). For accounts of the biological community's reaction to the genome project, see Roberts, , Agencies Vie Over Human Genome Project, 237 SCIENCE 486 (1987)CrossRefGoogle Scholar; Thompson, Genes, Politics and Money, Washington Post, February 24, 1987, at 12, col. 1.

152 One example is the decision, during the 1960s and 1970s, to spend “essentially zero federal funding” on solar energy projects “while billions were poured into research and subsidization of nuclear power.” Bereano, 27 JURIMETRICS J. 229, 233 (1987).

153 See, e.g., I. CARMEN, CLONING AND THE CONSTITUTION 54 (1985). In another writer's opinion, restrictions on the biomedical research needed to perfect cloning could not be justified simply on the basis of fears that the technique might eventually be used for state coercion: “there is an understandable reluctance to restrict freedom of inquiry and enterprise now in order to avoid speculative restrictions upon other (perhaps less fundamental) forms of freedom later.” Tribe, , Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality, 46 So. CAL. L. REV. 617, 645 (1973)Google Scholar; see also Pizzulli, A Constitutional Analysis of Human Cloning and Genetic Engineering, in SHAPIRO, supra note 3, at 285-88.

154 See Tribe, supra note 106, at 653. Of course, this proposal does not indicate what regulations the state might appropriately adopt to protect the cloned individual. The answer must turn, in part, on whether the product of cloning is entitled to the full set of constitutional protections that inure to the non-cloned individual. Those who view cloning as an infringement on selfhood or personhood, id. at 648, as we currently understand these concepts, could hardly hold that a cloned individual should be treated for purposes of constitutional law just the same as a non-cloned individual.

155 Pizzulli, supra note 152, at 344. Pizzulli argues that laws legalizing eugenic sterilization and prohibiting incest provide precedents for state policies preferring the non-creation of individuals over the creation of individuals with a handicapped, manipulated or attenuated existence. Id. at 310-11.

156 Grobstein, , Flower, & Mendeloff, , External Human Fertilization: An Evaluation of Policy, 22 SCIENCE 127, 131 (1983)CrossRefGoogle Scholar.

157 HUMAN GENE supra note 9, at 33;

158 Scopes v. State of Tennessee, 154 Tenn. 105, 289, S.W. 363 (1927).

159 CREATIONISM, SCIENCE, AND THE LAW: THE ARKANSAS CASE 76 (M. La Follette ed. 1983).

160 393 U.S. 97 (1968).

161 Daniel v. Waters, 515 F.2d 485, 489 (1975).

162 403 U.S. 602 (1971).

163 Id. at 612-13; see also Edwards v. Aguillard, 476 U.S. 1103 (1987).

164 McLean v. Arkansas, 529 F. Supp. 1255 (E.D. Ark. 1982).

165 Edwards, supra note 163.

166 Amicus Curiae brief for the National Academy of Sciences at 9 (emphasis in the original), Edwards, supra note 114.

167 The protected status of science under the first amendment, coupled with the teacher's liberty to pursue a profession, would prevent state governments from abridging the teaching of science in public schools or attempting to control the beliefs of science teachers. See Meyer v. Nebraska, 262 U.S. 390 (1923)(invalidating state statute forbidding teaching of foreign languages before eighth grade). In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court interpreted the principle of Meyer to mean that the state may not “contract the spectrum of available knowledge.” Id. at 482; see also Torcaso v. Watkins, 367 U.S. 488 (1964)(striking down state constitutional provision requiring declaration of belief in God as condition of becoming a notary public).

168 Smith v. Board of School Com'rs of Mobile County, 655 F. Supp. 939 (S.D. Ala. 1987).

169 Smith v. Board of School Com'rs of Mobile County, 827 F.2d 684 (11th Cir. 1987).

170 Mozert v. Hawkins County Pub. Schools, 647 F. Supp. 1194, 1199 (E.D. Tenn. 1986)(plaintiffs could legitimately object to basic reading series that endorsed “the views of a feminist, a humanist, a pacifist, an anti-Christian, a vegetarian, or an advocate of a ‘one-world government’ “).