Hastings Constitutional Law Quarterly


Nancy Pham


With the rapid rate of advancing technology, human germline intervention ("HGGM") may be possible in the near future. But, is access to HGGM technology a constitutionally protected right? Under traditional substantive due process, constitutional protection turns on whether the right is fundamental. If the courts determine that access to HGGM is a fundamental right, then it would fall in line with the category of reproductive decision-making cases such as Griswold v. Connecticut. Moreover, such a classification would require states to have a compelling interest before restricting the right at all. However, if HGGM is not a fundamental right, then states must only show a legitimate interest under rational basis review - or slightly more under rational basis with bite.

HGGM will be deemed unconstitutional under traditional substantive due process law because: (1) courts will not recognize HGGM as a fundamental right - it is not a traditional form of reproduction; and (2) even if it were a fundamental right, state regulation which protects the safety of the genetically modified child and the child's Fourteenth Amendment individual rights would likely satisfy the compelling interests test.

Alternatively, under the undue burden analysis implemented in Planned Parenthood v. Casey, because the standard set by the Court is so ambiguous, it is hard to determine whether HGGM laws will be upheld or invalidated. It is also unclear whether the Court would apply the analysis outside the abortion context. Finally, under the liberty interest analysis set forth in Lawrence v. Texas, most state regulation would satisfy the minimal threshold.

Under the above tests, states will be able to institute some form of regulation for HGGM. Ultimately, society needs some sort of regulation to guide these burgeoning technologies that have the potential to literally change the human race.