ISSUES RAISED BY HUMAN CLONING RESEARCH HEARING ...

23In sum, as one scholar has phrased it, ‘‘to characterize some or all of the cases onwhich the Court relies in reaffirming Roe [in Casey] as standing for an abstractright to ’personal autonomy’ simply creates an artificial common denominatoramong a very disparate and largely unrelated group of cases while at the same timedenying what makes abortion unique.’’ 107The issue, though, is not coital versus noncoital as much as corporeal versusextracorporeal reproduction (occurring outside the living body). The negative libertythat has been recognized by the Supreme Court is grounded in personal physicalintegrity, and the Court has on several occasions explicitly disavowed a right to useone’s body in whatever way desired. 108 The ‘‘values and interests’’ of the ‘‘coitallyinfertile’’ may be conceded, but it does not follow that these may be pursued bywhatever means or ‘‘techniques’’ possible. Some techniques may be legitimate, whileothers are wholly illegitimate. And it does not follow that any of the techniques arenecessarily of a constitutional dimension that overrides other social and ethicaljudgments made by society through the democratic process. Still less is it clear thatthe judiciary is empowered to override the authority and decisions of society throughthe democratic process.Robertson’s analysis begs all of these questions by focusing on one considerationto the exclusion of all others. Richard McCormick has mounted an insightful critiqueof Robertson’s utilitarian approach to the status of the human embryo and ethicaldefense of human cloning by blastomere separation (despite McCormick’s use of theterm ‘‘pre-embryo’’ and his general agreement that a human embryo is not a person).109 In McCormick’s words, Robertson’s defense is ‘‘breathtaking in the speedwith which it subordinates every consideration to its [cloning by blastomere separation]usefulness in overcoming infertility. [Robertson’s] thesis can be summarized asfollows: if it aids otherwise infertile couples to have children, it is ethically acceptable...anythingthat is useful for overcoming infertility is ethically acceptable.’’ 110McCormick points out that Robertson is trying to create a consensus, not protectan existing one.The limits of Roe are apparent, as well, from the Joint Opinion in Casey, wherethe plurality of Justices O’Connor, Kennedy and Souter shifted the basic rationaleof the abortion liberty from privacy to the sociological grounds of abortion as abackup for failed contraception and the ‘‘reliance interests’’ of Americans. 111 TheJoint Opinion again put the emphasis on terminating pregnancy, a backup to contraception,not a positive liberty to ‘‘procreate’’ by any means, much less a libertyin extracorporeal reproduction.It may be said that American law establishes a privacy interest in marital coitalreproduction. But even this is limited to marriage. The precedents leading to Roefairly establish this. Harlan’s specific emphasis in Poe v. Ullman was that the statestatute in question criminalized marital use of contraception. 112 While there may bea right to the use of contraceptives, even by minors, there is still no established libertyin premarital or extramarital sexual relations. 113Roe itself identified abortion as unique and ‘‘inherently different from marital intimacy,or bedroom possession of obscene material, or marriage, or procreation, oreducation, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, andPierce and Meyer were respectively concerned.’’ 114 The courts have not gone beyondRoe’s formulation since 1973. As Casey demonstrates, Roe and abortion have both107 Linton, 13 St. Louis U. Pub. L. Rev. at 31.108 Roe, 410 U.S. at 154 (‘‘it is not clear to us that the claim asserted by some amici that onehas an unlimited right to do with one’s body as one pleases bears a close relationship to theright of privacy previously articulated in the Court’s decisions’’); Jacobson v. Massachusetts, 197U.S. 11 (1905) (vaccination).109 Cf. Robertson, The Question of Human Cloning, 24 Hastings Center Report No. 2 at 6(1994), with McCormick’s response, Richard A. McCormick, Blastomere Separation: Some Concerns,24 Hastings Center Report No. 2 at 14 (1994).110 McCormick, supra note 82, at 14.111 112 S.Ct. at 2809 (‘‘for two decades of economic and social developments, people have organizedintimate relationships and made choices that define themselves and their places in society,in reliance on the availability of abortion in the event that contraception should fail’’).112 367 U.S. 497, 554-55 (Harlan, J., dissenting from dismissal on jurisdictional grounds). Seealso Griswold v. Connecticut, 381 U.S. 479, 499 (Harlan, J., concurring in the judgment).113 Indeed, in Eisenstadt v. Baird, the Court implicitly acknowledged the state’s authority toprohibit ‘‘extramarital and premarital sexual relations.’’ 405 U.S. at 448. And Eisenstadt wasbased on the Equal Protection Clause, not the Due Process Clause. Likewise, Carey v. PopulationServices Inter’l, 431 U.S. 678 (1977), decided after Roe, did not create a right to premaritalor extramarital sexual activity. 431 U.S. at 688 n.5, 694 & n.17. See also Id. at 702(White, J., concurring in part and concurring in the judgment), Id. at 713 (Stevens, J., concurringin part and concurring in the judgment).114 410 U.S. at 159.VerDate 11-MAY-2000 07:46 May 24, 2001 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 71495.TXT HCOM2 PsN: HCOM2