Substantive Due Process and a Right to Clone

Report for Congress
Substantive Due Process
and a Right to Clone
May 21, 2002
Jon O. Shimabukuro
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


1See Judith A. Johnson, Human Cloning, CRS Rept. RL31358 (2002).
2See 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.
3H.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.”
4See 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).

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.


5Balanced 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).


6Departments of Labor, Health and Human Services, and Education, and Related Agencies
Appropriations Act, Pub. L. No. 107-116, 115 Stat. 2219 (2002).
7Memorandum on the Prohibition on Federal Funding For Cloning of Human Beings, 33
Weekly Comp. Pres. Doc. 281 (Mar. 4, 1997).
8Remarks 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).
9See 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).
10Id.

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


11U.S. Const. amend. V; U.S. Const. amend. XIV, § 1.
12Roe v. Wade, 410 U.S. 113, 152 (1973).
13See 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).
14Roe, 410 U.S. at 155. See also Carey v. Population Services Int’l, 431 U.S. 678, 686
(1977).
15See 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).
16Collins v. Harker Heights, 503 U.S. 115, 125 (1992).

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


17Glucksberg, 521 U.S. at 720-21.
18Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)).
19Glucksberg, 521 U.S. at 721.
20See 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.”).
21Anne Lawton, The Frankenstein Controversy: The Constitutionality of a Federal Ban on
Cloning, 87 Ky. L.J. 277, 351 (1999).
22See Note, Human Cloning and Substantive Due Process, 111 Harv. L. Rev. 2348, 2360
(1998).
23Id. at 2361.
24478 U.S. 186 (1986).

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


25Bowers, 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.”).
26See 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.
27See 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).
28See Andrews, supra note 9 at 666.

‘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.”


29316 U.S. 535 (1942).
30Skinner, 316 U.S. at 541.
31381 U.S. 479 (1965).
32405 U.S. 438 (1972).
33Eisenstadt, 405 U.S. at 453.
34431 U.S. 678 (1977).
35Carey, 431 U.S. at 687.
36Note, supra note 22 at 2356.
37Andrews, supra note 9 at 666.
38Id.

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


39See Note, supra note 22 at 2362. See also Sunstein, supra note 20 at 9.
40Id.
41Note, supra note 22 at 2362.
42Roe, 410 U.S. at 163 (1973).
43Note, supra note 22 at 2362.
44See Sunstein, supra note 20 at 11.
45Id. 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).
46Andrews, supra note 9 at 661.
47Id.

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.


48Id.
49262 U.S. 390, 399 (1922).
50See 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).
51See Sunstein, supra note 20 at 13-14.
52Id.