Is Genetic Engineering Protected Under the First Amendment?

Monday, 14 September 2015 - 4:31PM
Genetic Engineering
Monday, 14 September 2015 - 4:31PM
Is Genetic Engineering Protected Under the First Amendment?
Genetic engineering is a controversial subject for many reasons, not the least of which is the implication for mainstream religions. Many religious groups object to genetic engineering on the grounds that it constitutes "playing God," and represents a "godless" way of life. Now, some theorists are claiming that these objections may demonstrate why genetic engineering cannot be institutionally restricted, as it represents "protected speech" under the First Amendment.

The First Amendment of the Constitution is colloquially described as "freedom of speech," but it actually refers to freedom of any expression that is politically significant, such as freedom of the press, freedom of peaceful assembly, and freedom of religious expression. According to some thinkers, scientific expression such as genetic engineering cannot be restricted by the government because it essentially represents the converse of religious expression: the expression of a lack of religion.

Opening quote
"We understand that religious conduct can be protected," Alta Charo, a bioethicist and law professor at University of Wisconsin Law School said last week at a DARPA conference (via Motherboard). "When I fertilize an egg in a laboratory, am I conveying a message about the lack of need of a deity? In other words, am I expressing something that is in a fundamental way political?"
Closing quote


Not all religious behaviors are protected, of course; some Bible verses are often taken out of context in order to justify domestic violence, for example, which would not be accepted as a justification in an American court of law. But domestic violence directly hurts another sentient being, and Charo argues that if such direct harm cannot be proven, then genetic engineering would fall under protected expression:

Opening quote
"If it can be done in a way that's perfectly safe for animal health, is there a basis for prohibition based on morality or politics or culture?" Charo said. "Or does the fact that a few of these experiments are being done precisely to challenge those views the reason we are not allowed to ban them?"
Closing quote


The argument is particularly persuasive now that DIY genome editing techniques like CRISPR are beginning to bring genetic engineering to the masses. Some are using CRISPR to make creations that could reasonably be construed as art, like glow-in-the-dark plants, and art is more unambiguously protected under the First Amendment:

Opening quote
"Can you ban whimsy and art or other facetious uses?" asked Charo.
Closing quote


But even taking art and similar types of expression out of the equation, many theorists would argue that genetic engineering for the sole purpose of scientific research is still protected under the Constitution. As early as 1979, James R. Ferguson wrote in the Cornell Law Review that all scientific inquiry should be protected under the First Amendment:

Opening quote
"Any restriction on areas of scientific research will effectively suppress the data and ideas that would otherwise result if the research proceeded without legal constraint," he wrote. "Accordingly, if scientists are precluded from pursuing lines of investigation, they are restrained in their ability to engage in free expression."
Closing quote


The federal government has stopped just short of banning genetic engineering, likely to avoid these kinds of issues; earlier this year, after Chinese scientists edited the human genome for the first time, the White House called for a moratorium on human genetic engineering, but didn't necessarily mandate it. Instead, the government wields its power in other ways, like cutting off federal funding, and the scientific community has placed a moratorium on itself in order to avoid deleterious effects in future generations. And there is a chance that the government could justify prohibiting human genome editing by citing real physical dangers, but it seems that any ideological arguments will be difficult to reconcile with the First Amendment. 
Science
Technology
Genetic Engineering

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