Science as Speech

Author:Natalie Ram
Position:Assistant Professor, University of Baltimore School of Law
Pages:1187-1237
SUMMARY

In April 2015, researchers in China reported the successful genetic editing of human embryos using a new technology that promised to make gene editing easier and more effective than ever before. In the United States, the announcement drew immediate calls to regulate or prohibit outright any use of this technology to alter human embryos, even for purely research purposes. The fervent response to... (see full summary)

 
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1187
Science as Speech
Natalie Ram
ABSTRACT: In April 2015, researchers in China reported the successful
genetic editing of human embryos using a new technology that promised to
make gene editing easier and more effective than ever before. In the United
States, the announcement drew immediate calls to regulate or prohibit
outright any use of this technology to alter human embryos, even for purely
research purposes. The fervent response to the Chinese announcement was, in
one respect, unexceptional. Proposals to regulate or prohibit scientific research
following a new breakthrough occur with substantial frequency. Innovations
in cloning technology and embryonic stem cell research have prompted similar
outcries, and even resulted in legislative action. Meanwhile, the U.S.
government instituted a funding “pause” on certain infectious-disease
research while it contemplated whether researchers should even be permitted to
complete such work.
Regulations such as these often seek to prevent researchers from discovering
information and, consequently, can limit discourse on important matters of
public concern. This Article argues that such de facto censorship implicates
the First Amendment, and that constitutional scrutiny is necessary whenever
the government regulates scientific inquiry in an effort to suppress knowledge
production. This Article establishes a framework for assessing whether and
when legislatures cross the constitutional line by regulating scientific
experimentation. Applying this framework in a variety of contexts, from gene
editing and human cloning to infectious-disease research, this Article also
identifies both constitutionally sound and constitutionally suspect purposes
for which government actors have regulated scientific research.
I. INTRODUCTION ........................................................................... 1188
II. DEFINING “SCIENCE” ................................................................... 1194
Assistant Professor, University of Baltimore School of Law. Many thanks to Jack Balkin,
John Bickers, Gregory Dolin, Edward Fallone, William Hubbard, David Jar os, Michael
Mannheimer, Colin Starger, the Honorable Fred Smalkin, Matthew Tokson, and the participants
of the Marquette University Junior Scholars Works-in-Progress conference and the North ern
Kentucky University faculty workshop series for their helpful comments on this project.
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1188 IOWA LAW REVIEW [Vol. 102:1187
III. KNOWLEDGE PRODUCTION AND THE FIRST AMENDMENT ........... 1197
A. IDEAS, KNOWLEDGE, AND THE FIRST AMENDMENT .................. 1197
B. SCIENCE AND THE MODES OF KNOWLEDGE PRODUCTION ......... 1200
C. A FRAMEWORK FOR PROTECTION ........................................... 1204
IV. GRAPPLING WITH UNHELPFUL ANALOGIES ................................. 1207
A. SCIENTIFIC RESEARCH AS EXPRESSIVE CONDUCT ...................... 1208
B. SCIENTIFIC RESEARCH AS A NECESSARY PRECURSOR TO
PROTECTED SPEECH .............................................................. 1212
V. SCRUTINIZING SCIENCE REGULATION ......................................... 1216
A. PROHIBITING GERMLINE GENE EDITING RESEARCH ................ 1217
B. PROHIBITING HUMAN CLONING FOR BIOMEDICAL
RESEARCH............................................................................. 1222
1. Preventing Research Developments that Can Be
Used to Facilitate Human Cloning for Producing
Children ....................................................................... 1225
2. Preventing the Exploitation or Coercion of Women
in Egg Extraction......................................................... 1226
C. PROHIBITING INFECTIOUS-DISEASE RESEARCH ........................ 1232
VI. CONCLUSION .............................................................................. 1237
I. INTRODUCTION
In April of 2015, researchers in China reported that they had successfully
genetically edited human embryos.1 Using the gene-editing tool known as
CRISPR/Cas9,2 the researchers modified the gene responsible for beta
thalassemia, a heritable and potentially fatal blood disorder.3 Although the
researchers emphasized that they performed their work using non-viable
embryos, which cannot result in a live birth,4 controversy surrounded the
announcement.
Even before this work was accepted for publication, rumors about it
prompted prominent figures in the scientific community to urge caution, if
not an outright halt, to such research. Nature, among the most prominent
1. Puping Liang et al., CRISPR/Cas9-Mediated Gen e Editing in Human Tripronuclear Zygotes,
6 PROTEIN & CELL 363, 363 (2015); see also David Cyranoski & Sara Reardon, Chinese Scientists
Genetically Modify Human Embryos, NATURE (Apr. 22, 2015), http://www.nature.com/news/
chinese-scientists-genetically-modify-human-embryos-1.17378.
2. CRIPSR stands for “clustered, regularly interspaced, short palindromic repeat” while
Cas9 refers toCRISPR-associated protein 9. Jeffry D. Sander & J. Keith Joung, CRISPR-Cas
Systems for Editing, Regulating and Targeting Genomes, 32 NATURE BIOTECHNOLOGY 347, 347 (2014).
3. See generally Liang et al., supra note 1; Cyranoski & Reardon, supra note 1.
4. See Liang et al., supra note 1, at 364.
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scientific journals, published a commentary entitled Don’t Edit the Human Germ
Line.5 This commentary argued that, for both safety and ethical reasons,
researchers should not utilize the CRISPR/Cas9 protocol to modify human
embryos or gametes in ways that, if applied clinically, might give rise to
heritable changes.6 It also spoke approvingly of broader efforts to prohibit
such techniques.7 Similar calls for a moratorium on or prohibition of such
research also emerged elsewhere in the scientific and bioethics communities.8
Others took a more sanguine approach. Two prominent researchers who
played central roles in pioneering the CRISPR/Cas9 protocol have proposed
that governments permit research, including on the human germline, to
proceed.9 These researchers nonetheless agreed that clinical use of germline
editing should be kept at bay for the present time.10 The regulatory body
charged with licensing human-embryo research in the United Kingdom,
meanwhile, recently approved just such an arrangement—permitting gene
editing in embryos for research purposes, but not for clinical use.11
5. Edward Lanphier et al., Don’t Edit the Human Germ Line, 519 NATURE 410 (2015).
6. Id. at 410; see also Gretchen Vogel, Embryo Engineering Alarm: Researchers Call for Restraint
in Genome Editing, 347 SCIENCE 1301, 1301 (2015) (“Edward Lanphier, and four colleagues call
for a moratorium on any experiments that involve editing genes in human embryos or cells that
could give rise to sperm or eggs.”).
7. Lanphier et al., supra note 5, at 411; see also Tanya Lewis, 2 Leading Biologists Say We Should
Allow Gene Editing on Human Embryos, BUS. INSIDER (Nov. 30, 2015, 11:00 AM), http://www.
businessinsider. com/leading-bio logists-say-we-should-allow-gene-editing-on-human-embryos-2015-11
(describing Lanphier’s commentary as “call[ing] for a ban on such research”); Why Banning CRISPR
Gene Editing Would Be Unnecessarily Cautious, NEW SCIENTIST (Dec. 2, 2015 ), https://www.newscientist.
com/article/dn28594-why-banning-crispr-gene-editing-would-be-unnecessarily-cautious (“Early
this year, a few researchers . . . call[ed] for a temporary ban even on basic research.”).
8. See Jocelyn Kaiser & Dennis Normile, Embryo Engineering Study Splits Scientific Community,
348 SCIENCE 486, 486 (2015) (stating that, in the wake of the Liang et al. article reporting
germline editing of non-viable human embryos, “[t]he Center for Genetics and Society in
Berkeley, California, a watchdog group, called for a halt to such experiments. The Society for
Developmental Biology in Bethesda, Maryland, called for a voluntary moratorium as well”); John
Travis, Germline Editing Dominates DNA Summit, 350 SCIENCE 1299, 1300 (2015) (“Catholic
theologian Hille Haker of Loyola University Chicago in Illinois . . . called for a ban on all human
germline editing research.”); see also Hille Haker, Loyola Univ. Chi., Remarks at the International
Summit on Human Gene Editing, Panel on Societal Implications of Emerging Technol ogies
(Dec. 1, 2015) (calling for a moratorium on basic research on germline gene editing for two
years to allow for development of “[r]egulations to exclude that basic research [that may be] used
to pave the way for reproductive gene editing,” and arguing that both “[p]ublic [and] private
research must be regulated by laws and/or effective forms of governance”).
9. David Baltimore et al., A Prudent Path Forward for Genomic Engineering and Germline Gene
Modification, 348 SCIENCE 36, 37 (2015); Jennifer Doudna, Embryo Editing Needs Scrutiny, 528
NATURE S6, S6 (2015).
10. Baltimore et al., supra note 9, at 37; Doudna, supra note 9, at S6.
11. Press Release, Human Fertilisation & Embryology Auth., HFEA Approves Licence
Application to Use Gene Editing in Research (Feb. 1, 2016), http://www.hfea.gov.uk/
10187.html; se e also Ewen Callaway, UK Scientists Gain Licence to Edit Genes in Human Embryos,
NATURE (Feb. 4, 2016), http://www.nature.com/news/uk-scientists-gain-licence-to-edit-genes-in-

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