The Human Genome Project's Threat to the Human Constitution: Protections from Nebraska Constitutionalism

• Publication year: 2022
• Citation: Vol. 33

33 Creighton L. Rev. 3. THE HUMAN GENOME PROJECT'S THREAT TO THE HUMAN CONSTITUTION: PROTECTIONS FROM NEBRASKA CONSTITUTIONALISM

Creighton Law Review

Vol. 33

PETER J. LONGO(fn*)

ABSTRACT

The Human Genome Project is an ambitious scientific effort to map the genetic make-up of the human constitution. While such genetic understanding has numerous positive aspects, genetic technologies will pose serious threats to the civil liberties of citizens. The Human Genome Project threatens the value of human diversity and negative results follow in the areas of abortion, education, and privacy. These threats can be diminished for the citizens of Nebraska through a vigorous application of the Nebraska Equal Protection Amendment and Nebraska constitutionalism.

INTRODUCTION

When freedoms and liberties are threatened, the public is frequently left with the impression that there is some manner of constitutional recourse. Citizens in constitutional democracies accurately perceive that there are certain protections afforded by the fundamental law, the constitution. But like all perceived protections, confusion exists as to the exact nature of constitutionalism. Constitutionalism, as a public philosophy, conjures links to abstract notions of public interest or justice. It certainly is not clear as to how precisely constitutional guidance extends to certain technologically driven public policy issues. But if the protections of the people are somehow manifested through a formal constitution, it is logical and necessary to examine the relationship between difficult technological advancements and peculiar constitutions, state or national constitutions.

The relationships between technologically driven public policy issues and a particular constitution are seemingly countless. As such, much can be learned by analyzing the connection between constitutionalism and public policy issues.(fn1) The Human Genome Project provides an intriguing connection and introduction to the examination of these issues. This article will address (1) the relevance of the Human Genome Project to Nebraska constitutionalism; (2) the importance of state constitutionalism; (3) the linkage between the Human Genome Project to the Nebraska Equal Protection Amendment and related issues of abortion, education, and privacy; and (4) directions for future constitutional issues raised by the Human Genome Project.

THE HUMAN GENOME PROJECT AND NEBRASKA CONSTITUTIONALISM

For purposes of this article, self-selected constitutional issues emerging from the Human Genome Project will be placed in the context of Nebraska constitutionalism. The connection between Nebraska public policy and the Human Genome Project was provided legislatively with the enactment of LB 111, as the Nebraska Unicameral created the Nebraska Commission on Human Genetic Technologies.(fn2) This commission provided an important study and gathered information regarding the many issues developing as a consequence of the Human Genome Project. Citizens of Nebraska have yet to fully connect the issues of the human constitution and the political constitution.

Such a connection is not novel, as studies of the human constitution and political constitution have long fascinated scholars. Indeed, Aristotle not only looked at numerous governmental constitutions, but he was also fascinated by the constitution of the human body.(fn3) For instance, Aristotle offered the following call: "The reasons for some animals being long-lived and short-lived, and in a word, the causes of length and brevity of life call for investigation . . . Further, in a natural structure are longevity and a sound constitution, or a shortness of life independent of unhealthiness?"(fn4) Thus, in the tradition of Aristotle, the Human Genome Project is an attempt to better understand the human constitution, a rather interesting collection of twenty-three pairs of genes. Ricki Lewis provided the following account of the Human Genome Project:

The idea to sequence the human genome came in 1986 from Renato Dulbecco, a noted virologist who thought that the information would reveal how cancer arises. That summer, enthusiastic geneticists convened at Cold Spring Harbor on New York's Long Island and soon, worldwide planning began. The project officially started in 1990 under the auspices of the U.S. Department of Energy and National Institute of Health. The focus at first was to develop tools and technologies to divide the genome into pieces small enough to sequence and to improve the efficiency of sequencing techniques. The original goal for a completion date was the year 2005.(fn5)

News of locating a gene is commonplace and the mapping of the Human Genome Project is well underway.(fn6) The Human Genome Project is unquestionably a scientific inquiry with as many technological nuances as constitutional concerns. Implications for citizens will either be shaped by scientists, the profiteers of genetic technology, or by the guiding precepts of a constitutional democracy. However, a constitutional democracy offers no infallible guarantees from horrific results. One only need revisit the infamous Buck v. Bell(fn7) case in which Virginia practiced eugenics and sterilized many governmentally-deemed "inferior" citizens.(fn8) The jurisprudence offered by Justice Holmes was crude and insensitive: "Three generations of imbeciles are enough."(fn9) From the eugenics of sterilization to the Human Genome Project, scientists have created critical public policy issues which are not often dealt with well by the public. Of the Human Genome Project, Daniel Kelves warns, "[i]f we do not use our knowledge wisely, it will be a failure not of science, but of democracy."(fn10) Thus, the challenge for constitutional governance is one of reconciling technology with the protections offered by a constitution.

The citizens of Nebraska are no less immune from scientific advancements, political ambiguities, or unjust workings of democracy than any other state. To their credit, Nebraska lawmakers are aware of the potential technological impacts as evidenced by the Nebraska statutory law provision which contains the following mission statement for the Nebraska Commission on Human Genetic Technologies:

"The Nebraska Commission on Human Genetic Technologies shall encourage improvements in education available in Nebraska at all levels about human genetics, genetic tests and their meanings, the causes and prevention of human discrimination, and the positive value of human genetic diversity."(fn11) Major concerns center on diversity and discrimination, but these concerns while easy to address, are not easy to resolve. No doubt the Commissioners struggled with many issues as reflected in a portion of their report:

The Commission struggled with how it would capture a position that would permit genetic treatment interventions that relieve suffering or provide a cure in the face of disease, acknowledge the complex moral and religious issues surrounding reproductive decisions, and convey unequivocally their abhorrence of the use of genetic technologies to compromise in any way the inherent dignity and intrinsic value of individuals and the sustenance of the human community in its rich diversity.(fn12)

The commission staked out a cautious position and in doing so clearly stressed the importance of diversity. It is this concern, a respect for diversity, that ought to guide Nebraska constitutionalism. Many genome issues will be left to the state arena and, as such, state constitutionalism takes on heightened importance. Professor Howard underscores the theoretical importance of a state constitution: "A state constitution is a fit place for the people of a state to record their moral values, their definition of justice, their hopes for the common good. A state constitution defines a way of life."(fn13) Of course, the purpose of the Human Genome Project is to define life with blueprint precision and without a secondary concern for political life. It is incumbent upon policy makers to care for the diverse nature of political life. If Howard is correct in asserting the notion that state constitutions define a way of life, then it is essential for citizens of Nebraska to integrate constitutional safeguards with scientific advancements. It is important for the citizens of Nebraska to shape the genome implications from constitutional framework before the biological advances define the very nature of humans.

Constitutional values allow for human values to embrace and cope with diversity. Laurence Tribe asserts that constitutional issues as manifested from the interplay between issues and constitutional interpretation from the judiciary can result in a better political life. "[T]he fact that constitutional choices affect, and hence require consideration of, the way in which a polity constitutes itself. In making such choices, we reaffirm and create, select and shape, the values and truths we hold sacred."(fn14) The problem is that the "sacred" does not necessarily provide an apparent efficiency and the Human Genome Project imbues efficiency. For the champions of efficient constitutionalism, Frank Easterbrook's utilitarian notion of constitutionalism strikes as an attractive alternative to Tribe's notion of jurisprudence: "All good things are scarce. Self-interested conduct is the handmaiden of society. These are the facts of life. Given scarcity...