The second, more troubling, issue involves the Court’s tendency, in cases since
Roe, to embrace notions of “tradition” as a means of curtailing the potential
expansiveness of rights recognized under the Due Process Clause. As most of you
recognized, this trend is most prominently displayed in Bowers v. Hardwick, but can also be seen in the Michael H. case, a case in which Justice Scalia argued that constitutionally protected substantive rights under the Due Process Clause must be defined at their most specific, traditionally recognized level. As applied to this case, Justice Scalia’s approach might result in a relatively narrow description of the right to procreate, i.e. the right to bear children within the context of a monogamous, heterosexual marriage; in that case, the PFVA would be subject only to rational basis review.
Helen has several possible answers for Justice Scalia. First, Helen can point out
that the majority of the Court has never explicitly embraced Justice Scalia’s cramped approach to defining the scope of rights protected under the substantive Due Process Clause. Indeed, such an approach, while consistent with Bowers, would be almost impossible to reconcile with the contraception and abortion cases. Second, the absence of any clear tradition with respect to in vitro services for single women cuts both ways: while there may be no clear tradition establishing the right to obtain such services, there is also no clear tradition of preventing single women from obtaining such services - something that could not be said with respect to the tradition of criminalizing homosexual sodomy. Third, Helen might argue for a narrow reading of Bowers, noting the Court’s emphasis in that case on the absence of a connection between homosexual sodomy and “family, marriage or procreation”; in contrast, the connection between Helen’s ability to access in vitro services and her ability to bear children in both obvious and direct.
As applied to this case, Justice Scalia’s approach might lead to an extremely narrow description of the right asserted by Dolly. Indeed, Scalia might argue that cloning does not even qualify as “procreation” under a standard dictionary definition of the term (for what it’s worth, Webster’s Dictionary defines procreation as “to bring a living thing into existence by the natural process of reproduction.“) Given the recent vintage of cloning technology, it would be difficult to argue that a narrowly-defined “right to clone one’s self’ is “deeply rooted in the Nation’s history and traditions.” Moore. In the absence of any deeply rooted tradition, Scalia would argue, and in circumstances where the states exhibit no clear political consensus on the issue, the Court has no business minting a new “right” or “liberty interest” to protect, but should instead evaluate Futura’s
ban under rational basis review.
Whether a majority of the current Court would in fact embrace such a cramped
reading of the right to privacy/procreate cases is not entirely clear. On the one hand, a majority of the Court appears to reject Scalia’s approach in Casey. In that case, Justice O’Connor not only defends an activity that enjoyed a record of protection prior to Roe that was spotty at best, but also uses relatively expansive language to connect the abortion right with the contraception cases, indicating that these cases all “involve decisions concerning not only the meaning of procreation but also human responsibility and respect for it.”
Via the University of San Francisco’s Dorraine Zief Law Library, the New York Times has put Obama’s syllabus, exams and answer keys online: