CONSTITUTIONAL LAW III. Final Examination. December 13, :00 a.m. to 3:00 p.m.

Transcription

1 CONSTITUTIONAL LAW III Final Examination December 13, :00 a.m. to 3:00 p.m. Autumn Quarter, 1997 Prof. Obama

2 Instructions This is an open book exam. You may use any materials or notes used in our class. You may not refer to cases, articles, etc. that were not used in class. You will have six hours to complete the exam. The exam is designed, however, to be completed in approximately three hours. Feel free to use the extra three hours as you wish. The exam consists of two Parts. In grading the exam, I will treat each Part as roughly equal in weight. The numbered questions within each part will be accorded roughly equal weight, although they are obviously interrelated and will be graded as such. In other words, don t worry if your answer to one numbered question is longer or shorter than another. Just make sure that you have answered all the questions in each Part. I would greatly prefer that your answer be typed or word-processed. Assuming you type, you must double-space, use a 12-point font, and provide for at least one inch margins all the way around the page. This works out to roughly 435 words per page (five characters per word). Your answer must be no more than 12 pages (or roughly 5,200 words); I will stop reading after 12 pages. If you really truly cannot type, or lack access to a word processor, then you may use a bluebook. Please write on only one side of each bluebook page, put your exam number on each bluebook, and remember to skip lines. The rough 5,200 word limit still applies. Read each question carefully and think before you write. Please do not feel obliged to make use of the 12 page maximum in formulating your answers. Precision and imagination, rather than volume, is what counts. Good luck, and have a fine holiday.

3 Part One (ninety minutes) Mary and Joseph, a married couple in their early fifties, are residents of Bethlehem City, which is located in Futura, a state in the United States of America. Last year, their 23 year old daughter, Dolly, a second-year medical student at Futura State University, was in a serious car accident. Dolly sustained severe head injuries as a result of the accident, and was already unconscious when removed from the wreck. Despite the best efforts of the doctors at Bethlehem Medical Center, Dolly has been in a persistent vegetative state for the past year. She survives only with the assistance of respiratory, feeding and hydration tubes, and shows no sign of brain function. Doctors have indicated to Mary and Joseph that Dolly has no prospects whatsoever for recovery, and that the removal of the life-support system currently in place will cause Dolly s death. Perhaps due to her interest in medicine, or perhaps due to a natural morbidity, Dolly had the foresight to draft her own living will prior to the accident. The will grants Mary and Joseph joint authority in making any and all decisions regarding medical treatment on Dolly s behalf in the event she becomes comatose, including the decision to terminate life-sustaining treatment. It is uncontroverted that the living will constitutes clear and convincing evidence of Dolly s informed and voluntary wish to delegate authority to her parents regarding the decision to terminate life-sustaining treatment, and that such a conferral of authority is valid under Futura state law. Grief-stricken at the imminent loss of their only child, Mary and Joseph have been following with considerable interest the rapid advances taking place in the field of human cloning. It seems that over the past five years, several hundred happy, healthy infants have resulted from the process, which involves taking a cell from a living person (so far, these cells have all come from infertile couples seeking to conceive) and slipping the cell into an egg cell whose genetic material has been removed. The emergent embryo, which will be a genetic copy of the adult cell donor, is then transferred to a woman s womb, where it will develop in the usual fashion until birth. Despite the controversy that surrounded the initial batch of cloned infants and the continuing opposition of most religious groups to the new technology, the U.S. Congress has thus far declined to ban the practice. Congress has established a limited set of federal guidelines regulating the medical practices and technologies to be used in the cloning of humans, but has otherwise chosen to leave the decision regarding the regulation and/or permissibility of human cloning in the hands of state legislatures. So far, 10 states have instituted an outright ban on the practice; another 10 have no laws at all pertaining to the practice, while the remaining 30 have a patchwork of regulations with varying degrees of intrusiveness. Medical ethicists remain divided on the issue, but all agree that there is no scientific evidence that the hundred or so clone babies currently in existence experience rates of illness, behavioral disorder, psychological difficulty, or abuse at the hands of parents, that are demonstrably higher than children conceived in the traditional fashion. Constitutional Law III-Fall 1997-Final Examination-Page 1 of 5 1

4 After careful deliberation and consultation, Mary and Joseph have decided to remove Dolly from life-support. They have also decided that, prior to removing Dolly from life-support, they would like to take a healthy cell from Dolly s body and have her cloned. They have based their decision in part on the belief that Dolly would want her genetic line continued, and in part on their feeling that a new child will help fill the void cause by Dolly s imminent death. (Mary has already experienced menopause, and hence can no longer provide her own eggs for either natural conception or in vitro fertilization; technology does permit her to carry to term a cloned embryo implanted in her womb.) Mary s and Joseph s decision is also influenced by the fact that prior to the accident, Doily expressed an interest in becoming an infertility specialist, and had stated to her parents on several occasions that she saw nothing ethically wrong with the use of cloning either to help infertile couples conceive, or to facilitate a decision by grieving parents to reproduce a terminally ill infant or child. Dolly shared this view with a number of her friends, who are prepared to testify to that effect. According to the doctors at Bethlehem Medical, there is nothing related to Dolly s medical condition that would prevent her from being cloned. Moreover, the technology required to carry out the procedure already exists in the infertility wing of the hospital. There s only one problem: Futura is one of the 10 states that has banned human cloning. According to the hospital s lawyer, the state defends the ban on the grounds that i) human cloning violates the sanctity of life and the bonds of family that lie at the very core of our ideals and our society ; ii) human cloning makes our children objects rather than cherished individuals, and therefore opens the door to such potential abuses as the cloning of individuals solely for organ harvesting; and iii) children conceived through the cloning process may experience psychological damage, ostracism or even discrimination as a class, outcomes which the state has an deep interest in preventing. Moreover, the hospital lawyer has indicated that even if Mary and Joseph were willing and able to incur the additional expense and risk of transporting Dolly to another state in order to perform the cloning procedure, those states which permit human cloning all require proof of voluntary and informed consent from the individual who is to be cloned. An exception to this consent requirement exists where the individual to be cloned is a terminally ill minor, an exception that does not apply in Dolly s case. In the hospital lawyer s view, neither Dolly s living will nor her general statements regarding cloning constitute sufficient proof for the purpose of meeting this consent requirement. Mary and Joseph come to your law office to discuss their options. Specifically, they ask you to answer the following two questions: 1) First, they would like to know whether the State of Futura s indiscriminate ban on cloning violates either Dolly s constitutional rights, or their own constitutional rights, under the substantive component of the Fourteenth Amendment s Due Process Clause. You do not need to arrive at a definitive conclusion regarding these issues. Instead, make the strongest possible argument for each claim, then explore the weaknesses of each Constitutional Law III-Fall 1997-Final Examination-Page 2 of 5 2

5 claim. Be sure to consider the possibility that Futura s ban on cloning does in fact encroach on some constitutionally recognized rights, but is nevertheless constitutional. 2) Second, assuming Mary and Joseph decide to transport Dolly to a state that already permits human cloning, they would like to know whether they can mount a successful constitutional challenge to a possible state ruling that neither Dolly s living will nor her general statements regarding cloning are sufficiently indicative of Dolly s consent to permit the removal of her cells for cloning purposes. In answering this question, assume that under both the common law and statutory law of all states, Dolly s general statements regarding cloning would not constitute clear and convincing evidence of her consent to be cloned, but might be considered evidence of consent under a preponderance of the evidence (that is, a more likely than not ) standard. Part Two (ninety minutes) Splitsville is a large Northern city in the State of Wazoo, with a population that is approximately 45 percent black, 40 percent white, and 10 percent Latino, and 5 percent Asian. Like many urban centers, Splitsville has major problems with its public schools. Specifically, although the Splitsville school district has never operated a system of de jure racial segregation, the school district did enter into a federal consent decree in the early seventies, in response to a lawsuit alleging that it intentionally maintained a de facto system of segregated schools. Under the terms of the federal consent decree, the district was required to create a system of selective magnet schools throughout the city, with voluntary busing for those students interested in attending the magnet schools. The magnet schools were designed to both enhance opportunity for minority students and to promote an integrated learning environment for those students wishing to attend such schools. The school board was also required to institute a range of remedial education and counseling programs targeted at predominantly minority schools. In 1992, the school district was released from the consent decree after a finding that it had achieved unitary status. The magnet schools have been maintained, and the remedial programs first instituted under the consent decree have been folded into a more general remedial plan, whereby schools with high concentrations of poverty receive additional federal and state aid. These programs have not been sufficient to overcome segregated housing patterns and white flight from the public school system, however, and the goal of a genuinely integrated public school system remains elusive. More than half of all black public school students in Splitsville attend schools that are at least 90 percent black, and more than one third of all Latino students attend schools that are at least 90 percent Latino. The majority of students in the Splitsville schools perform well below national norms on standardized test, and the drop-out rate system-wide hovers at around 35 percent. Performance is even more dismal in the largely all-black and all-latino schools, where only 10 percent of the students read at the national norm, and 45 percent of the students Constitutional Law III-Fall 1997-Final Examination-Page 3 of 5 3

6 To: From: Re: Students in Con. Law III Prof. Obama The Exam First, let me apologize for the extreme tardiness in getting this memo to you. Due to a miscue between me and my secretary in Springfield, I thought it had been faxed to the registrar and distributed over two months ago. Second, let me say how generally pleased I was with the quality of this year s exams. The questions were tough-but the vast majority of you handled the main issues well, leaving me to score the exams mostly on the precision and subtlety of your answers. The memo below gives you a basic idea of the analysis I was looking for in grading the exams, as well as some of the thoughts that you may have raised and for which I assigned appropriate credit. This memo isn t intended to be exhaustive (although it is obviously far more comprehensive than I would have expected from any exam, given the time limits you were all working under); there may be issues that some of you identified that represent sparkling insight and for which you were awarded credit, but which are not included in this memo. Each exam should have three grades on the cover. The circled grade is the official grade. The other two grades are by part. These latter grades are basically provided for your information, but they do not necessarily average out to your final grade, since the final grade took the curve into consideration. Part I - The Cloning Ban Question 1 Dolly s Claims One way to approach this question is to first consider whether Futura s ban on cloning would violate the constitutional rights of Dolly if she were competent and decided to reproduce herself through cloning. If the answer is yes, then Futura s outright ban would presumably be struck down, and we can move to the narrower question of whether consent requirements of the sort instituted in those states that permit cloning are also unconstitutional. As most of you recognized, whether a decision to clone one s self is constitutionally protected from government intrusion largely depends on whether such a decision falls within the ambit of fundamental rights recognized by the Supreme Court 1

7 under the substantive prong of the Fourteenth Amendment s Due Process Clause. There are several related arguments for the fundamentalness of the cloning decision. First, Dolly might argue that a decision to clone herself involves the right to procreate, a right the Court first deemed fundamental in Skinner v. Oklahoma. Skinner involved the selective sterilization of convicts, and hence was decided under the Equal Protection Clause; by definition, Futura s outright ban on cloning involves no such classifications. Nevertheless, both the language of Skinner and a line of subsequent right to privacy cases decided under the Due Process Clause (Griswold, Eisenstadt, Carey, and Roe) all argue for a broad reading of the right at stake: a right to make decisions regarding childbearing free from government interference - at least absent a government showing that such interference is narrowly tailored to serve a compelling government interest. Moreover, although Griswold appeared to rest its opinion on issues of marital privacy and the sanctity of the home, Eisenstadt, Carey and Roe clearly extended the right beyond the boundaries of the home or marital intimacy. Does cloning fall within this fundamental zone of procreation/privacy? As many of you discussed, the answer probably depends on the degree to which the Court embraces or rejects the notion of tradition as a mechanism for curtailing the scope of the substantive Due Process Clause. In Michael H., Justice Scalia argued that constitutionally protected substantive rights under the Due Process Clause must be defined at their most specific, traditionally recognized level. This is the approach taken in Bowers v. Hardwick, for example, where the right at issue is described by the Court not as the right to sexual intimacy between unrelated, consenting adults, but rather as the right to engage in homosexual sodomy. 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 2

8 for it. Indeed, it might be argued that for a majority of the Court, the outcome in Bowers depended in part on the fact that there was a long-standing tradition of prohibiting sodomy, and that in the absence of such a specific, traditional prohibition on cloning, the Court must necessarily rely on general principles - such as individual autonomy, or reproductive freedom - in evaluating the constitutionality of Futura s ban. Dolly might also point out that Bowers emphasizes the absence of any childbearing interest with respect to sodomy, and that such a childbearing interest (through admittedly untraditional means) does exist in this case. On the other hand, the reasoning of the majority opinion in Washington v. Glucksberg appears to closely track Justice Scalia s; not only does the Court identify tradition and a careful description of the asserted fundamental liberty interest as the guideposts for responsible decision-making in substantive Due Process cases, but the majority opinion also explicitly rejects a more fluid approach suggested by Justice Souter, in which tradition is understood as a living thing. Again, Dolly might argue that the analysis in Glucksberg rested heavily on the strong tradition against assisted suicide, a tradition that is not present in this case; she might also argue that while Justice O Connor provided the fifth vote for the majority opinion in Glucksberg, O Connor went on to write a concurring opinion in which she appears to distance herself somewhat from the tradition-laden language of the four other members of the majority. Still, the Glucksberg opinion indicates at the very least a deep hesitance on the part of the Court to further broader the scope of interests protected under the substantive Due Process Clause. A few of you suggested that a competent Dolly might have more luck couching her decision to clone solely as an issue of bodily integrity. Irrespective of whether cloning is or is not procreation, the argument runs, there clearly exists a long-standing tradition, both under the common law and under constitutional interpretation, of protecting an individual s choice to reject even life-sustaining medical treatment. The same concern is evident in the abortion decisions; the state can t force a Cruzan. woman to maintain a pregnancy against her wishes. Roe. If the state can t force a woman to bear a child or accept life-sustaining treatment, why should it be able to control her decision to clone absent a compelling (or at least important) government interest? The problem with such an analysis, of course, is that the Court has never interpreted the Due Process Clause to protect a person s right to do whatever he or she wants with his or her own body. The prohibition on suicide is just one example of a constraint on bodily autonomy that the Court considers constitutional; other examples include prohibitions on the ingestion of illicit drugs, prostitution, and the sale of body parts. A focus on bodily integrity/autonomy does highlight the possibility, however, that the Court might apply a balancing test of the sort used in Casey and Cruzan. In those cases, the Court refrained from clearly identifying the decision to have an abortion or to reject life-sustaining medical treatment as fundamental, but did acknowledge such decisions as liberty interests that deserve some constitutional protection. Applied to our case, a Court might determine that Futura s outright ban constitutes an undue 3

9 burden on Dolly s decision to replicate, while upholding regulations that severely restrict the circumstances under which cloning technology might be used. It is important to recognize, however, that the term liberty interest is just as malleable as the term fundamental right, so that the use of a balancing approach by the Court does not avoid the definitional problems already discussed. For example, the Court might recognize a broad liberty interest in medically-assisted procreation, but still find Futura s ban on cloning to be merely a restriction on one highly specialized technique among many. Under such an analysis, the fact that cloning might be the only means of bearing a genetically-related child for a handful of people like Mary and Joseph might trouble the Court; on the other hand, several of you were correct to point out that in Casey, Justice O Connor expressed little concern for the fact that for some women, waiting periods and other restrictions might constitute an effective ban on abortion, and not merely an inconvenience incidental to an otherwise available right. Mary and Joseph s Claims Most of the discussion above regarding the appropriate standard of review with respect to Dolly s potential claim applies with equal force to any consideration of Mary s and Joseph s potential claims. Again, it s worth considering first what Mary and Joseph s claims might be if not complicated by the fact of Dolly s incapacity - in circumstances, say, where Dolly is terminally ill but competent and consents to the cloning procedure. Under such circumstances, it might be argued that Mary and Joseph s claim of a right to procreate through cloning is even more persuasive than Dolly s, since a) any cloned child would be in fact a product of Mary and Joseph s genetic mixture; b) Mary and Joseph might have no other means of bearing a child genetically related to both of them; and c) the cloned embryo would be implanted in Mary s womb and Mary would carry it to term like any traditional pregnancy. Described in these terms, it would be difficult to differentiate the cloning of Dolly from the use by other techniques commonly used by infertile couples to conceive - i.e. in vitro fertilization, the use of donated eggs, and so on. None of these technologies are traditional as that term is commonly understood, and yet it is hard to imagine the Court sanctioning an outright prohibition on their use without a pretty compelling reason for doing so. The fact that these new technologies increasingly facilitate post-menopausal child-bearing raises further doubts that any constitutional analysis of cloning can rest simply on the natural limits of reproductive capacity. Futura s Interests - How Compelling? Depending on how the Court resolves the fundamentalness issue, the Court would evaluate Futura s justifications of its ban on cloning under either a) strict scrutiny (in which case the ban would need to qualify as narrowly tailored to achieve a compelling government interest ); b) rational basis review (in which case the ban would merely have to be rationally related to achieving an legitimate government interest); or c) 4

10 a more fluid balancing test of the sort employed in Casey and Cruzan. (I should note, by the way, that the first two of Futura s asserted rationales for a cloning ban are drawn almost verbatim from President Clinton s Commission on Human Cloning, which sought to explain its recommendation for a moratorium on any attempts to clone humans. The third rationale summarizes some of the arguments offered by various medical ethicists in the debate surrounding cloning.) Below we consider each of Futura s rationales in turn: 1) Preventing psychological damage, etc. As most of you recognized, the weakest rationale offered by the state appears to be its asserted interest in preventing a class of clones who may experience psychological damage, ostracism or even discrimination as a class. While the interest in protecting children generally, and cloned children in particular, is certainly legitimate and probably compelling, the means the state has chosen can hardly be described as narrowly tailored, and would therefore not support the Futura s ban under any form of heightened scrutiny. To begin with, the hypothetical offers no evidence of cloned children experiencing a disproportionate amount of psychological damage and social ostracism. But even if cloned children did experience such problems, the state surely cannot use possible evidence of societal bigotry against a class of children as a justification for preventing such children from coming into existence, any more than it can use bigotry to justify discriminatory child custody policies (Palmore) or discriminatory school assignment policies (Cooper). To hold otherwise would be to endorse a not-so-subtle theory of eugenics that might conceivably support state policies to prevent the birth of other groups who experience psychological difficulties, social ostracism and discrimination - e.g. minorities and the disabled. Indeed, it is not clear that this rationale could survive even rationale basis review. As several of you noted, in Cleburne, the Court reject the state s use of social ostracism against the mentally disabled as a justification for discriminatory policies against such persons, even though it declined to hold that the classifications based on mental disability constituted a suspect classification under the Equal Protection Clause. If the state wants to prevent discrimination against the cloned, it can pass anti-discrimination laws. 2) Preventing objectification. organ harvesting, etc. The state s asserted interest in preventing the objectification of children and the possible abuses that might attend such objectification is only slightly more persuasive than the social ostracism rationale. Concerns about the objectification of children seem to rest on the assumption that cloned children will be treated differently from children produced in the traditional fashion, an assumption that is not supported by the evidence. And although the interest in preventing organ harvesting or other abuses against cloned individuals - including children -- seems compelling (particularly in light of some of the more far out reports that have come out since I wrote the exam, regarding the possible creation of headless clones!), the state has at its disposal a wide range of means (e.g. bans on organ harvesting, bans on child abuse, etc.) that already prevent commerce in humans or human body parts. 5

11 Although the objectification/abuse rationale would probably not survive strict scrutiny, and would not appear to justify an outright ban under an undue burden analysis (a range of regulations - from restrictions on who can clone to where cloning can be performed - could address fears of organ harvesting and other abuses without banning the procedure entirely), it might be sufficient under rational basis review. The state might argue, for instance, that the further development and widespread use of cloning technology will increase the risk of children and fetuses being bred for unsavory purposes, and make organ harvesting prohibitions more difficult to enforce. An outright ban might thus be considered rationally related to the state s goal under the extremely deferential standards on display in Bower and some of the Equal Protection Cases decided under rational basis review (e.g. Railway Express Agency). 3) Preserving the sanctity of life/family bonds. This leaves the state with one last rationale - the notion that cloning violates the sanctity of life and the bonds of family that lie at the very core of our ideals and our society. That a state has a compelling interest in preserving an actual human life (i.e. preventing murder, suicide, etc.) is clear from the case law (Cruzan, Glucksberg). This doesn t necessarily mean, however, that the state also has a compelling interest in preventing what it considers to be the devaluation of human life that might result from cloning. It might be argued that the abortion cases lend support to such an abstract sanctity of life concept, given that the Court finds the state s interest in protecting the potentiality of human life to be compelling, without ever ruling that a fetus is a person or resolving the difficult question of when individual life begins. Roe. Whatever we consider a fetus to be, however, it is clearly more than an abstract proposition; in any event, it is hard to see how a compelling interest in protecting potential life translates into a compelling interest in preventing potential life. Similar problems arise when we consider the state s interest in preserving the bonds of family. In other contexts, the Court has indicated that an individual has constitutionally protected rights to determine his or her familial relationships (Loving, Moore, Zabiocki). The Court has also upheld state regulations that seek to preserve existing family bonds - freely chosen by the individuals involved -- in the face of what a majority of the Court considered to be the countervailing liberty interest of a biological father who wants to establish paternity (Michael H.). In none of these cases, however, do* we find the Court upholding state restrictions on an individual s fundamental right to bear children or form a family solely on the basis of the state s abstract judgment of what a family should look like. As several of you pointed out, cases like Moore would seem to lend more support for exactly the opposite proposition - that the state cannot, and should not, make such judgments, but must instead base restrictions on family life on something more concrete. The question, then, boils down to this - can Futura s moral judgment regarding the potential harms that cloning will visit on our current conceptions of life and family serve as a sufficient basis for instituting an outright ban? The answer appears to be yes if the Court evaluates Futura s ban under rational basis review -- as many of you pointed 6

12 out, it was just such moral judgments that the Court in Bowers found to be sufficient in upholding the ban on consensual homosexual sodomy at issue. Whether such moral justifications are enough to survived heightened review is a closer question. On the one hand, it might be argued that the moral judgments at issue with respect to cloning are far more profound than the moral questions involved in consensual sodomy - tinkering with the basic building blocks of life is obviously discomfiting, as are the possibilities of a world in which one s child is one s genetic twin, scientists claim they are God, and the very concept of individuality is called into question. On the other hand, to the extent that the Court is forced to grapple with such weighty issues, it might prefer to do so in the context of deciding whether cloning is or is not a fundamental right, rather than establish the troubling precedent that the state s moral judgments, standing alone, can override an individual s fundamental rights or liberty interests. Question 2 Having examined possible constitutional claims under the best of scenarios - that is, where Dolly is competent and gives her voluntary and informed consent to be cloned - we can now turn to the question of how her incapacity affects the analysis. As a starting point, we can assume that if the Court upholds Futura s outright ban, either because cloning is not a fundamental right or because Futura s asserted interests are sufficiently compelling to override Dolly s or her parent s liberty interest in cloning, then the Court will determine that less restrictive regulations on cloning - such as the informed consent requirements imposed by those states that permit cloning - also do not violate Dolly s or her parent s rights under the substantive prong of the Due Process Clause. This greater includes the lesser argument does not insulate, however, the consent regulations from attack under the Equal Protection Clause. Even if the act of cloning itself is not a constitutionally protected right, selective restrictions on the activity might still be subject to some form ofjudicial review. The informed consent requirement imposes at least one such classifications: it distinguishes between parents of terminally ill minors, who are permitted to clone their child without the child s consent, and parents of terminally ill, comatose adults like Dolly, who must show clear and convincing proof of their child s consent. Unfortunately for Mary and Joseph, this particular classification is not considered suspect under the Court s Equal Protection jurisprudence, and hence would be subject only to rational basis review. As noted above, such a standard of review provides states with the widest possible latitude in crafting public policy. Here, the consent requirement appears to be designed to prevent the possibility that a person will be unwittingly cloned; such a goal seems entirely legitimate, not merely because of the disturbing psychological and sociological implications that might arise in a legal regime in which an individual could be cloned without his or her permission, but also because such a goal comports with the well-established common law of battery, which forbids the touching of one person by another without consent or legal justification. Cruzan. And given the long-

13 standing legal distinction between adults and children with respect to their respective abilities to grant consent, it would be difficult to argue that the consent rules at issue here are arbitrary or irrational -- even if the rules fails to take into account those situations in which adults are unable to provide their consent due to a persistent vegetative state. Mary and Joseph s last hope would be to argue that Dolly s general statements regarding cloning do in fact constitute informed consent to be cloned, or, in the alternative, that Dolly s living will delegates to Mary and Joseph all medical decisions, including the decision to have Dolly cloned. Like the parents in Cruzan, Mary and Joseph would go on to argue that the state s imposition of a clear and convincing evidentiary standard violates Dolly s right to have her wishes regarding medical treatment (or the delegation of decision-making authority) in the event she fell into a permanent vegetative state determined accurately and followed faithfully. Under rational basis review, it s hard to see how Mary and Joseph could succeed in this claim. After all, the Court rejected almost exactly the same argument in Cruzan. It did so despite a willingness to assume that the decision to reject even life-sustaining medical treatment was quasi-fundamental, and despite the fact that it therefore subjected Missouri s evidentiary law to heightened scrutiny. There are at least two differences in the fact pattern involving Dolly that might distinguish our case from Cruzan. First, Nancy Cruzan did not leave behind a living will explicitly delegating decisions regarding medical treatment to her parents in the event of incapacity; Dolly did. Setting aside for a moment the serious interpretive questions involved in defining medical treatment to include cloning, it might be argued that the right to delegate medical decision-making to a surrogate in the event of incapacity is itself a fundamental right or liberty interest, separate and apart from the issue of whether the decision to be cloned is a fundamental right or constitutionally protected liberty interest. In support of such an argument, one might point to Justice O Connor s footnote in Cruzan, in which she states that the Court has reserved the question of delegation of decision-making authority. Mary and Joseph obviously wouldn t be home free under such an interpretation of precedent - a state might still insist that Dolly s decision to delegate authority did not encompass the decision to clone, and that determining her true wishes must still be made under a clear and convincing test - but at least Mary and Joseph might have a shot. A second difference between Cruzan and our case involves the nature of the underlying decision being made. As many of you observed, the Court in both Cruzan and Glucksburg emphasized the finality of the decision in right to die cases, and the parade of horribles that might result from blurring the line between natural death and suicide or assisted suicide (financial pressures on families, biased assistance for the handicapped, the slippery slope into euthanasia, etc.). As substantial as the psychic harms from cloning may be, it can be argued that they do not compare in severity to the harms involved in a hastened death, and hence do not justify an evidentiary rule so strict that it prevents a pair of loving parents from cloning a child who suffered an untimely death. 8

14 Again, such an argument might not work under rational basis review, but it would be worth a shot. Up to this point, our analysis of the consent requirement has assumed that the Court declined to find the decision to clone to be a fundamental right, or at least a constitutionally recognized liberty interest. How would our analysis change if it did make such a finding? In all likelihood, the arguments available to Mary and Joseph wouldn t be that different from those available under rational basis review - particularly if we assume that even under heightened scrutiny, the Court would not strike down as invalid per se consent rules designed to prevent individuals from being cloned willy-nilly without their knowledge or consent. The final outcome might not change, either - for reasons discussed above, the consent requirement certainly does not appear to be significantly overbroad. For our purposes, it is sufficient to note that the Court would give Mary and Joseph s arguments more attention under heightened scrutiny, and would scrutinize with more care both the rationale behind the consent requirement and the narrowness with which the requirement was drawn. Thus, the Court might find a state s interest in preventing the unauthorized cloning of individuals by unrelated third parties to be compelling, but might question whether the state has an equally compelling interest in preventing Dolly from delegating the authority to clone to her parents. Similarly, the heightened scrutiny called for under the fundamental rights prong of Equal Protection analysis might lead the Court to question a rule that prevents Mary and Joseph from cloning Dolly while permitting parents of terminally ill minors to clone their child. Part 2 - Ujamaa School Question 1 - Race Claims Although there are several ways of approaching this question, I would probably start by considering whether the Splitsville School Board, in establishing Ujamaa School, is engaging in either de jure or de facto segregation of students on the basis of race, in violation of the Equal Protection Clause and Brown v. Board of Education. In Brown, the Supreme Court held that public school facilities that intentionally separate students by race are inherently unequal, and thus a per se violation of the Equal Protection Clause. Although the original proponents of Ujamaa called for an allblack, all male school, the fact pattern is ambiguous as to whether the Splitsville School Board incorporated such explicitly racial language in the actual plan it voted on and adopted. If so, such race-based language, standing alone, might be sufficient to persuade a court that de jure segregation is at issue here. 9