69 Am. U. L. Rev. 1015 (2020).
* Junior Staff Member, American University Law Review, Volume 69; J.D. Candidate, May 2021, American University Washington College of Law; B.S., Political Science and History, 2014, Illinois State University. I would like to thank Professor Robert Dinerstein for his invaluable feedback and the Law Review staff for their diligent work in editing this piece for publication. I would also like to thank Erin Downey, Connie Potter, and Nora Clifford for their extensive contributions during the editorial process. Finally, I am eternally grateful to my friends, family, and the Murphys for their constant support and encouragement throughout my law school career.
In 2012, a momentous scientific breakthrough occurred in the field of genetic editing: the discovery of CRISPR-Cas9. This new technique allows scientists to edit the human genome more rapidly, cheaply, and precisely than ever before. Researchers now have the potential to cure illnesses like cancer, ALS, and Alzheimer’s disease. CRISPR not only provides a mechanism for curing people currently suffering from a disease, but it establishes a manner in which an embryo’s DNA can be modified to prevent any future generation from inheriting that disease. Because using CRISPR to alter the human genome presents irreversible intergenerational consequences for the human gene pool—and given the appealing nature of the technology to change a child’s future from the womb—this Comment considers whether parents have a fundamental constitutional right to use CRISPR to edit their child’s DNA.
This Comment argues that the right to permanently modify an embryo’s DNA, and consequently alter future generations’ genetic make-up, via CRISPR significantly deviates from Supreme Court precedent. Because the right to use CRISPR modifications is not engrained in the minds of people or traditions of society, it does not qualify as a fundamental right and is not subject to a strict scrutiny standard. Moreover, the Court has also held that a “special weight” should be given to parents in regard to visitation and child-rearing decisions, effectively ruling out the application of a rational basis standard. Therefore, intermediate scrutiny is a more appropriate test for courts to apply in cases regarding parents’ constitutional rights of CRISPR’s use to genetically modify embryos. An intermediate scrutiny standard allows for the most flexible standard when making decisions that will have enduring repercussion on our species.
History repeats, but science reverberates.
—Siddhartha Mukherjee1Siddhartha Mukherjee, The Emperor of all Maladies: A Biography of Cancer 466 (2010).