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).

Introduction

Imagine having the ability to manipulate your child’s genetic make-up to change her eye color, raise her intelligence, or permanently rid her of a disease to which she was predisposed—all before she was born. While genetic modification of this kind historically seemed implausible, it recently gained monumental traction and “marked the beginning of a new era for biology.”2How Does Genome Editing Work?, Nat’l Hum. Genome Res. Inst., https://www.genome.gov/about-genomics/policy-issues/Genome-Editing/How-genome-editing-works [https://perma.cc/FX4K-8S7L] (last updated Aug. 3, 2017); Patrick D. Hsu et al., Development & Applications of CRISPR-Cas9 for Genome Engineering, 157 Cell 1262, 1262 (2014). For the first time in human history, in 2018, a scientist used a genetic modification technique called Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR-Cas9)3All references to CRISPR in this Comment refer specifically to CRISPR-Cas9. The CRISPR technique is regularly associated with the Cas9 protein and is formally referred to as “CRISPR-Cas9.” Sarah Nelson, Co-Creator of CRISPR Lectures About Future Applications of Genome Editing Technology, Daily Bruin (Nov. 19, 2019, 12:48 AM), https://dailybruin.com/2019/11/19/co-creator-of-crispr-lectures-about-future-applications-of-genome-editing-technology [https://perma.cc/GKP8-LBVW]. to create two young and healthy girls, Lulu and Nana.4See Rob Stein, Chinese Scientist Says He’s First to Create Genetically Modified Babies Using CRISPR, Nat’l Pub. Radio(Nov. 26, 2018 5:02 AM), https://www.npr.org/sections/health-shots/2018/11/26/670752865/chinese-scientist-says-hes-first-to-genetically-edit-babies [https://perma.cc/6AV6-GC35] (pointing out that the Chinese researcher, Dr. He, stated “I understand my work will be controversial,” but that “I believe families need this technology. And I am willing to take the criticism for them”). See generally Jing-ru Li et al., Experiments that Led to the First Gene-Edited Babies: The Ethical Failings & the Urgent Need for Better Governance, 20 J. Zhejiang Univ. 32, 32 (2019) (calling for “[a] more robust system of ethical governance” in China because Dr. He’s experiment shows that the government cannot keep pace with the rapidly changing bioethics issues arising from genetic modification). The twin girls’ father was HIV-positive; however, while Lulu and Nana were a single cell, scientists were able to remove “the doorway through which HIV enter[s] to infect people.”5See Stein, supra note 4 (pointing out that the researchers created the viable twin pregnancy by taking one-day old embryos, editing sixteen of them, and implanting eleven). Researchers have already begun pushing the boundaries of this technique beyond embryos and are working toward editing human reproductive cells themselves. Rob Stein, Scientists Attempt Controversial Experiment to Edit DNA in Human Sperm Using CRISPR, Nat’l Pub. Radio (Aug. 22, 2019, 5:04 AM), https://www.npr.org/sections/health-shots/2019/08/22/746321083/scientists-attempt-controversial-experiment-to-edit-dna-in-human-sperm-using-cri [https://perma.cc/4838-MTZQ] (explaining how reproductive biologists are attempting to use CRISPR to modify genes in human sperm to help combat, among other things, male infertility and prostate cancer).

These relatively nascent6See Noah C. Chauvin, Note, Custom-Edited DNA: Legal Limits on the Patentability of CRISPR-Cas9’s Therapeutic Applications, 60 Wm. & Mary L. Rev. 297, 304–05 (2018) (noting that genome editing techniques have only been in use since 1994). genetic modification technologies allow scientists to permanently and precisely add, remove, or alter an organism’s DNA.7What Are Genome Editing & CRISPR-Cas9?, U.S. Nat’l Libr. Med. (Nov. 12, 2019), https://ghr.nlm.nih.gov/primer/genomicresearch/genomeediting [https:// perma.cc/R48C-YXEK]. At first, editing techniques were tested and used on somatic cells—any cells that are neither egg nor sperm cells—and only resulted in genetic changes that did not carry any intergenerational implications.8Id.; see also Anthony J.F. Griffiths et al., An Introduction to Genetic Analysis 469 (7th ed. 2000) (explaining that somatic cells by definition “are never transmitted to progeny” but that germline cells “participate[] in fertilization” and are “passed on to the next generation”). However, as scientific methods for editing techniques progressed, scientists were eventually able to make changes to human DNA that could be passed to future generations.9What Are Genome Editing & CRISPR-Cas9?, supra note 7; see also Rajat M. Gupta & Kiran Musunuru, Expanding the Genetic Editing Tool Kit: ZFNs, TALENs, and CRISPR-Cas9, 124 J. Clinical Investigation 4154, 4156, 4159 (2014) (comparing and contrasting the advantages and disadvantages of Zinc Finger Nucleases (ZFNs), Transcription activator-like effector nucleases (TALENs), and CRISPR-Cas9). Among those new technologies was the revolutionary CRISPR,10See Marcy E. Gallo et al., Cong. Research Serv., R44824, Advanced Gene Editing: CRISPR-Cas9 1 (2018). with which scientists could make all desired DNA changes “faster, cheaper, more accurate, and more efficient” than ever before.11What Are Genome Editing & CRISPR-Cas9?, supra note 7.

The significance of CRISPR’s achievements cannot be overstated. CRISPR was named “Breakthrough of the Year” in 2015 and has the potential to permanently cure diseases such as, inter alia, human immunodeficiency virus (HIV) and some cancers.12Gallo et al., supra note 10, at 1; see also Kelly E. Ormond et al., Human Germline Genome Editing, 101 Am. J. Hum. Genetics 167, 168 (2017). In fact, CRISPR allowed scientists to create Lulu and Nana by changing “[n]o gene . . . except the one to prevent HIV infection.”13See Stein, supra note 4. However, because of the serious intergenerational implications that come with editing viable embryos through CRISPR, many, including those under the Obama Administration, have been wary of accepting widespread, unregulated use of the technology.14John P. Holdren, A Note on Genome Editing, White House Blog (May 26, 2015, 10:40 AM) https://obamawhitehouse.archives.gov/blog/2015/05/26/note-genome-editing [https://perma.cc/Q48G-W5CP] (applauding the National Academy of Sciences and its National Academy of Medicine for discussing ethical boundaries while simultaneously reiterating their position that the ethical line into clinical applications of human germline modification “should not be crossed at this time”).

While no Supreme Court precedent discusses parents’ rights to genetically modify an embryo’s DNA, the question is likely to come before the Court in the near future. When the Court addresses this issue, it will look to its precedents addressing parental rights and caselaw closely related to those rights.

This Comment argues that human germline genome modification through CRISPR technology is not a traditionally protected right under the test that Justice Scalia established in Michael H. v. Gerald D.15491 U.S. 110 (1989). The right to permanently modify an embryo’s DNA, and consequently future generations’ genetic make-up, is not a fundamental right subject to strict scrutiny because it differs remarkably from the fundamental rights to “bear and beget” a child and to raise a child as one wishes. This Comment goes on to explain why Troxel v. Granville16530 U.S. 57 (2000) (plurality opinion). effectively overcomes Michael H.’s application of a rational-basis standard, making intermediate scrutiny the appropriate standard for courts to apply in cases concerning parents’ constitutional rights to use CRISPR to genetically modify embryos.

Part I of this Comment provides a scientific background of how DNA functions and discusses how CRISPR fundamentally changed the field of genetic editing. Additionally, this Part provides the relevant history and jurisprudence of caselaw directly related to parental rights and closely related interests created by the Court.17See infra Section I. Next, Part II of this Comment analyzes existing Fourteenth Amendment Due Process rights and shows how CRISPR modification is drastically different from the current interests that Supreme Court jurisprudence protects. This Part also shows how Michael H. establishes that germline editing through CRISPR is likely not a fundamentally protected interest. Part II also explains how the most recent parental rights case, Troxel, casts doubt on what standard of review courts should apply to these types of cases.18See infra Section II.B. Finally, in Part II, this Comment argues that CRISPR technology is not a fundamental right protected under the Due Process Clause of the Fourteenth Amendment, but, because courts will give some deference to parental decisions under Troxel’s precedent, intermediate scrutiny is the applicable standard of review.19See infra Section II.C.

I.   Background

Before exploring Supreme Court caselaw concerning parental rights, it is essential to comprehend the enormous leap that CRISPR made in the field of genetic modification. This Part first explains the basics of DNA function and discusses how the flow of genetic information dictates how the human body ultimately expresses genes. Next, this Part briefly discusses the science behind CRISPR technology and explains the numerous scientific benefits that CRISPR provides researchers. Finally, this Part explores the promising applications that CRISPR has on infectious and inherited diseases, heritable and nonheritable genome modifications, and DNA edits that result in artificial human enhancement.

A.   The Road to CRISPR

A general understanding of DNA functionality provides a useful base for the science of genetic modification and, in turn, the constitutional implications that CRISPR would compel the Supreme Court to consider when weighing in on the breadth of parental rights.

1.      The “Central Dogma”

DNA serves as the instructional code or “blueprint” that tells every part of a human body how to work properly.20See A. Jamie Cuticchia, Genetics: A Handbook For Lawyers 16 (2d ed. 2018). All the instructional code contained in a single human body is referred to as a person’s genome.21The human genome, which is made up of about three billion DNA base pairs and contains everything necessary to help an organism grow and survive, is contained in almost every single cell in the body. See, e.g., id.; A Brief Guide to Genomics, Nat’l Hum. Genome Res. Inst., https://www.genome.gov/about-genomics/fact-sheets/A-Brief-Guide-to-Genomics [https://perma.cc/F8KR-82L6] (last updated Aug. 27, 2015). Additionally, DNA serves as the initial step in the flow of information that helps make ribonucleic acid (RNA),22RNA is short for ribonucleic acid and functions as a “DNA photocopy” of a cell, which can then be used for different tasks. What Is RNA?, RNA Soc’y, https://www.rnasociety.org/about/what-is-rna [https://perma.cc/Mt3V-EHW8]. which aids in directing when and how many proteins are created.23Id. (stating that these “DNA photocop[ies]” help dictate this regulatory process); see also Genetics Home Reference, U.S. Nat’l Libr. of Med., Help Me Understand Genetics 74 (2019), https://ghr.nlm.nih.gov/primer [https://perma.cc/MSB5-X9R7]. Proteins play an integral role in the “structure, function, and regulation of the body’s tissues and organs.”24Genetics Home Reference, supra note 23, at 67 (explaining that proteins can function as, among other things, antibodies against viruses and bacteria as well as structural components that essentially “allow the body to move”). This flow of information is “essential for all known forms of life” and is so integral in the field of molecular biology that it is often referred to as the “central dogma.”25Id. at 74; What Is RNA?, supra note 22. Two significant steps comprise the process of protein creation: transcription and translation.26Genetics Home Reference, supra note 23, at 74. Together, these two steps dictate how a gene is expressed.27See id.

More recently, scientists have discovered new techniques for modifying the human genome.28See What Is Genome Editing?, Nat’l Hum. Genome Res. Inst., https://www.genome.gov/about-genomics/policy-issues/what-is-Genome-Editing [https://perma.cc/D2GC-UMYZ] (last updated Aug. 15, 2019). By cutting targeted areas of a DNA’s code, researchers now have the ability to add, remove, or replace that DNA sequence with different, more desirable code.29Id. Consequently, the slightest modification in a DNA sequence can result in significant effects on the information flow described above, causing permanent changes to the overall genome. This extraordinary capability is fairly new to the biotechnological community, and its development—while swift—has gone through many different iterations, ultimately leading to the discovery of the CRISPR system.30One of the traditional methods of genetic modification, homologous recombination, was inefficient because it had an extremely low rate of success that could fall as low as a one-in-a-million chance of making a desired edit correctly. How Does Genome Editing Work?, supra note 2. Another technique, zinc-finger nucleases (ZFNs), proved troublesome because effectively designing, creating, and testing the technique could take quite a long time. See Gupta & Musunuru, supra note 9, at 4154–55 (estimating a one-year time frame for mice and stating that human cells proved to be even more complex, which would lead to significantly prolonged scientific experimentation). Additionally, both homologous recombination and ZFNs tended to result in a “high rate of random,” off-target edits. Karen M. Vasquez et al., Manipulating the Mammalian Genome by Homologous Recombination, 98 Proc. Nat’l Acad. Sci. 8403, 8403 (2001). An off-target edit is when the DNA insert misses the region for desired modification and instead occurs in a different portion of the genome, potentially resulting in “permanent[] disrupt[ion of] normal gene function,” which can cause undesired health complications. See Hanna R. Kempton & Lei S. Qi, When Genome Editing Goes Off-Target, 364 Sci. 234, 234 (2019) (positing that the “specificity of gene editing tools is critical to their utility, which is why off-target potential is a major concern”).

2.      The Discovery of CRISPR

In 2012, biochemist Jennifer Doudna and her bacteriologist colleague Emmanuelle Charpentier published their landmark study on a new genetic modification system called CRISPR.31See, e.g., Siddhartha Mukherjee, The Gene: An Intimate History 472 (2016); Jennifer A. Doudna & Samuel H. Sternberg, A Crack in Creation: Gene Editing and the Unthinkable Power to Control Evolution xvi–xvii (2017). The publication immediately sparked the biology community’s interest.32Mukherjee, supra note 31, at 472. George Church, a professor at Harvard University, has gone so far as to state that CRISPR “trumps just about anything” with respect to the effectiveness and usability of gene editing tools.33Elizabeth Pennisi, The CRISPR Craze, 341 Sci. 833, 834 (2013). With such high praise, it is no wonder that CRISPR’s use and presence in scientific research has exploded since its discovery.34See generally Doudna & Sternberg, supra note 31, at 60–61 (explaining how Jennifer Doudna and an international group of researchers pioneered studies of CRISPR-Cas9’s development and its applications); Yuval N. Harari, Homo Deus: A Brief History of Tomorrow (2017); Jamie Metzl, Hacking Darwin: Genetic Engineering and the Future of Humanity3–4 (2019) (arguing that the Homo sapiens have moved beyond the point of “Darwinian evolution[‘s]” random mutations and natural selection and progressed into a “self-designed” and “self-directed” evolutionary process); Mukherjee, supra note 31, at 489 (explaining how CRISPR-based techniques have allowed scientists to do things that were “unimaginable in the past,” leading us to a precipice in which “transgenic humans can be created”). However, not all publications have had such a positive outlook on CRISPR’s capabilities. See Pete Shanks, Pernicious Optimism and Selective Science: A Review of ‘Hacking Darwin’, Ctr. Genetics & Soc’y (May 31, 2019), https://www.geneticsandsociety.org/biopolitical-times/pernicious-optimism-and-selective-science-review-hacking-darwin-jamie-metzl [https://perma.cc/MP2S-ZAUZ] (criticizing Metzl’s book by stating that Metzl continually uses “superficially plausible extrapolation” to speak in a technophilic and glib manner). Before discussing the endless scientific opportunities that CRISPR presents, it is important to understand why the technology is so groundbreaking that it was described as potentially triggering “Sputnik 2.0.”35David Cyranoski, CRISPR Gene Editing Tested in a Person, 539 Nature 479, 479 (2016) (quoting Carl June, an immunotherapy specialist at the University of Pennsylvania, who argued that a “biomedical duel” between China and the United States could be beneficial in rapidly improving CRISPR technology).

CRISPR’s operation is best understood by breaking it into two components. “CRISPR” is a short DNA sequence that provides a code to, and then works in tandem with, RNA to guide and detect specific sequences in the genome.36How Does Genome Editing Work?, supra note 2. Essentially, CRISPR provides a roadmap that instructs a molecule on how to get to its ultimate destination. “Cas9” refers to the protein that cuts the desired DNA site.37See id. These Cas9 proteins virtually function like a pair of molecular scissors that cleave the targeted locations in the genome.38See Chauvin, supra note 6, at 304–05 & n.36. Although seemingly similar to some of its more recent predecessors, CRISPR is superior in numerous ways.

To begin with, CRISPR has proven to be more precise, efficient, and reliable than previous genome editing methods.39What Are Genome Editing & CRISPR-Cas9?, supra note 7. Some researchers found that CRISPR can be up to six times more efficient in successfully making targeted genomic edits than its ZFN counterparts.40How Does Genome Editing Work?, supra note 2. Specifically, using CRISPR presents only a one–in–one–trillion chance of making an off-target edit.41See Chauvin, supra note 6, at 306. This achievement in reliability is monumental considering that only forty years prior, the success rate of making an on-target edit was as low as one–in–one–million.42How Does Genome Editing Work?, supra note 2. In fact, CRISPR is so precise that scientists analogize it to “a copyediting device that scans sixty–six volumes of the Encyclopedia Britannica and finds, erases, and changes one word, leaving all other words untouched.”43See Mukherjee, supra note 31, at 489 (“Between 2010 and 2014, a postdoctoral researcher in my laboratory tried to introduce a defined genetic change into a cell line using the standard gene-delivery viruses, but with little success. In 2015, having switched to the new CRISPR-based technology, she engineered fourteen alterations of genes in fourteen human genomes, including the genomes of human embryonic stem cells, in six months—a feat unimaginable in the past.”); see also Tracey Tomlinson, Note, A CRISPR Future for Gene-Editing Regulation: A Proposal for an Updated Biotechnology Regulatory System in an Era of Human Genomic Editing, 87 Fordham L. Rev. 437, 446 (2018) (explaining that scientists’ continual refining of CRISPR after its discovery led to the technique’s high degree of accuracy). This spectacular accuracy is especially important considering that, as stated before, the human genome is comprised of three billion base pairs and even a single error can result in serious diseases or death.44Mark Shwartz, Target, Delete, Repair: CRISPR Is a Revolutionary Gene-Editing Tool, but It’s Not Without Risk, Stan. Med., https://stanmed.stanford.edu/2018winter/CRISPR-for-gene-editing-is-revolutionary-but-it-comes-with-risks.html [https://perma.cc/3GR7-24T5]. The lowered probability of making off-target edits with CRISPR results in a technology that scientists can use more safely and confidently.

Furthermore, because CRISPR can use numerous guide RNA in tandem, it can target multiple sites at once.45See, e.g., Gupta & Musunuru, supra note 9, at 4156–57; Itishree Kaushik et al., CRISPR-Cas9: A Multifaceted Therapeutic Strategy for Cancer Treatment, 96 Seminars Cell & Developmental Biology 4, 4 (2019). This adaptability to more sites is a stark shift from using a single ZFN to target a single gene.46How Does Genome Editing Work?, supra note 2. Apart from improving efficiency by targeting multiple genes at once, this new approach saves researchers a tremendous amount of money.47See id. (pointing out that large genome projects “took many years and tens of thousands of dollars” but could “now be completed at a small fraction of time and price”). Before the discovery of CRISPR, creating a single protein with previous technologies could cost a research facility upwards of $1000.48See Shwartz, supra note 44. With this new invention, scientists can produce guide RNA templates in a few days with free software and a $65 DNA starter kit.49Id. CRISPR’s beneficial components show that the technology is ultimately far easier to use, faster to create and deploy, more reliable, and much less expensive.50See Liting You et al., Advancements and Obstacles of CRISPR Cas9 Technology in Transactional Research, 13 Molecular Therapy: Methods & Clinical Dev. 359, 359–60, 366 (2019) (pointing out that CRISPR can play an important role in the “metadata revolution” which includes “large scale analyses of genome sequences, deep sequencing technologies, and single-cell transcriptomics”); How Does Genome Editing Work?, supra note 2. That CRISPR provides immense clinical possibilities for future development bolsters these current achievements.

3.      CRISPR’s Revolutionary Applications to the Human Genome

The potential applications of CRISPR technology range from therapeutics to diagnostics and, as previously discussed, to gene editing.51Safikur Rahman et al., CRISPR/Cas: An Intriguing Genomic Editing Tool with Prospects in Treating Neurodegenerative Diseases, 96 Seminars in Cell & Developmental Biology 22, 28 (2019). Through these applications, many scientists believe that CRISPR could help “prevent, treat, or cure medical conditions or disease[s],”52See Gallo et al., supra note 10, at 12. like diabetes,53See id. (explaining that by using CRISPR, researchers have developed a method that uses a patient’s own insulin-producing cells, which reduced transplant rejection risks and eliminated patients’ reliance on third-party donors for Type I diabetes). Scientists maintain high hopes that this same process could work to help treat patients with Type II diabetes. Id. malaria,54See id. at 12 (explaining that scientists are targeting Anopheles mosquitos, the primary transmitters of this globally widespread and lethal disease, by attempting to make them infertile, causing “all offspring [to] be[] male,” or by making the mosquitos “resistant to the malaria parasite[s]”). and HIV.55See Ormond et al., supra note 12, at 168. But see Stein, supra note 4 (claiming that other “CRISPR pioneer[s]” like Feng Zhang and Jennifer Doudna have criticized Dr. He’s experiments on Lulu and Nana because it “will likely render a person much more susceptible for West Nile Virus” and because the technique of “washing the sperm of infected sperm donors to eliminate HIV” is already an established, effective alternative (internal quotations omitted)). However, CRISPR also possesses the potential to help those affected by inherited diseases like Duchenne Muscular Dystrophy56See Gallo et al., supra note 10, at 13–14 & n.50 (detailing how a Texas medical center used the technique to repair dogs’ cells to produce dystrophin, a protein which the genetic disorder prevents bodies from naturally creating). Duchenne Muscular Dystrophy cripples the body and “leads to heart and respiratory muscle problems, and death.” Id. at 13. and certain neurogenerative disorders.57See Rahman et al., supra note 51, at 24–26 (describing how CRISPR could be used as a therapeutic application for Alzheimer’s, Parkinson, and Huntington’s disease). Furthermore, this new technology demonstrates the potential to combat the growing problem of antibiotic resistance.58See Gallo et al., supra note 10, at 14 (describing how the technique has been used to effectively destroy harmful bacteria while avoiding bacteria that can be beneficial to humans); Rob Stein, Scientists Modify Viruses with CRISPR to Create New Weapon Against Superbugs, Nat’l Pub. Radio (May 22, 2019, 5:01 AM), https://www.npr.org/sections/health-shots/2019/05/22/723582726/scientists-modify-viruses-with-crispr-to-create-new-weapon-against-superbugs [https://perma.cc/26NL-44CP] (explaining how a doctor who specializes in treating spinal cord injuries plans to research CRISPR technology and its applicability for targeting increasingly antibiotic-resistant bacteria to help prevent bladder infections). While some of these feats may be out of reach for now, the therapeutic possibilities have piqued the pharmaceutical industry’s interest, “show[ing] a promising futuristic approach for treatment of human diseases and inherited anomalies.”59See Kaushik et al., supra note 45, at 8 (describing how CRISPR Therapeutics, Intellia Therapeutics, and Editas Medicine are the three pioneers of the market and that Editas has received upwards of $120 million from the tech billionaire Bill Gates as well as Google). Even more groundbreaking, the capabilities of CRISPR can affect future generations, extending far beyond assisting or potentially curing only those who are alive today.

The Congressional Research Service found that many studies are being conducted around the world using both nonheritable and heritable modifications.60See Gallo et al., supra note 10, at 14–16 (pointing out multiple research studies carried out in the United States and China—which are at the forefront of CRISPR research—seek to manipulate heritable and nonheritable traits to combat mutations that lead to illnesses like fatal blood disorders and Marfan Syndrome). Nonheritable modifications are changes made to a somatic cell—any cell other than an egg or sperm cell—that do not result in genetic alterations to the modified individual’s progeny.61Id. at 14; see also Tomlinson, supra note 43, at 448 (stating that another reason somatic cells are nonheritable is because of their uniqueness to each individual, which results in their dying off with a person). Significantly, researchers also used CRISPR to edit reproductive cells in viable and non-viable embryos.62See also Gallo et al., supra note 10, at 14–16 (citing an international research team that used “CRISPR in viable human embryos to correct a genetic defect” that was one of the leading causes in young athletes’ sudden deaths). These types of edits do not only change the modified individual but also ensure that his or her germline retains those changes and passes them to offspring and future generations.63Id. at 14; see Shwartz, supra note 44 (cautioning that an off-target genetic edit could have “serious consequences” for descendants). This type of germline modification allows scientists to alter the human embryo or gamete to remove or repair any deleterious genes while making certain that future generations do not inherit those diseases.64See generally Gallo et al., supra note 10, at 14–15; Shwartz, supra note 44. CRISPR’s powerful capabilities, and its premature use, make genetic watchdog groups leery of creating a potentially unfair “society of genetic haves and have-nots.”65See generally Stein, supra note 4 (describing concerns about a society where children are modified for nonmedical reasons, such as to be “taller, stronger or smarter”).

Beyond prevention, treatment, and curing of diseases, CRISPR enables scientists to enhance the human genome.66See Mukherjee, supra note 31, at 477. That enhancement could come in the form of changing someone’s eye or hair color, making someone taller, or even raising someone’s IQ.67See Nat’l Acads. of Scis., Eng’g, & Med., Human Genome Editing: Science, Ethics, and Governance 137 (2017) (exploring genome editing to achieve “enhancements,” which is “a term that itself is problematic”); Shwartz, supra note 44; see also Stephen Hawking, Brief Answers to the Big Questions 132 (2018) (positing that qualities likely controlled by a larger number of genes, like intelligence and the instinct of aggression, will be editable this century). Other enhancements come in the form of selecting naturally occurring mutations that could result in a heightened resistance to disease, bones that become so hard “they’ll break a surgical drill,” and modifications that will help people “remain [mentally] sharp into old age.”68See Antonio Regalado, Engineering the Perfect Baby, 118 MIT Tech. Rev. 27, 32 (2015).

However, if germline editing becomes commonplace, it could have repercussions beyond one person’s well-being or that of their offspring.69See id. at 31. Editing could result in long-term effects on people’s “life span, identity, and economic output.”70Id. Additionally, gene modification using CRISPR could raise serious societal issues if it is only available to the richest people around the world or if it results in certain people’s genes becoming “obsolete.”71See id. (stating that base price for in vitro fertilization hovers around $20,000 and rises to $100,000 if a parent utilizes additional services such as a surrogate mother, an egg donation, or a genetic test); Robert Sparrow, Yesterday’s Child: How Gene Editing for Enhancement Will Produce Obsolescence—and Why It Matters, 19 Am. J. Bioethics 6, 13 (2019) (arguing that technologically enhancing humans through genetic modification will result in “yesterday’s child,” which he defines as a genetically obsolete child). According to Stephen Hawking, when “superhumans” appear, there will be significant political problems because unedited humans will be unable to compete and could either “die out or become unimportant.”72See Hawking, supra note 66, at 132–33. (stating that some people will not be able to resist genetically enhancing human DNA, regardless of laws banning such practices, which will result in “a race of self-designing beings, who are improving themselves at an ever-increasing rate”).

Unsurprisingly, the public has expressed general concern with human germline editing because of the “slippery slope from disease-curing applications toward uses with less compelling or even troubling implications.”73See Mukherjee, supra note 31, at 476. Under the Obama Administration, the Director of the Office of Science and Technology Policy cautioned about CRISPR’s unrestricted use,74Holdren, supra note 14 (warning that modifications in clinical settings are “a line that should not be crossed” until an international summit explored potential implications and alternatives that could derive the same benefits to patients while “not requir[ing] germline alteration”). and its Director of National Intelligence warned of CRISPR’s potential use to create weaponized biological agents.75See Tomlinson, supra note 43, at 449–50 (discussing the DNI’s concern that CRISPR research “conducted by countries with different regulatory or ethical standards than those of Western countries probably increases the risk of the creation of potentially harmful biological agents or products” like “weaponized vectors, such as mosquitos” that transmit diseases and toxins). However, the Congressional Research Service stated that CRISPR is likely to play an integral role in developing “countermeasures against both traditional and genetically engineered biological weapons” because of its “dual-use nature.” Gallo et al., supra note 10, at 34. Furthermore, a large international consensus has stated that, at this time, germline modification on humans would be “irresponsible.”76Genetic Modification, Genome Editing, & CRISPR, Pers. Genetics Educ. Project, https://pged.org/genetic-modification-genome-editing-and-crispr [https://perma.cc/72Y4-BKXQ] (explaining that the US National Academies, the UK Royal Academy, and the Chinese Academy of Sciences came to this consensus but that they had not recommended banning the technique and instead wished research to continue). Currently, a number of European countries and Canada have made it illegal to use germline genome modification in clinical settings, and the United States has banned all federal funding for its clinical application. Id. Because of this global concern, scientists who have used CRISPR on humans have been widely criticized and reprimanded. The Chinese doctor who used CRISPR to create Lulu and Nana received a three-year jail sentence and a $400,000 fine for violating his country’s ethical principles and regulations.77Merrit Kennedy, Chinese Researcher Who Created Gene-Edited Babies Sentenced To 3 Years In Prison, Nat’l Pub. Radio (Dec. 30, 2019, 01:30 PM), https://www.npr.org/2019/12/30/792340177/chinese-researcher-who-created-gene-edited-babies-sentenced-to-3-years-in-prison [https://perma.cc/8W34-YQ9L] (quoting the executive director of the Center for Genetics and Society, Marcy Darnovsky, as having called Dr. He “reckless and self-serving”).

All of these uncertainties associated with CRISPR’s use led Pulitzer Prize-winning author Siddhartha Mukherjee to opine on one of the central questions that humans will have to answer when creating a framework for genetic modification.78Mukherjee, supra note 31, at 477. He stated: “[t]he crux then is not genetic emancipation (freedom from the bounds of hereditary illnesses), but genetic enhancement (freedom from the current boundaries of form and fate encoded by the human genome).”79Id. (emphasis added) (pointing out that there was a very fine line betwixt emancipation and enhancement but that it would be the “fragile pivot on which the future of genome editing whirls”).

B.   Caselaw Establishing Rights Related to CRISPR

The Fourteenth Amendment declares that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.”80U.S. Const. amend. XIV. From this Amendment, the Supreme Court extrapolated substantive due process, equal protection, and procedural due process rights.81Anthony Miller, The Case for the Genetic Parent: Stanley, Quilloin, Caban, Lehr, and Michael H. Revisited, 53 Loy. L. Rev. 395, 400–02 (2007). A detailed analysis of potential procedural due process and equal protection challenges to CRISPR is beyond the scope of this Comment. Substantive due process rights have historically protected citizens from state intervention through two major avenues.

The first avenue of protection derives from the Bill of Rights, which the Court has incorporated almost in its entirety.8216B Am. Jur. 2d Constitutional Law § 953 (2019). The only Amendments that have yet to be incorporated are the Third Amendment’s quartering of soldiers, the Seventh Amendment’s right to a jury trial in civil suits, and the Eighth Amendment’s protection against excessive fines. Kathleen M. Sullivan & Noah Feldman, Constitutional Law 470 (19th ed. 2016). Some of those rights include the First Amendment’s free exercise of religion;83U.S. Const. amend. I; see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (“The fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment.”). the Fourth Amendment’s protection against unreasonable searches and seizures;84U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655 (1961) (“Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.”). and, most recently, the Second Amendment’s right to bear arms.85U.S. Const. amend. II; see McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (“It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.”).

The second avenue has developed through the Court’s creation of “general protection[s] against certain arbitrary, wrongful government actions.”86See 16B Am. Jur. 2d Constitutional Law § 953 (2019). These protections include the right to personal privacy,87See, e.g., Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (“Various guarantees [established through a number of amendments in the Bill of Rights] create zones of privacy.”). the right to marriage,88See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015) (“[T]he right to marry is a fundamental right inherent in the liberty of the person.”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”). and the right for a woman to decide whether to obtain an abortion.89See Roe v. Wade, 410 U.S. 113, 153 (1973) (“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty . . . or . . . in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”). Through this second avenue, the Supreme Court established a line of caselaw protecting parental and family-related rights.90See Miller, supra note 81, at 400–02. This use of the latter branch was necessary because parental rights are not specifically enumerated in the Bill of Rights and instead needed to be “found somewhere between the lines” of the First Amendment’s “Freedoms of Speech, Religion, and the Press.”91Eric V. Meeker, Comment, Termination of Parental Rights: Constitutional Rights, State Interests and the Best Interest of the Child, 17 J. Juv. L. 82, 88–89 (1996) (stating that freedom of speech, religion, and press can be asserted regardless of a person’s status and that “[b]ased upon [parental rights’] conditional existence, it makes little sense to accord these rights preference over all other competing [state] interests”).

Despite the fact that the Court has protected unenumerated rights in the past, it has demonstrated a “hesit[ance] to extend the sphere of fundamental rights.”92See Nancy Pham, Choice v. Chance: The Constitutional Case for Regulating Human Germline Genetic Modification, 34 Hastings Const. L. Q. 133, 141–42 (2006) (arguing that the Supreme Court would be even less likely to find human germline genome modification a fundamental right because it is such a new and different type of reproductive technology). Whether protecting enumerated rights or extending protection beyond them, the Fourteenth Amendment is typically subject to three standards of review. Strict scrutiny—the highest standard—is applied to fundamental rights and requires a state government to demonstrate a compelling state interest to which the state’s ends are sufficiently narrowly tailored.93Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 929 (1992) (Blackmun, J., concurring in part & dissenting in part). Intermediate scrutiny requires that government action be substantially related to furthering an important governmental interest.94Stephen G. Gilles, Parental (and Grandparental) Rights After Troxel v. Granville, 9 Sup. Ct. Econ. Rev. 69, 110–11 (2001) (explaining that “intermediate scrutiny requires a moderately close fit between ends and means”). Lastly, rational basis—the most deferential standard—simply inquires whether government action “pursues a legitimate end by rational means.”95Michael H. v. Gerald D., 491 U.S. 110, 131 (1989); see also Pham, supra note 92, at 142 (pointing out that rational basis review is a very deferential standard which requires merely that the legislation is neither arbitrary nor irrational). The rational basis standard is met even if the Court needs to “supply its own purpose to justify the statute.” Id. (quoting Gayle Lynn Pettinga, Note, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. L.J. 779, 787 (1987)). Most commonly, the Court does not apply intermediate scrutiny to substantive due process rights and instead applies rational basis review if it finds that a right is not fundamental.96See Gilles, supra note 94, at 138–39.

While the parental and familial rights cases help provide some insight into how the Court might view genetic modification, none of the cases explicitly tackles the issue of a parent’s right to use germline genome modification on a human embryo.97See generally McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (protecting right to bear arms); Roe, 410 U.S. at 113, 153 (protecting right to abortion); Loving, 388 U.S. at 1, 12 (protecting right to marriage); Griswold v. Connecticut, 381 U.S. 479, 484–86 (1965) (protecting right to the use of contraceptives as well as the right to personal privacy). One reason may be because CRISPR, and genetic modification in general, are relatively recent technologies.98See Chauvin, supra note 6, at 304–05. However, the advancement and innovation of these techniques has been rapid and the issue is likely to end up before the Court sooner rather than later.99See Gupta & Musunuru, supra note 9, at 4154.

Due to the lack of legal precedents on point, and because current parental rights jurisprudence leaves many unanswered questions,100See Francis Barry McCarthy, The Confused Constitutional Status and Meaning of Parental Rights, 22 Ga. L. Rev. 975, 985 (1988) (emphasizing that one of those questions was whether parental rights were, at the time, even “fundamental rights at all”); see also Tandice Ossareh, Note, Would You Like Blue Eyes with That? A Fundamental Right to Genetic Modification of Embryos, 117 Colum. L. Rev. 729, 744 (2017) (stating that “there are currently no explicit restrictions governing genetic modification at the state or federal level”). a background of closely related substantive due process rights is necessary. This Section begins by examining caselaw directly related to parental and family rights. It then looks to other closely related or analogous substantive due process rights created and protected by the Court. Examining established rights from both of these perspectives presents a more complete framework, shedding light on how the Supreme Court and lower courts are likely to view the parental rights to genetically modify embryos via CRISPR.

1.      Supreme Court jurisprudence of parental rights

In 1923, the Supreme Court decided its first case directly concerning parental rights. In Meyer v. Nebraska,101262 U.S. 390 (1923). the Court held a Nebraska law that prohibited teaching children in any language other than English unconstitutional under the Fourteenth Amendment.102Id. at 403. Justice McReynolds reasoned that parents had a “natural duty” to provide their children with an education and that seeking out an instructor of their choosing was well “within the liberty of the [Fourteenth] Amendment.”103See id. at 400 (emphasizing that Americans have found education and knowledge “of supreme importance” for a long time and therefore they “should be diligently promoted”). Therefore, because Nebraska’s legislature attempted to materially interfere with parents’ power to dictate their own children’s education, the Court deemed the statute unconstitutional.104Id. at 401, 403. But see Susan E. Lawrence, Substantive Due Process and Parental Rights: From Meyer v. Nebraska to Troxel v. Granville, 8 J. L. & Fam. Stud. 71, 77 (2006) (positing that Meyer only dealt with Fourteenth Amendment parental rights in a peripheral manner and, even then, came up with an “ill-defined” right).

Two years later, the Court relied on its Meyer precedent in Pierce v. Society of Sisters105268 U.S. 510 (1925); see Lawrence, supra note 104, at 78 (comparing the Court’s Fourteenth Amendment analysis in the parental rights context in the Meyer and Pierce decisions). to reaffirm constitutional parental rights while striking down an Oregon statute requiring parents and guardians to send their children to public school during the academic year.106See Pierce, 268 U.S. at 530 (explaining that under the law that the Court deemed unconstitutional, children would have to attend school in a district they lived in and that failure to send one’s child to public school would be considered a misdemeanor). Pierce affirmed Meyer’s central holding that a state could not “unreasonably interfere[] with the liberty of parents and guardians to direct the upbringing and education of children under their control.”107Id. at 534–35. But see Lawrence, supra note 104, at 78 (arguing that Pierce, similar to Meyer, had not established a clear “supremacy of a parental right to control children”). Together, Meyer and Pierce established that parents had a broad constitutional right under the Fourteenth Amendment to raise and educate their children as they saw fit, without undue interference from the state.108Pierce, 268 U.S. at 534–35.

However, after the Court established far-reaching parental rights to raise a child as one wished, these rights eventually faced opposition. In Michael H. v. Gerald D.,109491 U.S. 110 (1989) (plurality opinion). While Michael H. is a plurality opinion, it carries more weight due to its concurring opinions. Justice Brennan and Justice White wrote separate dissenting opinions, but Justice Scalia’s plurality was fully joined by Chief Justice Rehnquist and garnered more support from the concurrences of Justice Stevens and Justice O’Connor, the latter of which Justice Kennedy joined. Id. at 113, 132, 136, 157. Moreover, the Supreme Court and lower courts around the country still rely on the case’s precedent, bolstering its weight. Compare Lawrence v. Texas, 539 U.S. 558, 592–93 (2003) (Scalia, J., dissenting) (citing Michael H. to argue against the overruling of Bowers v. Hardwick), with Fowler v. Benson, 924 F.3d 247, 261 n.8 (6th Cir. 2019) (ruling that the suspension of a license did not implicate a fundamental right because the “right of the indigent to drive—even in a car-bound society where public transit may be woefully inadequate—is not a right rooted in the traditions and conscience of our people”), and Jaen v. Sessions, 899 F.3d 182, 184, 190 (2d Cir. 2018) (holding that Jaen acquired citizenship at birth because his father was an American citizen and, like the father in Michael H., established parentage through marriage and not a blood relationship). Justice Scalia’s plurality opinion narrowed the Court’s prior decisions in Meyer and Pierce.110Michael H., 491 U.S. at 122. The Court held that a biological father, whom Justice Scalia referred to as an “adulterous natural father,” was not denied any constitutional rights when the state refused to legally declare him the father of his child.111Id. at 113–14, 120, 130 (stating that Michael H., who was found to be Victoria D.’s true father with 98.07% probability, could not attempt to petition the state to “establish his paternity and right to visitation”). To warrant protection, the “adulterous natural father[‘s]” right had to meet two specific requirements.112Id. at 120, 122. First, the right at issue had to be fundamental.113See id. at 122 (stating that “in isolation, [fundamental] is hard to objectify” in and of itself and thus required further analysis). Second, the right had to be “traditionally protected by our society.”114See id. (explaining that the inclusion of this second prong was “an attempt to limit and guide interpretation of the [Due Process] Clause”). In other words, the right had to be “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”115Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). Justice Scalia also asserted that case history had consistently shown a “solid recognition of the basic values that underlie our society.” Id. at 122–23 (quoting Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., concurring)).

The Court also expressed its openness to allow an exception if “on any other basis [the right] ha[d] been accorded special protection.”116Id. at 124. Ultimately, the plurality found no special exception and concluded that an “adulterous natural father[‘s]” relationship with his daughter was not traditionally protected and, in fact, was one that “our traditions have protected . . . against.”117Id. at 120, 124, 132. Consequently, the right contested in Michael H. was not fundamental and the Court used rational basis analysis to review the law infringing on it.118Id. at 129–31; see also Gilles, supra note 94, at 138 (2001) (pointing out that the Court has often limited its standard of review in substantive due process cases to a “choice . . . between rational basis review and strict scrutiny, with intermediate scrutiny not an option”).

The Court’s decision was not without criticism, as Justice Brennan asserted that the addition of the traditionally protected interest requirement turned the Due Process Clause into a “redundancy.”119Michael H., 491 U.S. at 140–41 (Brennan, J., dissenting) (arguing that this “redundancy mocks those who, with care and purpose, wrote the Fourteenth Amendment” and that the focus should be on interests that “society traditionally has thought important (with or without protecting [those interests])”). Justice Brennan goes on to state that construing the Fourteenth Amendment in Justice Scalia’s manner “ignores the kind of society in which our Constitution exists” because it disregards the fact that we do not live in an “assimilative, homogeneous society, but a facilitative, pluralistic one” where citizens tolerate other’s different practices to ensure that those “same tolerant impulse[s] protect[] our own idiosyncrasies.” Id. at 141. Additionally, Justice White argued that no prior cases made “the father’s rights . . . dependent on the marital status of the mother or biological father” and that the Court had effectively “rendered [Michael H.] a stranger to his child.” Id. at 157, 163 (White, J., dissenting). Justice Scalia rebutted that the Due Process Clause’s “purpose [was] to prevent future generations from lightly casting aside important traditional values—not to enable this Court to invent new ones.”120Id. at 122 n.2 (adding that “traditionally protected” did not necessarily mean “an explicit constitutional provision or statutory guarantee, but it must at least exclude . . . a societal tradition of enacting laws denying the interest”). By holding that only traditionally protected societal rights would be upheld, Justice Scalia sought to limit new rights from being created simply due to a uniform societal or state consensus.121Id. at 126–27.

After Michael H., more than a decade passed before the Supreme Court heard another landmark case regarding parental rights.122See Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (plurality opinion) (discussing the history of parental rights between Meyer, Pierce, and Michael H. while citing Washington v. Glucksberg, 521 U.S. 702 (1997), Santosky v. Kramer, 455 U.S. 745 (1982), Parham v. J. R., 442 U.S. 548 (1979), Quilloin v. Walcott, 434 U.S. 246 (1978), Wisconsin v. Yoder, 406 U.S. 205 (1972), Stanley v. Illinois, 405 U.S. 645 (1972), and Prince v. Massachusetts, 321 U.S. 158 (1944)). In 2000, the Supreme Court decided Troxel, the most recent case in the parental rights lineage.123See 530 U.S. 57 (2000) (plurality opinion); Lawrence, supra note 104, at 111 (positing that Troxel may be the “most bold parental rights case invoking Meyer”); Miller, supra note 81, at 400–01 (stating that coupling the precedents from Meyerand Troxel set a “remarkably clear and coherent statement of the basic rights of parenthood”). Similar to the Court’s Michael H. decision, Justice O’Connor’s Troxel opinion secured additional support from Chief Justice Rehnquist, Justice Ginsburg, Justice Breyer, Justice Souter’s concurring opinion, and Justice Thomas’ concurring opinion. 530 U.S. at 60, 75, 80. Additionally, even though Troxel is a plurality decision, Supreme Court opinions consistently cite the case, and lower courts around the nation still apply its precedent. Compare McDonald v. City of Chicago, 561 U.S. 742, 863 (2010) (Stevens, J., dissenting) (arguing that Troxel helped solidify the idea that the Due Process Clause “provides heightened protection against government interference with certain fundamental rights and liberty interests” (quoting Troxel, 530 U.S. at 65 (plurality opinion))), and Obergefell v. Hodges, 135 S. Ct. 2584, 2618 (2015) (Roberts, C.J., dissenting) (positing that the Troxel, among other cases, “articulated the importance of history and tradition to the fundamental rights inquiry”), with In re Marriage of Markuson, No. A19-0009, 2019 WL 4164899, at *1, *1, *3 (Minn. Ct. App. Sept. 3, 2019) (affirming the denial of a mother’s motion to relocate her children 200 miles away from their father while citing Troxel), and In re Kingston A.B., No. M2018-02164-COA-R3-PT, 2019 WL 3946095, at *1, *3 (Tenn. Ct. App. Aug. 21, 2019) (stating that “[a] parent’s right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests” to reject a father and step-mother’s petition for the termination of a natural mother’s parental rights). In Troxel, the Court considered a Washington statute that allowed courts to grant visitation privileges to grandparents even if the child’s parents did not want the grandparents visiting the child.124See Troxel, 530 U.S. at 61–62 (plurality opinion). Justice O’Connor began by reciting a detailed history of precedent and concluded that caselaw made it clear that “it [could not] now be doubted” that the Fourteenth Amendment’s Due Process Clause protected a fundamental right of parents to make decisions regarding the “care, custody, and control of their children.”125Id. at 65–66 (pointing out that this parental liberty interest was arguably “the oldest of the fundamental liberty interests recognized by this Court”). But see id. at 91–93 (Scalia, J., dissenting) (claiming that Meyer, Pierce, and Yoder dealt with “unenumerated parental rights,” which have historically resulted in very fractured decisions and had very little “stare decisis protection”). While Justice Scalia did not call for overruling those cases (because it was not requested by either side), he urged the Court not to extend its precedent to the current case and warned that doing so would “usher[] in a new regime of judicially prescribed, and federally prescribed, family law.” Id. at 93. The court found a fundamental right for parents to make decisions regarding their children and held that the Washington statute at issue infringed upon a mother’s constitutional parental rights.126See id. at 60 (plurality opinion).

For Justice O’Connor, the crux of the case was that the Washington statute allowed “any person” to petition for visitation at “any time,” while not allowing any deference to the parents’ “determination of [their child’s] best interests.”127Id. at 60, 68–69 (emphasis added). She stated that a court “must accord at least some special weight” to a fit parent’s decisions when reviewing that parent’s decision making.128Id. at 70 (emphasis added). But see Lawrence, supra note 104, at 111–13 (criticizing Troxel as a “dangerous case” because Justice O’Connor’s opinion avoided the difficult issues of third-parties—like a child’s grandparents—being important to the child’s emotional support system while leaving the most vulnerable demographic voiceless: minor children). Because the lower courts had interfered with the parents’ fundamental rights while giving them “no special weight at all,” the courts had gone a step too far.129See Troxel, 530 U.S. at 69 (pointing out that the lower court had incorrectly presumed the exact opposite). Additionally, the Court explained that “special factors” could have adequately justified the state’s interference but found that the lower courts had failed to provide any such factors in their reasoning.130Id. at 68. However, Justice O’Connor’s opinion did not expand on what constitutes an adequate factor.131Id. Similar to Michael H., the Troxel opinion was subject to a wide range of criticism from the other Justices.132See id. at 80–81 (Stevens, J., dissenting) (arguing that denying certiorari would have been a better decision considering all that needed to be done was for the legislature to “draft a better statute”); id. at 91, 93 (Scalia, J., dissenting) (positing that federal judges are not in a better position to make decisions affecting families than state legislatures and that legislatures are “able to correct their mistakes in a flash” and are “removable by the people” for making such mistakes); id. at 93–94, 102 (Kennedy, J., dissenting) (criticizing the lower court’s conclusion “that the best interests of the child standard is never appropriate in third-party visitation cases” and arguing that the question of whether the visitation statute was constitutional should have first been addressed at the state court level). In his very brief concurrence, Justice Thomas pointed out that neither the plurality, Justice Souter’s concurring opinion, nor Justice Kennedy’s dissent “articulate[d] the appropriate standard of review” even though they all agreed that the interest at issue was indeed a fundamental right.133Id. at 80 (Thomas, J., concurring) (explaining that he would have applied a strict scrutiny standard and that the State of Washington failed to show “even a legitimate governmental interest” by questioning a fit parent’s choices). Justice Thomas also insinuates that the Court’s prior “substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision,” but that the issue had not been raised by either party in the case. Id.

Troxel has spurred a range of scholarly commentary on its impact on parental rights. Professor Stephen Gilles, an accomplished constitutional law scholar, agreed with Justice Thomas’s observation that Justice O’Connor’s opinion never stated the level of scrutiny to which the specific case should be subjected.134Gilles, supra note 94, at 123 (clarifying that one could infer whether rational basis review, intermediate scrutiny, or strict scrutiny was necessary by carefully dissecting Justice O’Connor’s opinion). The vagueness left from the Troxel decision—deciding between giving adequate “special weight” to parental decisions and protecting parents’ fundamental due process rights—led Gilles to argue that future courts and Justices could argue for “any level of scrutiny.”135Id. at 124–25. In the end, he argued that the most persuasive interpretation of Troxel calls for the use of intermediate scrutiny,136Id. at 125–26. not rational basis review137Id. at 125. Gilles states rational basis review was unreasonable for two reasons. First, the standard tended to be deferential to the government, unless a specific government decision was wholly irrational.