Genetic technology : a new frontier / Office of Technology Assessment.

Date:
[1982]
Catalogue details

Licence: Attribution-NonCommercial 4.0 International (CC BY-NC 4.0)

Credit: Genetic technology : a new frontier / Office of Technology Assessment. Source: Wellcome Collection.

    344/360 (page 320)
    Appendix III-B Constitutional Constraints on Regulation Under the checks and balances of our system of government, the Constitution, as ultimately inter¬ preted by the Supreme Court, requires certain pro¬ cedural and substantive standards to be met by stat¬ utory or other regulation imposed upon an activity. These requirements depend on the nature of the ac¬ tivity involved. In the present case, it will be useful to consider first the regulation of basic research and then the regulation of technological applications, such as the production of pharmaceuticals by using genetic engineering methods. Research With respect to research, the fundamental ques¬ tion is what limitations, if any, may be placed on the search for scientific knowledge. The primary appli¬ cable constitutional provision is the first amendment, which has been broadly interpreted by the Supreme Court to severely limit intrusion by the Government on all forms of expression.' ^ ' Another constitutional safeguard, known as equal protection, is secondarily involved. If the Supreme Court were to recognize a right of scientific inquiry, its boundaries would not exceed those for freedom of expression.There is disagree¬ ment among commentators on this issue concerning the boundaries of the first amendment,® and certain¬ ly disagreement on the application of generally ac¬ cepted principles to particular cases. Moreover, there have been no judicial decisions dealing with the precise issue at hand. However, it is possible to out¬ line general principles derived from judicial deci¬ sions interpreting the first amendment, and indicate how they might be applied by the courts to attempts to regulate genetic research. There are very few limitations on the written or spoken word. The prohibitions against obscenity or fighting words* clearly would be inapplicable here. 'Harold P. Green, The Boundaries of Scientific Freedom Regulation of Scientific Inquiry: Societal Concerns With Research, Keith M. Wulff (ed.) (Washington, D.C.: AAAS, 1979), pp. 139-143. 'Thomas I. Emerson, The Constitution and Regulation of Research, Reg¬ ulation of Scientific Inquiry: Societal Concerns With Research, Keith M. Wulff (ed.) (Washington, D.C.: AAAS, 1979), pp. 129-137. 'John A. Robertson, The Scientists' Right to Research: A Constitutional Analysis, Southern California Law fleview 51:1203, September 1978. 'Green, op. cit., p. 140. 'Emerson, op. cit, pp. 131-134. •Fighting words are those provoking violent reaction or imminent disorder. For many years, the Supreme Court has conceptual¬ ized the right of free expression in terms of a market¬ place of ideas—through the open and full discussion of all ideas and related information, the valuable, valid, or useful ones will be accepted by society, while the ridiculous or even dangerous ones will be so demonstrated and discarded. This is a consensual process; no person, group, or institution has suffi¬ cient wisdom to prejudge ideas and deny them admittance to that intellectual marketplace, even if they threaten fundamental cultural values, for such values, if worthwhile, will survive. Under this con¬ cept, scientists would certainly have virtually unre¬ strained freedom to think, speak, and write. Difficulties arise with actions, such as experimen¬ tation, which may be essential to the implementation of freedom of expression. Recent Supreme Court cases have recognized a limited protected interest of the media to gather information as an essential ad¬ junct to freedom of publication. By analogy, it may be argued that scientists would also be protected in their research, as a necessary adjunct to freedom of expression. On the other hand, the information gathering cases usually involve access to Govern¬ ment facilities, such as courtrooms or prisons. They are based on the principle that actions by the Gov¬ ernment should be open to public scrutiny—a con¬ cept not directly applicable to the present issue. More importantly, the Court has long recognized that actions related to expression can be regulated and that regulation may increase with the degree of the action's impact on people or the environment. The Court would probably apply what has been called a structured balancing test;® i.e., regulation would be deemed valid only when the Government sustains the burden of proving: 1) that there are compelling reasons for the regulation; and 2) that the objective cannot be achieved by less drastic means, i.e., by more narrowly drafted regulations having less impact on first amendment rights. The second part of the test is fairly straightfor¬ ward. Governmental restrictions must be kept to a minimum. E.g., where possible, they should be reg¬ ulatory rather than prohibitory, temporary rather than permanent, involve the least burden, and so on. The difficult part of this test lies in determining •Ibid., p. 134. 320