Review Question 7 (federal ban on human cloning) (60 points)
Commerce Clause
args for challenger-reg of local not interstate activity (1)____
reproduction is noneconomic activity (decision to have a child via
cloning) (3)____
Lopez factors - no jurisdictional element, no findings of effect on
interstate commerce(3)____
insufficient relationship betw cloning & eco effect on interst
commerce-too attenuated(3)____
even if eco activity, no sub'l eco effect on interstate commerce-no
human cloning has been successfully done so no impact yet(2)____
args for fed gov't-ban on interstate shipment is w/in the commerce
power-category 1(2)____
to extent also regulates local activity (cat 3), it is part of
comprehensive regulatory scheme where reg of local activity is nec'y to
the scheme(2)____
cloning is eco activity-fertility industry is billion dollar
industry-fee paying service(3)____
ban on cloning has significant eco effect on interstate commerce in the
aggregate (3)____
cloning is not area of trad'l state concern since new development, no
federalism issue(2)____
Fifth Amendment Due Process
args for challenger - fund'l rt within zone of privacy (1)____
history and tradition - procreation w/in marriage, rt to form a
family(3)____
precedent - Griswold Roe & Casey - right of married couple to
choose to have a child(3)____
central to personal identity-rt to have child, by whatever means, is
central to identity-creates parent/child relationship(3)____
absolute deprivation of right due to complete ban on cloning so
automatically an undue burden and subject to strict scrutiny(3)____
strict scrutiny test - (narrowly tailored/least restrictive alternative
means to compelling end)(1)____
apply test to facts-can't satisfy strict scrutiny- there are less
restrictive alternatives available-give examples(3)____
if rt isn't fund'l, can't satisfy even minimum rationality review(2)____
args for fed gov't-nonfund'l liberty right(1)____
no history or tradition of cloning(3)____
no precedent- Griswold, Roe, Casey, etc. concern trad'l methods of
reproduction; Michael H. recognizes only traditional methods of forming
a family(3)____
Not an undue burden on exercise of rt to have a child since all
existing methods are available including IVF-(2)____
Satisfies minimum rationality-cloning ban is rationally related to
legit health justifications since method is untested (2)____
if fund'l-satisfies strict scrutiny - necessary means to achieve
compelling ends (health of children, prevention of fraud)(3)____
Miscellaneous________________________________________(3)____