Review Question 7 - Commerce Clause
and Due Process issues (from the Spring 1998 exam)
(Suggested time: 60 minutes) (40 out of 120 total exam points)
In recent months, Congress has become concerned that the technology to
clone human beings will soon be available through the process of
somatic cell nuclear transfer and that scientists may soon begin to
experiment with human cloning. In a series of hearings on the subject,
Congress heard testimony from a variety of witnesses including: (1)
people who believe that human cloning is morally wrong; (2) scientists
who believe that the technology of human cloning is not sufficiently
developed and will, in the short term, produce infants with significant
abnormalities; and (3) participants in the one billion dollar
infertility industry, such as doctors who specialize in helping people
to have children through the process of in-vitro fertilization and
other forms of modern reproductive technology, who believe that people
who are desperate to have children will be duped into paying large fees
on the false promise a doctor will be able to produce a human clone.
As a result of the hearings, Congress recently enacted the Human
Cloning Prohibition Act. The statute makes it a federal crime to:
(1) create a human clone through the technique of somatic cell nuclear
transfer or other cloning technology; (2) implant or attempt to implant
the product of somatic cell nuclear transfer or any other human cloning
technology into a woman's uterus; and (3) ship the product of somatic
cell nuclear transfer or other human cloning technology in interstate
or foreign commerce.
Dr. David Madison is a scientist who has announced that he has
developed the ability to clone a human being. Mary Hudson and her
husband, Joseph Hudson, have consulted Dr. Madison. Joseph Hudson is a
carrier of a rare genetic defect that will almost certainly result in
the painful death of any child born to Mary and Joseph within one year
of the birth of that child. Desiring to have a child, Mary and
Joseph have consulted Dr. Madison about producing a human clone of
Mary. Mary and Joseph do not want "their" child to be the biological
offspring of a sperm donor and do not want their child to inherit the
genetic defect that Joseph carries. Mary and Joseph believe that
human cloning is the perfect solution to their problem and have asked
Dr. Madison to proceed with producing a human clone of Mary.
Dr. Madison has informed Mary and Joseph that he cannot honor their
request because human cloning is illegal under the Federal Human
Cloning Prohibition Act. Dr. Madison and Mary and Joseph Hudson have
filed suit challenging the constitutionality of the Human Cloning
Prohibition Act. Their lawsuit argues that Congress lacks the power
under the Commerce Clause to enact the Human Cloning Prohibition Act
and that the provisions of the Act violate the Fifth Amendment Due
Process Clause.
You are a law clerk to the judge assigned to the case. The judge has
asked you to write an analysis of the Commerce Clause and Due Process
arguments that can be made by Dr. Madison and Mary and Joseph Hudson in
challenging the Federal Human Cloning Prohibition Act as well as the
arguments that are available to the federal government in defending the
Act against these constitutional attacks.