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.