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Genetic Engineering Is (Probably) Protected By the First Amendment

Could we stop a scientist from making a designer baby, even if we wanted to?

The dawn of cheap genome editing techniques such as CRISPR understandably have people across the political spectrum worried about what a future of designer babies, more pathogenic viruses, deextincted species, clones, and glow-in-the-dark sushi might look like. But does putting limits on genetic engineering violate scientists' constitutional rights?

The First Amendment has been interpreted by the Supreme Court to encompass not just the freedom of speech, but also the freedom of expression and expressive conduct, which likely includes acts of science, according to Alta Charo, a bioethicist and law professor at University of Wisconsin Law School.

"We understand that religious conduct can be protected," Charo said last week at a DARPA conference in St. Louis. "When I fertilize an egg in a laboratory, am I conveying a message about the lack of need of a deity? In other words, am I expressing something that is in a fundamental way political?"

Many scientists would likely argue that, yes, science is political, perhaps even religious speech. When geneticist Craig Venter created synthetic life using manmade DNA bases back in 2010, it was heralded (and denounced) as an act of a scientist "playing God." Some called it proof that intelligent design is real.

"If it can be done in a way that's perfectly safe for animal health, is there a basis for prohibition based on morality or politics or culture?"

Venter himself called it an "important step both scientifically and philosophically" and said it "changed [his] views of definitions of life and how life works."

Writing in the New Yorker last week, theoretical physicist Lawrence Krauss wrote that "all scientists should be militant atheists."

"The notion that some idea or concept is beyond question or attack is anathema to the entire scientific undertaking," he wrote. "Five hundred years of science have liberated humanity from the shackles of enforced ignorance. We should celebrate this openly and enthusiastically, regardless of whom it may offend."

Image: Lars Plougmann/Flickr

History is filled with scientists who were trying not only to make new discoveries but were attempting to prove that natural laws can be used to explain what was previously given religious or supernatural provenance. Through their lenses, it's not hard to see the act of performing science as political speech. And, if that's the case, shouldn't it be protected under the First Amendment, regardless of whether or not the populous finds the idea of, say, designer babies morally reprehensible?

Or, what if we just find a new branch of science a little bit weird? New technologies have made it possible to edit genomes in your kitchen—if people begin creating glow-in-the-dark rabbits, should we stop them? Or are they now artists creating protected speech?

If scientists are precluded from pursuing lines of investigation, they are restrained in their ability to engage in free expression

"If it can be done in a way that's perfectly safe for animal health, is there a basis for prohibition based on morality or politics or culture?" Charo said. "Or does the fact that a few of these experiments are being done precisely to challenge those views the reason we are not allowed to ban them?"

"Can you ban whimsy and art or other facetious uses?" she added.

Though CRISPR, a new technology, has made genome editing easier than ever, this is not a new debate. In a 1979 article published in Cornell Law Review, James Ferguson considers whether all scientific inquiry, including genetic engineering (then called recombinant DNA research) should be protected by the First Amendment.

Ferguson notes that, should DNA editing be proven to be reasonably safe, it likely cannot be banned by the government. He comes to the conclusion that any sweeping restrictions on science almost certainly violate the First Amendment.

"Any restriction on areas of scientific research will effectively suppress the data and ideas that would otherwise result if the research proceeded without legal constraint," he wrote. "Accordingly, if scientists are precluded from pursuing lines of investigation, they are restrained in their ability to engage in free expression."

Image: Revolution Bio

It's an open question as to how safe genetic engineering is, especially considering that it's at least theoretically possible for genetically engineered organisms to mate with wild ones, passing those modified genes into the general population. If legislators could prove that genetic engineering is inherently unsafe, then any First Amendment protections would likely go out the window. But, thus far, no one has been able to suggest that scientists are being totally reckless with the technology.


There's also been a great deal of controversy surrounding "gain of function" research, in which viruses or bacteria are made more virulent in order to study them. Should this be banned? That too is an open question, as courts would have to prove the "imminence" of any potential danger, and there's a fairly compelling argument to be made that we must study these organisms in a controlled laboratory setting in order to know how to combat them should they show up in the wild.

None of these cases have thus far shown up in the upper levels of the justice system, and the federal government has avoided outright banning genetic engineering (instead, you see things like funding cuts and grants left unrenewed—in the case of gain of function, the US government put a moratorium on funding last year). Thus far, the scientific community has been policing itself, perhaps because it's worried that premature experiments on humans could spur Washington to impose strict regulations and years of expensive, exhausting litigation.

After news broke earlier this year that Chinese scientists had begun editing the genomes of unviable human embryos, many in the scientific community called for a temporary moratorium on human genetic engineering. During much of 2012, there was a moratorium on gain of function research after scientists created an avian flu virus that could be passed from human to human.

The key to these moratoriums is that they were voluntary. The scientific community has held innumerable symposiums, conferences, and hearings discussing the ethics of synthetic biology and, thus far, has been conservative about how the technology is deployed. But there are always scientists who want to push the envelope. When someone inevitably does want to make a designer baby or deextinct a Neanderthal, would anyone legally be allowed to stop him or her?