Personal liberty in the United States may be restricted if there exists a compelling state interest. For example, the Bill of Rights enumerates freedom of speech. But as Justice Oliver Wendell Holmes famously stated in 1919, writing the majority opinion in Schenck v. U.S., “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”
Similarly, the right to assemble (freedom of assembly) has been expanded beyond the right to petition guaranteed in the Bill of Rights First Amendment. Freedom of assembly has been established by precedent. However, this right does not include the freedom to assemble and cause a riot.
The rights enjoyed by Americans provide the background by which our society as a whole is able to flourish. Americans are free to pursue their personal visions in all respects – in religion, in communication, and in business. Our various freedoms encourage the free exchange of ideas. America’s intellectual capital and the creativity and invention that are facilitated by our open environment help drive the world’s economic engine. But in pursuing our visions and fulfilling our plans, based on our freedoms, we may not infringe on the rights of others. And it is possible for our freedoms to clash with the needs of society.
Procreative liberty presents several examples of this clash between personal freedom and the interests of society. Contraception, abortion, and use of assisted reproductive techniques are all examples of procreative choices which are the prerogative of the individual. Some may be strongly opposed to one or all of these choices, but our society would be diminished if the state were to interfere in these deeply personal matters.
The interests of the state are not affected by a woman’s choice to abort her pregnancy (within certain permitted time constraints). The interests of the state are not affected by a woman’s choice to avoid pregnancy by using contraception. But state interests may be in play in the case of human cloning (HC). An individual or a family may want to utilize reproductive cloning methods to create a child. But much more is at stake than what might be construed as merely a private decision.
HC represents a new form of procreation, an asexual means of reproduction. As everyone knows, our species has evolved via sexual reproduction. Our mechanism of genetic inheritance is based on the dynamic joining of two discrete sets of DNA. HC would involve the deepest of changes in what it means to be a human being. Therefore, the choice to use HC is one that involves the entire human race. The questions, implications, and ramifications posed by HC cannot be answered by an isolated individual or even hundreds of families. Many state interests are at stake, not the least of which is the ability to guarantee safe transmission of our genetic birthright. The potential success of HC techniques pits the concept of procreative liberty squarely against the need of the state to protect itself and its citizens.