Straightening your heir: on the constitutionality of regulating the use of preimplantation technologies to select preembryos or modify the genetic profile thereof based on expected sexual orientation.

(111.) See, e.g., SILVER, supra note 1, at 340-41 (describing negative public reaction to a report about cytoplasmic transfer--using donor cytoplasm to repair genetic deficiencies of ovum cytoplasm to allow for creation of viable embryos--that briefly mentioned germline genetic modification). However, attitudes toward such technology may well change by the time it is developed. See id. at 347-48 (speculating that increasing public acceptance will accompany and encourage development of the technology).

(112.) E.g., Romer v. Evans, 517 U.S. 620, 632 (1996) (state constitutional amendment motivated solely by animus toward a particular class lacks rational basis).

(113.) See, e.g., Grutter v. Bolinger, 539 U.S. 306, 326-27 (2003) (program narrowly tailored to further compelling interest in diversity in education survives strict scrutiny).

(114.) See infra Part IV.A.2.

(115.) See infra Part IV.A.1.

(116.) See infra Part IV.A.2.

(117.) Griswold v. Connecticut, 381 U.S. 479, 482 (1965); see also Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955) (rational basis test).

(118.) Griswold, 381 U.S. at 485.

(119.) Id. at 484 (in "penumbras" of "emanations" from the specific guarantees).

(120.) Roe v. Wade, 410 U.S. 113, 152 (1973) (citing Stanley v. Georgia, 394 U.S. 557, 564 (1969)).

(121.) Id. (citing Terry v. Ohio, 392 U.S. l, 8-9 (1968); Katz v. United States, 389 U.S. 347, 350 (1967); Boyd v. United States, 116 U.S. 616 (1886); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).

(122.) Id. (citing Griswold, 381 U.S. at 486 (Goldberg, J., concurring)).

(123.) See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (holding that the "right to liberty under the Due Process Clause gives [petitioners] the full right to engage in [private, consensual sexual conduct] without the intervention of the government"); see also Roe, 410 U.S. at 152 (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923)); Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting from dismissal on procedural grounds) (explaining that the "full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution"); Griswold, 381 U.S. at 500 (Harlan, J., concurring) (stating that the "Due Process Clause of the Fourteenth Amendment stands ... on its own bottom").

(124.) See Washington v. Glucksberg, 521 U.S. 702, 722 (1997); Carey v. Population Servs. Int'l, 431 U.S. 678, 684 (1977).

(125.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

(126.) Roe, 410 U.S. at 152 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967)).

(127.) Id. (citing Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942)).

(128.) Id. (citing Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972)).

(129.) Id. at 152-53 (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).

(130.) Id. at 153 (citing Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923)).

(131.) Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citing Rochin v. California, 342 U.S. 165 (1952)).

(132.) Id. (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)).

(133.) See id. (citing Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 241, 278-79 (1990)) (noting that the Court had "assumed and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment").

(134.) Id. at 721 (citing Reno v. Flores, 507 U.S. 292, 302 (1993); Collins v. Harker Heights, 503 U.S. 115, 125 (1992); Cruzan, 497 U.S. at 277-78).

(135.) Id. at 720-21 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977)).

(136.) Id. at 721 (quoting Palko v. Connecticut, 302 U.S. 319, 325,326 (1937)). The Court "has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Id. at 720 (quoting Collins, 503 U.S. at 125).

(137.) See Kelly M. Plummer, Comment, Ending Parents' Unlimited Power to Choose. Legislation Is Necessary to Prohibit Parents' Selection of Their Children's Sex and Characteristics, 47 ST. LOUIS U. L.J. 517, 526 (2003) (arguing that rational basis scrutiny would be appropriate); see also Robertson, supra note 6, at 454 (concluding that "[t]he originalist bias of the Court, and its reluctance to find new fundamental rights make it unlikely that five justices would find most specific uses of assisted reproduction or genetics constitutionally protected, even if direct connection with more general principles of reproductive choice could be shown"); Nancy Pham, Note, Choice v. Chance. The Constitutional Case for Regulating Human Germline Genetic Modification, 34 HASTINGS CONST. L.Q. 133, 142 (2006) (noting that "the Court has been hesitant to extend the sphere of fundamental rights, and would be even less likely to extend it to such a radically new and different technology with such far-reaching effects" (citation omitted)).

(138.) See Lawrence v. Texas, 539 U.S. 558, 566-67 (2003) (stating that Bowers Court mischaracterized interest at issue reflecting its "failure to appreciate the extent of the liberty at stake"), overruling Bowers v. Hardwick, 478 U.S. 186 (1986); Carey v. Population Servs. Int'l, 431 U.S. 678, 688 (1977) (explaining that strict scrutiny appropriate "not because there is an independent fundamental 'right of access to contraceptives,' but because such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing ..."); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 940 (1992) (Blackmun, J., concurring and dissenting) (emphasizing that the Due Process Clause protects not a "laundry list of particular rights" but rights "grounded in a more general right of privacy").

(139.) Casey, 505 U.S. at 927 (Blackmun, J., concurring and dissenting); see also M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (citing Boddie v. Connecticut, 401 U.S. 371, 376 (1971)) ("Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as 'of basic importance in our society.'"); Casey, 505 U.S. at 851 (plurality opinion) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)) ("Our precedents 'have respected the private realm of family life which the state cannot enter.'"); Bowers v. Hardwick, 478 U.S. 186, 204 (1986) (Blackmun, J., dissenting) ("We protect those rights [associated with the family] not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life."); Lassiter v. Dep't of Soc. Servs. of Durham County, 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 649-50 (1972)) ("[A] parent's desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.'"); Roe v. Wade, 410 U.S. 113, 169 (1973) (Stewart, J., concurring) (citing Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Prince, 321 U.S. at 166; Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)) ("[F]reedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.").

(140.) Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (plurality opinion). Note that this standard was not adhered to by a majority of the Court. See id. at 132 (O'Connor, J., joined by Kennedy, J., concurring); see also Wilson Ray Huhn, The Constitutional Jurisprudence of Sandra Day O'Connor: A Refusal to "Foreclose the Unanticipated," 39 AKRON L. REV. 373, 391-92 (2006) (discussing significance of O'Connor's concurring opinion in this case).

(141.) See Robertson, supra note 59, at 427 ("[D]enying a person information about the package of burdens, benefits, and rearing responsibilities that will ensue, or denying her the ability to avoid or engage in reproduction based on that information, would affect her decision whether to reproduce at all and would interfere with her procreative liberty").

(142.) Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

(143.) This characterization itself suggests that access to the technology should be presumptively protected. Cf. Christine Overall, Selective Termination in Pregnancy and Women's Reproductive Autonomy, in ANTHOLOGY, supra note 85, at 145, 155 ("If it is unjustified to deny a woman access to an abortion of all fetuses in her uterus, then it is also unjustified to deny her access to the termination of some of those fetuses").

(144.) See Stanley v. Georgia, 394 U.S. 557, 565 (1969) (citing Martin v. City of Struthers, 319 U.S. 141 143 (1943); Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-08 (1965) (Brennan, J., concurring)).

(145.) Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 917 (1992) (Stevens, J., concurring and dissenting) (citing Bigelow v. Virginia, 421 U.S. 809 (1975)) ("[W]e have consistently rejected state efforts to prejudice a woman's choice ... by limiting the information available to her.").