Majority opinion: Cloning case - Essay Example

Smith can challenge the constitutionality of the laws, since they contravene basic constitutional provisions as well as fundamental human rights. To begin with, the law unduly interferes with the right to scientific inquiry. Although this right is not expressly provided under the constitution, it draws support from personal liberty rights under the Fourteenth Amendment as well as the right to free speech captured in the First Amendment. Scientific inquiry has been an enduring value in the American society.

In Meyer v Nebraska 262 (1923) U.S. 390 the court stated that the right to liberty guaranteed by the fourteenth Amendment encompasses the freedom to “acquire useful knowledge…and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness for free men (Para 399). Importantly, the California legislation infringes upon the right to make reproductive decisions. It infringes on procreative liberty and freedom of reproduction. Both freedoms are essential ingredients of personal liberty enshrined in the Fourteenth Amendment.

Right to reproduce involves the right to use non-coital or assisted means of reproduction. There is a moral argument that infertile couples have the same rights as fertile couples. In Griswold v Connecticut 381 U.S 479, it was held that the decision whether or not to bear children is constitutionally protected under the constitutional right to privacy. In Lifchez v Hartigan 735 F. Supp. 1361 (1990), the court held that a ban on fetuses research was unconstitutional because it infringed upon a woman’s fundamental rights to privacy.

The court stated “ it takes no great leap of logic to see that within the cluster of constitutionally protected choices that includes the right to have access to contraceptives, there must be included within that cluster the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy (Andrews, 665). Applying the same argument to cloning, it appears that cloning falls within fundamental freedom of married couples to have a biologically related offspring. The right to make reproductive decisions includes the right to decide in what manner to reproduce including through cloning (Andrews, 666).

Argument for California State To begin with, even if California’s laws would be infringing fundamental human rights, it would be permissible if it was tailored to further a compelling state interest (Regents of the University of California v. Bakke (1978). Therefore, the question is, does California advance a compelling state interest by banning human cloning contrary to fundamental rights of privacy and personal liberty? The Supreme Court has adopted the strict scrutiny test to establish whether there is a compelling state interest in the breach of fundamental human right.

A popular example where the Supreme Court applied the strict scrutiny was in the famous case Roe v Wade [1973] 410 U.S. 113 where the court applied strict scrutiny to find that the ban on abortion infringed on fundamental human rights and that the state interest in protecting unborn life was not compelling enough to warrant the breach of this fundamental right to privacy. In Roe v Wade the court recognized that the government has an interest in protecting embryonic and fetal life at all stages, but found that it was not enough to outweigh a pregnant woman’s rights.

In cloning, since there is no a pregnant woman involved and, therefore, no rights