A circuit split has recently emerged regarding the constitutionality of state laws banning trait-selective abortions, i.e., abortions based on fetal characteristics like disability. Much of the dialogue surrounding trait selection has revolved around whether such abortions are eugenic in nature and whether they could be regulated differently than other forms of abortion—under either Roe and Casey or the post- Roe regime ushered in by Dobbs. However, the same concerns underlying this debate over eugenic abortions apply with equal force to preimplantation genetic diagnosis (PGD) coupled with in vitro fertilization. Because PGD seems certain to be the next battlefield in the war over reproductive rights, this Article wades into the debate over trait selection and eugenics and analyzes whether prospective parents would have a substantive due process right to use PGD to screen against disabilities or genetic conditions.
In doing so, this Article addresses and answers several interrelated questions: how to define the right to use PGD; whether the right, as defined, is fundamental; and which government regulations could survive strict scrutiny were the right found to be fundamental? And this Article argues that courts should define the right broadly; conclude that it is fundamental based on Supreme Court precedent, our nation’s history and traditions, and international recognition of the right; and strictly scrutinize laws limiting access to PGD while nonetheless upholding certain forms of regulation like expert agencies that gatekeep access to the technology, informed consent requirements, and waiting periods. Finally, this Article explains how this approach will best safeguard parental procreative autonomy, vindicate governmental interests in preventing eugenics and discrimination, and enable courts to avoid difficult line-drawing exercises.