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William and Mary Law Review


biological alteration, law and medicine


State interventions such as drugging dangerous prisoners to “alter the chemical balance in the brain,” sterilizing women involuntarily, or, more modestly, compelling vaccination in order to modify someone's immune system, employ a remarkable and problematic technique. The government biologically alters an individual to suit official policy, tailoring the person's very physical constitution to conform with some public objective. Even when the objective is worthy, such as preventing disease, the technique remains troubling. For in the process of biological alteration, government transforms individuals into instruments of state policy. Focusing on the handful of Supreme Court decisions involving the technique, this Article examines the constitutional issues that surround biological alteration. It also attempts to explain the Court's remarkable tendency to make this extraordinary technique appear ordinary and unexceptional. Part II defines biological alteration. Part III argues that it presents distinctive moral and constitutional problems. Drawing parallels between alterationist and racist measures, Part IV examines freedom from alteration as a substantive constitutional right, and as a right of equality, and argues that it warrants the strictest constitutional scrutiny. Although the thrust of my argument is simply that strict scrutiny should apply, Part V briefly sketches what strict scrutiny is likely to mean for various alterationist techniques. Finally, Part VI speculates about why the Court has treated biological alteration as an ordinary technique of the state. I believe that much of the answer has to do with an overly broad conception of “liberty,” and an underdeveloped concept of constitutional “life.”