Protecting Them from Themselves reveals and analyzes the mutual benefits argument to make three points. First, judges, legislators, and commentators defending contemporary laws and policies frequently claim that restricting rights and opportunities protects women and people of color. The claims appear across a range of contexts, but their common structure has remained hidden from view and critical scrutiny. Second, modern mutual benefits discourse has deep historical roots in widely repudiated forms of discrimination, including slavery, racial segregation, and women’s legalized inequality. Third, the historical deployment of mutual benefits arguments to defend pernicious discrimination creates reason for caution in considering contemporary mutual benefits claims that are now accepted quickly with little evidence, investigation, or debate. Mutual benefits discourse historically operated to rationalize and reinforce discriminatory practices that the nation has since disavowed. Modern mutual benefits arguments must be evaluated carefully or they risk shielding subordination once again.

 
Modern Mutual Benefits Arguments for Limiting Women’s Rights

Protecting Them from Themselves begins by examining contemporary mutual benefits discourse. I first explore how arguments contending that restrictions on women’s legal rights promote women’s welfare have flourished in the modern era, building on the assumption that women’s true interests and ultimate obligations center on marriage and family life. At least twenty-four states, for instance, retain some form of a marital rape exemption. These states criminalize fewer offenses if committed within marriage, punish more leniently the marital rape they do recognize, and/or impose additional procedural barriers to marital rape prosecutions. Legislators, courts, and commentators have explained since the last quarter of the twentieth century that granting wives an unhindered right to pursue marital rape charges would allow women to shatter their marital harmony, destroy their marital privacy, and make marital reconciliation much more difficult. This argument maintains that both husbands and wives are better off if the law limits the criminality of marital rape, although the benefits to men and women differ. Marital rape exemptions protect husbands from prosecution and wives from damage to their marital relationship assertedly more harmful to them than the marital rape itself.

Similar arguments that limiting women’s rights serves women’s best interests have increasingly come to shape antiabortion legislation and the Supreme Court’s abortion jurisprudence. Roe v. Wade (1973)¹ stressed the need to mediate between competing rights and interests: a woman’s right to have an abortion versus a state’s interest in protecting women’s health and the potential life of the fetus. Since Roe, however, the antiabortion movement has recognized in increasingly explicit terms that many Americans are unwilling to criminalize abortion if doing so will harm women. The movement and its government allies have turned more and more to the language of aligned interests rather than competing rights, insisting that both women seeking abortions and people opposed to abortion are better off if the law restricts or prohibits abortion. This argument contends that antiabortion laws protect women from the psychological harm that abortion would inflict upon them and the regret they would and should experience after abortion. The argument visibly influenced the Court’s plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992),² which upheld mandatory waiting periods before abortion and “informed consent” laws designed to persuade women not to have abortions. The Court explicitly endorsed the assumption of regret in Gonzales v. Carhart (2007)³ with little discussion or explanation. Carhart upheld the federal prohibition of an abortion procedure—even where that procedure is the safest method of abortion—on the premise that some women will, and perhaps all women should, come to regret having abortions.

 
Mutual Benefits Arguments Against Affirmative Action

Protecting Them from Themselves next considers modern mutual benefits discourse in the racial context. Arguments that whites and people of color have aligned interests in defeating civil rights initiatives have become increasingly prominent in recent years. For example, the Supreme Court’s initial decisions restricting race-based government affirmative action programs and early academic criticism emphasized the conflicting interests of whites and people of color, and the burdens that affirmative action imposed on whites. But the Court and academic critics abruptly switched focus within just a few years and a few opinions. More recent opposition to affirmative action has stressed that affirmative action policies must be severely restricted in scope and duration because otherwise these policies will harm people of color. This account contends that legal decisionmakers need not choose between competing sides because the people participating in affirmative action programs and the people opposed to those programs have shared interests. People of every race and with every view on affirmative action all purportedly benefit in their own way if affirmative action is first limited and then eliminated.

 
A Legal History of Mutual Benefits Arguments for Sexual and Racial Inequality

Protecting Them from Themselves proceeds to uncover the genealogy of mutual benefits claims, analyzing historical manifestations of mutual benefits discourse. The mutual benefits argument is not a recent innovation devised to respond to the demands of the contemporary civil rights era. It is a long-established claim that defenders of unequal status relations have repeatedly deployed, relying on the argument’s familiarity to bolster its plausibility. The contention that more rights would harm the rights holders appeared prominently in defenses of slavery, racial segregation, married women’s subordination to their husbands at common law, and legislation restricting women’s rights to negotiate about market work. Mutual benefits arguments for sex and race inequality especially proliferated in eras, like our own, when reform movements were vigorously working to improve the status of women and people of color. The reform efforts presumably undermined claims that the law should favor men over women, or whites over people of color. Historical mutual benefits arguments were nominally committed to helping women and people of color. But they consistently and explicitly assumed that women and people of color were unusually poor decisionmakers unable to assess their own interests, that women’s true concerns were confined to domesticity, and that people of color were better off the less they challenged and disturbed white people and white-dominated institutions. Connections between the defenses of slavery, segregation, and women’s legal inequality have rarely been noticed. Highlighting them uncovers important precursors to modern civil rights discourse.

 
Evaluating Mutual Benefits Arguments

The extensive use of mutual benefits claims to support now-rejected forms of discrimination should affect how we assess modern mutual benefits arguments. The fact that historical versions of the mutual benefits claim are no longer convincing does not necessarily mean that current or future expressions of the claim cannot be appropriate. Mutual benefits arguments may sometimes be reasonable and cogent. But the role that mutual benefits arguments played in defending pernicious forms of inequality creates grounds for caution in considering contemporary assertions that women and people of color are better off with limited rights and opportunities. Courts, legislators, and commentators may be predisposed to endorse these assertions quickly with little support, deliberation, or debate because the assertions resonate with a long history of mutual benefits arguments and invoke shared cultural memories of prior mutual benefits claims. The antecedent life of mutual benefits discourse can give modern mutual benefits arguments an inordinate power to persuade that makes explanation and elaboration seem unnecessary. Yet mutual benefits arguments were historically employed to support practices that are now repudiated, and they drew on ways of thinking about women and people of color that are now suspect. Whatever one’s views on the merits of legal paternalism as a general matter, there is reason to be cautious about contentions that all parties benefit when the law denies rights and opportunities to women and people of color.

Protecting Them from Themselves concludes by seeking to stimulate greater conversation about mutual benefits claims that are often accepted too easily. I use the reasons why historical mutual benefits arguments are unconvincing to formulate four practical criteria that judges, legislators, and commentators should apply in evaluating contemporary mutual benefits discourse. These criteria ask whether advocates asserting that rights and opportunities will injure women or people of color are consistent in their arguments, whether they present evidence of harm, whether they rely on narrow assumptions about how women or people of color should behave, and whether they engage with counterarguments and opposing viewpoints. I employ these criteria to assess several modern mutual benefits arguments.

Contemporary claims that women or people of color benefit from limited rights and opportunities have many of the same weaknesses as their historical precursors. First, judges, legislators, and commentators have been very selective in contending that people seeking rights and opportunities can be safely ignored because they fundamentally misunderstand their own interests. The law does not usually assume that people are radically mistaken about how to improve their lives and need to be protected from themselves. But claims that women or people of color will be worse off with more rights and choices are common. Second, the evidence that rights and opportunities harm women or people of color is sometimes questionably reliable, and sometimes simply nonexistent. Third, mutual benefits claims frequently depend on and enforce rigid, historically embedded assumptions about how women and people of color should think, act, and live. Modern mutual benefits arguments, like their historical predecessors, typically take for granted that women should orient their lives toward domesticity instead of male-dominated spheres such as the market. Similarly, contemporary mutual benefits arguments track historical patterns in presuming that people of color are better off the more they accommodate and the less they demand from white society. Finally, modern arguments about mutual benefits to women and men, or to people of color and whites, often avoid acknowledging any possible costs associated with restricting the rights and opportunities open to women and people of color.

History richly documents how mutual benefits claims have long served to rationalize and perpetuate legal hierarchies based on sex and race. This history also suggests criteria that legal authorities and advocates should employ in evaluating modern manifestations of mutual benefits discourse that are now accepted too readily. Applying these criteria can help assess arguments that risk reinforcing some of the nation’s most entrenched and intransigent forms of status inequality.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Jill Elaine Hasday is the Julius E. Davis Professor of Law at University of Minnesota Law School.

This Legal Workshop Editorial is based on the following Article: Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. REV. 1464 (2009).

On first learning of the bill during the 110th Congress, I assumed the Democrats advancing the bill would need their new majority to overcome at least some amount of Republican skepticism. What actually transpired was a floor debate in which the statements of staunch conservative Senator Brownback (R-KS) sounded functionally identical to those of the late liberal lion Senator Kennedy (D-MA). The final bill received only one negative vote in the entire Congress. Despite a research literature firmly divided over genetic discrimination’s very existence and whether a law like GINA would have economic repercussions, the entire political spectrum acted with unanimity to create genetic antidiscrimination laws. Why? Because genetic discrimination is unfair.

Social fairness tends to trump other concerns. Even if racial discrimination were economically rational, for example, it likely would remain prohibited as offensive to our fundamental sense of justice. The legal enforcement of social fairness is the very essence of antidiscrimination legislation and it explains why GINA received near unanimous approval, despite the uncertainty about genetic discrimination.

The difficulty comes in explaining why genetic discrimination is unfair, even if we believe it be so. This essay—like the Note from which it is adapted—probes the boundaries of genetics as a category and of the social fairness invoked in support of that category. The result is not a conclusion or recommendation, nor a critique of GINA. Instead, it explores how genetics and the seemingly clear principles of social fairness can break down, revealing an altogether more complex, normative, and ad hoc approach than at first glance.

 
I.
What is Genetic Discrimination?

Exploring the human genome has uncovered numerous genetic variations that may indicate and, perhaps someday, control disease. In 1990, researchers identified particular chromosomal variations associated with breast cancer. Carriers of these “BRCA” mutations bear a substantial risk of developing breast cancer—anywhere from thirty to eighty percent. This discovery presented obvious benefits: better targeting meant better preventive treatment and earlier detection. Soon after, researchers found links to Huntington’s disease and cystic fibrosis. Over the next two decades, there would follow hundreds of other theoretical connections between specific health outcomes and identifiable genetic variations, with countless more to come.

But this information could have negative consequences, especially in terms of medical insurance. For individuals seeking insurance, such genetic predispositions might be the ultimate in preexisting conditions, bringing fears of lost or denied coverage. Stories of these difficulties soon followed. A 1995 article in Science describes a healthy four-year-old child denied coverage twice because doctors discovered—after his mother and maternal uncle died of sudden cardiac arrest—a genetic pattern that increased susceptibility to heart conditions. Interviews appeared with people who sought tests for genetic predispositions to cancer, but worked to hide the test from their insurers, lest they lose coverage.

The workplace brings a similar worry. An employer providing group insurance could view a job candidate with a genetic predisposition to disease as a financial liability who could drive up that employer’s costs, insurance or otherwise. If that financial risk exists, then a potential employee with a genetic predisposition to disease is no doubt disfavored relative to one without that predisposition.

These are the archetypal examples of genetic discrimination, now barred by GINA.

 
II.
Genetic Antidiscrimination as a Matter of Fairness

Discussions of genetic antidiscrimination inevitably turn to the “disability” model of fairness, whereby people should not be made to suffer for immutable conditions for which they themselves are blameless. Not coincidentally, much of GINA’s operative language mirrors the language of the Civil Rights Act of 1964 and of the Americans with Disabilities Act, the most prominent antidiscrimination laws focused on immutable and involuntary characteristics. Senator Levin (D-MI) crisply summarized the disability model as applied to GINA: “We do not determine our own DNA. We are born with it. We cannot allow discrimination on the basis of such a fundamental aspect of life and one in which we had no choice.”²

Surveys show that this idea resonates, prompting public support for accommodations and general feelings of empathy. Consider a spectrum of impairments: At one end of the spectrum is a condition like blindness, where support for accommodation and protection is nearly universal. People generally believe that the blind have neither caused their condition nor are able to change it. At the other end would be conditions like drug addiction and obesity, broadly considered not to merit legal protection or specific accommodation.  In the popular conception, drug addiction is neither immutable nor is the sufferer blameless because the addiction appears to be within his control. In the case of obesity, studies show that the perception of blame prompts distinctly negative social biases. Genetics would be, in this model, similar to blindness.

Reinforcing the disability model’s natural relationship to genetics is their inclusion in the Equal Employment Opportunity Commission’s interpretation of the ADA. An Executive Order by President Clinton expressed the intention of his Administration to include genetic conditions within the scope of the ADA and the EEOC’s protection. Thus, the fairness guarantees of the ADA—and presumably the fairness principles that justify disability law—applied to genetics. In the disability model, society is willing to bear some amount of cost-sharing and market distortion in order to protect an afflicted class it views as blameless and helpless, and it now wishes to extend that categorization to genetics.

 
III.
The Problem of Categorizing “Genetics”

When we say we wish to protect genetics because they represent a fixed source of involuntary disadvantage, do we mean it?

Surely, we want to protect the four-year-old who cannot get insurance because of a genetic predisposition to heart disease. We want to protect the woman whose increased risk of breast cancer makes her an increased financial liability to her employer. The category of genetics, however, and the disability model by which we support it may be inexact ways of capturing that sentiment.

The first difficulty with categorizing genetics is that it may not be a discrete category at all. Genetic information is fundamentally medical information, albeit medical information obtained through a particular method. The thinness of this distinction relative to the bold lines created by antidiscrimination legislation have led some to criticize the phenomenon of “genetic exceptionalism”—the idea that genetics and the information it provides are somehow different in kind from comparable non-genetic medical information. Critics of a genetics-oriented approach to legal protection charge that the distinction is fundamentally arbitrary and elevates the method of acquiring information (genetics) above the content of that information (diseases and predispositions).

The possibly illusory nature of the boundary between genetic and non-genetic is highlighted by the difference between what is and is not considered permissible under various pre-GINA state genetic antidiscrimination laws. Some state laws bar consideration of genetic test results but allow consideration of family history that, without any specific “genetic testing,” would suggest genetic predispositions. Thus, intuiting the presence of a BRCA variation by family history would be permissible, whereas a genetic test for the very same information would be impermissible. Before GINA, Texas’s genetic antidiscrimination law specifically delineated that the former would not count as genetic testing, and thus would be permissible. Other states banned this practice as a subset of genetic discrimination.

Investigating a greater likelihood of heart disease through a combination of heart rhythm, cholesterol, and blood pressure measurement is permissible and reasonably common, possibly even in an individual insurance context. Determining a greater likelihood of heart disease by detecting a chromosomal variation is impermissible, though such a chromosomal link has been identified, and may prompt the permissibly identified secondary symptoms.

As new genetic links are found, more potential conditions will become “genetic” and the use of genetic markers to detect them will, in theory, become legally problematic. Perhaps more curious, however, is that few expect this to happen, imagining a clarity between protected genetics and unprotected genetics. But, of course, once that distinction is made, the notion of a category—rather than a normatively selective grouping—grows quite murky.

 
IV.
Genetics Test the Limits of Immutability

The disability model itself in the context of genetics may be less applicable than it first seems. Reflexively, we sympathize with the bearer of a disadvantageous genetic predisposition. The person with the predisposition to cystic fibrosis, especially the person who has manifested cystic fibrosis, has drawn a card that many feel, under other circumstances, they themselves could have drawn. These are the clean examples of genetics as disability with obvious and pleasing divisions. But a broader look at genetic predisposition calls into question how applicable the characteristics of immutability and blamelessness are to the category of genetics as a whole, or which genetic predispositions people would be comfortable protecting.

The fixed and unchanging nature of genetic variations may be more flexible than is generally assumed. The first sense in which this is true is the potential someday to literally alter one’s genetic makeup through the burgeoning practice of gene therapy. Early research suggests techniques that could modify, correct, or blend specific genes. The practical medical application of such technology, already in trials, could well emerge in the near future. Such direct control over genetics would cast new light on the questions that currently characterize the genetic discrimination debate. If genetic therapy could correct for genetic variations, would it be appropriate for an insurer who covers such therapy to charge more to patients who choose not to get it? Would it be appropriate for employers to recommend such treatment? Surely we would not ask someone to alter her race. Are her genetics the same?

More complex questions along the same lines also arise regarding the ability to affect one’s predisposition to a disease even if unable to affect the genes underlying that predisposition. Environmental changes, medicine, and surgery all can reduce the likelihood that a person predisposed to a disease will ever actually suffer it. For example, a woman with the BRCA gene variations predisposing her to breast and ovarian cancer can functionally eliminate her increased risk through hysterectomy or preventive mastectomy. Although it hardly satisfies a sense of social justice to condition affordable medical care on a willingness to undergo such an invasive and personally difficult procedure, some might think it wholly appropriate for insurers to be able to judge on that basis if a pill-based treatment could achieve the same effect.

The introduction of such possibilities creates a sliding scale along which to view the evaluation of genetic information: If a procedure were effective and non-invasive, would it be worth creating a market distortion and collectively bearing added risk in order to protect someone’s ability to refuse that procedure? What if the procedure were only moderately invasive? GINA does not incorporate the ability of a person to mitigate his or her risks in prohibiting the actuarial consideration of genetic information. Still, once the condition appears to be within a person’s control, the fair outcome, even under a disability model, becomes less certain.

 
V.
Immutability’s Just Another Word for “Things We Don’t Mind”

Even accepting genetic conditions to be immutable, the discovery of genetic bases for conditions generally considered behavioral calls into question what blamelessness means in the context of an immutable predisposition. In the popular press, genetic research has produced such tantalizing headlines as “Can’t Quit Smoking? Blame Your Genes,” suggesting that the voluntary behaviors underlying addictions may actually invoke involuntary, immutable genetics.³ This calls into question what it means for a person suffering the effects of one genetic condition (for example, breast cancer) to be blameless while a person suffering another (for example, drug addiction) shoulders responsibility. We can never quantify whether it is harder for a person with a predisposition to drug use to abstain throughout his or her life than for a person with a predisposition to cancer to undergo preventive surgery. Genetic predispositions to ostensibly behavioral conditions reveal our inability to truly separate the involuntary from the voluntary and the immutable from the malleable.

Homosexuality presents another interesting dilemma as a characteristic that may have a strongly genetic component. Unlike genetics, sexual orientation has no federal antidiscrimination protection, and yet we would not necessarily expect the possible genetic origins of homosexuality to place that characteristic under GINA’s protection. We would also not expect such protections to have the kind of unanimity that characterized GINA’s passage. Studies have shown that the belief that homosexuality is an inborn genetic trait is highly correlated to a willingness to provide additional rights and protections based on sexual orientation.

This tracks with the immutability model of fairness, a belief that the immutable merits protection; but the correlation may well occur in the other direction, so that favoring protection predisposes one to believe that the characteristic is immutable. Indeed, groups morally opposed to the expansion of gay rights reject claims of a genetic basis for sexual orientation; this suggests that in addition to favoring protections for that which we recognize as immutable, we may choose to see as immutable that which we feel is deserving of protection, and to see as chosen that which we do not.

 
Conclusion

In late October, an Italian court reduced the sentence for a convicted murderer on a finding that he had a genetic predisposition to violent behavior. In theory, the moral logic underpinning this decision perfectly echoes the sentiments codified domestically through GINA. Yet the legal and scientific presses, here and abroad, greeted this story with skepticism and troubled curiosity. Could this be what we—and our unanimous Congress—mean by holding people harmless for their genetic predispositions?

Nice as that categorical approach sounds, it does not seem to be what we actually want. Seven months after GINA’s passage, the New York Times reported on a limited trend of parents who tested their infant and toddler children for genetic modifications indicating the potential to excel at particular sports. These parents did not try to shield children from genetic fate, or to see that their lives remain unaffected by immutable genetic constraints. Quite the contrary. We can envision the story’s eager parents promoting their children’s genetic predispositions to potential trainers, even to the detriment of children born comparably “deficient.” We are, in short, only beginning to learn what our genetics (and those of our children) mean. We are conflicted over what to do with the information, and how it may change our understanding of our fates, our free will, and our obligations to one another.

Is all genetic discrimination unfair? If so, is it unfair for reasons we can clearly articulate, or is it simply a matter of faith? A fuller examination of genetics and their implications suggests that the common notions of fairness do not support the entire category of genetics very well. Indeed, the logic behind these constructs devolves into the circular and ad hoc.

Genetics may eventually become a category that encompasses so much as to render itself meaningless. It may prove medically malleable. And to the extent that genetics are immutable, that immutability may suggest a different approach to sexual orientation, addiction, obesity, athletic inclination, and even personality traits. Although genetic antidiscrimination promises broad categorical protections, its realization may favor a narrower, more normatively determined segment of genetics.

Acknowledgments:

Copyright © 2010 Georgetown Law Journal.

Jeffrey S. Morrow is a 2010 J.D. Candidate at Georgetown University Law School.

This Legal Workshop Editorial is based on the following Student Note: Jeffrey S. Morrow, Insuring Fairness: The Popular Creation of Genetic Antidiscrimination, 98 GEO. L.J. 215 (2009).