CONSTITUTIONAL LAW III

Final Examination

December 2001

9:00 a.m. to 5:00 p.m.

Autumn Quarter 2001

Prof. Obama
 Instructions

1. This is an open book exam. You may use any materials or notes used in our
class. You may not refer to cases, articles, etc. that were not used in class.

2. You will have eight hours, inclusive of travel time, to complete the exam.
The exam is designed, however, to be completed in three hours. Feel free to
use the extra hours as you wish.

3 . The exam consists of two Parts, presented in four pages. In grading the exam,
your answer to Part One will count for three-fifths of your grade, and you
answer to Part Two will count for two-fifths of your grade. You should
therefore allocate your time accordingly. Each part contains multiple
questions; you should make sure that you answer all the questions contained
in each part, although the questions within each part are obviously interrelated
and each part will be graded as a whole.

4. I assume that all exams will be written on a computer or word-processor.

You must double-space, use a 12-point font, and provide for at least one-
inch margins all the way around the page. Your answer must be no more
than 2,200 words; I will stop reading after 2,200 words.

5 . Read each question carefully and think before you write. Please do not feel
obliged to make use of the maximum number of words in formulating your
answers. Precision and imagination, rather than volume, are what I am
looking for.

Good luck, and have a fine holiday.

Constitutional Law III - Fall 2001 - Final Examination

Part One (One and one-half hours)

On January 11, 2002, a renewed wave of terrorist attacks begins in major cities
across the country. Specifically, a deadly airborne (but non-contagious) chemical toxin
called rioxin is released into the ventilation systems of high-rises and shopping malls
throughout the east and west coasts. Trucks containing the hazardous material are
purposely crashed inside major tunnels. Rioxin is released throughout major subway
lines, and letters and parcels contaminated with the material are discovered throughout
the postal system. In the first month of these attacks, an estimated 50,000 people are
killed. An additional 500,000 people are infected with rioxin, and are inundating
hospitals throughout the country seeking treatment.

As in the case of anthrax, persons infected by the rioxin spore can be effectively
treated - in the case of rioxin, with an antibiotic called Curasin - so long as they receive
the antibiotic within 36 hours of exposure to toxin. Moreover, the same company that
manufactures Curasin has announced the development of a rioxin vaccine that, once
administered, protects the person vaccinated from the most serious forms of rioxin
infection for a ten-year period. The vaccine appears to be highly effective for all
segments of the population.

There are two significant problems, however, with implementing an immediate

vaccination program for the entire U.S. population. First, because the vaccine is new and
because it is both expensive and time-consuming to produce, there are currently only 5
million doses of the vaccine available. Despite the intention of the federal government to
drastically ramp up production of the vaccine, it is anticipated that for at least the next
year, no more than 10 million doses of the vaccine can be produced every month. The
upshot is that, optimistically, only 40 to 50 percent of the United State’s 270 million or so
residents can be effectively vaccinated within the year.

Second, it appears that not all populations are similarly vulnerable to the rioxin
spore. For reasons that scientists cannot yet fully explain, blacks are 15 percent (1.15
times) more likely to die from similar levels of rioxin exposure than are whites. Latinos
also seem to have a somewhat higher mortality rate than whites, although given the
variation in racial make-up within the latino population, the evidence with respect to their
enhanced vulnerability is less conclusive.

There is very preliminary and hotly debated evidence that slight genetic variations
between blacks and whites may account for the different mortality rates between blacks
and whites exposed to rioxin. Other experts attribute the difference solely to the
preexisting disparities in the health of blacks and whites, disparities that themselves are
largely attributable to such socio-economic, environmental and behavioral factors as
higher rates of poverty, smoking, obesity and hypertension among black populations.

Differences in mortality rates exist between men and women as well. It appears
that women are 18 percent (1.18 times) more likely to die from similar levels of rioxin

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exposure than are men. Experts attribute this difference primarily to the differences in
average body mass between men and women, an explanation that appears consistent with
the fact that children under the age of 13 are 25 percent (1.25 times) more vulnerable to
death from similar levels of rioxin exposure than are adults. The elderly are also more
vulnerable to rioxin exposure than the general population, although the differences
between old persons and young persons appear to correspond directly to the general, pre-
exposure, health of the individual involved.

In light of this on-going crisis, the White House, in consultation with the Center
for Disease Control (the CDC), has decided to develop a strict protocol for dispensing the
Curasin vaccine. The draft protocol is as follows:

1) The CDC’s first priority will be to vaccinate all children under the age of 13,
starting with those children living in densely population metropolitan areas
that so far have been the primary focus of terrorist attacks, and fanning
outward to children living in less populated, rural areas.
2) The CDC’s second priority will be to vaccinate all adult women under the age
of 50, again starting with women living in densely populated areas and
fanning outward to women living in less populated, rural areas.
3) The CDC’s third priority will be to vaccinate all adult men under the age of
50, with the same geographical prioritization.
4) All remaining adult U.S. citizens will then be vaccinated, starting with 50.
year-old adults and advancing progressively up the age ladder.
5) Only after all U.S. citizens have been vaccinated will the CDC vaccinate legal
resident non-citizens, using the same demographic protocol as has been
developed for U.S. citizens. Illegal immigrants will receive the vaccine only
after all other segments of the population have been immunized and supplies
of the vaccine have stabilized.
6) Throughout the administration of this vaccination protocol, the Curasin
antibiotic (of which there is an ample supply) will continue to be made
available to all persons exposed to rioxin based solely on the judgment of on-
the-scene medical personnel, and without regard to age, gender, geography, or
citizenship.

White House Counsel has already advised the President that -- given the
magnitude of the emergency and the U.S. Government’s Declaration of War on the
terrorist rings carrying out the attacks - the Supreme Court won’t dare to find the
proposed protocol unconstitutional. Nevertheless, the President recognizes the potential
volatility of the issue, and wants to assure himself, Congress, and the public at large that
his proposal conforms to constitutional norms.

You, the Assistant to White House Counsel, are therefore asked to prepare a
memorandum for the President, to be presented to him this afternoon. Specifically, the
President wants to know whether any of the provisions of the proposed protocol violate
the Equal Protection Clause of the Fourteenth Amendment (recall that, through a process
of reverse incorporation, the Equal Protection Clause applies to the federal government as

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well as the states). In framing your response, you may (and probably should) devote
more attention to some classifications/issues presented by the protocol than you do to
others. Please make sure, however, to support all conclusions with reasoning and, where
possible, case law. In addition, please make sure to examine both sides of any argument
you make, and feel free to suggest changes to the protocol that will cure it of potential
constitutional problems.

Part Two (One hour)

After five years of marriage, Maria, a corporate attorney, and Arnold, an

international financier, have decided it’s time to conceive their first child. It is not an
easy decision for them. Both have high-octane careers that take them traveling
throughout the world, and both passionately engage in (and excel at) a variety of athletic,
intellectual and artistic pursuits: Maria is a former Olympic skier and an accomplished
pianist, while Arnold is a world-class triathelete and chess master.

In light of the sacrifices involved in rearing a child, both Maria and Arnold agree
that they should optimize their outcomes with the aid of technology. Specifically, they
have been reading up on recent advances in biogenetics that now permit parents with
sufficient financial means to “design” their babies in advance. Not only is it possible to
screen fertilized eggs so as to select the sex of the child and weed out any embryos
containing congenital diseases, but parents can now also work with their geneticist to
maximize the chances of producing babies of a certain hair-color and size. Moreover, it
is anticipated that within the next five years, scientists will even be capable of isolating
the genetic sources of such characteristics as mathematical aptitude or athletic prowess,
which will then be available on the prospective parents’ menu of choices.

After performing their due diligence, Maria and Arnold have identified Bionetics,
a French multinational corporation that just recently went public, as a leader in the field
of baby design. After consultation with Bionetics representatives and extensive
discussion of the genetic characteristics they want in their offspring, they are prepared to
pull the trigger on the deal.

There is only one snag: it appears that Congress, led by former televangelist and
current U.S. Senator James Fullsome, has just passed a law, titled the Prevention of
Genetic Abuse Act (PGAA), which prohibits all genetic engineering and screening of
embryos in the United States -- including engineering and screening for purposes of sex-
selection and the detection of potential genetic defects in the embryo.

The text of the PGAA asserts three primary concerns as justification for the
statute. First, although the genetic procedures that have been banned in the United States
are now common-place in Europe, and the resulting genetically-engineered and/or
screened babies appear perfectly healthy, the technology involved is far too new for
scientists to draw meaningful conclusions with respect to the long-term health
implications for the resulting babies. Consequently, the PGAA maintains that the ban is
necessary to protect the health, safety and welfare of the general public, and facilitate

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further study regarding the potential health risks involved for genetically engineered
children.

Second, the PGAA maintains that, given the growing demand for genetic
engineering services and the high costs involved in the effective genetic screening and
modification of embryos, such procedures are sure to invite unscrupulous and unqualified
service providers into the industry, with a correspondingly high incidence of consumer
fraud. Moreover, given the still imprecise nature of even the most effective screening
and modification techniques, the commercialization of the technology is sure to invite a
floodgate of litigation between genetic engineering firms and parents who end up
disappointed in the outcomes of genetic engineering services.

Third, the PGAA maintains that genetic engineering “debases the miracle of life”
by encouraging a view that some human beings are preferable to others. According to the
statute, the state has a legitimate interest in preventing the spread and acceptance by the
general public of a “culture of eugenics.” During legislative debates on the bill, however,
Senator Fullsome repeated his assertion that any form of genetic screening or engineering
was “in violation of both nature’s mandates and God’s law.” On the other hand, the
legislative history of the PGAA also indicates that while much of the testimony in
support of this “moral and ethical” interest was voiced by religious leaders and
organizations, specific concerns regarding the dangers of genetic sex-selection were also
raised by some women’s organizations. Indeed, evidence from outside the United States
indicates that where genetic engineering is utilized for purposes of sex-selection, male
children are selected over female children by a two-to-one margin.

Maria and Arnold are incensed by the PGAA. Although they can afford to fly to
Europe to take advantage of Biogenic’s facilities there, it will involved significant
disruption of their already tight schedules. Moreover, Maria and Arnold are fierce
libertarians, and see no reason why the government should be intruding on such highly
personal decisions.

They therefore approach the national executive director of the ACLU, and
indicate that they are willing to finance a test case (their own) challenging the
constitutionality of the PGAA if the ACLU is willing to take the case. The executive
director tells Maria and Arnold that she will consider it, and asks you, her trusted staff
attorney, to prepare a brief memo examining the possible constitutional claims available
to Maria and Arnold under the Due Process Clause of the Fifth Amendment (again,
remember that through the process of “reverse incorporation,” the constitutional
requirements of qua1 protection and substantive due process embodied in the Fourteenth
Amendment apply to the federal government by way of the Fifth Amendment). In
preparing your analysis, make sure to examine both the strengths and weaknesses of any
possible claims. Moreover, please provide your boss a strategic analysis of how a ruling
in this area might affect the U.S. Supreme Court’s approach to such existing
constitutional rights like abortion.

END OF EXAMINATION