Equality, Privacy, and Roe

Yale law prof Jack Balkin argues that, in light of rapidly expanding genetic technology, it is important to interpret Roe as being grounded in gender equality rather than reproductive privacy.  Here's an excerpt:

If Roe is about reproductive choice in the abstract, about the rights of people to reproduce (or not reproduce) without interference from the state, future litigants will demand that courts insulate new reproductive technologies from regulation on the grounds that individuals should be free to have children by any means that science permits. Currently, there is no clear boundary that makes a generalized right to reproductive autonomy inapplicable to new reproductive technologies like cloning or genetic engineering. One might argue that only traditional methods of reproduction are protected, but such arguments may be unavailing precisely because the technology never existed before. The question will be whether the privacy principle applies in the new technological context, just as courts have asked whether the free speech principles apply to the Internet, or whether the Fourth Amendment's prohibition against unreasonable searches applies to infrared sensors directed at people's homes. Nor can we easily draw lines between "natural" methods of reproduction protected by the right to privacy and technologically assisted methods that are not. By now, the process of reproduction for many couples is thoroughly imbued with various forms of medical and technological assistance, including fertility clinics and in vitro fertilization. Assuming for the moment that the right to reproduce extends to using fertility clinics and in vitro fertilization, it will be difficult for courts to draw lines. The privacy interpretation of Roe may have a stopping point, but it may not be the one we now imagine, or it may simply be unprincipled and ad hoc.