GENOMIC POLITICS AND EQUALITY

AMERICAN JOURNAL
of LAW and EQUALITY

I. Glenn Cohen*

Professor Jennifer Hochschild’s Genomic Politics: How the Revolution in Genomic Science
Is Shaping Society is a must-read for anyone interested in where our politics about genetics
in America has been and where it is going. It is also an exemplar of how to do mixed-
methods social science work: Hochschild combines theory with database searches and
coding of congressional acts and social science journal articles, open-ended interviews
with authors of leading peer-reviewed articles and other experts (semi-structured with ge-
nomic experts),1 and two sets of relatively lengthy online surveys (one administered in
2011 and one in 2017, nicely allowing some opportunity to detect change) to arrive at
a much more complete picture than I have seen anywhere in the extensive literature.

Part I summarizes the book and highlights its main contributions. Part II engages with
three questions on which the book has something to say, but where I think a longer con-
versation is warranted: (1) What explains the lack of partisan politicization on these
topics? (2) How should equality theorists think about obligations of justice that stem from
genetic bad luck and the possibility of redistribution? (3) What would it mean to take se-
riously the critiques of race as a genetic category and what would that mean for equality
discourse?

I. A SUMMARY OF THE BOOK AND ITS MAIN CONTRIBUTION

The book begins with some reﬂections on how salient genetics has become in the twen-
tieth and twenty-ﬁrst century, eschewing any attempt to oﬀer a comprehensive account,

*Deputy Dean and James A. Attwood and Leslie Williams Professor of Law, Harvard Law School; Faculty Director, Petrie-
Flom Center for Health Law Policy, Biotechnology & Bioethics. I thank Niko Paladino for outstanding research assistance
on this review.

Full disclosure, I was one of them, though to be honest my memory of exactly what I said during the interview is
fuzzy at best, so I am not sure if any of my thoughts made it into the ﬁnal manuscript.

© 2022 I. Glenn Cohen. Published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0
International license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00027

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and then jumps right into its motivating and recurring examples: the 2005 FDA approval
of BiDil, the ﬁrst time an approved indication was limited to a particular racial group, as a
“drug for the treatment of heart failure in self-identiﬁed black patients”;2 the use of direct-
to-consumer DNA testing for ancestry purposes, most notably those of Ancestry.com and
23andMe;3 the building and use of forensic biobanks and the public attention, especially in
the wake of the notorious “Grim Sleeper” arrest, to their use for matching DNA from
crime scenes through lower-stringency tests that allow police to identify relatives of those
whose DNA was left at the crime scene;4 the use of prenatal testing for genetic markers of
Down syndrome (often followed by selective abortion), among other developmental con-
ditions; and ﬁnally human gene editing, in particular human germline gene editing
(though there is some discussion of somatic editing as well).5

She also introduces the theoretical framework all of the book seeks to support: that we
can divide the views of U.S. respondents (the book is explicitly about those in the United
States but of course may extend further) into four quadrants based on two dimensions.
One “focuses on one’s knowledge of or belief about the impact of genetics on behaviors,
traits, or physical conditions” ranging from “the assertion that ‘genetics is really impor-
tant’ to the assertion that ‘genetics is relatively unimportant or not relevant at all.’”6 The
other “focuses on a person’s judgment or preferences about risk-taking to genetics (and
other) technologies” ranging from “the sense that ‘overall, new technologies are beneﬁcial,
although we must beware possible harms’ to ‘new technologies risk serious harms, even if
they also carry some beneﬁts.’”7

This generates her four quadrants of stances toward genomic technologies: Enthusi-
asm (genetics is really important for explaining human behavior and they are optimistic
about its beneﬁts), Skepticism (genetics is really important but they are fearful about its
risks), Hope (genetics has little importance in explaining human behavior but these indi-
viduals are optimistic about the beneﬁts of technology), and Rejection (genetics has little

6
7

JENNIFER HOCHSCHILD, GENOMIC POLITICS: HOW THE REVOLUTION IN GENOMIC SCIENCE IS SHAPING AMERICAN SOCIETY 7
(2021). See generally JONATHAN KAHN, RACE IN A BOTTLE: THE STORY OF BIDIL AND RACIALIZED MEDICINE IN A POST-
GENOMIC AGE (2013).
See, e.g., CONSUMER GENETIC TECHNOLOGIES: ETHICAL AND LEGAL CONSIDERATIONS (I. Glenn Cohen, Nita A. Farahany,
Henry T. Greely & Carmel Shachar eds., 2021).
See, e.g., Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 MICH. L. REV. 291 (2010); Natalie
Ram, Genetic Privacy After Carpenter, 105 VA. L. REV. 1357, 1359 (2019).
For more on this, see, for example, NUFFIELD COUNCIL ON BIOETHICS, GENOME EDITING AND HUMAN REPRODUCTION:
SOCIAL AND ETHICAL ISSUES (2018), https://www.nuﬃeldbioethics.org/publications/genome-editing-and-human
-reproduction; NAT’L ACAD. OF SCIS., HERITABLE HUMAN GENOME EDITING (2020); I. Glenn Cohen & Eli Y.
Adashi, Legal and Ethical Issues in the Report Heritable Human Genome Editing, 51 HASTINGS CTR. REP. 8 (2021).
HOCHSCHILD, supra note 2, at 5.
Id.

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GENOMIC POLITICS AND EQUALITY

importance in explaining human behavior but these individuals are worried about its
impacts on society).8

Chapter 2 seeks to further explain her four quadrants and reﬁne the project scope (and
in my view defang some early misunderstandings). She begins with airing but not resolving
the utility of looking at genomics as a single, stable topic for investigation (more on this
below). She then ﬂeshes out her two scales, including by using views about the tendency
(and pushback) against treating race (and to a lesser extent gender) as genetically deter-
mined. She reviews data on U.S. adults’ views of the “causes of problems with a person’s
health” and explains that her survey results show they are surprisingly nuanced, that is:
“Americans accept environmental factors and family or social inﬂuences and economic
factors and individual choice and medical conditions and God’s will and genetics as
explanations for health outcomes.”9 She then examines what causes individuals and insti-
tutions to be technological optimists or pessimists, and some general policy approaches in
biotechnology regulation toward setting default rules about whether the “new” has to be
proven safe ﬁrst as opposed to requiring that it be shown to be unsafe.

The title of chapter 3 perfectly captures its claim: “Disputes over Genomic Science Are
Not Partisan.” Using debates over various COVID-19 pandemic policies as a perfect foil,
Hochschild shows that there are not large Republican-Democrat divides along the subject
areas that are her focus in the book. The point is made most strikingly as to forensic DNA
databases, which Hochschild reports stir up very divergent responses; they “are ‘Jim
Crow’s database’ or a response to the perennial concern for maintaining social order. They
are a lever to pry open prison doors for the falsely convicted or a hammer coming down
on poor men of color and their families.”10 Yet she ﬁnds that as “[i]ntense as they are,
these positions are not aligned with political parties or conventional political ideology. . . .
[E]very public oﬃcial who has taken a public stance on the subject has endorsed the creation
and use of DNA databases in the criminal justice system.”11

Beyond her claims about oﬃcials’ public statements, she surveys a set of federal and
state laws over the last few decades relevant to her project and ﬁnds a similar non-eﬀect of
Republican versus Democratic lawmakers. The Genetic Information Nondiscrimination
Act12 (GINA) was passed with bipartisan support, and states that have extended its pro-
tections have not had a discernible partisan pattern. A mix of conservative and liberal
states have required health insurers to provide at least some coverage of genetic testing
results. There are no discernible Republican versus Democrat divisions in terms of who
supports forensic DNA biobanks at the federal level and which states have restrictions

8
9
10
11
12

Id. at 5–6.
Id. at 30.
Id. at 66.
Id.
42 U.S.C. § 2000ﬀ.

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reining them in. Using the example of a California proposition from 2004 on the issue, she
makes the point that it is not that these things are not political—there is deﬁnitely political
contestation—it is just that they are not partisan. Turning to partisanship in the courts,
she makes the point that when it comes to Fourth Amendment issues with the collection
and use of genetic materials, there has either been permissive consensus or disagreement
involving mixed conservative and liberal jurists.

Chapters 4 and 5 delve deeper into the Enthusiastic versus Skeptical and the Hope

versus Rejecting quadrants, respectively.

Chapter 4 describes enthusiasm over the human genome project and further mappings
of the genome, reduced cost of genotyping, and emerging gene therapies. She also locates
pockets of enthusiasm for the use of forensic DNA databases. The discussion is
wide-ranging and includes attempts to estimate the likelihood of successful matching if
unanalyzed sexual assault kits were run against these databases, attempts to estimate
the deterrence eﬀect of these databases, and robust support for exonerating the wrongly
convicted using these technologies. The chapter then moves on to enthusiasm for “biogeo-
graphical ancestry” and discusses the immense (at least initial) market success of 23andMe
and other genetic tests. Hochschild locates three very diﬀerent sources of enthusiasm in
these tests—providing “a person’s ancestry, a racial designation; . . . adjustments to med-
ical diagnoses and medications”; and the linking of the three13—and highlights some of
the key battles over the association of race and genetics in the decades since the human
genome project, a topic I will return to below.

Turning to skeptics, when it comes to genetic testing and gene editing, the chapter
suggests two very diﬀerent kinds of skeptics: those who “are disillusioned by genomic
science’s failure to live up to its early promises”14 and those who are concerned about
“genomics’ excessive power.”15 The latter group she divides between those like Professor
Michael Sandel who are concerned about these discoveries disﬁguring the parent-child
relationship and seeking to make the “case against perfection,”16 those with religious be-
liefs that counsel against (to use that hoary phrase) “playing G-d,” those concerned with
slippery slopes toward a breakdown of social solidarity, and those who are concerned that
access to genetic alterations will exacerbate existing wealth gaps, among others. As a long-
time reader (and sometimes writer)17 in these areas, I felt the book tried to cover too much
too quickly, and I very much wanted to understand how the polity breaks down amongst
these diﬀerent ﬂavors of opposition.

HOCHSCHILD, supra note 2, at 93.
Id. at 100.
Id. at 101.

13
14
15
16 MICHAEL J. SANDEL, THE CASE AGAINST PERFECTION: ETHICS IN THE AGE OF GENETIC ENGINEERING (2007).
17

E.g., I. Glenn Cohen, Symposium, What (If Anything) Is Wrong with Human Enhancement? What (If Anything) Is
Right with It?, 49 TULSA L. REV. 645 (2014).

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GENOMIC POLITICS AND EQUALITY

Turning to skeptics about criminal justice uses of genetics, she again tries to demarcate
diﬀerent strands of concern (many well represented in the legal literature): that forensic
DNA usage is becoming increasingly common but is rife with database errors, human
errors, and poor training on using the relevant technologies; the use of familial searches
in particular and its disproportionate impact on certain racial or ethnic groups for whom
encounters with the police may already be more fraught; and general privacy concerns
that “we are close to the tipping point where no one can opt out of genetically driven
identiﬁcation.”18 Skeptics of 23andMe and other tests express the concern that the ances-
try results being returned are junk, or trivial at best; the concern that there are major risks
in “associating conventionally understood racial or ethnic groups with the purported sci-
ence of genetic inheritance risks”;19 and particular concerns about the use of these test
results as a criterion for tribal membership of Native groups.

Chapter 5 turns to the “Hope” and “Rejection” quadrants; members of both agree that
genetic inﬂuence is minimal but have technologically optimistic versus pessimistic views
about how the science around that inﬂuence will play out. In the medical and scientiﬁc
research space, Hochschild identiﬁes three primary forms that the Hopeful take: the adop-
tion of “both/and” strategies that acknowledge the value of learning more about genetic
contributions to health but always alongside the cultural, behavioral, institutional, and
socioeconomic contributors; research on epigenetic processes, which she deﬁnes as “the
process by which behaviors or the environment (within or outside the body) aﬀect expres-
sion or silencing of particular genes, perhaps even across generations”;20 and a view that
“genetics does not inﬂuence most phenotypes—something else is the causal driver.”21
Here the book does a great job of brieﬂy exploring how hope attitudes manifest diﬀerently
on the left and right. She then applies the same three variations to the role of genetics in
criminal justice, while acknowledging that this is one of the most contested spaces with
those who are hopeful, noting that some “Hopefuls perceive any analysis that includes
genetic inﬂuence in explaining unlawful behavior—even if it is part of a list and especially
if it suggests intervention—to fall somewhere between discriminatory and purely evil.”22
In the biogeographical ancestry context, she notes that the “clearest manifestation of Hope
in this arena is the goal of turning DNA ancestry testing into a lever for destroying the
whole idea of ﬁxed racial categories.”23

Turning to the rejection quadrant, Hochschild ﬁnds those who deem genomic uses
wasteful, risky, or normatively repugnant. In the biomedical research and science space,

18
19
20
21
22
23

HOCHSCHILD, supra note 2, at 108.
Id.
Id. at 36.
Id. at 116.
Id. at 120–21.
Id. at 122.

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these rejecters have quite diﬀerent concerns—harm to animals in experiments that will not
yield much, producing self-fulﬁlling prophecies hampering recovery for those with some
mental illnesses, and that “problems caused by social hierarchy are interpreted as evidence
of a race, sex, or social class’s genetic weakness or distinctiveness.”24 In the criminal justice
sphere, the concerns mix left- and right-leaning objections, such as reducing the role of
personal responsibility, stereotyping traits or behaviors, genetic proﬁling and increased
surveillance, and some worrisome aspects of treating crime control as a public health
strategy. On biogeographical ancestry, she summarizes the rejecter position as “Rejecters
have a simple view of DNA ancestry testing: the tests mislead customers because there is
little to no genetic inﬂuence on ‘race.’”25 Taking chapters 4 and 5 as a whole, they repre-
sent the only place where I found the organization of the book a bit confusing and in some
ways undermining the value of the contributions by smushing too much together.26

Chapter 6, a truly outstanding piece of work, attempts to characterize where “experts”
fall in Hochschild’s four-quadrant framework using data from three separate sources: “a
coded database of almost 2,000 genomics-related articles by legal scholars and social sci-
entists in thirteen disciplines; two online, open-ended surveys of several hundred social
science experts who responded to questions organized around the basic framework; and
almost sixty in-person, open-ended interviews with genomics experts, many in positions
of public authority.”27 She oﬀers a rich interrogation of the data while appropriately not-
ing limits. To me the most interesting (albeit perhaps navel-gazing) part of the analysis
was her attempt to map social science disciplines by quadrant. Biological anthropology,
psychology, criminology, economics, and political science fall clearly in the Enthusiast
quadrant (with STS leaning that way, though in a more complex way); no discipline falls
in the Hope quadrant; cultural anthropology is the only discipline ﬁrmly in the Skeptic
quadrant (though she writes that “[e]thics, sociology, and history or philosophy of science
are too internally split to categorize safely, though each discipline shows strains of
Skepticism”)28; while ethnic and racial studies, cultural studies, and “perhaps law” end
up in the Rejection quadrant.29

In trying to explain the pattern, she surfaces some interesting hypotheses. “The most
methodologically individualist disciplines” embody Enthusiasm, she notes, while “[t]he
disciplines most oriented toward collective activity . . . evince the greatest skepticism about
the value of genetics.”30 Despite chapter 3’s assertion of nonpartisanship in electoral

24
25
26

27
28
29
30

Id. at 125.
Id. at 126.
It might have been cleaner but perhaps less economic to orient each of the two chapters around one of the two
scales rather than having each chapter looking at two quadrants apiece.
Id. at 130.
Id. at 138.
Id. at 137.
Id. at 138.

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GENOMIC POLITICS AND EQUALITY

politics and public opinion, Hochschild identiﬁes that among academics, the quadrants of
her framework assume a political valence: leftist and liberal disciplines house “Rejecters or
at least Skeptics, . . . compared with disciplines whose members are more conservative,
Republican, or uninvolved in left-wing causes. In short, although we do not see partisan-
ship in laws, judicial rulings, NIH budgets, or public oﬃcials’ positions, we can begin to
discern among academics an ideological or normative distinction with regard to the quad-
rants of the basic framework.”31

Her expert interview data set generates some very interesting quotes but perhaps less
clarity in terms of take-homes; this seems more to reﬂect the views of the experts them-
selves, and one is reminded of Aristotle’s caution that one should “not look for the same
degree of exactness in all areas, but the degree that ﬁts the subject-matter in each area and
is proper to the investigation.”32 Most of the experts interviewed seem to think that geno-
mic politics was not one that obeyed more typical Republican-Democrat or even left-right
dichotomies; that the important disagreements are within ideological camps; that this is
not an area for purists;33 and that genomics produced strange bedfellows politically. The
experts thought the greatest value from genomic science would come in medical advances
for certain disorders and an era of personalization of medicine by genetics; that it might,
ironically, forefront the social determinants of health and behavioral factors; and that it
has beneﬁts for animal and plant biology, and some suggested it might increase tolerance
and reduce bias. The experts were most concerned about premature translation of geno-
mic science into the clinic, exploitation of enthusiasm by Big Pharma and the creation of a
genetic underclass, and genetic discrimination.

Chapter 7, one of the most revelatory, turns from experts to the general public’s atti-
tude, primarily by using survey data from surveys Hochschild ﬁelded in 2011 and 2017.
The ﬁrst ﬁnding, which she acknowledges is unsurprising, is that in both surveys 70% of
respondents “had heard or read ‘not very much’ or ‘nothing’ about ‘issues having to do
with genes or genetics,’” with fewer than 10% having heard “a great deal” or “quite a lot.”34
Looking at her examples of interest, in 2011 only 6% reported that they or a family
member had taken a genetic test, and only 2% an ancestry test, and there was hardly
any knowledge of medical or scientiﬁc biobanks, but “in both years, about half had at least
heard of forensic databases (which the survey had deﬁned).”35 The surveys also had three

31
32
33

34
35

Id. at 139.
ARISTOTLE, NICOMACHEAN ETHICS 18 (Terence Irwin trans., Hackett Publ’g Co. 1985).
One quote that resonated with me was “the right should support genomic capitalism—but can’t publicly because
of reproductive applications.” HOCHSCHILD, supra note 2, at 143.
Id. at 155.
Id. at 155–56. Interestingly, on this question, she notes that “[i]n 2011, Blacks were more likely than non-Blacks,
people with less than a high school education were more likely than those with more education, and the poor were
more likely than all other income groups to report ‘a lot’ of knowledge about forensic biobanks. I ﬁnd similar
results with regard to race, but not education or income, in 2017.” Id. at 155.

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knowledge-testing questions about genetics itself, and while results improve somewhat be-
tween the two years, they vary a lot, and she characterizes the overall result as “broad but
shallow knowledge.”36 The surveys also sought to measure U.S. respondents’ views about
genetic inheritance of eight phenotypes as compared to their having environmental or
lifestyle causes. She ﬁnds:

Almost none perceive the ﬂu, and few perceive aggression, to be primarily genetic.
Conversely, substantial majorities (appropriately) agree that genetics is the main cause
of sickle cell anemia, cystic ﬁbrosis, and eye color. The sensitive issues of sexual
orientation, intelligence, and heart disease comprise a third cluster, with about a ﬁfth
of respondents in each case focusing on genetics. Note that attributions to aggression,
intelligence, and—oddly—heart disease are especially cautious, with three-ﬁfths or
more of respondents choosing the indeterminate “mixture.” These patterns change
very little across the six years, except for a slight but uniform decrease in genetic
attribution.37

Attitudes are somewhat mediated by knowledge. Those who got all three of the knowl-
edge questions incorrect make few distinctions as to the heritability of the eight traits. The
most knowledgeable “were more likely than other respondents to choose a mix of genetic
and nongenetic causes for heart disease, intelligence, and aggression, but less likely to
choose a mixture of causes for cystic ﬁbrosis, sickle cell disease, ﬂu, and eye color.”38
Interestingly, the most and least knowledgeable ended up choosing the middle ground
on the heritability of being gay and lesbian.

She then considers attitudes of her respondents to her example uses by asking them if
they involve more good than harm (which she characterizes as support/optimism), more
harm than good (which she characterizes as oppose/pessimism), or equal amounts of each.
In general, she ﬁnds U.S. respondents support more than oppose, but the degree diﬀers by
technology: there was ten times as much support as opposition for forensic DNA
databases but only twice as much for germline gene editing—and everything else was in
between. Overall, about half of respondents chose the “equal amounts” answers, though it
is mediated by knowledge, in that “the more they know about genetics, the less likely they
are to choose the middle ground between technology optimism and pessimism,” and the
more they know, the “more likely they are to be technology optimists. . . . [F]or each
question, there is a 25 to 45 percentage point diﬀerence in risk acceptance between those
giving no correct answers on the genetics knowledge scale and those giving three correct
answers.”39 When she delves into this data, she helpfully puts it this way: “Although

36
37
38
39

Id. at 157.
Id. at 158.
Id. at 161.
Id. at 164.

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GENOMIC POLITICS AND EQUALITY

knowledge is not necessary in order to be in the Enthusiasm quadrant (half of those who
would have scored a 0 on the genetics knowledge test are Enthusiasts), it is close to
suﬃcient (nine-tenths of those who would have aced the test are in that quadrant).”40 This
was, of course, not designed as a causal test, but it does suggest that for those seeking to
promote acceptance, more education of the public is key.

Hochschild then maps respondents onto her four quadrants. She ﬁnds that “genetic
inﬂuence and optimism are linked: the more traits or diseases that a respondent sees as
genetically caused, the more likely he or she is to be optimistic about genomics’ societal
beneﬁts.”41 Americans are overall very optimistic about these technologies: In 2011, 64%
of respondents were Enthusiasts, 25% Hopeful, 6% Skeptics, and 5% Rejecters. In 2017,
56% were Enthusiasts, 30% Hopeful, 6% Skeptics, and 8% Rejecters. She is cautious about
how to interpret the change from 2011 to 2017, saying only that rejecters “may be grow-
ing” but notes that their “small numbers belie their analytic and political importance.”42
While she does ﬁnd some correlation between attitudes and demographic characteristics,
it is fairly “weak tea,” and instead her major takeaway is “that demographic characteristics
do not sharply diﬀerentiate among the quadrants,” and in particular whatever “is nudging
people into one or another stance toward genomics, it is not their partisan identity” (i.e.,
party aﬃliation).43 She contrasts her results with Dan Kahan’s on climate change,44 saying
that “the higher their scientiﬁc intelligence score, the further apart liberal Democrats and
conservative Republicans move in beliefs about climate change’s causes”45 and ﬁnding that
Democrats and Republicans track one another in all four quadrants as their genetic
knowledge increases.

Her analysis of the role of race is worth quoting at greater length since it is something

I come back to below:

[R]ace matters about as little as partisan identiﬁcation does—another surprising
feature of genomic politics. It is not quite irrelevant: in 2017 (though not in 2011),
Blacks are a bit less likely than Whites and Hispanics to be Enthusiasts and a bit
more likely to be Skeptics at every level of genetics knowledge. There may be a trend
here—knowledgeable Blacks are slightly less Enthusiastic in 2017 than their counter-
parts were six years earlier.46

40
41
42
43
44

45
46

Id. at 173.
Id. at 164–65.
Id. at 166.
Id. at 170.
Dan M. Kahan, Climate-Science Communication and the Measurement Problem, 36 ADVANCES POL. PSYCH. 1
(2015); Dan Kahan, On the Sources of Ordinary Science Knowledge and Extraordinary Science Ignorance, in
THE OXFORD HANDBOOK ON THE SCIENCE OF SCIENCE COMMUNICATION 35 (Kathleen Hall Jamieson et al. eds., 2017).
HOCHSCHILD, supra note 2, at 173.
Id. at 171–72.

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The chapter then does a deep dive into free-text comments by participants in the
survey. I cannot do this part of the book justice, so instead I will just pick out a few
interesting results. First, she ﬁnds that the optimism/pessimism-about-technology scale
“divide[s] respondents much more sharply than whether they perceive genetic inﬂuence
to be a primary, secondary, or nonexistent explanation for human traits and behaviors.”47
When it comes to medical biobanks, Enthusiasts and Hopefuls both root their support for
medical biobanks in the desire to help others. Skeptics emphasize privacy and mistrust of
government or other organizations in their reasoning. Interestingly, “Rejecters evince no
strong concern about privacy or mistrust in 2011, and are only moderately concerned in
2017; their distinguishing characteristic is a global, terse, indeterminate refusal to
engage.”48 Regarding forensic DNA databases, Enthusiasts focus on “justice” generally,
exonerating themselves in the future, exonerating the innocent, and showing some general
optimism about genetics’ value untethered to criminal justice. Hopefuls are very similar.
Skeptics have responses similar to those about medical biobanks and “express mistrust and
concerns about privacy, corruption, and governmental overreach.”49 She characterizes
Rejecters, as in the medical biobank area, as using “vague, terse, or summary statements
about their unwillingness to contribute to a forensic DNA database” and notes that half of
their answers were “some version of ‘no,’ ‘not my job,’ ‘not interested,’ ‘no time,’ or ‘I’ve
told you I have better things to do.’”50 Partisan positions are again largely absent, in that in
“12,000 opportunities to present views of biobanking in Americans’ own words, the terms
‘Democrat,’ ‘Democratic,’ ‘Republican,’ and ‘conservative’ are completely absent.”51
Finally, to connect it to what I discuss below, it is worth quoting more fully the role of
race in the comments:

Nor do GKAP [survey] respondents echo advocates’ and experts’ concerns about the
invidious impact of genomics on particular racial groups or sexes. Across the 12,000
opportunities for comment, “Black” appears six times, “African” ten times, and any
variant on “Latin,” “Asian,” or “Mexican” once each. A few refer to their race to
justify refusal to contribute, but most of these (few) references point in the opposite
direction—to possible beneﬁts of DNA research for people of diﬀerent races, or as a
counter to racial discrimination in the criminal justice arena. Variants of “race” or
“racism” appear about thirty times in the 12,000 responses, mainly for the same two
optimistic reasons. A few would condition their contribution on an assurance that a

47
48
49
50
51

Id. at 175.
Id. at 181.
Id. at 183.
Id. at 184.
Id. The word “liberal” appears only once, in a comment on gun control.

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forensic DNA database would not be used in any racially biased way, a few praise the
use of DNA for exoneration and hint at a racial inﬂection, and a few condemn racism
outright. One seems to suggest that DNA testing will show that blacks commit more
crimes. Several people use “White,” but always to describe themselves as possibly
useful controls for data analyses in the medical arena. About twenty people seek
to help “the human race.”52

Hochschild wisely notes that this “mismatch between the public’s lack of focus on
group identity (at least as expressed in a survey) and the apprehensions or commitments
of experts and advocates does not, of course, mean that the apprehensions are wrong,”
but it does drive home her “point that genomics, although deeply contentious, is not
(yet?) politicized in the United States along predictable lines, unlike so many scientiﬁc
arenas.”53

Chapter 8, entitled “Who Should Govern?,” examines the opinion of experts and
members of the public on governance in Hochschild’s example areas. She does a good
job of summarizing the takeaway at the beginning of the chapter:

To preview my ﬁndings about Americans’ views on who should govern: the most
accurate answer at this point is “no one”—or possibly “everyone” or doctors. That
is, social science experts, interviewees in the policy arena, and the general public
collectively oﬀer nothing remotely resembling a consensus in response to [the] query
about who should ultimately decide. Political partisanship and race are associated
with some diﬀerences in views, but residence in the four quadrants continues to show
much stronger variation. The most deeply rooted societal uses of genomics, in
particular forensic DNA databases, enjoy the strongest support, while the newest
possibilities—somatic and especially prenatal gene editing—engender widely varying
reactions. But I see no emerging central driving principle; governance may turn out
to be as diﬃcult as it is important.54

The snippets of expert interviews will often ring familiar to anyone who has sat through
workshops (academic or governmental) on genomics with social science and legal experts.
Indeed, the way in which Hochschild organizes their comments by subtopic with sample pro

53
54

Id. at 184–85. “‘Sex’ appears once, in a comment that DNA evidence can help to solve sex crimes; ‘gender’ appears
once and ‘female’ not at all. ‘Male’ appears three times—once in reference to male pattern baldness, and twice
as a reason for a Black man not to contribute to a forensic DNA database. There is one reference to religion.”
Id. at 185.
Id.
Id. at 187.

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and con statements by experts will remind legal academics of Llewellyn’s famous dueling
canons55 or perhaps Duncan Kennedy’s notion of “argument bites.”56 Some of the experts,
to me quite sensibly, suggest what I would characterize as distributed governance, wherein
governance powers are spread among several diﬀerent actors of very diﬀerent institutional
type,57 but there is nothing that approaches consensus on what that would look like.

Returning to a comparison the book frequently makes to nuclear power when it
emerged, Hochschild notes that genomics does not face the additional challenge that
“the institutions for creating and managing the technology emerging from the science
had to be invented at the same time that the power was discovered and deployed.”58 Fair
enough, but the ﬂip side is that there are now, with genomics, many more well-funded and
well-organized stakeholders and institutions vying for a piece of the governance pie, and
this has dimmed the hopes of fundamental governmental action; in most of the domains
Hochschild covers (gene editing being a notable exception), this has defaulted us into
more laissez-faire governance by markets.

Her interviews with non–social science experts (this group is pretty heterogenous,
including among other things Hill staﬀers with some genetics training) show that they
too are “frequently at a loss about who should govern,” but she does ﬁnd one point of
consensus: in “contrast to the social science experts, everyone whom I interviewed—except
physicians themselves—argues that doctors should not be responsible for managing
genomics.”59 Politicians also seem to be viewed particularly unfavorably: “Interviewees
are usually sympathetic or at least polite regarding physicians’ genetic incompetence.
Not so for elected oﬃcials—not even the political actors or staﬀ members whom I inter-
viewed have anything good to say about government leaders’ management of genomics.”60
These two sections are fun reads for an academic in the area, but I do wonder whether the
*shrug* result would have generated some clearer trend lines had Hochshild done more to
break out the questions of governance by her example areas. That is, I suspect that on
some of these issues (e.g., forensic DNA databanks), there may have been more consensus
on governance choices than on the broader landscape of genomic science.

Toward the end of this chapter, Hochschild does a deeper dive into splitting her survey
data on race and political party bases. The headline ﬁnding of little diﬀerence remains, but

56
57

58
59
60

Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are
to Be Construed, 3 VAND. L. REV. 395 (1950).
Duncan Kennedy, A Semiotics of Legal Argument, 42 SYRACUSE L. REV. 75 (1991).
E.g., Scott Burris et al., Changes in Governance: A Cross-Disciplinary Review of Current Scholarship, 41 AKRON L.
REV. 1, 12–13 (2008).
HOCHSCHILD, supra note 2, at 195.
Id. at 198.
Id.

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she does note that between her 2011 and 2017 survey data, “Whites’ support for funding
and regulation, and trust in scientists and government oﬃcials, all increase a little from
2011 to 2017, while Black support and trust decrease a little” while also noting that given
these small-magnitude changes, a “substantial racial divide, if it develops, is for the future,”
not the present.61 I return to these racial diﬀerences in part II.

The chapter closes with a more direct discussion of germline and somatic gene editing,
a topic that feels a bit neglected overall in the book, in depth of treatment, than the rest of
her examples, likely in part because the infamous He Jiankui germline editing experiments
revelation in November 2018 and the attention it has since drawn is something she could
not capture in her earlier rounds of surveys and interviews.62 Her second survey does
address both forms of gene editing directly, and she ﬁnds that “optimism about somatic
gene therapy is greater than for germline therapy; concern about risks of the latter is
substantial, and only one question [that as to germline editing we should ‘[d]o all possible
to prevent diseases from being passed down’] receives majority support.”63 Turning to
somatic gene therapy speciﬁcally, she ﬁnds that “[b]etween one-ﬁfth and three-ﬁfths of
GKAP 2 [survey] respondents endorse somatic gene therapy, depending on what consid-
erations are brought to their attention,” with the important nuance that “the more general
the question about somatic therapy, the more support it receives,” and “in the face of
particular concerns (for example, about informed consent or impact on people with
disabilities), optimism plummets.”64

We do see some small indications of partisan and racial divides here:

Democrats are slightly but consistently more favorable or less opposed to both forms
of gene editing than are Republicans. . . . Perhaps paradoxically given that they are
disproportionately Democratic, African Americans are more likely to see dangers
from gene editing than are Whites, and are less likely to agree that good overrides
harm in somatic gene therapy. Once again, diﬀerences (small so far) between African
Americans and Democrats intimate moral and political cross-currents that could, if
gene editing becomes a salient societal debate, complicate the Democratic Party’s
decades-long coalition. To put the point a diﬀerent way, we see a hint of an unusual
agreement around managing genomic technologies between African Americans and
Republicans.65

61
62
63
64
65

Id. at 205.
E.g., HENRY T. GREELY, CRISPR PEOPLE (2021).
HOCHSCHILD, supra note 2, at 209 tbl.8.1.
Id. at 209.
Id.

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Surprisingly, given what we hear in the media and among some academics regarding
concerns about “playing G-d” in these areas, religion or religiosity plays almost no role in
attitudes toward gene editing or any of the technological case studies in the book.

For germline gene editing, the current rule in the United States and indeed in most of
the world is prohibitory.66 Hochschild’s book shows that it will be very hard to build a
coalition to change this. While there is the usual drop-oﬀ in support for each case study
from Enthusiasm to Hope to Skepticism to Rejection, with gene editing, “diﬀerences
in endorsement across the quadrants get smaller and eventually disappear as even
Enthusiasts come to focus on issues of environmental causation, disability, health risk,
consent, and economic inequality.”67 Moreover, “up to two-ﬁfths of Skeptics and Rejecters
‘strongly’ oppose gene therapy, especially in the germline.”68 When survey respondents
were asked whom they trust to make governance decisions as to gene editing, the answer
is largely none of the above:

[B]arely a seventh of respondents fully trust even medical professionals, or patients
and their families, to make policy decisions about somatic gene therapy. Full trust
declines from there across all other actors and both types of therapy, to the vanishing
point of 1 percent for public oﬃcials and community forums. Over half of respon-
dents have no faith in policymakers regarding germline gene therapy; two-ﬁfths say
the same regarding the more imminent somatic therapy.69

Where is all this going? The chapter ends with Hochschild sketching the possibilities
but (appropriately for a very careful social scientist) suggesting the data cannot answer the
question. First, familiarity with the technology (she suggests IVF and, amusingly, coﬀee as
comparators) and time will pave the way to acceptance. Second, the technology may gain

67
68
69

E.g., JUDITH DAAR, I. GLENN COHEN, SEEMA MOHAPATRA & SONIA SUTER, REPRODUCTIVE TECHNOLOGIES AND THE LAW
1022–28 (3rd ed. 2022).
HOCHSCHILD, supra note 2, at 213.
Id.
Id. at 214. As she quips, “we might not be surprised that at least three-quarters express little or no conﬁdence in
health sector businesses or entrepreneurs [including pharma]—but even spiritual or religious leaders and
(especially) fellow members of the community receive almost the same rebuﬀ. Democracy, capitalism, and
faith—none receives anything close to a vote of conﬁdence.” Id. at 215. Indeed, the stepwise pattern between
the quadrants that is so familiar in the rest of the book seems to largely disappear in gene editing. The
stepwise “conﬁguration holds only for medical professionals and perhaps for patients (or individuals) and
their families. Beyond that, the pattern disintegrates; neither Enthusiasts nor the Hopeful express much
support for any of the other four proposed policymakers for gene editing. In rebuﬃng all plausible governing
entities, they have ﬁnally joined Skeptics and Rejecters.” Id. at 216.

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institutional support only after signiﬁcant public support or support by oﬃcials, which
suggests that “some genomics technologies (personalized genomic therapies) will become
widely established, others (prenatal gene testing and therapy) will remain objects of con-
tention along lines of race, religion, or degrees of risk acceptance, and still others (BiDil)
will disappear.”70 Third, it is possible that a technological development will lead to both
institutionalized and public support (rather than one ﬂowing to the other); she suggests
that the technical developments in forensic DNA databases and the perceptions of “wins”
in exoneration and solving cold cases may have had this eﬀect.

The ﬁnal chapter, “Governing Genomics,” is quite short and serves mostly as an
epilogue. Hochschild predicts that “as genomics moves further into shaping American
society, contestation will become more visible, politically volatile, and morally urgent.”71
In some ways, that prediction is in tension with the rest of the book, which shows a
surprisingly uncontested space, politically speaking.

She discusses four possible forms this contestation might take. The ﬁrst is rational
deliberation, exempliﬁed by the processes of the National Academy of Science and the
UK’s Nuﬃeld Council on Bioethics as well as the famous 1975 Asilomar Conference on
recombinant DNA, with a “mix of expert self-governance and public-private regulatory
cooperation.”72 A second pathway is disaggregated and multi-site governance, where
patient advocacy promotes particular kinds of research, the Innocence Project presses
forward on forensic DNA databanks, and so forth. What will matter are “policy entrepre-
neurs who devote great energy and skill to seeking or creating windows of opportunity to
attain their goal for genomics technology.”73 Third, some unforeseen and dramatic event
will set oﬀ a highly symbolic, very value-laden controversy that leads to a decisive polit-
icization of an area of genomics. She draws an analogy to the politicization of death and
dying issues around the case of Terry Schiavo.74 One puzzle for this pathway is why the
aforementioned He Jiankui gene editing experiment revelations have not played this role,
on her account. The ﬁnal pathway she characterizes as “none of the above”; that is, a “very
light, even inconsistent governance touch is what many scientists and individuals prefer”
and, she argues, has characterized much of the U.S. approach at the moment.75 She draws
the contrast between the relatively unregulated status of in vitro fertilization (IVF) in the

70
71
72
73
74

Id. at 217.
Id. at 222.
Id. at 223.
Id.
See, e.g., I. Glenn Cohen, Negotiating Death: ADR and End of Life Decision-Making, 9 HARV. NEGOT. L. REV. 253,
254 (2004) (discussing the case in media res).
HOCHSCHILD, supra note 2, at 225.

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United States and its status in many parts of Europe76 and suggests that this could be the
future for genomic technologies more generally.

The closing parts of the book oﬀer some last thoughts on a variety of threads: Is it right
to treat genomics, in the political sphere, as a single unitary thing? Hochschild muses that
between her major examples there is a “paradox” in “that the relatively ignorant public
may sense a broader unity of transformative innovation than do informed advocates,
policymakers, or private sector actors,” but she sides with the public.77 She reﬂects that
the technological optimist-pessimist dichotomy is much more of a zero-sum conﬂict
(and more important to attitudes) than the dimension that looks at the importance of
genetic inﬂuence, where those who disagree can more easily cooperate.

She oﬀers some tentative mappings of quadrants to governance preferences: Enthusi-
asts prefer “permissionless innovation,” self-governance by scientists, and engagement but
not decision-making by the public, advocacy organizations, and even governmental
oﬃcials.78 By contrast, “Hope is most closely aligned with the sideways strategy of advo-
cacy and organizational entrepreneurialism; the rationalist top-down strategy will seem
too elitist, conﬁning, and scientistic” and the Hopeful prefer to let “a hundred ﬂowers
bloom.”79 Skeptics are drawn to non-maleﬁcence as a guiding principle (do no harm)
and want governance to restrain or slow down well-meaning scientists pushing innova-
tion; they like precautionary strategies and want to empower more local decision-making
by community members (she mentions gene drives as a good example of this strategy at
play). Rejecters cry “a pox on all your houses,” do not have much in the way of “positive
goals for or preferred strategies of governance; they will mainly seek to protect privacy,
autonomy, rights, and freedom of action,” and in many instances “will simply check out.”80
In the book’s last pages, Hochschild reﬂects on where, at the end of this decade-long
study, she ﬁnds herself in these quadrants: still an Enthusiast, but more reﬂective about
what would push her to become a Skeptic (she cannot see herself moving to Hope or
Rejection), and concluding that it is primarily the risk that “genomics becomes or is
perceived to be a tool for deepening racial or class disparity,” with her worries most
pronounced as to forensic DNA databases.81

77
78
79
80
81

For more on what is distinctive, comparatively speaking, about the United States in these areas and the legal
structure that supports it, see I. Glenn Cohen, The Right(s) to Procreate and Assisted Reproductive Technologies
in the United States, in THE OXFORD HANDBOOK OF COMPARATIVE HEALTH LAW 1009 (Tamara K. Hervey & David
Orentlicher eds., 2021).
HOCHSCHILD, supra note 2, at 229.
Id. at 232.
Id.
Id.
Id. at 234.

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II.

THREE IMPORTANT FURTHER CONVERSATIONS

This is an outstanding book, and in this part, I seek to take three conversations that I see
implicit in the book a bit further.

A. Do we need an “error theory” for lack of politicization?
This is a book that in some sense begs for an error theory. In meta-ethics, the idea of
an “error theory” is most associated with J.L. Mackie, who argued that while “most people
in making moral judgments implicitly claim . . . to be pointing to something objectively
prescriptive, these claims are all false.”82 Such “Error Theories are familiar in many areas
of philosophical inquiry, from ethics to the philosophy of mathematics,” and in “all cases,
they are motivated by the need to reconcile some part of our thinking and discourse with
what we take to be well-established theories about what there is.”83 I am using the term
more loosely here. The top-level ﬁndings of the book—that there are no strong political
or even racial diﬀerences in attitudes toward genomic politics, but most people intuitively
believe there are—raise the question of: why the error?

Here are some possibilities. The ﬁrst has to do with the major examples Hochschild
has chosen to stand in for genomic politics in general. If she had only looked at other
examples, the argument goes, she would have found the partisan political diﬀerences
we all know are there. There is something to this. In particular, her construction of geno-
mics in the book seems to largely keep abortion and the politics of abortion at arm’s
length.84 We might look at the personhood bills we have repeatedly seen in several U.S.
states,85 the back-and-forth between administrations of diﬀerent parties on funding of
science involving stem cell derivation,86 and the attempt to alter the current appropriations

82
83
84

J.L. MACKIE, ETHICS: INVENTING RIGHT AND WRONG 35 (1977).
Brian Leiter, Explaining Theoretical Disagreement, 76 U. CHI. L. REV. 1215, 1225 (2009).
Abortion gets a single entry in the index referring to a discussion in the book’s opening pages about prenatal
testing, abortion, Down syndrome, and “severe abnormalities.” HOCHSCHILD, supra note 2, at 15–16. She brieﬂy
returns to the issue in a paragraph later in the book discussing her interviewee comments:

On the left, prenatal testing with its implied possibility of pregnancy termination is fraught: “Pro-choice
groups see any eﬀort to control the choice to abort as ultimately about controlling abortion. Any distinction
feels like a loss. But the wave of sex selection is nervous-making. [This is a] hard issue for feminists—sex
selection is troubling, but government restrictions on abortion are also troubling.” Complicating matters
further, “professional societies don’t want [legislation] to close the door on gender selection because they want
to leave the door open for [freedom of choice regarding] X-linked diseases.

Id. at 196–97.
See, e.g., Jonathan F. Will, I. Glenn Cohen & Eli Y. Adashi, Personhood Seeking New Life with Republican Control,
93 IND. L.J. 499, 500 (2018).
E.g., Sherley v. Sebelius, 644 F.3d 388, 391–92 (D.C. Cir. 2011) (discussing changes from Bush to Obama policy).

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rider that prevents the FDA from considering mitochondrial replacement techniques (also
sometimes referred to by the misnomer “three-parent IVF”),87 as examples where questions
of abortion and embryo destruction are intertwined with genomics and very much battle-
fronts of political contestation.88 While Hochschild at some points does touch on the fears
of disability rights groups regarding the use of genetic testing that might eliminate their
communities in the future, we might point to the recent U.S. Supreme Court opinions
regarding the constitutionality of bans on sex-selective and disability-selective abortion
(so-called reason bans) and the states that passed them as, again, examples of deep political
contestation.89

To be fair, Hochschild is very explicit at the beginning and end of the book that the
borders of what counts as genomics for the book’s purpose are contestable, so I think of it
more as a friendly amendment to her thesis to add the clariﬁcation that *results may vary
when one approaches abortion. Even here, one might think it noteworthy that the politics
of abortion have not crept further into these domains. In the case of gene editing, though, I
do wonder whether this is in part because many of the same forces that would raise
objections to embryo destruction en masse instead have a diﬀerent but still culturally
consistent line of attack through the “playing G-d” objection;90 this is one they can deploy
without alienating those who do not want to restrict women’s abortion choices. Even with
these abortion-adjacent examples excluded, her core ﬁnding, a lack of partisan politiciza-
tion, remains powerful, especially as to forensic DNA databases, where one might expect
the usual left-right divides on policing and police powers to be more prominent.

A second response to the “error theory” pushback is that no, her data tell us we ought
to see politically exactly what we do see. Political actors respond not just to viewpoints but
to the intensity of those preferences, which translates into political activation. While her
survey is not designed in particular to zero in on preference intensity, it does not suggest

See I. Glenn Cohen et al., The Regulation of Mitochondrial Replacement Techniques Around the World, 21 ANN.
REV. GENOMICS & HUM. GENETICS 565, 569 (2020).
In 2018, with Adashi and Spivak, I tried to collect and categorize all the moratoria we had seen passed or
attempted to be passed by the federal and local governments in the reproductive science sphere. See generally
Russell A. Spivak, Glenn Cohen, Eli Y. Adashi, Moratoria and Innovation in the Reproductive Sciences: Of
Pretext, Permanence, Transparency, and Timelimits, 14 J. HEALTH & BIOMEDICAL L. 5, 7 (2018).
See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1792 (2019) (Thomas, J., concurring). Justice
Thomas connected abortion to the history of eugenics movements, a connection that has been criticized, to be
sure. See, e.g., Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade,
134 HARV. L. REV. 2025 (2021).
The embryo destruction, what I have previously called “embryo farming,” is even more pronounced in next-
generation technologies on the horizon such as in vitro gametogenesis, where sperm or eggs can be derived
from adult cells, giving reproducers a potentially biologically unlimited number of embryos to choose from.
See, e.g., I. Glenn Cohen et al., Disruptive Reproductive Technologies, 9 SCI. TRANSLATIONAL MED. eaag2959
(2017); HENRY T. GREELY, THE END OF SEX AND THE FUTURE OF HUMAN REPRODUCTION (2018).

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GENOMIC POLITICS AND EQUALITY

strong support or intensity for action by politicians in her areas of interest. As discussed
above, in chapter 7 she ﬁnds that in both 2011 and 2017, her survey respondents as to all
technologies have many more Enthusiasts and Hopefuls than Skeptics and Rejecters (the
quadrants break down in 2011 in that order to 64%–25%–6%–5% and in 2017 to 56%–
30%–6%–8%).91 What is more, she ﬁnds that demographic characteristics do not really
diﬀerentiate these quadrants, and party aﬃliation is not doing the sorting.92 When a pol-
itician considers whether to make restricting a genetic technology one of their signature
issues, why would they choose to spend their energy on it if at best 14% of their constit-
uency is opposed to it? Moreover, as she suggests, many of the comments by the Rejecters
suggest they have little in the way of programmatic goals and “will simply check out,”93 so
they are hardly a constituency to cater to in building one’s political future.

One might ﬁnd further conﬁrmation that the politics is working just as it ought to in
her discussion of germline gene editing: the example that has the least support, most
opposition, and clearest (if not all that impressive) partisan and racial divisions is also
the one where we have an FDA appropriations rider that essentially prohibits germline
gene editing in the United States.94 Furthermore, this is the place where the interventions
of the experts (such as the U.S. National Academies of Sciences and Medicine) to suggest
that a limited regulatory pathway be considered for a very narrow form of heritable gene
editing95 has thus far produced no major legislative or executive changes. On this inter-
pretation, we are getting a political system that is responsive in an exemplary way to the
opinions of Americans on these issues.

But to use Kenneth Koch’s lyrical phrase, “one train may hide another.”96 It is true that
the political landscape reﬂects public opinion. But why is public opinion so “chill” about these
technologies, whereas the experts, as Hochschild notes, are much more worried? In partic-
ular, given the myriad of ways in which genomic politics intersects with the equality of
citizens, why does a political system that elsewhere has so many leaders focused on equality
nonetheless remain fairly silent on genomic politics? Where are the Bernie Sanderses,
Elizabeth Warrens, and Alexandria Ocasio-Cortezes of genomics? As I suggest in the next
section, genomics may be more complicated than taxation or wealth in this respect.

B. Genomics, equality, and distribution
Hochschild’s book centers on two scales that generate her four quadrants. In thinking
about the relationship between genomic technologies and equality, I believe it is useful to

91
92
93
94
95
96

HOCHSCHILD, supra note 2, at 166.
Id. at 170.
Id. at 232.
E.g., Cohen et al., supra note 87, at 659.
See generally NAT’L ACAD. OF SCIS., supra note 5.
KENNETH KOCH, One Train May Hide Another, in ONE TRAIN 3, 3–4 (1994).

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Table 1. Mapping Genomics and Equality Eﬀect

Equality-Promoting

Equality-Reducing

In Genetics

In Social Structure

introduce a diﬀerent two-by-two, as illustrated in Table 1. One is directional: a technology
could either promote or reduce equality.97 The other is the source of the inequality—the
inequality that could be furthered or reduced could be in people’s genetics themselves or in
a social structure upon which the genomic technology will have some eﬀect.98 To be sure, the
latter is a bit more “yes, and” than “yes, but,” and we should think of it as more of a center of
gravity than exclusionary.

This way of structuring things lets us see something new about Hochschild’s examples.
When people debate whether forensic DNA databases promote or reduce equality, they are
primarily debating the eﬀects of a technology that uses genomics on the social structure.
Compare the following statements one might hear in a good-faith debate about the building

Equality is itself, of course, a tricky concept. While I will speak about “equality” in this section since that is the way
Hochschild frames it, as do most participants in this debate, it is useful to recall the distinction between
egalitarians and prioritarians in ethics. Prioritarians do “not give equal weight to equal beneﬁts, whoever
receives them,” but instead give more weight to “beneﬁts to the worse oﬀ.” Derek Parﬁt, Lindley Lecture at the
University of Kansas: Equality or Priority? (Nov. 21, 1999), reprinted in 10 RATIO 202, 213 (Dec. 1997). Rawls’s
diﬀerence principle is a good example, in that it holds that inequalities in “primary goods” should be allowed to
persist only if they work to the greatest beneﬁt of the least-advantaged group. See JOHN RAWLS, A THEORY OF JUSTICE
§ 46, at 300–01; § 11, at 60–61 (1971); JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT § 51.5, at 172 (2001).
Societies can become more unequal and yet be preferred by prioritarians because the lives of the worst-oﬀ rise
more. By contrast, for egalitarians, equality is desirable for its own sake even if it does not make the worst-oﬀ
better, and in some instances they will prefer distributions that become more equal by leveling down. See, e.g.,
Roger Crisp, Equality, Priority, and Compassion, 113 ETHICS 745, 756–63 (2003); Harry G. Frankfurt, Equality as a
Moral Ideal, 98 ETHICS 21, 21–25 (1987). I suspect that when Hochschild and others speak about equality in the
genomics context, they are actually intending in many instances to focus on prioritarian and not egalitarian
principles, but sometimes they may be shifting from one to the other in subtle ways.
One can see an echo in this formulation of the division between the medical and social model of disability in
disability studies. The medical model “views a disabled person’s limitations as inherent, naturally and properly
excluding her from participating in mainstream culture”; that is, “people with disabilities are believed incapable of
performing social functions because of medical conditions that impair various major life activities.” Michael
Ashley Stein, Disability Human Rights, 95 CAL. L. REV. 75, 86 (2007). By contrast, in the social model it is the
“socially engineered environment and the attitudes reﬂected in its construction [that] play a central role in
creating ‘disability’”; that is, “collectively mandated decisions determine what conditions comprise the bodily
norm in any given society” and “factors external to a disabled person’s limitations are really what determine
that individual’s ability to function.” Id.

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of forensic DNA databases: “Since women are the primary victims of sexual assault in the
United States, building these databases will help deter oﬀenders and promote women’s free-
dom.” “Because people of color are disproportionately represented in arrests and convictions
in the U.S. carceral system, and those are the sources of DNA for forensic databases, families
of people of color will be those most hassled by the police in partial-matching investigation
techniques.” These two (imagined) speakers disagree on whether the technology will be
equality-promoting or equality-reducing, but they agree that the situs of where equality will
be furthered or stymied by this intervention is the underlying social structure: the structure in
which women are the primary victims of sexual assault and rape cases often are never
resolved, the structure of American criminal law where arrests and convictions follow pre-
dictable racial patterns. They also disagree about the injustice of those social structures.

Contrast this with the following statements one might hear in a good-faith debate
about germline gene editing: “Gene editing allows couples where the children would oth-
erwise inherit serious monogenic diseases to have their own genetic children the same way
everyone else does.” “Gene editing will create genetic haves and have-nots and lead to a
disfavored genetic underclass as in ﬁlms like GATTACA.” Again, these imagined speakers
disagree on whether the technology promotes or reduces equality, but their disagreement
is primarily focused on the eﬀects of the technology on equality/inequality stemming from
our genetics. I say “primarily” to emphasize, as mentioned above, that social structures and
normative views about those structures are, unsurprisingly, always in the background; for
example, the value of having children to whom we are genetically related vel non and the
level of support given by a society to the genetically worse oﬀ.

While some of Hochschild’s examples might evince more of a mixture, I still think this
two-by-two is helpful for at least two reasons: ﬁrst, it may lead us to adjust our priors about
what we would have expected Hochschild to ﬁnd in a subtle way. Many Americans may have
strong views about the current level of equality/inequality in the social structure and to what
extent programs that force redistribution or require restrictions on liberty are justiﬁed in the
name of reducing inequality. This is, in some sense, the bread and butter of much of our
current political discourse. But one might expect that Americans have not thought out nearly
as much whether genetic inequalities are themselves the kinds of things we ought to try to
reduce, and at what cost. This might be one of the reasons she ﬁnds “equal amounts of good
and harm,” the ambivalent answer, to be the most pronounced in “germline gene therapy”
and the least pronounced in “forensic biobank.”99 This ambivalence may not be (or just be) a
function of uncertainty about the eﬀects of this technology on equality but rather whether
the kind of equality it promotes is one that matters to us, politically speaking.

Second, and jumping oﬀ this last point, this puts front and center the question of
whether more equality in genetics is something desirable or, more pointedly, a ﬁt subject

HOCHSCHILD, supra note 2, at 163.

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for state policies aimed at promoting equality.100 We all have diﬀerences in our genes that
will, most often in interaction with our environment, aﬀect how our lives go. Some are
quite immediate and serious, meaning they produce lives that are quite short and full
of pain;101 others, like the genetic determinants of my height (just over ﬁve foot nine)
and its eﬀect on my likelihood of playing professional basketball, create real ceilings on
particular opportunities but tend not to be viewed as an injustice or a ﬁt subject for
political theories of redistribution.102 Much of the literature on genetics and equality tends
to focus on the ways in which these technologies may promote inequality stemming from
the social structure or potentially reduce it, but the two-by-two usefully reminds us that
these technologies could also promote equality in our genetics.

There is moral luck in the question of whether we have inherited a large trust fund
from our parents or ﬁnancial obligations to support aging relatives. There is moral luck in
what we have inherited, genetically speaking, as well, and some of us have inherited genes
that provide advantages, while others have not. What is striking is that the most

100

101

102

Of course, putting the question this way presses on exactly what it would mean to have “equality in genetics.” It is hard
to think that diﬀerences in genetic endowment without phenotypic expression are what matter for equality
theorists—they do not make our lives go better or worse. Beyond that, though, there are some hard questions.
What about genetic diﬀerences that lead to higher risks/susceptibilities of disease that may or may not actually
manifest? Even more interesting, what about instances where the same outcome is arrived at but the underlying
genetic inequality remains? Imagine that A is at higher genetic risk for heart disease than B, but we are able to
make their lifetime risk of heart attack indistinguishable by way of a statin that (hypothetically) is costless and
carries no corresponding risks or side eﬀects. Does the underlying genetic inequality matter in this case? What if
the diﬀerence were in facial bone structure that advantages the person to a certain standard of beauty in a society,
but the person with the genetically less “advantageous” (scare quotes intended) composition is able to undergo
cosmetic surgery to achieve the same outcomes (again imagine, counterfactually, costless and without risk)?
Among the many questions one would face is whether in claims for justice there is a diﬀerence between possessing
the desired trait/state “naturally” through one’s genetics versus the “assisted” or “augmented” version—which echoes
debates on human enhancement where some scholars have made appeals to the natural that others have critiqued.
See, e.g., Cohen, supra note 17, at 662–65.
Tay-Sachs disease is a prime example; it has its onset in infancy and leads to “hypotonia [deﬁciencies in muscle
tone], progressive loss of vision, loss of interest in surroundings, and loss of attained milestones, with death
occurring at about the age of 4.” 5 ATTORNEYS’ TEXTBOOK OF MEDICINE § 17.21(3) (Roscoe N. Gray & Louise J.
Gordy eds., 3d ed. 2000).
I say my height because it falls in the range of species-typical normal functioning, which for many (Professor
Norman Daniels most prominently) has become the dividing line for treatment versus enhancement and where
the state has an obligation of justice to try to remedy. See NORMAN DANIELS, JUST HEALTH: MEETING HEALTH NEEDS
FAIRLY 149 (2008). There are some heights that fall outside the species-typical normal functioning line; indeed, at
one point FDA drew the line at “the bottom 1.2 percent, which the FDA ruled was when human growth
hormone was approved to correct short stature that did not have an understood cause.” Einer Elhauge, I’m
Not Quite Dead Yet—and Other Health Care Observations, 49 TULSA L. REV. 607, 617 (2014). I do know of at
least one author who has argued that discrimination against those of shorter stature who are nonetheless still
within the species-typical normal functioning range is prevalent, normatively problematic, and something anti-
discrimination has wrongfully ignored. Omer Kimhi, Falling Short: On Implicit Biases and the Discrimination of
Short Individuals, 52 CONN. L. REV. 719, 724 (2020).

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prominent theories of distributive justice have not embraced extending the approach to
genes that they do to other forms of social advantage. Professor Eric Rakowski did a nice
job of summarizing a good swath of the terrain:

Thomas Nagel, for example, contends that, unlike inequalities that are social in
origin, naturally occurring inequalities in people’s prospects lie outside the scope
of justice. Their amelioration, in his view, is entirely a matter of private charity. Thus,
people who are unhealthy or lack intelligence through no fault of anyone must look
to their own resources or the generosity of others to overcome their natural deﬁcits,
whereas children born into poor or dysfunctional families are entitled, in justice, to
assistance from those who are better oﬀ. . . .

John Rawls’s “diﬀerence principle” []endorses (subject to limits) distributional rules
that maximize the primary goods available to a representative member of the least
advantaged class [but] Rawls himself declined to specify how a just society should
treat unhealthy or disabled individuals (and, by inclusion, those whose prospects
are hampered by their poor genes), and at whose expense.

[For] Norman Daniels . . . [g]enetically linked diseases or impairments can adversely aﬀect
a person’s chances of living a normal life within any given society. Insofar as these disabil-
ities represent departures from species-typical normal functioning within a particular so-
ciety, Daniels maintains, justice demands their redress, unless more prominent social
values take precedence in a certain case or past a certain point. Redress may take the form
of genetic intervention, medical treatment, special opportunities, cash, or other types of
accommodation. Whereas justice requires medical intervention or treatment to lessen dis-
advantage, however, it does not in Daniels’s view command intervention to enhance the
abilities of somebody who already falls within the normal range. Justice requires what he
calls a “genetic decent minimum,” insofar as that is humanly possible, but nothing beyond
that baseline.103

Rakowski wrote this in 2002, and of course there have been new entrants into political
theory since then. But by and large I think his assessment remains correct: proponents of
distributive justice who argue for redistribution to correct unfair diﬀerences stemming
from the social structures in which individuals are born or live are (largely speaking)
reluctant to push for the same redistribution when the diﬀerences stem from genetics.

The category of those who have disabilities represents an interesting liminal space. The cat-
egory of who has a disability overlaps only partially in both directions with the category of who
has genetic bad luck—there are disabilities that do not have genetic bases (consider disabilities

103

Eric Rakowski, Who Should Pay for Bad Genes?, 90 CAL. L. REV. 1345, 1352–56 (2002).

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that result from accidents), and there are forms of genetic bad luck that do not meet our ordinary
normative or legal conception of disability. But our views about redistribution on the basis of
disability are a potential entryway to thinking about redistribution to the genetically unlucky.

Normatively speaking, insofar as we conceive of those with disabilities as outside the
bounds of species-typical normal functioning, many theorists believe they have valid
claims to redistribution to bring them to that level. Daniels connects the species-typical
normal functioning to the larger Rawlsian goal of ensuring that all have access to the
“normal opportunity range,” that is, “the array of life plans reasonable persons are likely
to develop for themselves.”104 For Martha Nussbaum, the species-typical line sets a thresh-
old for human ﬂourishing in the capabilities approach and thus locates our obligations of
justice to those with disabilities.105

Overall there is good political theoretical convergence on the idea that distributive
justice owes something to those with disabilities as understood by the species-typical
normal functioning line. While not completely parallel, we see echoes of this same
approach in the way U.S. disability law determines who is eligible for its coverage. The
Social Security Disability Program, which brings with it state ﬁnancial support, is perhaps
the best example. Its deﬁnition of disability deﬁnes its eligible population in this way:

(1) The term “disability” means—

(A) inability to engage in any substantial gainful activity by reason of any med-
ically determinable physical or mental impairment which can be expected to re-
sult in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months . . .

(2) For purposes of paragraph (1)(A)—

(A) An individual shall be determined to be under a disability only if his phys-
ical or mental impairment or impairments are of such severity that he is not
only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a speciﬁc job vacancy exists
for him, or whether he would be hired if he applied for work. For purposes of

See DANIELS, supra note 102, at 149.

104
105 Martha C. Nussbaum, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 116–18 (2006); see also
Anita Silvers & Michael Ashley Stein, Disability and the Social Contract, 74 U. CHI. L. REV. 1615, 1622 (2007)
(“The capabilities approach endorses allotting greater resources to disabled persons if relatively greater
distributions are able to bring those individuals up to average baseline levels of capabilities, that is, to the
thresholds for species-typical ﬂourishing.”).

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the preceding sentence (with respect to any individual), “work which exists in the
national economy” means work which exists in signiﬁcant numbers either in the
region where such individual lives or in several regions of the country.106

106

42 U.S.C. § 423(d). I omit separate provisions relating to those who are both blind and over age 55. Id. One
might also look for a similar echo in the Americans with Disabilities Act (ADA), even though it is an anti-
discrimination law that has redistributive eﬀects rather than one squarely focused on redistribution. It reads
in relevant part:

(1) Disability

The term “disability” means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more major life activities of such
individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in paragraph (3)).

(2) Major life activities
(A) In general
For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, per-
forming manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working.

42 U.S.C.A. § 12102. Arguably, the ADA Amendments Act of 2008 pushes it a little further away from the
species-typical deﬁnition in the way it clariﬁes that in interpreting the statute, courts should reject some prior
restrictive U.S. Supreme Court decision. In particular, the amendments clarify that the ADA should be under-
stood to “reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S.
471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be
determined with reference to the ameliorative eﬀects of mitigating measures.” ADA Amendments Act of 2008,
Pub. L. 110-325, 122 Stat. 3553 (2008), at § 2(b). The Amendments also clarify that the text should be read:

(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky,
Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the deﬁnition of disability
under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,”
and that to be substantially limited in performing a major life activity under the ADA “an individual must
have an impairment that prevents or severely restricts the individual from doing activities that are of central
importance to most people’s daily lives”;

(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied
by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to
obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention
in cases brought under the ADA should be whether entities covered under the ADA have complied with their
obligations, and to convey that the question of whether an individual’s impairment is a disability under the
ADA should not demand extensive analysis.

Id. One interesting question I raise here, but that is somewhat orthogonal to my discussion, is to what extent the
ADA, which has a mix of redistributive and anti-subordinative and anti-stereotyping goals, should diﬀer in its
line setting from a program that sounds primarily in distributive justice.

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So, political theory and political practice do extend distributive justice to the subset of
those with genetic bad luck that causes disabilities,107 but not beyond that to anyone
whose genetic inheritance puts them in a disfavored position in terms of how well their
lives go.108 Why is that? When it comes to redistribution by income, even the U.S. tax
system is to some extent continuous with graduated levels of taxation and tax
credits/deductions by income. Even programs that do have income cliﬀ cutoﬀs tend to
try to smooth distribution below the ceiling. A good example is the Aﬀordable Care Act’s
Exchange subsidies to help aid in the purchase of health insurance.109

To put the point bluntly, why do the politics of equality not lead us to see pushes to
redistribute to the genetically “poor”? Why don’t we tax the genetically “rich”?110 One can
begin to sketch answers: there are administrability concerns about detecting and quanti-
fying genetic winners and losers; other programs (like income taxation, Medicaid, etc.) are
already doing the work, etc. But such answers would seem to be more in the register of
“good impulse, but here are the real-world reasons why we aren’t doing that.” Instead, I
think it is fairer to characterize the current conversation on the matter as largely silence.
Within progressive communities, very few have expressed thoughts on such a project, and
I suspect if pushed they would express puzzlement or ambivalence at best. Is this a lost
opportunity or an appropriately taboo topic?

One interesting thing that placing Hochschild’s examples onto my two-by-two sug-
gests is that the tax analogy is only one way to deal with genetic unfairness. Redistribution

107

108

109
110

These programs and the political theory support, of course, also extend to those who meet its deﬁnition of
disability whose disabilities are not the result of bad genetic luck.
There are, of course, complex questions of when having a disability in fact makes a life go worse—the
mere-diﬀerence-versus-bad-diﬀerence debate, as it is sometimes called. The answer is likely to be diﬀerent for
various disabilities. It also depends heavily on how much a given social setting has done to reduce the badness of
disability along the lines of the social model of disability. Along these lines, Elizabeth Barnes has oﬀered a very
thoughtful critique of the application of the normal-functioning model to deafness (in particular). See Elizabeth
Barnes, Disability, Health, and Normal Function, in DISABILITY, HEALTH, LAW, AND BIOETHICS 5 (I. Glenn Cohen
et al. eds., 2020).
26 U.S.C. § 36B.
Of course, dividing the world into the genetically “poor” and “rich” belies much of the biological reality. Very
often we are talking about genetics as making one more or less susceptible to the eﬀects of a particular
environment, and it is the combination of the two that produces the condition faced by the individual. But
perhaps this just makes the tendency of many theories of redistribution to fail to think seriously about
genetics still more surprising: they do take the environmental parts (poverty, familial structure,
neighborhoods) quite seriously, so why not take the genetic susceptibilities just as seriously for redistribution?
It is almost as if they have internalized the eggshell-plaintiﬀ rule of torts—“that a tortfeasor takes his victim as he
ﬁnds him,” e.g., Pierce v. S. Pac. Transp. Co., 823 F.2d 1366, 1372 (9th Cir. 1987)—and applied it to genomics as
a political-theory matter.

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to the genetically unlucky is a form of compensation. Why compensate for that bad luck
instead of correcting it at its source? Gene editing oﬀers a potential way to do so.111 There
are a lot of diﬃcult questions raised by heritable germline gene editing that many bioeth-
icists have noted for a long time, chief among them: is it fair to impose, for the sake of
beneﬁts, potential downstream harms of such editing on a future population from whom it
is not possible to seek consent at the present time?112 Somatic gene editing, by contrast,
raises far fewer of these kinds of objections, and indeed objections in general—this is
somewhat reﬂected in the more positive attitudes of Hochschild’s survey respondents to
somatic over germline gene editing.

To use a tangible example, instead of providing compensation to those who are strug-
gling with sickle cell disease, would it be better to provide them (but not coerce them to
undergo) somatic gene editing paid for by the government?113 If we were to oﬀer such “in-
kind” opportunities for those who face genetic bad luck, should they be oﬀered alongside
compensatory programs or as alternatives? In discourse on enhancement, one frequently
sees concern that the availability of enhancements will reduce solidarity for those who
choose not to get them.114 How worried should we be about this as a descriptive predic-
tion of political or public reaction? If in fact we felt less solidarity and social support for
those who chose not to engage in gene editing to reduce the eﬀects of their genetic bad

111

112

113

114

Genetic technologies might also be used to help such persons whose needs do not have a genetic origin (for
example, still-science-ﬁctional hypothetical uses of genomic technologies to build a replacement limb for
someone who lost an arm in an accident or the use of somatic gene editing to improve the vision of
someone whose blindness was the result of an accident). How important is it, as a political theory matter, in
terms of what we owe those in need, that we use genomic technologies to improve the lives of those whose
deﬁcits are genetic as opposed to nongenetic in origin?
Of course, as Professor Seana Shiﬀrin has noted in a provocative essay, all forms of reproduction, including
old-fashioned unassisted coital reproduction, involve bringing into existence individuals who “must endure
the fairly substantial amount of pain, suﬀering, diﬃculty, signiﬁcant disappointment, distress, and signiﬁcant
loss that occur within the typical life”—harms that are imposed without consent only to bestow a pure
beneﬁt (existence). Seana Valentine Shiﬀrin, Wrongful Life, Procreative Responsibility, and the Signiﬁcance of
Harm, 5 LEGAL THEORY 117, 137–39 (1999).
Such therapies are beginning to show promise. See, e.g., Rob Stein, First Sickle Cell Patient Treated with CRISPR
Gene-Editing Still Thriving, NPR (Dec. 31, 2021, 5:05 AM), https://www.npr.org/sections/health-shots/2021/12
/31/1067400512/ﬁrst-sickle-cell-patient-treated-with-crispr-gene-editing-still-thriving. Because the burden of
sickle cell anemia falls heavily on the Black population, it also raises interesting questions of how to think
about cases where bad genetic luck interfaces with more historical forms of disadvantage and maltreatment.
E.g., SANDEL, supra note 16, at 87–92.

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luck, would that be so normatively bad that it should be part of a program of seeking to
promote equality?115

I would love to see a social scientist of Hochschild’s caliber use the resources mar-
shalled in this book to examine more deeply what the public and experts think about
genetic equality and about genetic redistribution and how it should inform these debates.

115

In prior work I oﬀered the following thought experiment:

To use a dramatic example, suppose that by swallowing one pill without any untoward side eﬀects you could
become impervious to all pathogens and die peacefully of old age in excellent health at age 110. Such a pill
would not only improve the welfare of those who take it but also would produce signiﬁcant positive
externalities (or, if you prefer, reduce signiﬁcant negative externalities of the pre-pill baseline): my bad
health imposes signiﬁcant costs on others—family who must tend to my health, employers who face my
loss of productivity, others to whom I transmit infection, etc. By taking the pill I have improved my welfare
and the welfare of others around me. If we assume arguendo that this could only be accomplished by heaping
scorn (e.g., by making them social pariahs) and/or reducing resources devoted to those “naturalists” who
refused to take the pill, would that be an overwhelming reason to ban the pill or not pursue its
development? To me it certainly seems not. Indeed, it may be possible to take some of the resources saved
from the use of the pill and improve those people’s health care, a form of growing the pie. Even if that
were not the case, even if we concede that the “naturalists” would be worse oﬀ as compared to a world
where the pill was unavailable, so what? That should only bother us if we think they have a rights claim
not to take the pill. That rights claim seems to me to be predicated on what in the law we like to call a
“baseline” problem. What is so special about the existing baseline of our lifespan and disease immunity as it
stands now? It was quite diﬀerent in 44 AD, 1776, and will be quite diﬀerent again in 2081. What is the moral
signiﬁcance of our current state? To see why this rights claim seems problematically predicated on a baseline
problem, let us turn the world upside down. Imagine that we all are currently immune from all diseases and die
in good health at 110. A pill is developed, though, that will change our immune systems to resemble those
currently enjoyed in the real world. Would you have a rights claim to take the pill in question? Perhaps if
you believe in a right to suicide or to control one’s body by ingesting whatever you please, even if the
government makes it illegal. Would you have a rights claim to take the pill and avoid the heaping of scorn
or reduction in access to resources? That seems quite doubtful to me. Would you have a rights claim to make
everyone in your society take the pill because if they don’t you will be disadvantaged in terms of the coercion
versus competition dynamic discussed above. Certainly not. The baseline problem here seems to be the mistake
of making an undefended appeal to nature, that what is natural is good. . . .

Such a claim is particularly hard in the health domain, because so many of the innovations we have developed
already (antibiotics, for example) seek to forestall the natural.

Cohen, supra note 17, at 664. Somatic gene editing is far from taking a pill in terms of its current risks and
prospects of success and our views about the extent it alters something of our personhood. But I do want to push
back on the idea that any reduction in other solidaristic support that might stem from the state providing it for
free is necessarily so problematic that it should defeat the claim that progressives should pursue somatic gene
editing as a form of equality promotion.

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C. How should the critiques of race as a genetic category play into equality discourse?
A ﬁnal conversation the book stirred for me is: how should equality discourse deal

with critiques of race as a genetic concept?

As a Caucasian man who grew up in Canada and whose scholarly expertise is outside
race and the law, I am more aware than usual of the aphorism that “where you stand
depends on where you sit.”116 I ﬁnd the idea of geneticizing race particularly fraught be-
cause of what I know about the history of the topic, including the ways in which racial
science has often been harnessed in the United States and abroad to establish racial hier-
archies (including genocide) and the misuse of this science for eugenic purposes, which
continues to this day.117 I want to be careful not to tread too far into sensitive and fraught
territory. There is a way in which it feels as though the book has the same approach to the
issue, which is occasionally frustrating: at several points it tees up but does not quite land a
conversation on what the public and the political system think about race as a genetic
concept and what it would mean to reject that concept.

Let me put the point in practical terms. Suppose you are a university seeking to adopt
programs that will increase racial diversity in your applicant pool or admitted students. Or
suppose you are a locality that is concerned about racial discrepancies in the rate of
COVID-19 vaccine uptake. Or suppose you are a hospital system worried about whether
a new algorithm you have introduced to reduce hospital readmissions is having a racially
discordant eﬀect. For the “system designers” charged with implementing such a program,
there are lots of diﬃcult political, ethical, and design questions. They might, perhaps naively,
have thought that there was at least one easier part—determining the race of the individuals
in the covered population—and that this was a purely descriptive, not normative, inquiry.
In fact, though, even this part is complex and quite normative. To illustrate, imagine
you are in charge of one of the programs discussed above and, to simplify, let us imagine
you are focused only on Black individuals. Which of the following should the program
consider “Black” for the purposes of its activities?

(cid:129) A child who appears to have the phenotypic features we associate with being
Black who is conceived through coital reproduction by a man and woman
who share those same phenotypic features, carried to term by the mother of
that couple, and raised by that couple.

(cid:129) A child who appears to have the phenotypic features we associate with being
Black who is conceived through coital reproduction by a man and woman

116

117

The phrase is often (but not always) ascribed to Rufus Miles and indeed is sometimes referred to as “Miles’s
Law.” Rufus Miles, The Origin and Meaning of Miles’ Law, 38 PUB. ADMIN. REV. 399, 399–402 (1978).
See, e.g., DOROTHY ROBERTS, KILLING THE BLACK BODY 59–70 (2d ed. 2017); Murray, supra note 89, at 2037–38;
Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709, 1737–41 (1993); Fred D. Ledley, Distinguishing
Genetics and Eugenics on the Basis of Fairness, 20 J. MED. ETHICS 157 (1994).

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who share those same phenotypic features and carried to term by the mother
of that couple but raised by adoptive parents who have the phenotypic features
we associate with being Caucasian.

(cid:129) A child who appears to have the phenotypic features we associate with being
white who is conceived through coital reproduction by a man and woman
who share those same phenotypic features and carried to term by the mother
of that couple but raised by adoptive parents who have the phenotypic features
we associate with being Black.

(cid:129) A child who has phenotypic features that could be associated with being white
or Black, who was told by her white Jewish rearing parents that her darker skin
is the result of her descending from a Sicilian Jew, but who discovers in her late
teens that in fact hers was a case of misattributed parternity and her white
Jewish mother had had an aﬀair with a Black man, her real genetic father.118

We can continue to introduce still more complex variations to each of these starting
cases. The parents whose gametes produce the child each have a set of phenotypic features
associated with a diﬀerent race, and the child’s phenotypic features more closely match
those we associate with one race or the other. The parents whose gametes produce the
child are themselves descendants of parents who each have a set of phenotypic features
associated with a diﬀerent race (i.e., the grandparents are each “mixed race” in the collo-
quial sense). A sperm or egg donor provides one of the gametes and that person has phe-
notypic features associated with a race that diﬀers from that of the rearing parents. A
surrogate is involved in carrying the child to term and her phenotypic features are asso-
ciated with a race that diﬀers from that of the rearing parents. We can also imagine cases
that mix all these fact patterns.119

118

119

This is the story of my Harvard Law School classmate Lacey Schwartz, as told in her wonderful documentary,
LITTLE WHITE LIE (2014).
For example, in one famous surrogacy case, two rearing parents acquired an embryo that was genetically unrelated
to either of them and implanted it into a surrogate, so there were in fact ﬁve diﬀerent individuals who could have
made some claim on parenthood. Buzzanca v. Buzzanca, 72 Cal. Rptr. 2d 280, 282 (Cal. Ct. App. 1998). Imagine
variations of this fact pattern where the various parties have diﬀerent phenotypic appearances we associate with
diﬀerent races, and the question is what race is the child for the purposes of a program? “Biogeographical ancestry”
testing also complicates this self-understanding, as Hochschild illustrates with an example from science writer Amy
Harmon about a “Black Power activist who discovered that she had no African ancestry on her father’s side” and
wonders, “What does this mean; who am I, then? For me to have a whole half of my identity to come back and say,
‘Sorry no African here,’ it doesn’t even matter what the other half says. It just negates it all. . . . It just doesn’t ﬁt, it
doesn’t feel right.” HOCHSCHILD, supra note 2, at 127. Because the databases upon which many of these tests
determine biogeographical ancestry are also changing over time, the results they provide may change too. One
can imagine this activist asking, “Was I Black yesterday but not today?”

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GENOMIC POLITICS AND EQUALITY

Once upon a time, there was an easier answer to cut through this complexity: we
embraced (perhaps not exclusively, perhaps not very self-reﬂectively) a genetic concept of
race, and when we said someone was “Black,” we understood ourselves to be saying they were
“genetically Black.” I am careful to say this construct made things “easier” and not “easy” for
these kinds of programs because even under this construct, one still had to determine when
someone was genetically “Black enough” in the case of mixed-race children.120 The concept
could never do all the work that was asked of it because even if “genetic race” was a real thing,
various programs and contexts of thinking about promoting racial equality were often
trading on diﬀerent concepts of race. But it was at least a helpful starter concept, if you will.
Like many fairy tales, this one depended on fantastic elements. The concept of genetic
race has been widely assailed as a scientiﬁc matter.121 What is so interesting about the time
period studied by Hochschild through her various methods of data collection is that it
captures both (1) a time period when the weight of scientiﬁc evidence against genetic race
became more prominent and (2) a time period when the public’s interest in genetic an-
cestry, and through it the concept of race as genetic, became more salient because of the
increased marketing of direct-to-consumer genetic testing.122 Hochschild explores both of
these phenomena and how they play out in her four quadrants in a recurring section she
refers to as “[b]iogeographical ancestry.” But this is a place where an ordinary strength of
the book—examining a recurring set of examples and how they are handled within her
four quadrants—gets a little in the way. What I would have really liked is a stand-alone
chapter, “The Genetic Concept of Race and Genomic Politics,” that pieced together
Hochschild’s ﬁndings and a bit more theory aimed directly at this question.

120

121

122

One can hear in the framing of the question the terrible historical echo of the “one-drop rule” and attempts by
the Census Bureau to distinguish various categories of people in the U.S. census by what “share” Black their
parentage was. See, e.g., David A. Hollinger, The One Drop Rule & the One Hate Rule, 134 DAEDALUS 18,
18–20 (2005).
There has been a lot of legal ink spilled making this exact point. For some examples, see generally DOROTHY
ROBERTS, FATAL INVENTION: HOW SCIENCE, POLITICS, AND BIG BUSINESS RE-CREATE RACE IN THE TWENTY-FIRST
CENTURY (2011); Kahn, supra note 2; Trina Jones & Jessica L. Roberts, Genetic Race? DNA Ancestry Tests,
Racial Identity, and the Law, 120 COLUM. L. REV. 1929 (2020).
The infamous moment when my former colleague Senator Elizabeth Warren accepted President Trump’s
challenge to take a DNA ancestry test and prove her native ancestry captures better than most the toxic
mixing of politics, genetic conceptions of race and ancestry, and direct-to-consumer testing. See Masha
Gessen, Elizabeth Warren Falls for Trump’s Trap—and Promotes Insidious Ideas About Race and DNA, NEW
YORKER (Oct. 16, 2018), https://www.newyorker.com/news/our-columnists/elizabeth-warren-falls-for-trumps
-trap-and-promotes-insidious-ideas-about-race-and-dna; Tucker Higgins, Trump Said He Would Give $1
Million to Charity If Elizabeth Warren Took a DNA Test. Now She Wants Him to Pay Up, CNBC (Oct. 15,
2018, 10:38 AM), https://www.cnbc.com/2018/10/15/elizabeth-warren-dna-test-she-urges-trump-to-fulﬁll-1
-million-charity-pledge.html. The genetic concept of race, as Jonathan Kahn has noted, is also tied in a
complex way to the funding and enthusiasm for precision medicine, including by the U.S. government. See
generally Jonathan Kahn, Precision Medicine and the Resurgence of Race in Genomic Medicine, in CONSUMER
GENETIC TECHNOLOGIES 186, supra note 3.

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Some of this imagined chapter can be backﬁlled by what she does include in the book,
but not perfectly. One general problem is that in her chapters, there is some sliding be-
tween the concept of ancestry and the concept of race as a genetic matter. The two are
related but distinct. One could imagine a world where ancestry in the sense of a family tree
was extremely salient but race’s connection to that genetic inheritance was not—think of
more phenotypically homogenous places, for example, where ancestry remains important
even when individuals understand themselves to be part of the same race.

Part of what is tricky is that when she describes the views of the members of the four
quadrants on “[b]iogeographical ancestry,” we see exactly this slipping between race and
ancestry; within the quadrants you ﬁnd a mix of people drawing the distinction, failing to
draw the distinction, and viewing the failure to draw the distinction as a big part of the
problem. For the Enthusiasts, we are told that “DNA ancestry testing is a democratizing
force, enabling groups whose ancestry is lost to history—descendants of enslaved Africans,
White indentured servants, Jews ﬂeeing pogroms, Chinese contract railroad workers, exiled
Native Americans—to access the kind of history previously available mainly to Daughters
of the American Revolution or Sons of the Confederacy.”123 We are introduced to a re-
searcher who points to marked diﬀerences between racial and ethnic groups in response
to asthma therapies and who maintains that “[r]acial/ethnic diﬀerences in drug response
are partially explained by genetic diﬀerences.”124 And we also have quotes from those who
describe their own “research on racial diﬀerences in drug response as ‘a space holder till we
can actually look at individuals.’”125 In general, to this reader, it feels like even the Enthu-
siasts are more tempered in their excitement compared to other topics in the book.
The Skeptics, by contrast, have their knives very much out for this research:

Geneticists Robert Green and Adam Rutherford protest that companies such as
23andMe and African Ancestry are “asking people to pay for something that is at
best trivial and at worst astrology,” since there is no “agreed-upon approach to pick
the right number of markers and combine them mathematically. Everyone is sort of
just making it up as they go along.” . . .

A deeper concern than misleading customers or relieving them of extra cash is that
associating conventionally understood racial or ethnic groups with the purported sci-
ence of genetic inheritance risks being a “backdoor to eugenics,” in the words of so-
ciologist Troy Duster’s classic book. Ann Morning fears that DNA ancestry testing
could revive the nineteenth century’s supposed racial science, since it is “a modern
version of what early scientists were doing in terms of their studies of skulls or blood

123
124
125

HOCHSCHILD, supra note 2, at 93.
Id.
Id. at 94.

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GENOMIC POLITICS AND EQUALITY

type. We have a long history of turning to whatever we think is the most authorita-
tive sense of knowledge and expecting to ﬁnd race proved or demonstrated there.”
Especially among people who know little about genetics, DNA ancestry tests may
“promote an essentialist view of race as ﬁxed and determining innate abilities,” ac-
cording to yet another sociologist, Wendy Roth, and her colleagues. . . .

Even if they do not extend as far as eugenics or phrenology, genetic ancestry tests re-
inforce contemporary group hierarchies, according to Skeptics. Self-identiﬁed White
supremacists use DNA ancestry testing to prove, or if necessary invent, their racial
(and non-Jewish) purity. Roth and her coauthor worry that genetic ancestry testing
“reinforces their [test-takers’] White privilege” since it oﬀers supposed proof of racial
identity in a “symbolic, optional form, removed from structural inequalities.”126

But it is the way that Hochschild characterizes the Hope quadrant on this issue that I
think most convinces me that her usual four-quadrant approach may get in the way more
than help. She writes:

The clearest manifestation of Hope in this arena is the goal of turning DNA ancestry
testing into a lever for destroying the whole idea of ﬁxed racial categories. In this
view, the genuine phenomenon of ancestral heritage can be used to put an end to
the false concept of race. Geneticist Charles Rotimi is carefully optimistic: “The
potential exists to describe simultaneously our similarities and diﬀerences without
reaﬃrming old prejudices.”127

One way of characterizing this take is that we see a group that is hopeful about genetic
ancestry but a Skeptic or perhaps a Rejecter of race as genetic. It would be helpful to see this idea
more developed and the two diﬀerent potential attitudes among the Hopeful more untangled.
Even among Hochschild’s characterization of Rejecters, it is the race element, and the

connection of tests about ancestry to race, that seems to draw the most ﬁre:

Rejecters have a simple view of DNA ancestry testing: the tests mislead customers be-
cause there is little to no genetic inﬂuence on “race.” Although direct-to-consumer test-
ing companies never claim to be identifying a person’s race, that inference is easily
drawn. At a collective level, the temptation of “deﬁning identity in genetic terms,” as
law professor Dorothy Roberts writes, “creates a biological essentialism that is antithet-
ical to the shared political values that should form the basis for unity . . . [and that are]
needed to ﬁght racial oppression.” At an individual level, Duster and legal scholar Pilar

126
127

Id. at 109–11.
Id. at 122.

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Ossorio warn that ancestry test results “at odds with a person’s self-identiﬁed or attrib-
uted race” can cause real pain. Science writer Amy Harmon describes the reaction of a
former Black Power activist who discovered that she had no African ancestry on her
father’s side: “What does this mean; who am I, then? For me to have a whole half of my
identity to come back and say, ‘Sorry, no African here,’ it doesn’t even matter what the
other half says. It just negates it all. . . . It doesn’t ﬁt, it doesn’t feel right.”128

When we get to the section of chapter 7 where Hochschild examines the attributions of
Americans to genetic inﬂuence by trait, it is interesting that she and her colleagues did not
seek to measure how much average Americans view race as “all or most to do with genes”
versus “all or most to do with environment or lifestyle,” to use the scale she introduces for
other traits.129 My prior is that Americans would tilt heavily in the former category,
whereas much of the work on race as a genetic concept discussed above seeks to disprove
exactly this viewpoint. I would have loved the book to have had more of an opportunity to
either substantiate, disprove, or complicate my prior on this issue and then examine what
this discordance between what the public believes and what the scientists claim is true
should mean. The latter half of chapter 7 considers the free-text explanations of her survey
takers’ responses on the medical and forensic biobanks but not the direct-to-consumer
testing or “[b]iogeographical ancestry” topic, so we do not get a real sense of where her
respondents stand on these issues.

In chapter 8, Hochschild looks at comparisons between Republicans and Democrats
and Blacks and whites on a series of topics as to their optimism. While she does examine
to what extent Blacks130 and whites diﬀer on several genomic political issues, what is

128
129

130

Id. at 126–27.
Id. at 157–61. In their genetic knowledge tests, they do ask “how similar genes are between Black and White
humans” and ﬁnd that “[f]orty-four percent answered correctly that ‘more than half ’ of a White person’s genes
are identical to those of a Black person (alternative choices were ‘about half ’ and ‘less than half ’).” Id. at 156. This is
some indirect evidence regarding what Americans think about the genetic-versus-nongenetic contribution to race.
But there is a gap between asking someone to estimate how much genetic material two groups share and asking
them whether the divergence between the two groups is responsible for perceived diﬀerences between the two
groups; all the more so in an instance where most Americans are incorrect about the answer to the ﬁrst question.
In this section of the book, Hochschild primarily uses “Blacks” as a noun rather than “African Americans,” and I
follow her in this usage. The question is somewhat fraught, and there remains a lack of perfect consensus on
when to use “Black” or “Blacks” as a noun versus adjective. See, e.g., Dylan Byers, ‘An African American’, or ‘a
Black’?, POLITICO (Apr. 3, 2013), https://www.politico.com/blogs/media/2013/04/an-african-american-or-a-black
-160773; Throughline, Nikole Hannah-Jones and the Country We Have, NPR (Nov. 18, 2021, 12:01 EST)
(transcript), https://www.npr.org/transcripts/1056618320 (noting that in the 1619 project, “one of the things I
did early on was I created a guide on language, so the language would be uniform. . . . We don’t use blacks as a
noun.”). The issue is even more complicated given my point in this section of my review that there may be gaps
between the phenotype that is perceived as Black and the “[b]iogeographical ancestry” of the person such that
“African American” would exacerbate the problem. It may be that “Black people” would be better throughout,
but I will track Hochschild’s language, which is primarily “Blacks.”

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missing is an examination of to what extent the groups hold diﬀerent views on whether race
is a cogent genomic category or not. The closest we get to looking at race as a genetic con-
cept is on her question for respondents whether medical genomics focused on “[r]acially-
inﬂected genetic disease” provides “more harm than good,” meant to tie back to the BiDil
example.131 She characterizes her results as showing few partisan diﬀerences overall on
topics and ﬁnds relatively little diﬀerence between Blacks and whites on these topics, al-
though more in 2017 than in 2011. Sight reading from her bar graphs, I see a more pro-
nounced gap between whites and Blacks as to “[r]acially-inﬂected genetic disease” as
opposed to “[i]ndividual genetic disease”—both groups become more supportive as to both
from 2011 to 2017, but whites grow in their support much more than Blacks do as to the
“[r]acially-inﬂected genetic disease” category.132 This is the kind of ﬁnding that caught my
eye, but is hard to interpret: did Black respondents become more skeptical than white re-
spondents of the association between race, genetics, and medicine in this time period? Did
whites become more concerned about access to healthcare for Black Americans during this
period? Is this ﬁnding just noise in the data? Is it reﬂecting something else entirely?

While the ﬁrst half of the book does a nice job of explaining the major positions on
race as a genetic concept, this thread gets overtaken in the latter half of the book by other
topics. This is a shame, since it would be really useful to examine the role of race as a
genetic concept for genomic politics as well as the pursuit of equality. I would love to
see Hochschild use the same techniques she does in this book to answer questions like
these: What does the American public think about the idea of race as a genetic concept?
Are there big diﬀerences in attitudes between diﬀerent racial groups as to this topic? Are
there partisan diﬀerences? Age diﬀerences? What relationship is there between positions
on this question and genetic knowledge? How much do attitudes toward the genetic na-
ture of race correspond to attitudes on the BiDil case, forensic DNA databases, etc.?

For the non–social scientist, I think the most provocative question is this: what role
does the genetic conception of race play in attempts to promote equality in the United
States? If, as many believe, the concept of genetic race is scientiﬁc fool’s gold, does it rep-
resent a “noble lie” that leads to policies that promote equality or an “ignoble lie” that fails
both in candor and in promoting equality? Is there a world where the question of whether
the genetic concept of race is valid could itself become a political question? One interesting
analogue is the way the politics around anti-discrimination law protecting lesbians and gays
and even gay marriage has traded on claims around the genetic basis for homosexuality.133

131
132
133

Id. at 202–04.
Id. at 204.
For a good discussion of the intersecting conceptual, scientiﬁc, and political impulses here, see EDWARD STEIN,
THE MISMEASURE OF DESIRE: THE SCIENCE, THEORY, AND ETHICS OF SEXUAL ORIENTATION (1999).

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This is a terriﬁc book. It is the kind of book where you think, “Wow, I have had so
many conversations on this topic without stopping to think about what the data look like.”
It is also a model of zeroing in on a question through many diﬀerent social science
methods. While her four quadrants are helpful, they rarely feel procrustean; Hochschild
renders the world in all its complexity. For those most interested in law and inequality,
there are deﬁnitely more questions, but this book lets us frame them and think about how
a scholar of Hochschild’s caliber might pursue them.

133

For a good discussion of the intersecting conceptual, scientiﬁc, and political impulses here, see EDWARD STEIN,
THE MISMEASURE OF DESIRE: THE SCIENCE, THEORY, AND ETHICS OF SEXUAL ORIENTATION (1999).

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