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If there is anyone in favor of genetic discrimination, the newspapers have been unable to find him or her. With biotech hurtling toward discoveries like the gene for ingrown toenails, or the gene for preferring Fox News over CNN, there seems to be unanimous agreement that what we are able to learn about people’s genes should not be held against them. The fear is that employers will pass you over if they find out you have, for example, a predisposition to early onset Alzheimer’s. Or insurance companies will charge you more if a genetic test shows you’re more likely than average to have a heart attack.
Most states already have some kind of ban on genetic discrimination in health insurance, and a few ban discrimination in hiring as well. In February, President Clinton signed an executive order forbidding discrimination based on genetic tests by the federal government, and he urged Congress to pass a law applying that principle to private employers. Senate Republican leader Trent Lott’s only public objection was that Congress already has a full agenda. The National Association of Manufacturers said a law forbidding genetic discrimination is unnecessary because the abuse is so rare.
It’s wonderful how everyone agrees (or fears to disagree) that genetic discrimination is a bad thing. Your genes are beyond your control. Why should you be punished for them? Unfortunately, genetic discrimination is universal, inevitable and, in some ways, essential. Leaving aside the hot issue of intelligence, consider clearly genetic traits such as musical or athletic talent. Practice, practice will get you to Carnegie Hall, but only if you’re born on the right bus. The notion of not discriminating on the basis of inborn talent is not even an abstract ideal. The world would be a poorer place if it did not distinguish between me and Yo-Yo Ma in doling out opportunities to be a concert cellist.
As we learn more about the human genome, we’ll learn that more and more of the traits we reward have a genetic component. Martin Luther King Jr. said we should all be judged on “the content of our character.” But if a disposition to hard work or courage or creative imagination turns out to have a large genetic component, should we still judge people based on these qualities? Then, too, the world discriminates on the basis of clearly genetic traits, such as physical beauty, that are irrelevant in most circumstances. Occasionally, some zealot proposes to ban this kind of discrimination, too. But it will never happen.
So what is the limiting principle on banning genetic discrimination? Where do we stop? Right now, the universal consensus makes a distinction between the results of genetic tests and genetic traits that reveal themselves in some other way. It seems unfair and arbitrary that your fate in life should be determined in any important way by what a drop of your blood reveals under a microscope. But logically, there is no difference between this and letting your fate be determined by how tall or musically gifted you are. A Juilliard tryout is, in part, a genetic test. If there were a blood test for musical talent, as there may be some day, it would do the same thing more efficiently. A blood test might even be fairer than the crude substitutes we use instead to judge and choose among people: It would zero in on the trait we really need to discriminate about and reduce discrimination on the basis of traits that are irrelevant.
Some people say the danger is that genetic testing will encourage irrelevant discrimination. Employers will overreact and refuse to hire you even though your actual likelihood of getting Alzheimer’s before your retirement is minuscule. But discrimination by mistake will often bring its own punishment, like any business misjudgment. The real problem is discrimination that makes perfect sense. A health insurer is not crazy or stupid to want to keep people out of its insurance pool if they’re more likely to get sick. Nor is the company evil to do this if the law allows it. The idea of insurance is to protect against unpredictable costs. Ignoring predictable costs, when your competitors aren’t required to do the same, is a recipe for bankruptcy.
Then there’s the distinction between discrimination based on having a genetic condition and discrimination based on merely having a predisposition toward a condition. It’s a distinction, all right, but which one is supposed to be worse? President Clinton’s executive order forbids discrimination based on a predisposition but allows the government in some circumstances to use the results of tests that reveal actual health conditions. The Americans With Disabilities Act, by contrast, clearly applies to actual conditions but may or may not forbid discrimination based on a predisposition. The confusion is understandable because the distinction makes no sense. Why is it worse—or better—to punish someone whose genes have betrayed her than someone whose genes are likely to betray her?
So this ban on genetic discrimination that everyone seems to be for would, if applied consistently, be an exercise in social leveling like nothing since the Khmer Rouge turned Cambodia into Kampuchea. That seems to leave only two logically coherent positions, both intolerable: 1) level away; or 2) don’t start down this road, because there’s no place to stop.
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