Genetic Discrimination: Unfair or Natural?

By Michael Kinsley

Last week, with little attention or fanfare, the U.S. House of Representatives voted 414 to 1 to outlaw genetic discrimination. The only dissenter was the irascible libertarian Ron Paul. The Senate passed the same bill unanimously, and President Bush is ready to sign it. The bill tells employers and insurance companies that they may not use the results of genetic tests in choosing their employees and customers. One purpose of the bill is to encourage genetic testing. But the more important reason for it is to uphold a sense of fairness. Just as the law forbids discrimination against a person because she is black or a woman, it will henceforth forbid discrimination against her because she carries a gene that makes her more likely than average to get cancer. And the logic is similar: Why should she be punished for something completely beyond her control?

That's a good instinct, and this new weapon in the arsenal of equality is a good thing. But how far should we take it? This law forbids the use of genetic information garnered in blood tests. But your genes affect your life in many ways. To avoid all the controversy around the concept of "intelligence," let's consider a slightly different concept called "talent." Is it unfair that Yo-Yo Ma can play cello better than I can? Or that people hire Frank Gehry instead of me when they want a beautiful building, or that Warren Buffett is a better stock picker? Sure, it's unfair. And it's unfair in precisely the same way the results of a genetic test are: my lack of talent at playing the cello is something I was born with and beyond my control. Could I have overcome my lack of talent through discipline and hard work? Maybe, but not enough to scare Yo-Yo. In fact, picking stocks or trying to play the cello is a genetic test, to some extent. It's just one that doesn't require the drawing of blood. But we can't outlaw discrimination on the basis of talent. We don't want to. Discrimination in favor of talent--rewarding a talented cellist over a lousy one--is how we get talent to express itself.

As writers like Richard Dawkins (The Selfish Gene) and Robert Wright (The Moral Animal) have taught us, it is hard to draw the line between aspects of the human condition that are genetically determined and aspects that are the result of free will. The science of evolutionary psychology can explain why you work hard and how you developed the talent for glad-handing that has served you so well. Even these behaviors are in your genes, just like a predisposition to develop cancer.

The question is usually put as one of nature vs. nurture. But there is not much difference between nature and nurture when it comes to fairness. Maybe your parents passed on great genes, or they passed on a few million dollars, or they were just terrific people who taught you the values of thrift and hard work. Even in the case of thrift and hard work, how much credit do you deserve for inheriting those fine values? How is it different from inheriting good genes? Answer: it's not much different.

The very appealing notion that genetic discrimination is unfair looks especially odd in the context of insurance. The idea of insurance is to protect against the unexpected or unlikely. Forbidding insurers to take predictable risks into account when choosing whom to insure and how much to charge is asking them to behave irrationally and make bets they are sure to lose. Not insuring people who are likely to get cancer, or charging them more, isn't evil. It's rational behavior. Of course, we outlaw a lot of behavior that would be rational if it weren't against the law. But the skeptics who say this is a step on the way to universal health care actually understate the case. To truly apply the appealing principle that people should not be discriminated against because of their genes would be a leveling experiment, like something out of Stalinist Russia or China's Cultural Revolution.

Of course, there is no reason we have to follow an appealing principle off a cliff. We can have a bit of genetic justice without much risk of tumbling into Stalinism. The same politicians who voted last week to forbid genetic discrimination, because they apparently believe you should not gain any advantage or suffer any disadvantage as a result of the genes you inherit from your parents, have also voted to abolish the estate tax, because they apparently believe there should be no limit whatsoever on how much money you can inherit. Go figure.

Nevertheless, the near total and uncontroversial agreement among Americans that genetic discrimination is wrong says something important about us: we may be a bit confused about all this, but we are a lot more radical about equality than we think.