Huntington’s is a neurodegenerative genetic disease that typically presents between age 30 and 50, but can have earlier or later onset. Unlike most genetic tests, the test for Huntington’s is highly predictive—a positive result almost always leads to the individual developing the disease.

Candidates already have to disclose quite a bit of private financial data in order to receive federal campaign funds.

Before causing death, Huntington’s disease leads to progressive impairment of important cognitive functions, such as reasoning, planning, and abstract thinking. If it were deemed sufficiently in the public interest for voters to have this information, Congress, through the Federal Election Commission, could require genetic testing for Huntington’s disease as a condition of receiving federal funds.

The constitutionality of such mandatory health screening has never been directly challenged, but we do have some applicable legal doctrines. Candidates already have to disclose quite a bit of private financial data in order to receive federal campaign funds. And the definition of “employee” under many nondiscrimination statutes (including the Genetic Information Non-Discrimination Act) does not include candidates for public office.[1] Voting is inherently discriminatory.

The flip side, however, is detailed in Chandler v. Miller, where the Supreme Court held that mandatory drug testing of gubernatorial candidates was against the Fourth Amendment, as the public interest to be served was not strong enough to counter the warrantless, suspicionless “search” of the candidate’s urine.[2] And finally, the disclosure of a candidate’s health details may be protected even where the information is surreptitiously obtained, as the First Amendment protection on political speech is incredibly strong.

What’s more, if genetic testing companies are allowed to continue marketing their services directly to consumers without involving a physician, then the possibility of a candidate’s genetic information being leaked to the press becomes even more real. Journalists could obtain discarded genetic samples from the candidates, and then have them tested and publish the results without the candidate’s consent.

But none of this answers the question of whether the government should require some form of genetic testing. There are a couple of reasons to argue in favor of testing for neurological conditions such as Huntington’s. First, there may be no signs of impaired cognitive functioning during a presidential campaign. Second, once the candidate is elected, there is little assurance that power will be transferred appropriately if the candidate’s mental or physical health slowly deteriorates. The Twenty-Fifth Amendment provides for the transfer of power to the vice president if the president becomes unable to discharge his duties.[3] But the amendment was written with dramatic (and obvious) gunshot wounds or heart failure in mind. It does not specify what threshold of disability should be met to trigger succession, and as such it has perhaps not been invoked when it ought to have been.

There are also countervailing arguments against the genetic testing of presidential candidates for other devastating diseases. For starters, most genetic disorders such as Alzheimer’s disease are not caused by a single gene and often result from a complex interaction of genetic and environmental factors. In many cases genetic tests can therefore only predict a modest increase in the risk of developing a trait; information that may be interesting to voters, but not very useful for predicting a candidate’s future health. Second, requiring even more intrusion into the candidate’s personal life could make the job so unattractive that only sadists would apply. Third, mandatory genetic testing might reinforce the false notion that candidates need to be in perfect health in order to effectively govern.

And how should we decide what is included in the genetic test? Should the candidate be tested only for Huntington’s disease, or for every possible neurological disorder, regardless of the test’s validity? Should we only test for those diseases that are highly likely to severely affect cognitive function? Wherever the line is drawn, the battery will likely be both under- and over-inclusive.

Another problem with mandatory genetic testing is that the results would affect the candidate’s relatives. Unlike the candidate, his or her children and siblings did not volunteer to be public figures, and they would find something out about their risk of inheriting certain diseases that they might prefer not to know. This is particularly troublesome as the suicide rate among adolescents who possess the Huntington’s gene is alarmingly high.

In the absence of clear procedures for the transfer of power, however, perhaps there ought to be better information shared with voters about the candidates’ health. This may become less problematic as genetic testing becomes more and more common and our public understanding of genetics improves. Regardless, any mandatory disclosure scheme should make sure that the privacy rights of the candidate’s family are protected somehow, and that the information is ultimately disclosed through a panel of bipartisan clinicians.

Or perhaps not. We might decide that an individual’s medical records are categorically different from financial information or religious beliefs. Maybe health information constitutes the last bubble of privacy that as a society we ought not to pierce. But even though the arguments for keeping the status quo are incredibly strong, without mandatory disclosure the candidates will continue to cooperate under this unusual “prisoner’s dilemma” and do what is in their best interest: keep quiet. But in the coming Genetic Age of the 21st century, this precedent may not adequately protect what is in the public interest.

Teneille Brown, JD, is a Postdoctoral Fellow at the Stanford Center for Biomedical Ethics

Notes

[1] 42 U.S.C.A. § 2000ff (2008)

[2] Chandler v. Miller, 520 U.S. 305, 309 (1997)

[3] U.S. Const. amend. XXV, § 1