TCS Daily

President for Life?

By Nick Schulz - April 12, 2002 12:00 AM

The debate over human cloning stepped up a notch this week as President Bush pushed for a complete ban on human cloning.

At issue are two separate but related procedures -- reproductive cloning and research (a.k.a. therapeutic) cloning. President Bush summarized the differences nicely: "Reproductive cloning involves creating a cloned embryo and implanting it into a woman with the goal of creating a child... Research cloning, on the other hand, involves the creation of cloned human embryos which are then destroyed to derive stem cells." The President is against both types of cloning and the ban he is urging Congress to pass would prohibit both kinds.

The President's remarks, crafted by one of his ablest speechwriters, were thoughtful and at times poignant. But there was little new in it. And that's a potential problem for the President, because the further he goes without addressing some fundamental questions, the further confused his position will get.

The Kass Influence

In reasoning his way to his position, Bush drew heavily from the writing and thinking of Leon Kass. For example, one bill under consideration in Congress would prohibit reproductive cloning but allow research cloning. But Bush said this measure, supported by many Senate Democrats, doesn't go far enough because "a law permitting research cloning, while forbidding the birth of a cloned child, would require the destruction of nascent human life." Kass argued the same point in a much discussed piece in The New Republic a little under a year ago, saying a partial ban -- placing "the federal government in the position of demanding the destruction of nascent life" -- would be unacceptable.

Bush established earlier in the speech that "nearly every American agrees that [reproductive cloning] should be banned." The President then argued his belief that research cloning would inevitably lead to reproductive cloning, and since reproductive cloning should be banned, all cloning should be banned. "Anything other than a total ban on human cloning would be virtually impossible to enforce," he said. This argument, too, was advanced in the Kass article.

But Bush failed to address explicitly some key issues, having to do with the moral status of embryonic life. These issues need to be addressed since they get to the very heart of the debate over cloning and they will determine if any ban can withstand judicial scrutiny.

Pro-Life = Anti-Cloning

In an important article in National Review, Ramesh Ponnuru summarized the issues at play succinctly. Research cloning will create embryos for the purpose of deriving stem cells. "The embryos from which stem cells are taken," Ponnuru says, "are human beings; and... since taking the stem cells destroys the embryos, the act is homicidal in the same sense as killing a baby."

Ponnuru also writes: "Conception, or the simulation thereof that is cloning, creates a new human being: A self-contained organism, not a part of another human being like a sperm or egg cell. This being is valuable simply because it is a human being and not because of any traits -- sentience, hair, the ability to protect itself -- that it happens to possess. It is a person from the first moment, rather than a mere body that becomes inhabited by a person as it develops. You were once an embryonic human person. To kill that embryonic person would have been to kill you -- an unjust act then, as it would be now, and an act that should be illegal then as now, no matter what benefits might come from it."

Now, that is as clear, cogent and thorough an articulation of the traditional pro-life position as can be found anywhere. It also happens to be, in my estimation, the only good argument against research cloning. To say that it is the only good argument is not to suggest that it's not a powerful argument -- on the contrary. But all the other arguments against research cloning (the wisdom of repugnance, precautionary arguments, etc.) contain too many internal contradictions and stumbling blocks. Or, when examined and peeled back, ultimately rest on the traditional pro-life position.

So if the pro-life argument against cloning is the strongest one available, why didn't Bush, an avowed pro-lifer, make it in his speech? There are two likely explanations. The first would be that the President doesn't really agree with the traditional pro-life position. That would be unfortunate for the public debate, if for no other reason than any serious opposition to cloning must surely rest on some iteration of this view.

The other explanation, and the more likely one, is that the President understands the political and legal problem he faces by pushing a ban. How so? For better or worse, the laws of the United States flout the traditional pro-life position explicitly. Our abortion laws and our laws regulating reproductive procedures such as in vitro fertilization (IVF) all minimize the relative moral status of embryos and thus allow for the destruction of embryos. Now, if it's true that the only persuasive case for banning therapeutic cloning rests on some variation of the traditional pro-life position, then a total ban on cloning would -- implicitly if not explicitly -- elevate the moral and legal status of embryos beyond their current position.

In Trouble With the Law

The President's push for a ban faces a considerable uphill battle. For starters, it's unclear at this stage that a ban properly falls under federal jurisdiction. Law professor Glenn Reynolds (writing with David Kopel) has pointed out in some detail the potential constitutional problems.

Reynolds is sympathetic to the federalist position on these matters and is in favor of allowing therapeutic cloning to proceed unencumbered. So I talked to another federalist, Michael Greve, who is Roman Catholic and has serious reservations about research cloning, to see what he thought of the constitutionality of a ban.

Greve, a highly respected constitutional scholar and the author of "Real Federalism: Why It Matters, How It Could Happen," says there are two constitutional grounds upon which a ban could be justified. The first is the Commerce Clause. The second is, conceivably, the 14th Amendment.

Greve says that regulating cloning under the Commerce Clause is problematic after the U.S. v. Morrison and Jones v. United States cases and he says he doesn't "buy the Commerce Clause justification," anyway.

"On the 14th Amendment theory," he says, "you'd have to argue that the ban is a proportionate and congruent means to protecting human life. You'd also have to argue that you're regulating states rather than private parties. That's a difficult argument."

But Greve then goes on to say, "To my mind, the debate about human life, not some Commerce Clause charade, is the debate we ought to have."

And on this last point, certainly, Greve's right. The debate about human life is the one we ought to have. The President had an opportunity to flesh out precisely the grounds for his opposition to research cloning. He failed to do so, and in that failure missed an opportunity to push the cloning debate where it needs to be -- and where it ultimately, whether he wants it to or not, is heading.

Fodder's Nuptials -- I'll be away for the next few weeks as I get married and go on my honeymoon. My beautiful bride and I will be heading to Andalusia in Spain. Talk to you all in a few weeks.

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