Amendment 2 Ban on Implantation Will Be Struck Down Once Embryos Are Created
This Viewpoint Appeared in the St. Louis Review, Nov. 3, 2006
by Fr. Edward J. Richard, MS
The State of Missouri could create a constitutional quagmire for itself out of the issue of embryonic stem cell research if Amendment 2 is approved by voters. Beyond the complexities of the science and the ethics of the controversial research, much debated in the news, there are legal issues that will spawn costly litigation unless the amendment is defeated.
One of the major legal issues arises from the curious definition of cloning in Amendment 2. That definition and its enforcement in criminal matters could place Missouri in conflict with the 14th Amendment of the U. S. Constitution.
To be sure, there appears to be no right to clone oneself in the U.S. Constitution. But what happens when human embryos are created by the scientific technique protected by the amendment? Will Missouri be capable of preventing pregnancy from these embryos? The state plans to make such a pregnancy a crime. In the amendment, cloning is defined as “to implant in a uterus” one of these embryos. Those who produce the cloned human embryos in the first place go free.
The Due Process Clause of the 14th Amendment to the U. S. Constitution prohibits states from unduly interfering with certain fundamental liberties of individuals, an area of constitutional law called “substantive due process.” The Equal Protection Clause of the same amendment prevents states from discriminating among citizens or groups of citizens especially when dealing with a fundamental right. The justices of the U. S. Supreme Court have exercised much juridical muscle dealing with these doctrines. Chief among the rights covered by the Due Process and Equal Protection clauses is the fundamental right of privacy, particularly privacy in the highly personal area of child-bearing.
Amendment 2 protects the right to use SCNT (somatic cell nuclear transfer) to produce blastocysts, the name for the embryos in the amendment, for research. The amendment does not classify these embryos as clones. But any attempt at achieving a pregnancy by implanting those human blastocysts will be considered a criminal act of attempted cloning of a human being. It becomes a criminal act of cloning when pregnancy results.
In their definition of cloning the drafters of the amendment ignored something more important in social policy than the need to conduct research, that being the constitutional right of individual privacy. “To implant” in the process of a developing pregnancy is an action which occurs to and in the body of a woman.
One wonders whether the amendment would sound remotely reasonable if the amendment defined cloning as “to become pregnant” instead of the euphemistic phrase, “to implant in a uterus.” Note that the definition cleverly avoids mentioning the personhood of the woman. The amendment employs the same language one uses for livestock breeding in speaking of the bodies of women and would enshrine that misconception in the constitution.
In U. S. law, the question of child-bearing, particularly in the early stages of fetal development, is a matter of the fundamental and personal right of privacy for the woman, not the researchers. And the proposed amendment notwithstanding, a woman is not just a uterus.
When a state interferes with the exercise of a fundamental right, the courts employ strict scrutiny in reviewing the state’s law. In order for the law to pass this kind of appraisal, the state must demonstrate that its law is necessary for promoting a compelling state interest and that there are no other means for achieving that interest.
Missouri will have difficulty meeting the court’s scrutiny. There is no stated rationale in the proposed amendment which provides any basis, much less a compelling one, for prosecuting child-bearing using human embryos created under the protection of Amendment 2. To make matters worse for the state’s case, it is a matter of public record that the state’s governor and other proponents of the amendment hold that the embryos produced by SCNT are not human clones.
In the end, this double-talk means that the provision in Amendment 2 which prohibits implantation of SCNT embryos is almost certainly invalid under the U. S. Constitution. That being the case, the most significant restriction in the amendment, the criminal ban on pregnancy, will be struck down by a federal court.
Beyond the privacy issue at implantation, another question remains which the amendment does not address. If a pregnancy ensues from SCNT, what will the state do to the woman and her baby?
Missouri is right to seek to ban all human cloning and should be able to do it by banning the process that produces cloned human embryos in the first place. Six states, Arkansas, Iowa, Michigan, North Dakota, South Dakota and Virginia have already done so. A number of countries, including France, Germany and Canada have passed bans on all forms of human cloning. The United Nations has called for bans around the globe. But if Missouri is going to be successful in banning cloning, it cannot do so by denying some individuals their fundamental rights while allowing one industry the liberty to clone human embryos for research. Amendment 2 does not pass that test and should be defeated on November 7.
by Fr. Edward J. Richard, MS
The State of Missouri could create a constitutional quagmire for itself out of the issue of embryonic stem cell research if Amendment 2 is approved by voters. Beyond the complexities of the science and the ethics of the controversial research, much debated in the news, there are legal issues that will spawn costly litigation unless the amendment is defeated.
One of the major legal issues arises from the curious definition of cloning in Amendment 2. That definition and its enforcement in criminal matters could place Missouri in conflict with the 14th Amendment of the U. S. Constitution.
To be sure, there appears to be no right to clone oneself in the U.S. Constitution. But what happens when human embryos are created by the scientific technique protected by the amendment? Will Missouri be capable of preventing pregnancy from these embryos? The state plans to make such a pregnancy a crime. In the amendment, cloning is defined as “to implant in a uterus” one of these embryos. Those who produce the cloned human embryos in the first place go free.
The Due Process Clause of the 14th Amendment to the U. S. Constitution prohibits states from unduly interfering with certain fundamental liberties of individuals, an area of constitutional law called “substantive due process.” The Equal Protection Clause of the same amendment prevents states from discriminating among citizens or groups of citizens especially when dealing with a fundamental right. The justices of the U. S. Supreme Court have exercised much juridical muscle dealing with these doctrines. Chief among the rights covered by the Due Process and Equal Protection clauses is the fundamental right of privacy, particularly privacy in the highly personal area of child-bearing.
Amendment 2 protects the right to use SCNT (somatic cell nuclear transfer) to produce blastocysts, the name for the embryos in the amendment, for research. The amendment does not classify these embryos as clones. But any attempt at achieving a pregnancy by implanting those human blastocysts will be considered a criminal act of attempted cloning of a human being. It becomes a criminal act of cloning when pregnancy results.
In their definition of cloning the drafters of the amendment ignored something more important in social policy than the need to conduct research, that being the constitutional right of individual privacy. “To implant” in the process of a developing pregnancy is an action which occurs to and in the body of a woman.
One wonders whether the amendment would sound remotely reasonable if the amendment defined cloning as “to become pregnant” instead of the euphemistic phrase, “to implant in a uterus.” Note that the definition cleverly avoids mentioning the personhood of the woman. The amendment employs the same language one uses for livestock breeding in speaking of the bodies of women and would enshrine that misconception in the constitution.
In U. S. law, the question of child-bearing, particularly in the early stages of fetal development, is a matter of the fundamental and personal right of privacy for the woman, not the researchers. And the proposed amendment notwithstanding, a woman is not just a uterus.
When a state interferes with the exercise of a fundamental right, the courts employ strict scrutiny in reviewing the state’s law. In order for the law to pass this kind of appraisal, the state must demonstrate that its law is necessary for promoting a compelling state interest and that there are no other means for achieving that interest.
Missouri will have difficulty meeting the court’s scrutiny. There is no stated rationale in the proposed amendment which provides any basis, much less a compelling one, for prosecuting child-bearing using human embryos created under the protection of Amendment 2. To make matters worse for the state’s case, it is a matter of public record that the state’s governor and other proponents of the amendment hold that the embryos produced by SCNT are not human clones.
In the end, this double-talk means that the provision in Amendment 2 which prohibits implantation of SCNT embryos is almost certainly invalid under the U. S. Constitution. That being the case, the most significant restriction in the amendment, the criminal ban on pregnancy, will be struck down by a federal court.
Beyond the privacy issue at implantation, another question remains which the amendment does not address. If a pregnancy ensues from SCNT, what will the state do to the woman and her baby?
Missouri is right to seek to ban all human cloning and should be able to do it by banning the process that produces cloned human embryos in the first place. Six states, Arkansas, Iowa, Michigan, North Dakota, South Dakota and Virginia have already done so. A number of countries, including France, Germany and Canada have passed bans on all forms of human cloning. The United Nations has called for bans around the globe. But if Missouri is going to be successful in banning cloning, it cannot do so by denying some individuals their fundamental rights while allowing one industry the liberty to clone human embryos for research. Amendment 2 does not pass that test and should be defeated on November 7.