Cloning Matters: How Lawrence v. Texas Protects Therapeutic Research

Abstract

Several states have banned therapeutic cloning, and the federal government is considering legislation that would do the same. Some of these laws, including the proposed federal legislation, make it a crime not only to engage in therapeutic research on a cloned embryo, but also for a patient to use any medicine derived from such research, even if the cloning took place in a country where the research is lawful. Under the United States Constitution, government action restricting freedom in this way must have at least a rational basis if it is to be upheld in court. Opponents of therapeutic cloning argue not that medicines derived from therapeutic cloning will be unsafe or ineffective, but rather that the embryonic stem cells used in therapeutic cloning represent potential life that must be protected. I will argue, however, that this concern is not the real reason most individuals oppose therapeutic cloning. Indeed, this "potential life" argument is ignored daily when some spare embryos produced as a byproduct of routine fertility treatments are destroyed while others are used for research. As I will argue below, this disparate treatment reveals that the real basis for the ban on therapeutic cloning is repugnance at the idea of cloning, driven by a sense that cloning is unnatural. I will conclude this Commentary by arguing that the Supreme Court's recent decision in Lawrence v. Texas casts serious doubt on the idea that repugnance alone is an adequate basis for a criminal statute.