Constitutional Constraints on the Regulation of Cloning

Abstract

In 1995, Congress enacted a ban on federal funding for experimentation with human embryos. In 2001, President George W. Bush issued a presidential policy statement extending this funding ban to research on human stem cells extracted from embryos except for research on a limited number of cell lines that had previously been established; he reiterated this position in a 2007 executive order. In his 2008 presidential campaign, Barack Obama promised to support stem cell research. It now seems likely that in addition to rescinding Bush's executive order, Obama will ask Congress to repeal its funding ban from 1995, which still prohibits scientists from generating new stem cell lines. The politics surrounding this research could shift again-as the ethical issues of stem cell research are reopened, some critics may promote a total prohibition of human embryonic and stem cell research. Public debate on this issue has thus far focused on policy concerns. The purpose of this Article is to explore constitutional arguments that might be invoked to overturn any federal or state restrictions on human embryonic stem cell research. Broadly speaking, I will evaluate four different constitutional challenges to a total ban: 1) that such regulations violate researchers' constitutional right of free scientific inquiry; 2) that such regulations violate individual rights to reproductive freedom; 3) that the former Executive Branch restriction imposed an unconstitutional condition on the availability of government funding; and 4) that neither reproductive nor therapeutic cloning is a permissible subject for congressional enactment, but that both are reserved exclusively for state regulatory authority. Exhaustively evaluating these four possible constitutional objections would require writing at least a small textbook on constitutional law; I will instead be suggestive rather than exhaustive.