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Lapse of Reason
The libertarians and cloning.

By Ramesh Ponnuru, NR Senior Editor
From the February 11, 2002, issue of National Review

Another reason to pay attention is that human cloning is quickly rising to the top of issues that divide libertarians from conservatives. To be sure, many supporters of cloning, including many of Postrel's contributors, are not libertarians. But many of the most articulate supporters are libertarians, and the issue has clearly become a priority for them. Postrel recently went so far as to write that much as she dislikes Tom Daschle, she hopes the Democrats keep the Senate this year because they're less hostile to cloning.

Both parties, reflecting public opinion, want to ban "reproductive cloning." But Democrats, more than Republicans, favor "therapeutic cloning." The distinction concerns not the cloning technique — the act of creating a human embryo would be the same in both categories — but the intention. In reproductive cloning, the cloned embryo would be intended to develop into a baby just as a normal embryo would. In therapeutic cloning, the cloned embryo would be used for medical research and treatment, and destroyed in the process.

The Reason symposiasts differ among themselves about whether reproductive cloning should be banned (some would ban it because it is currently unlikely to yield healthy children) and whether cloning research should be federally funded. But all of them, along with other writers affiliated with Reason, favor therapeutic cloning, and none of them seems opposed in principle to reproductive cloning. Their arguments overlap considerably. Those arguments also share characteristic flaws.

Hysteria About Hysteria
Before examining the merits of the case for therapeutic cloning, it's necessary to clear away some underbrush. Debaters on both sides of this debate, as in other debates, use loaded rhetoric and emotional appeals. In the case of the Reason symposiasts, much of this rhetoric is just silly — especially coming from people who present themselves as the party of, well, reason.

They liken a ban on therapeutic cloning to the persecution of Galileo, say it is "contrary to the ideals of American freedom and democracy," claim that it would lead to a "vindictive police state driven by anti-scientific agitators," and attribute support for it to a "fear of change." The memory of witch hunts and burnings at the stake for heresy is invoked. Michael Lind writes, "Like most Americans, I do not want to see the United States degenerate into a cross between Amish Pennsylvania and theocratic Iran." Harvey Silverglate imagines that a ban on cloning, like a ban on abortion, would violate the First Amendment's guarantees of freedom of religion and speech. He also writes that "as recently as the horrendous events in New York and Washington, we have come to see the inevitable result of intolerance of differences as to issues that touch the ultimate questions of human life and existence."

Several contributors also write, without a trace of irony, that supporters of a ban are guilty of "panic" and "unreserved hysteria."

Overheated rhetoric need not discredit the cause with which it is associated. Some of the rhetoric here, however, stems from an analytical failure: specifically, a failure to acknowledge that there are rational arguments against therapeutic cloning that demand refutation. In the comments quoted above, it is assumed that opponents of cloning are moved by religious sectarianism or psychological flaws. They are taken to have made no effort to reason about cloning, rather than merely to have reasoned mistakenly.

Public Reason: Its Use and Abuse
The assumption that there are no rational grounds for conservative moral views — or at least none that need consideration in public debates — has a fine pedigree. Whether or not they know it, the libertarians are echoing John Rawls, the most influential liberal political philosopher (which is of course to say the most influential political philosopher) of the last thirty years. Rawls argues that in a modern democracy, policies must be based on reasons that can in principle command universal assent rather than on personal interests, secret rationales, or sectarian religious dogmas.

Rawls's concept of "public reason" sounds fine in bare outline. But as he and his students elaborate it, it has a nasty tendency to rule conservative policies outside the realm of acceptable debate. They don't, in the first place, look very hard for conservatives' reasons. If large numbers of people prefer conservative policies but are unable to articulate suitable "public reasons" for them, their views are held to be sub-rational and therefore can't prevail. If philosophers can articulate rational reasons for these policies but the average Joe can't understand their reasoning, those reasons are deemed insufficiently accessible to the public.

What is ignored here, as such critics of Rawlsian public reason as Robert P. George and Christopher Wolfe have observed, is the possibility that people can have inarticulate but genuine knowledge. They note that most people could not, if pressed, make an airtight case that murder is wrong. Yet their belief that it is wrong is perfectly rational and amounts to genuine knowledge.

Religious teaching, too, can reflect reason. Take the most influential religious opposition to abortion and therapeutic cloning, that of the Catholic Church. Whether or not its teaching is correct, it is based on premises that are in principle rational and accessible to non-Catholics: the premise that embryos are members of the human species, for example, not that they have souls. (Not only does the Church use these reasons to present its public case, they are in fact the reasons that guide the Church: It has never taken a position on whether embryos have souls.)

Rawlsian liberalism stacks the deck further by assuming that the default position is the liberal one; it's up to conservatives to make the case — which has to be simple enough to be public, yet compelling enough to be well reasoned — for departing from it. No wonder Rawls has pronounced that anti-abortion arguments do not meet the test of public reason. These arguments are inadmissible, even though a Rawlsian may generously concede that they may in some sense be true.

In the cloning debate, the libertarians are setting up standards that work just like public reason. Opposition to cloning is held to be based merely on subjective feelings of revulsion or on religious dogma, with no reasons to back them up. In the Reason symposium, philosopher of science Noretta Koertge argues that "we should pay attention to our moral intuitions, but only as data which should be subjected to philosophical analysis and complemented with empirical findings, not as the last word when the conclusions of rational argument do not validate our gut feelings." Koertge is right about that, so long as the possibility that the intuitions are correct is given more than lip service. The pro-cloners usually don't give it even that.

Harvey Silverglate's First Amendment fantasy, mentioned above, simply assumes that opposition to cloning and abortion must be based on non-rational religious views. His own side is composed of "rational people devoted to liberty." Ron Bailey, Reason's science editor, has expressed similar thoughts, as when he approvingly quoted a bioethicist who attributes opposition to cloning to "nostalgia for the Inquisition."

The libertarians also make their opponents' case look less reasoned than it is simply by misstating it (probably innocently). The Reason symposium is characteristic of arguments for therapeutic cloning in its failure ever to describe accurately the case against it. In last year's debate over stem-cell research, Bailey misunderstood the pro-life position to be that stem cells are babies. The actual pro-life view is that the embryos from which the stem cells are taken are human beings; and that, since taking the stem cells destroys the embryos, the act is homicidal in the same sense as killing a baby.

Pro-cloning polemics frequently frame the debate in terms that obscure the point at issue. A cloning ban is said to be an attempt to "ban research," its supporters are said to fear knowledge, and it is opposed on that basis. It is, of course, true that a ban would bar certain types of research and could prevent certain knowledge from being discovered — but because the research to get the knowledge involves homicide, not because it is research. To adapt political scientist Kenneth Minogue's phrase, the ban would merely attach a "negative adverbial condition" to research: that it proceed non-homicidally.

The Nub of the Matter
Virginia Postrel does, at least, address the key issue in the debate over therapeutic cloning: What moral status do cloned human embryos have? Do they have any claims on us? (The right not to be destroyed would seem to be the smallest claim an entity could have.) Her take can be seen in an excerpt from a December Wall Street Journal op-ed piece:

[The pro-life] view treats microscopic cells with no past or present consciousness, no organs or tissues, as people. A vocal minority of Americans, of course, do find compelling the argument that a fertilized egg is someone who deserves protection from harm. . . . But most Americans don't believe we should sacrifice the lives and well being of actual people to save cells. Human identity must rest on something more compelling than the right string of proteins in a petri dish, detectable only with high-tech equipment. We will never get a moral consensus that a single cell, or a clump of 100 cells, is a human being. That definition defies moral sense, rational argument, and several major religious traditions.

You can, perhaps, see the sketches of an argument here. Not, to my mind, a strong one. A morally significant fact, such as a being's having the ability to direct its own development, can always be redescribed in a way that hides its significance (e.g., "the right string of proteins"). From a certain perspective — a perspective that generally goes with support for the destruction of embryos, incidentally — all of us are big clumps of cells. We routinely use high-tech equipment to tell if someone has died or still has human identity.

What's most telling, however, is Postrel's nervous invocation of public opinion. She and her allies would never let public opinion dictate policy on reproductive cloning, since the public is overwhelmingly against it. In that case, the public's position has to submit to rigorous philosophical probing that (allegedly) reveals it to be based on aesthetic revulsion, religious dogma, etc. (Postrel's presentation of public opinion on therapeutic cloning, while fair, is also questionable: Poll findings on the subject are very dependent on the wording of the question, suggesting that public opinion is still forming.)

But Postrel offers more of an argument than Michael Lind does in the Reason symposium. He writes, "Unlike fetuses in a later stage of development in the womb, rudimentary human embryos consisting of a few dozen or a few hundred cells that have not been implanted in a womb cannot plausibly be defined as human beings. People who see no distinction between blastocysts and babies, far from being exemplary moralists, show an incapacity to draw an elementary moral distinction that destroys their claims to be taken seriously as moral thinkers." Q.E.D. Lind, whose failings do not include a reluctance to spell out his views in detail, supplies no further argument. Co-contributor Elizabeth Whelan is also content to rest on assertion.

Jonathan Rauch, in a National Journal essay posted on Reason's website, also tries to respond to the argument that embryos are human beings (though he slightly misstates that argument) and that no end, however noble, can justify their killing. "To a great extent," he writes, "one has to just take or leave this argument. One must look at a blastocyst...and decide how one feels about it. To me, this ball of cells is much more than a fingernail clipping, but it is also much less than a human being. Speaking of it as a person or near-person does not preserve the dignity of human life; it trivializes it." The relevant considerations then boil down to which is less distasteful, "farming embryos" or letting people die of diseases that farming embryos could help cure. He picks embryo-farming.

It's a handy form of argument. Let's apply it to another issue — say, gay marriage, for which Rauch is a thoughtful spokesman. An opponent could say to Rauch: "The case for gay marriage doesn't advance equality and the dignity of man; it trivializes it. One must look at gay couples and homosexual activity and decide what one feels about it. It sure doesn't look like marriage to me." The point is that Koertge was correct: Aesthetic impressions unbacked by philosophical reflection — just "looking at" something without thinking it through — are not enough in matters of moral consequence. Libertarians are keen to apply that idea, indeed in an extreme form, to the debate on reproductive cloning. They blithely throw it aside when it comes to therapeutic cloning. Insofar as their failure to engage their opponents' case makes it possible for them to do so, they are acting in accordance with Rawlsian public reason. But they are failing any more reasonable definition of public reason.

The Argument from Disagreement
Libertarians have another tactic for avoiding actual engagement with the issues, and it too follows the Rawlsian playbook: the argument from disagreement. Bioethicist Ronald Green writes in the symposium, "The opponents [of cloning] are entitled to their views, but not all Americans share them. The real question is why their view of the moral status of this very early form of human life should trump others' equally sincere beliefs or health care needs." Ummm, how about because we're right and they're wrong? Libertarian feminist author Daphne Patai sounds the same note: "When politics or religion attempts to control science . . . we should all worry, for different political positions may find different research programs unsettling and how would we then resolve the ensuing conflicts?" How about by reasoning them through? The alternative is to say that the fact that A disagrees with B is a reason to compromise by taking A's position.

Molecular biologist Jeremy Peirce writes that "we have the right to determine our own actions and positions in matters of conscience like these, and binding a debatable opinion to a federal felony is inappropriate and foolish." Do we have this right? A formally identical right was asserted by slaveowners. The analogy is unfair only if slavery violated someone else's rights in a way that destroying human embryos does not — which is precisely the point at issue. The argument from disagreement is superfluous if Peirce is right to think that destroying embryos is no big deal, and it fails if he's wrong.

Biophysicist Gregory Stock, who heads UCLA's program on medical technology and society, makes a different version of the argument: Given that we have laws that seem not to treat embryos as living human beings worthy of protection (permissive abortion laws, laws that let in vitro fertilization clinics discard "surplus" human embryos), he asks, How can we ban therapeutic cloning?

If Stock means that no one can logically support both policies, he is wrong: It is possible to support legal abortion without denying that fetuses are living human beings. Their claims could be judged to be real, but trumped by the bodily integrity of the pregnant women. (There are good reasons for rejecting this judgment, but that's not the point here.) The Supreme Court is certainly capable of making this distinction, if that's what he is getting at: It views abortion in light of a putative right of women to decide whether to "bear or beget" children — obviously not at issue in therapeutic cloning — and it has cautioned against treating this and similar alleged rights at too high a level of abstraction.

To the extent that there is genuine inconsistency between allowing abortion and outlawing therapeutic cloning, that is no reason for pro-lifers to abandon their opposition to both. The fact that several states have anti-sodomy laws on the books is no reason for gay-rights advocates not to push for legal protection from discrimination in those states. Both gay-rights and pro-life advocates can also, in good conscience, pick their battles. The fact that the premises behind a pro-life position (like opposition to therapeutic cloning) have unpopular implications for other issues (say, abortion) is not an argument against that position. Most supporters of abortion — Peter Singer famously excepted — aren't willing to fight for infanticide, although their argument plainly tends in that direction. Most supporters of therapeutic cloning aren't willing to fight for reproductive cloning just now, either. To say that for a policy to be legitimate a polity must for good reasons endorse it, the premises behind it, and all other policies to which the premises logically lead, is to set the bar high — higher even than Rawlsian public reason does, and far higher than is realistic for a polity composed of imperfect human beings.

Twin Spin
The people who openly argue for both types of cloning deserve credit for candor, but the arguments they're making create a problem for them. Reproductive cloning is said to be nothing to frighten us because a clone just makes a twin of whoever is being cloned. Libertarians appear to think this is a knock-down argument: "To my knowledge no one has argued that twins are immoral," Bailey writes. The destruction of embryos in therapeutic cloning, meanwhile, is said to be okay because the embryos are at such an early stage of development that twinning is still possible. Since the embryo could become two embryos, it's not an individual.

Both arguments from twinning are vulnerable to serious objection. But what's more important — although the libertarians are wholly oblivious to it — is that the arguments collide head-on. We're not supposed to worry about reproductive cloning because it just makes twins. But at the same time, it's okay to kill a human entity so long as it's possible for a twin to be derived from it. Since all of us can in theory be cloned at any age, and a clone is just like a twin, that seems to leave all of us without any ground to protest being killed. Which I, for one, resent.

Even without their twin arguments about twins, the libertarians can't come up with a defensible line of demarcation past which killing someone is wrong. If research that involved the killing of five-year-olds had the potential to generate massive health benefits, why would it be wrong in principle to proceed? Most of the objections to a cloning ban that appeared in the symposium would apply with equal force to a ban on such research. The ban would "criminalize scientific research," override the individual consciences of scientists, and so "insult and demean" them. It would leave valuable knowledge unlearned. And — to mention another trope of the symposium — it would probably just lead to the research's moving to other countries where the kids would be treated even worse.

In a debate on National Review Online, Bailey admitted that he doesn't "claim to know precisely when human life begins" — i.e., at what point it becomes a no-no to kill human beings for their spare parts — but added that "it certainly begins well after the blastocyst stage of embryonic development." So it's definitely okay to kill a human being in the first two weeks of development. And afterward?

For a Pro-Life Libertarianism
The alternative view — the one I hold, as the reader will have guessed — is that 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. (Technically, of course, the "it" is wrong here.) It is a person from the first moment, rather than a mere body that becomes inhabited by a person as it develops (which would imply an untenable person-body dualism). 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.

Further, I suspect that whether life begins at conception would not even be a question if we did not have interests — e.g., a desire for medical breakthroughs or fear of the burdens of pregnancy and parenthood — in denying the proposition. If we had no incentives to kill an embryo (but had today's medical knowledge), I doubt we would question that it is wrong to do so.

Finally, I think everything I've written here is actually compatible with libertarianism. Libertarians believe, after all, that the purpose of government is to protect people from aggression. If cloned embryos are people, the state should protect them from being killed. Libertarianism furnishes no premises for deciding whether cloned embryos, or human embryos generally, are people. That's why there are libertarians in good standing — a minority, to be sure — who want abortion outlawed. They can oppose therapeutic cloning, too. (It is true that these pro-life positions are incompatible with libertarianism if it is understood as a rule demanding state inaction in the presence of moral disagreement. But that rule is a plainly ridiculous foundation for libertarianism — try applying it to slavery.)

Opponents of a federal ban on therapeutic cloning make one final argument: Even if all the foregoing is correct, the Constitution doesn't give the federal government the power to ban it. As Notre Dame law professor Gerard Bradley testified before a House judiciary subcommittee, however, a ban aimed at preventing an interstate traffic in connection with human cloning is compatible with the last major statement on the commerce clause by the Supreme Court: the 1995 Lopez case, which tightened the limits on federal power. But a plausible case could be made that even the Lopez Court didn't set those limits tightly enough. The best constitutional warrant for a ban is the Fourteenth Amendment, which guarantees equal protection of the laws to all persons and gives Congress authority to enforce that guarantee. Under that amendment (which is not to be confused with judicial interpretations of it), Congress may decide that a ban on therapeutic cloning is required to protect one class of persons.

Up until now, I've concentrated on therapeutic rather than reproductive cloning. Therapeutic cloning is what's actually in contention in Congress. Both supporters and opponents of therapeutic cloning seem to agree that reproductive cloning is the worse of the two, so the debate centers on the former. But another reason for my emphasis is that I think, contrary to the prevailing assumption, that therapeutic cloning is less defensible than reproductive cloning, because the former involves the killing of a human being and the latter does not.

A federal ban on reproductive cloning raises trickier issues of morality, of political philosophy, and of constitutional interpretation than does a federal ban on therapeutic cloning. I lean toward a ban on reproductive cloning, although for reasons that may not be compatible with any sort of libertarianism.

Nick Gillespie, Reason's current editor, recently wrote an interesting essay on libertarianism vs. conservatism in which he observed, in passing, that "National Review conservatism . . . seems to groan" at "every new development in genetic engineering." The charge is untrue: NR cheered the prospective benefits from cloning pigs in the last issue. Reason libertarianism does, unfortunately, celebrate every new development in biotechnology. Surely the task is to use reason to distinguish between welcome and unwelcome developments — the latter including those that involve violations of sound moral principles. (Some of those violations are not at all new in type, like homicide.) Undoubtedly, biotechnology is going to raise a lot of questions in coming decades that are more difficult than whether to bring new human beings into the world in order to kill them for medical purposes. We are unlikely to be well guided through them by people who can't even get the easy questions right.

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