I have been warning of late that science and bioethics have grown so ideological that many in these and related fields assert that there is a constitutional right to do science. (Evidence of the growing attention being paid to these issues can be found in this press release issued by Georgia Tech.) This early advocacy marks the beginning stage of a project to construct an intellectual foundation in the professional science and law journals that will later be used to support a legal challenge against the government regulation of science. (I predict the first case will seek to strike down a state law prohibiting human cloning.)
The ideas presented so far to support the right to human cloning have fallen generally along these lines: First, the United States Constitution specifically speaks of the advancement of science. This means the government may not restrict science except for truly urgent purposes. Second, women have the near-absolute right to abortion; hence, third, people also have a near-absolute right to procreate; meaning, fourth, that reproductive cloning should be permitted (once it is safe), in addition to which, prospective parents enjoy a concomitant right to genetically engineer their progeny, again assuming safety.
That’s painting with an extraordinarily broad brush, but don’t ever think these folk do not mean precisely what they are saying.
Is there a constitutional right to engage in human cloning if not for procreation? Again, according to a growing body of thought among science ideologues, the answer is, yes. Some claim that any and all research, not just cloning, is protected by the First Amendment to the United States Constitution since publishing the results of experiments is a form of expression. If this idea were enacted by a legislature, or more likely, imposed by the courts, it would mean that only the most compelling state interest would permit government to prohibit any area of experimentation that researchers might devise.
Another argument, recently voiced in the Yale Journal of Health Policy, Law and Ethics, contends that the Supreme Court case of Lawrence v. Texas created, by analogy, a right to engage in therapeutic cloning. The idea is that since, according to the Supreme Court, “repugnance” served as the primary basis for Texas outlawing homosexual sodomy, and since the Court ruled that repugnance was an insufficient basis for Texas legislating in the area, then under Lawrence, therapeutic cloning similarly cannot be banned since it is only repugnance at the “unnatural” that has caused some states to outlaw human cloning for biomedical research.
These arguments reflect an arrogant attitude that only scientists have the right to decide what is moral in science. Like the breeze that becomes a full blown gale, they also presage an intense and supremely important public policy fight, the denouement of which will determine whether science continues to serve society or instead, comes to dominate it.