E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The House of Representatives voted overwhelmingly yesterday to ban all forms of human cloning. The Weldon-Stupak bill, H.R. 534, makes it a crime "for any person or entity, public or private, in or affecting interstate commerce, knowingly--
(1) to perform or attempt to perform human cloning;
(2) to participate in an attempt to perform human cloning; or
(3) to ship or receive for any purpose an embryo produced by human cloning or any product derived from such embryo.
In addition, the bill makes it a crime for "any person or entity, public or private, knowingly to import for any purpose an embryo produced by human cloning or any product derived from such embryo."
Human cloning, in turn is defined in the bill as "human asexual reproduction, accomplished by introducing nuclear material from one or more human somatic cells into a fertilized or unfertilized oocyte whose nuclear material has been removed or inactivated so as to produce a living organism (at any stage of development) that is genetically virtually identical to an existing or previously existing human organism."
The bill leaves untouched scientific "research in the use of nuclear transfer or other cloning techniques to produce molecules, DNA, cells other than human embryos, tissues, organs, plants, or animals other than humans." The idea, basically, is that forms of cloning that do not involve the creation and destruction of human embryos would not be prohibited.
However, currently, the creation of embryonic stem cells does require the creation of human embryos from which the stem cells are taken, so creation of new stem cells from newly cloned human embryos would be prohibited under this bill. Stem cells are important to medical research because they can be made into many other different types of cells. The hope is that such cells can be turned into replacement tissues for people who are suffering from spinal cord injuries or degenerative diseases, including Parkinson's and diabetes.
There are any number of important issues raised by the new bill. One of them is federalism. The bill outlaws cloning at the national level, instead of leaving the issue up to individual states. In the past conservatives have often criticized liberals for seeking national solutions to economic and social issues rather than leaving these issues up to the states, which, conservatives often claim, are closer to the people. It's important to recognize that many people would probably say the same thing about human cloning. But we have not heard much about this from conservative politicians in Congress who have been pushing for a ban on cloning. The reason is not difficult to understand: Throughout American history debates over federalism and state's rights have been a stalking horse for other, substantive issues, like tarrifs, child labor, civil rights, racial equality, and reproductive freedom. Many conservative politicians talk loud and long about federalism, but in reality they are committed to decentralization only so long as it serves the substantive agendas they like. They are fair weather federalists.
I myself have no problem with a national solution to the cloning issue. For me the issue is whether a total ban on cloning, including both therapeutic cloning and cloning employed to make babies, is good public policy.
There is a constitutional twist to this issue. The constitutional basis of the cloning ban is Congress's power to regulate interstate commerce. In the Supreme Court's 2000 decision in United States v. Morrison, the Court's five person conservative majority struck down the Violence Against Women Act on the grounds that the problem of violence against women was not related to interestate commerce; Congress should have left the issue of domestic violence to individual states. The Court, attempting to strike a blow for state's rights, argued that the federal government did not have the power to reach "non-economic" subjects which included crime and family law, even if these activities had substantial cumulative effects on interestate commerce. Violence against women, the Court argued was non economic because it involved crime and family relations, which, it claimed, were traditionally local activities. It is interesting to know what the Court would make of a nationwide ban on human cloning. After all, making babies seems to be about families and family law. There is no requirement in the bill that the cloning be done for a fee or as part of any other economic activity. Ironically, therapeutic cloning-- involving stem cell research to create replacement tissues and organs-- might be the most "economic" version of cloning, since one assumes that these services will be bought and sold like other medical services. But a more plausible argument is that the ban on human cloning is evidence that the Supreme Court's distinction between inherently "economic" and "non-economic" activities simply makes no sense, and the Surpeme Court's attempt to limit federal power in Morrison was misguided and the case should be overruled.
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