Free to Clone
September 26, 2004
By BRIAN ALEXANDER
This election year, the debate over cloning technology has
become a circus -- and hardly anybody has noticed the
gorilla hiding in the tent. Even while President Bush has
endorsed throwing scientists in jail to stop ''reckless
experiments'' (and has tried to muscle the U.N. into
adopting a ban on all forms of cloning, even for research),
it's just possible the First Amendment will protect
researchers who want to perform cloning research.
Dr. Leon Kass, the chairman of the President's Council on
Bioethics and a cloning foe, would like to keep that a
secret. ''I don't want to encourage such thinking,'' he
said during the council's July 24, 2003, session. But the
notion that the First Amendment creates a ''right to
research'' has been around for a long time, and Kass knows
In 1977, four eminent legal scholars -- Thomas Emerson,
Jerome Barron, Walter Berns and Harold P. Green -- were
asked to testify before the House Subcommittee on Science,
Technology and Space. At the time, there was alarm in the
country over recombinant DNA, or gene splicing. Some people
feared clones, designer babies, a plague of superbacteria.
The committee wanted to know if the federal government
should, or could, restrict the science.
''Certainly the overwhelming tenor of the testimony was in
favor of protecting it,'' Barron, who now teaches at George
Washington University, recalls. ''I did say scientific
research comes within the umbrella of the First Amendment,
and I still feel that way.''
Berns, a conservative political scientist who is now at the
American Enterprise Institute, was forced to agree. He
didn't like this conclusion, because he feared the
consequences of tinkering with nature, but even after
consulting with Kass before his testimony, he told Congress
that ''the First Amendment protected this kind of
research.'' Today, he believes it protects cloning
experiments as well.
Law-review articles written at the time supported Berns,
and so would a report issued by Congress's Office of
Technology Assessment (O.T.A.). But the courts never got
the chance to face the right-to-research issue squarely. An
oversight body called the Recombinant DNA Advisory
Committee, formed by the National Institutes of Health,
essentially allowed science to police itself. So the
discussion was submerged. Until now.
The right to research, says Cass Sunstein, the Karl N.
Llewellyn Distinguished Service Professor of Jurisprudence
at the University of Chicago, ''is a frontier issue and
interesting and not yet resolved.'' He argues that ''this
is not an outlandish constitutional claim.''
Why legal scholars would defend the right to research is
hardly mysterious. The founding fathers passionately
defended scientific and academic freedom, and the Supreme
Court has traditionally had a high regard for it. In
Griswold v. Connecticut, for example, the decision that
struck down state prohibitions on the sale of
contraceptives, the court stated that the First Amendment
protected ''freedom of inquiry.'' But why would the right
to read, write and speak as you please extend to the right
to experiment in the lab?
Arguments in favor of applying First Amendment scrutiny to
antiresearch laws can be complex, but the metaphors lawyers
have used are not. One, proposed in separate articles by
John Robertson of the University of Texas and James
Ferguson, who teaches at Northwestern, compares scientists
to reporters. As with journalism, actions that are not
strictly speech (research) are so necessary to speech
(publishing) that to ban them is to ban the speech.
R. Alta Charo, legal scholar and bioethicist at the
University of Wisconsin, says that some experiments are
constitutionally protected ''expressive conduct'' in their
own right. ''If the questions you ask and the science you
do really challenges or explores cultural or religious or
political norms . . . that in itself is an act of
rebellion, and this is exactly the sort of thing that fits
comfortably in the spirit of the First Amendment.''
Neoconservatives like Kass and the bioethics council
members Charles Krauthammer and Francis Fukuyama have
emphasized the need to maintain a fixed conception of human
nature. But the O.T.A. directly addressed this in a 1981
report. ''Even if the rationale . . . were expanded to
include situations where knowledge threatens fundamental
cultural values about the nature of man, control of
research for such a reason probably would not be
The government can restrict speech if it can prove a
''compelling interest,'' like public safety or national
security. But courts have set that bar very high. Unlike,
say, an experiment that releases smallpox into the wind to
study how it spreads, which could be banned, embryo
research presents no readily apparent danger to public
health or security.
And if that's the case, scientists who wish to create stem
cells by cloning might have a new source of succor: the
Brian Alexander is the author of ''Rapture: A Raucous Tour
of Cloning, Transhumanism and the New Era of Immortality.''
The paperback edition will be published next month.