NCBC: NCBQ

WASHINGTON INSIDER
Summer 2004

The President's Council on Bioethics

New Appointees

In early March, before the first meeting of the council's second term, President Bush appointed three new members to the council, Peter Augustine Lawler, Diana Schaub, and Benjamin Carson. Lawler is a professor of government at Berry College; Schaub is a professor of political science at Loyola College; Carson is a neurosurgeon at Johns Hopkins University. At the same time, President Bush declined to reappoint two members of the council, Elizabeth Blackburn and William F. May.¹ (Another member, Stephen Carter, had withdrawn from the council due to other commitments.)

While May had written to the president that he did not wish to serve beyond the initial two-year term, Blackburn protested her nonrenewal. Many advocates of cloning and human embryonic stem cell research complained that the dismissal was "political" and inappropriate.

However, these complaints are without merit. First, the president has authority to appoint those whom he wishes; and every appointee serves at the pleasure of the president. Second, several members who were originally appointed, including those whose appointments were not renewed, have been unwilling to support any noticeable limits on scientific research. For instance, both May and Blackburn declined, in the council's report on human cloning, to support even a moratorium on cloning in which embryonic human beings are destroyed.² It is hard to see why a scientist who would ignore the Nuremburg Code's fifth principle (prohibiting experimentation on a human subject when it is known that death or disabling injury will result) should be retained on the council. The plain fact is these were bad appointments in the first place, and their nonrenewal is completely appropriate.³

Reports

The council's second report, Beyond Therapy: Biotechnology and the Pursuit of Happiness, was issued in October 2003. The report, which was the result of months of investigation by the council, including numerous public hearings, delves into a subject that will become of increasing importance as new biotechnologies, such as genetic modification, are developed. Commenting on the acceptability of such modifications, sometimes characterized as the distinction, if any, between enhancement (inappropriate) and therapy (appropriate), the council itself articulated the matter as an inquiry into the ethical limits of worthy human aspirations.

The report considers the issue in four areas, including athletics.⁴ Of course, any fan of major league baseball will be aware of the current controversy raging over "enhancements" that certain athletes may have taken, enabling them to surpass long-cherished records. In this area, as in the rest of the report, the council treats this issue with the careful philosophical reflection it deserves. For instance, the report makes the critical point that not only do we have bodies, but we are our bodies. The report repays careful reading. Its aim is to spark an informed national reflection on issues which go "beyond therapy." One can only hope it will receive wide circulation, for the rapidity of advances in biotechnology means ethical issues may not be noticed until too late.

One of the topics discussed in the report is sex selection. Many readers will be familiar with the "one-child" policy in China, which has contributed to as many as three hundred million abortions. Usually, in rural areas at least, these abortions are of girls because families, if limited to one child, decide to have a boy whom they expect to work the land and, unlike girls, not move away when they marry.

The report notes that in some countries the usual ratio of boy-births to girlbirths of 105 to 100 is now 120 to 100. This is a recipe for social instability, as has been observed in China. The report notes that assisted reproductive technologies (ART) are often used for sex selection of offspring. In the U.S., while ART is used in only about 1 percent of the cases, the numbers are growing. It is chilling to consider the increasing use of ART as a sex-selection tool.

The council issued a report on reproductive technologies, Reproduction and Responsibility: The Regulation of New Biotechnologies, on April 1. The report and the reaction it elicited will be discussed in the next edition of this column.

Effort to Undermine the President's Stem-Cell Research Policy

The controversy, noted above, over the nonrenewal of Elizabeth Blackburn's appointment to the President's Council has formed one part of an emerging strategy by advocates of embryonic stem-cell research to roll back the president's policy on the issue.⁵ It will be recalled that President Bush prohibited the use of federal funds for research involving the destruction of human embryos if that destruction took place after the date of his order (i.e., after August 9, 2001).⁶

In early March, reports appeared in the press that the National Institutes of Health had concluded that the embryonic stem-cell lines which could be funded under the president's policy were inadequate for research purposes.⁷ "The unpublished report" that was "circulating ... on Capitol Hill" reportedly concluded that there were no more than fifteen embryonic stem cell lines that met the requirements of both the president's policy and science. Other existing lines were inadequate for one reason or another. Though this is basically a rehash of familiar arguments against the president's policy, it formed the "justification" of other steps in the attack. Basing his argument on such scientific misgivings, Republican Congressman Mike Castle from Delaware prepared a letter to President Bush, endorsed by many fellow House members, opposing the President's policy.⁸ Pro-embryonic stem-cell research advocacy groups, such as the Coalition for the Advancement of Medical Research, then followed suit with a strong lobbying campaign relying heavily on Castle's letter.⁹ Editorials similar to that in the Post appeared in influential journals in the states.

Ironically, one of the fears expressed by these embryonic stem-cell research proponents—that the president's policy would drive the biotech industry overseas— was undercut by an announcement by Harvard University that it had established a stem-cell research center on campus focusing primarily on embryonic stem cells.¹⁰ However, Harvard's announcement underscored the real problem with the president's policy—it does not prohibit the destruction of embryonic human beings. It simply precludes federal funding of such "research" in most cases; such research (and embryonic destruction) may continue with private funds (depending on what an individual state's law allows¹¹). Thus, if there is a reconsideration of the president's policy, it should be not to weaken but to strengthen it—it should be extended to a total ban (federal and state) on destructive human embryonic stem-cell research (regardless of the date or purpose).

International Developments in Cloning

In a surprising development, the Canadian Parliament, on March 12, passed a law that bans human cloning, whether for live birth or for destructive research. Bill C-6, An Act Respecting Assisted Human Reproduction and Related Research, still requires "royal assent," but that is expected soon.¹² (Stem-cell research continues to be under the jurisdiction of the Canadian Institutes of Health Research. While embryos cannot be created for research purposes, it appears "spare" IVF embryos may be used for research.)

South Korea dropped a bombshell in early March when scientists there claimed to be the first to have successfully cloned a human embryo, from which they extracted stem cells.¹³ The announcement produced a furor, prompting the scientists to promise to cease cloning until ethical issues are resolved.¹⁴ Upon close examination, however, it is clear that the scientists are responding to concerns about a) the birth of a cloned human being, and b) the commodification of human eggs. The latter concern, while important, has somewhat been overtaken by other events, since eggs are now available for sale over the internet.¹⁵ The former concern has already been addressed by Korean laws which forbid the practice. Since all human cloning produces a human being, whether it is ultimately born alive or not, what was striking about the scientists' "ethical" concerns was the absence of any attention to the question of ethical limits on destroying embryonic human beings during research.

Meanwhile the United States announced that it will continue to work through the United Nations to secure support for a treaty to ban all forms of human cloning. In doing so, the United States will join with Costa Rica, which has been leading the anticloning effort. Last year, a procedural vote at the UN prevented the issue from being addressed by the General Assembly. Several nations had supported a ban of live-birth cloning only. However, last year, there appeared to be sufficient votes to pass a resolution to develop a treaty for a total ban. Nonetheless, opponents of a total ban (and nations angry with the United States for other reasons) succeeded in passing a procedural motion that would have delayed a vote for two years.¹⁶ Costa Rica and other anticloning nations were, in turn, successful in reducing the delay to a single year. This means the matter will be on the agenda for the fall of 2004.

Conscience Protection

In March, the California Supreme Court decided Catholic Charities of Sacramento v. Superior Court of Sacramento County (no. S099822). The Court held that Catholic Charities must include prescription contraceptives within its insurance plans. The case turned on whether Catholic Charities qualified as a "religious employer" under California law. California's Women's Contraceptive Equity Act requires that prescription contraceptives be provided. However the law has an exception for religious employers. A religious employer is, in turn, defined in the California statute as an entity

whose purpose is the inculcation of religious values,
that primarily employs persons who share its religious tenets,
that primarily serves persons who share its religious tenets, and
that qualifies as a "church" under federal tax law.¹⁷

Catholic Charities met none of these elements of the definition. It was a nonprofit organization, employing individuals with diverse religious beliefs, and was engaged in offering social services to the general public. Of course, the reason Catholic Charities exists is to respond to the social teaching of the Church by meeting the just requirements of members of society. It is surely a "religious" purpose in any fair understanding of the term. But that purpose does not satisfy the statutory requirements of California law. Thus, Catholic Charities must either deny all prescription drug coverage to its employees or provide coverage for contraceptives.

This case points to a growing trend across the country to limit or deny conscience protection. Individuals and organizations favoring embryonic stem-cell research, abortion, contraceptive (including abortifacient) coverage, and other unethical "medical" practices are pursuing a two-track strategy. First, they seek legislation legalizing the procedure. Then they move to limit, if not eliminate, the conscience rights of workers and/or organizations to refuse to participate. Consequently, expanded conscience protection is needed at both the federal and state levels.¹⁸ The Abortion Non-Discrimination Act (ANDA), S. 1397/H.R. 3664, pending in Congress, extends conscience protection regarding abortion.¹⁹

As the Catholic Charities case illustrates, it is important that conscience protection not be narrowly drawn. The law should ensure the right of conscience for all individuals and organizations, not just those that are indisputably part of a church.

Partial-Birth Abortion Litigation

In October, the ban on partial-birth abortion (PBA) passed the Senate by a vote of 64 to 34. However, even before the ban was signed into law by President Bush in early November, pro-abortion groups and individuals filed suits in three separate federal district courts (Nebraska, New York, San Francisco) asserting that the ban was unconstitutional. The Department of Justice is litigating the cases on behalf of the government.

Readers may recall that in Stenberg v. Carhart (530 US 914 [2000]), the U. S. Supreme Court struck down a Nebraska statute banning PBA. The current version of the ban was enacted to respond to the Court's decision in Stenberg as well as to respond to problems in the original Nebraska law. The bill has extensive congressional findings of fact. These are traditionally accorded great deference by the courts.

In all three cases, temporary restraining orders against the ban were issued. In all three cases, the trial on a preliminary injunction as well as the trial on the merits of the underlying case was consolidated (meaning one trial rather than two). This should result in the creation of a solid evidentiary record when some or all of the judgments are appealed by the Department of Justice.

Since plaintiffs in these cases asserted that PBA was a necessary medical procedure in certain cases, the Department of Justice sought medical records to ascertain the validity of those claims. The result has been a good deal of preliminary litigation about whether and in what manner such records should be produced. Nevertheless, all three cases went to trial on March 29 of this year. Appeals will then proceed through the appellate courts, and, eventually, to the Supreme Court. It is impossible to predict when the issue will reach the Supreme Court (or whether the Court will take the case[s] or decline to hear it).

Unborn Victims of Violence Act

The Unborn Victims of Violence Act was voted upon by the US Senate on March 25. It passed the Senate by a vote of 61 to 38. Since the Act had passed the U.S. House of Representatives on February 26 by a vote of 254 to 163, it was sent to the President to sign into law. He did so on April 1.

The act, which received public momentum due to publicity surrounding the alleged murder of a mother by her husband due to her pregnancy, would make it a federal offense to kill or injure an unborn child during the commission of a federal crime.²⁰ The act, however, faced two "killer" amendments, one that will be introduced by Senator Diane Feinstein and the other by Senator Patty Murray.

The first amendment would not recognize the humanity of the unborn child but would instead create, and punish, a second crime by the criminal against the mother, rather than the child. The second amendment, constituting 156 pages, would rewrite employment law to mandate that employers allow up to one month of unpaid leave if employees suffer domestic violence. Each amendment was a "killer" since, if adopted by the Senate, the Senate version would require a conference with the House because the House and Senate versions of the act would differ. In that case, it was expected that anti-life members of the Congress would delay the appointment of "conferees" for the conference through this fall's federal elections. That would have effectively ended any chance for passage of the act in this Congress. However, the Feinstein amendment was defeated by a vote of 50 to 49, and the Murray amendment was defeated, 53 to 46.

The Federal Marriage Amendment

As readers may be aware, last June, the U.S. Supreme Court issued a decision in Lawrence v. Texas (539 U.S. 558 [2003]). In that case, a Texas law penalizing sodomy between homosexuals was struck down as a violation of the substantive due-process rights of the plaintiffs. While the Texas law might have been struck down on a narrower "equal protection" ground (for penalizing homosexual, but not heterosexual, sodomy), the Court's opinion was broad, striking down all antisodomy laws and directly reversing earlier Supreme Court precedent.

This is significant in two respects. First, the Texas law against sodomy was evidence of a public policy against such acts. That is important if a "full faith and credit" claim is made under the U.S. Constitution.²¹ The full faith and credit clause ensures that public acts and records of one state must be given "full faith and credit" in another. One defense to doing so, however, is where the public acts from the first state violate the public policy of the second state. Prior to the Supreme Court's decision in Lawrence, it might well have been argued that, say, Texas's law against sodomy was evidence of such a public policy and would necessarily have been violated if homosexual marriages were recognized in Texas (since such acts are part and parcel of a homosexual relationship). But Lawrence has eliminated that argument. Additionally, in November, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health (440 MA 309 [2003]) that there was no rational basis to preclude homosexuals from marrying. Thus, once marriage licenses are issued to homosexual couples in Massachusetts, those couples may move to other states and argue that the full faith and credit clause requires that states recognize their homosexual marriage.²²

Second, the Court in Lawrence articulated its decision in language that tracks language the Court used in Planned Parenthood v. Casey (505 US 833 [1992]). In that case, the Court spoke of an individual's right to define the meaning of life and of the universe as he saw fit, thereby putting decisions such as abortion into the realm of "personal" rights entitled to constitutional protection. Therefore, if the question whether homosexuals have a right to marry under the substantive due-process provisions of the U.S. Constitution comes before the Supreme Court, it seems likely the Court (which spoke, in Lawrence, of the right of homosexuals to contend in the public square for the right to marry) will find such a right exists.

Thus, under either of two constitutional approaches—a full faith and credit claim, or a substantive due-process claim—it appears likely the U.S. Supreme Court will uphold a right for homosexuals to marry. Hence, there is pressing need for an amendment to the U.S. Constitution to preclude either course. Versions of such an amendment have been introduced in the House (H.J. Res. 56) and the Senate (S.J. Res. 26). In the past week the Senate version has been revised and renumbered as S.J. Res. 30. It reads—"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

The exact meaning of the first sentence is disputed. Does it preclude recognition of any sexual relationship other than heterosexual marriage? It may, in which case no state would be permitted to recognize "domestic partnerships" that were limited to persons engaged in homosexual conduct.

The second sentence is intended to remove the primary engine behind the movement to recognize "homosexual marriage," that is, the courts (as can be seen from the discussion of the Goodridge and Lawrence cases above). The second sentence ensures that if changes are to be made in the institution of marriage, it will be the people acting through their elected representatives who do so.

The debate over this matter is far from over. Alternative versions of a constitutional amendment will certainly be introduced in the Congress. With national elections coming in the fall, and with the increasing issuance of marriage licenses to homosexuals by various municipal authorities across the country, the effort to defend traditional, natural marriage by amending the federal constitution will only intensify. President Bush has endorsed such an amendment.²³ Congress will continue to devote extended attention to the matter (congressional hearings were held on the matter during the week of March 22). Of course, under Article V of the Constitution, an amendment must receive a two-thirds positive vote in both the House and the Senate, before being sent to the states, where it must be ratified by threequarters of the states. At present, it is unlikely that the two-thirds majorities can be mustered in the House and the Senate. Consequently, it will be important for this issue to be central to this fall's elections. As noted, unless the people act through their elected representatives to preserve marriage, it seems the courts will inevitably recognize "homosexual marriage." In a society such as ours where many factors, including excessively liberal divorce laws, have severely weakened the institution of marriage, a strong public commitment to the institution is needed.

William L. Saunders
Director and Senior Fellow
Center for Human Life and Bioethics
Family Research Council
Washington, D.C.

Notes

1 Additional members of the council are Robert P. George, Gilbert Meilaender, Rebecca S. Dresser, Francis Fukuyama, Michael J. Sandel, James Q. Wilson, Janet D. Rowley, Charles Krauthammer, William B. Hurlbut, Paul McHugh, Michael S. Gazzaniga, Mary Ann Glendon, Alfonso Gómez-Lobo, Daniel W. Foster, and Leon R. Kass.

2 See President's Council on Bioethics, Human Cloning and Human Dignity: An Ethical Inquiry (Washington, D.C.: President's Council on Bioethics, 2002), 131, 145.

3 It is troubling that other members of the council who appear to support scientific research without significant ethical limits were retained on the council.

4 The section titles are "Better Children," "Superior Performance," "Ageless Bodies," and "Happy Souls."

5 For instance, see, "The Ethics of Science," Washington Post, March 8, 2004, A18, where the nonrenewal of Blackburn is linked to arguments against the president's stem-cell research policy.

6 In January 2004, the President's Council on Bioethics presented its report on the president's policy, current scientific developments, and ethical issues in Monitoring Stem Cell Research (Washington, D.C.: President's Council on Bioethics, 2004).

7 E.g., Justin Gillis and Rick Weiss, "NIH: Few Stem Cell Colonies Likely Available for Research: Of Approved Lines, Many are Failing," Washington Post, March 3, 2004, A3.

8 A copy of the letter can be found at http://www.rarediseases.org/nord/washington/ pdf/houseletter_topresbush_3504.pdf.

9 See http://www.camradvocacy.org/fastaction/takeaction.asp.

10 Theo Emery, "Harvard University Planning Stem Cell Research Center," Associated Press, February 29, 2004.

11 There is a strong push in many states, such as Illinois, to follow the lead of New Jersey, which, as reported in the previous edition of this column (Spring 2004), passed the strongest law in favor of destruction embryo research. The motive behind, and sometimes the argument for, these bills is often nakedly financial, as the states stumble over themselves to become the "silicon valley" of human embryonic stem-cell research.

12 See Doug Payne, "Canada Passes Cloning Law," Scientist, March 16, 2004.

13 See Woo Suk Hwang et al, "Evidence of a Pluripotent Human Embryonic Stem Cell Line Derived from a Cloned Blastocyst," Science 303.5664 (March 12, 2004): 1669–1674.

14 Kim Tae-gyu, "Commercial Application of Embryo Cloning Due within 10 Years," Korea Times, February 19, 2004.

15 See Isabel Oakeshott, "Human Eggs for Sale on the Net," Evening Standard (London), February 23, 2004. The Canadian bill noted above, however, bans such sale.

16 See, e.g., Colum Lynch, "Effort to Ban Human Cloning Will Resume: Bush Administration, Allies Will Pursue U.N. Vote Despite Diplomatic Setback," Washington Post, December 6, 2003, A4.

17 See http://www.leginfo.ca.gov/pub/99-00/bill/asm/ab_0001-0050/ab_39_bill_19990928_chaptered.html.

18 There is a vigorous battle on this issue in many states. For instance, Wisconsin recently expanded conscience protection (2003 SB 21), but the governor was expected to veto the bill. The debate there, as elsewhere, is whether it somehow deprives women of "health services" such as abortion if a health-care provider declines to perform, provide, or cover such a "service," even if there are other health-care providers who do provide it.

19 ANDA, in essence, protects health-care entities which decline to perform, refer for, train in, or provide coverage for or payment for abortions. It has a broad definition of health-care entities—all hospitals, health professionals, provider sponsored organizations, health-maintenance organizations, health insurance plans, and all other kinds of health-care facilities, organizations, or plans.

20 Twenty-nine states currently provide that when a criminal commits a crime against the mother and kills or injures her unborn child, the action against the child constitutes an additional offense. The murder of mother and unborn child which generated renewed interest in the act matter, would not itself, ironically, be prohibited under the act since the underlying crime (murder) is not a federal crime and the act only applies if there is an underlying "federal crime of violence." Federal crimes of violence include drug-related shootings, violence in an airport, assaulting a federal officer, and killing or assaulting federal witnesses.

21 U.S. Constitution, Article IV, Section 1: "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

22 There is a federal Defense of Marriage Act (DOMA) that rests upon the language in the full faith and credit clause which gives Congress the power to "prescribe ... the effect" of "acts, records, and proceedings." However, given the Supreme Court's view of sexual acts as fundamental, constitutionally protected rights, it seems at least highly questionable whether the federal DOMA will survive a court challenge.

23 In a statement at the White House on February 24, 2004, the president said, "I call upon the Congress to promptly pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of a man and woman as husband and wife. The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage" A copy of the statement can be found at http://www.whitehouse.gov/news/releases/2004/02/20040224-2.html.

WASHINGTON INSIDER Summer 2004