NCBC: NCBQ

WASHINGTON INSIDER
Winter 2004

The President's Council on Bioethics

a. Appointees

Some readers of this column have been confused by references to a former member of the Council, William F. May. Professor William F. May, of Southern Methodist University in Texas, took positions on cloning and stem cell research that were not pro-life. He was not appointed by President Bush to a second term. PLEASE NOTE—this is not a reference to Professor William E. May of the John Paul II Institute at the Catholic University of America in Washington, D.C. Professor William E. May is well-known to readers of this Quarterly as a stalwart opponent of human cloning and human embryonic stem cell research. Unfortunately, he has never been appointed to serve on the President's Council.

b. Meetings

The Council met twice, on June 24–25, and on September 9–10. The Council considered issues related to aging and to neuroscience. No report has been issued.

Efforts to Undermine the President's Stem Cell Research Policy

The effort, reported in previous columns, has intensified. Many observers expect it to peak during October. (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 of August 9, 2001).

As noted in my previous column, Republican Congressman Mike Castle from Delaware gathered Congressional signatories for a letter to President Bush opposing the President's policy. In the end, it was signed by 206 members of the House of Representatives. A companion letter from the Senate was signed by fifty-eight Senators, including fourteen Republicans.¹

Sadly, the death of former President Ronald Reagan on June 5 was the occasion for a renewed attack on President Bush's policy. Certainly, anyone can understand why the President's widow, Nancy, might overlook ethical considerations in the grief over her husband's death. Perhaps this too explains the overheated rhetoric of his son, Ron (particularly at the Democratic Convention).² However, it is sad that members of Congress claimed that the death of the most pro-life President in memory (due to a disease of a type which is never going to be treated with stem cells of any type, because it affects the whole brain) actually supplied a reason to embrace a policy of destroying embryonic human beings (and to pay for it with federal tax dollars).

Several groups or unofficial organizations of scientists have weighed in against the President's policy as well. Some even formed political action committees.³ "Scientists and Engineers for Change" is holding "talks" in Iowa, Minnesota, Missouri, Pennsylvania, Ohio, Oregon, Virginia, and Wisconsin. Though they disavowed any connection to the Kerry campaign, one cannot help but note that their "talks" are in crucial "swing states" in the Presidential election. The purpose of the "talks" is to explain how the President's policy is "anti-science.⁴ In addition, a group of fortyeight Nobel Prize winners in various scientific disciplines endorsed the campaign of John Kerry for president because, among other things, Bush has "set[] unwarranted restrictions on stem cell research."⁵

It is astonishing how rapidly the majority of (at least, politically active) American scientists have forgotten the lessons of the Nuremberg trials—some research should simply never be undertaken because it is unethical—and its corollary: there is no imperative to conduct all research which might theoretically be undertaken. Science should always be subject to a greater master: ethics. Science is only worthwhile when it is in the service of the human person. Of course, in a democracy, the task of shaping a morally worthy scientific policy falls to the citizenry, not to the scientists alone. As the Holy Father noted on August 6, 2004:

[T]he priority of every method of research must be to know the truth about human beings, in order to serve them and not to manipulate them according to a project sometimes arrogantly seen as better even than the plan of the Creator.

For Christians, the mystery of being is so profound that it is unfathomable to human inquiry. On the other hand, persons with the presumption of Prometheus, who set themselves up as arbiters of good and evil, make progress their absolute ideal and are subsequently crushed by it. The century just ended, having experienced the ideologies that have grievously marked our tragic history and the wars that have left deep scars, shows us all what the outcome of such presumption can be.⁶

In this vein, note must be taken of a very important state law initiative. Proposition 71 in California, the "California Stem Cell Research and Cures Act" ("Prop 71"), is a pro-embryonic stem cell research, pro-cloning bill. It reflects all the confusion and misinformation on this issue we have come to expect. For instance, by prohibiting only "reproductive" cloning, it purports to make/recognize a distinction between "reproductive" and "therapeutic" cloning.⁷ Further, it "regulates" and "provides oversight" for thoroughly unethical practices, practices that, no matter how carefully regulated or overseen, can never meet ethical scrutiny. Prop 71 goes further than similar bills in other states since it amends the California constitution to provide a right to conduct stem cell research.

Prop 71 originated among the stem cell research community clustered in San Diego. Obviously, if embryonic stem cell research were as promising as its proponents claim, there would be no need for California tax dollars to subsidize it since the venture capital community in San Diego and elsewhere would be pouring money into it. However, the research is not profitable because it is too speculative and unproven. Thus, the entrepreneurs want to take the tax dollars of citizens, including those morally opposed to such research, to do the basic research from which they hope, ultimately, to profit.

While some of these scientists conduct adult stem cell research and will admit privately how promising it is, they denigrate such claims in public. In July of this year, another columnist of the Quarterly, Nicanor Austriaco, and I attended an allday public session sponsored by many of these research institutions, at which ethical and scientific issues pertaining to human embryonic life were discussed.⁸ The organizers of the conference attempted to have "all" views heard, and are to be commended for that. However, it must be noted that Father Austriaco and I were the only speakers who were opposed to human cloning and human embryonic stem cell research. This is a pattern that is repeated far too often at public events on these issues.

The great irony, of course, is that all these efforts to promote (and protect) human cloning and human embryonic stem cell research come when (a) there have been no (zero) successful human treatments, or even trials, with embryonic stem cells; and (b) each day brings more news of success using adult (non-embryonic) stem cells—the crippled walk and the blind see due to such treatments. Broken hearts are mended. This is literally true.⁹ Adult stem cell research is proven; it is a wiser use of research dollars (which are not, of course, unlimited), and it raises no ethical questions. One wonders why proponents of embryonic stem cell research are too blind to see this.

International Developments on Cloning

The United Nations will take up the question again in October. (See my Summer column for a recounting of previous developments.) Currently, there are over sixty nations supporting a complete cloning ban. The vote, in what is called the Sixth Committee, is expected near the end of October, and should be close. (The outcome of the vote will be to recommend to the General Assembly that it set up a committee to draft a treaty banning either (a) all or (b) only live-birth cloning.)

Meanwhile, the cloning question continues to be a hot topic in other countries. In July, Japan's top scientific body adopted the recommendations of a bioethics advisory panel to permit, "under the strictest conditions,"¹⁰ research cloning (during which a cloned human being is created, and then destroyed in order to extract stem cells).¹¹ Likewise, Singapore has adopted a radical law under which the embryonic human beings produced by cloning must be killed within fourteen days (to prevent its implantation in a womb).¹² The French parliament, on the other hand, adopted legislation banning both research and live-birth cloning (though the law may still be challenged in the Constitutional Council).¹³

Britain, where cloning has been legal since 2001, issued its first cloning license on August 11.¹⁴ The British announcement sparked a call from the prestigious German Medical Association for the European Union to ban all cloning.¹⁵ Nonetheless, there is a debate raging within Germany itself whether Germany's own strictures on stem cell research and cloning should be relaxed.¹⁶ A conference at the Catholic University in Washington, D.C., in October (at which both authors of this column will speak) will examine German and American policy on stem cell research.¹⁷

Conscience Protection

At the United Nations

As mentioned in my last column,¹⁸ there is a strong national movement to limit conscience protection for health-care providers. (Such protection has traditionally allowed a health-care provider to elect not to perform or provide services which violate his conscience.)

At the national level, as noted in the last column, a bill which would expand conscience protection, the Abortion Non-Discrimination Act (or ANDA), has been pending in Congress. ANDA, in essence, protects health-care entities which decline to perform, refer for, train in, or provide coverage 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. Though ANDA passed the House of Representatives a year ago, it was never voted upon in the Senate.

However, ANDA was introduced in another form in September—as the Hyde- Weldon conscience protection provision. This was an amendment to the Labor- HHS (Health and Human Services) appropriations bill. Despite attempts to strip the provision from the bill in the House, it survived. The question now is whether it will survive the joint House/Senate conference committee which will take up the Labor- HHS appropriations bill later this year.

PBA Litigation

As noted in my last column,¹⁹ the federal ban on Partial Birth Abortion (PBA) was challenged in three federal courts—in California,²⁰ in Nebraska,²¹ and in New York.²² Unfortunately, each federal district court struck down the bill.

However, the Department of Justice has said that it will appeal the rulings in New York and Nebraska. Even so, it is most likely that, before these cases are decided at the appellate level, and then appealed from there to the Supreme Court, the Court will hear the appeal from a decision in the Sixth Circuit which upheld Ohio's (state-wide) partial-birth abortion ban. This case may be heard in the next Supreme Court term, which begins during the first week of October.

It is sobering to note that, although the court in Nebraska acknowledged that, during PBA, the child feels excruciating pain, while the court in New York called the procedure "gruesome, brutal, barbaric, and uncivilized," both courts felt that Supreme Court precedent—particularly Stenberg v. Carhart, decided in 2000—compelled them to strike down the federal ban. The fact is, of course, that there is no warrant in the Constitution for abortion, much less partial-birth abortion. This is completely a creation of the Supreme Court. Such excesses can only be remedied by the election of politicians who will nominate and confirm pro-life judges and Supreme Court Justices.

Unborn Victims of Violence Act

The Act, which had passed the House of Representatives on February 26 by a vote of 254 to 163, was approved by the Senate on March 25 by a vote of 61 to 38. It was signed into law by President Bush on April 1. The Act makes it a federal offense to kill or injure an unborn child during the commission of a federal crime.²³ The Act is, of course, very important since it recognizes the fact that the unborn child, as well as the mother, is a human being who is being victimized by a crime.

The Federal Marriage Amendment

The Senate version (S. J. Res. 40), which 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," came up for a vote on July 14.²⁴ The vote was not, however, (and importantly) on the merits of the amendment. Rather, it was a "Motion to Invoke Cloture on the Motion to Proceed to Consider S. J. Res. 40 (The Marriage Amendment)." In other words, it was a vote to break a filibuster and bring the amendment up for a vote on the merits. However, the cloture vote failed 48–50. Thus, S.J. Res. 40 was not voted upon by the Senate.

Renamed the "Marriage Protection Amendment," the issue came before the House on September 30. It was approved (on the merits) by a vote of 227 to 186. However, this falls short of the two-thirds that would be required if, combined with a two-thirds vote in the Senate, it were to be referred to the state legislatures for ratification (pursuant to Article V of the Constitution).

Still, the vote in the House puts members on record (as did the vote on the cloture motion in the Senate). They will have to defend their positions in the elections in November. And in many states, such as Missouri and Louisiana, state legislatures have already amended their state constitutions to protect marriage (and many others are considering doing so). It is to be hoped that the Supreme Court will hear the voice of the people and avoid the temptation to enshrine a right to homosexual marriage in our Constitution. (President Bush has endorsed the amendment.²⁵)

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

Notes

1 See, e.g., Rick Weiss, "58 Senators Seek Easing of Rules for Stem Cells: Bush Urged to Alter Research Policy," The Washington Post, June 8, 2004, p. A3. The letters may be found at http://www.camradvocacy.org/fastaction/housepres4-28.pdf and http://www. camradvocacy.org/fastaction/SenateLettertoBush.pdf.

2 It should not be forgotten that all members of the Reagan family, despite media portrayals to the contrary, do not support the destruction of embryonic human beings in an attempt to find a cure for Alzheimer's (and other) disease(s). The President's son, Michael, has been outspoken in his opposition. Many friends and colleagues of the President, such as former National Security Advisor William Clark, have also written eloquently that to destroy one human being to benefit another totally repudiates the Reagan legacy. William Clark, "For Reagan, All Life Was Sacred," The New York Times, June 11, 2004.

3 Kenneth Chang, "Scientists Begin a Campaign to Oppose President's Policies," The New York Times, September 28, 2004.

4 Rick Weiss, "Washington in Brief—Administration's Use of Science Challenged," The Washington Post, September 28, 2004.

5 See "An Open Letter to the American People" (June 21, 2004) at http://www.johnkerry .com/pdf/nobels.pdf.

6 Letter of John Paul II to the Bishop of Rimini for the 25th Meeting of Friendship among Peoples, August 6, 2004, http://www.vatican.va/holy_father/john_paul_ii/letters/2004/documents/ hf_jp-ii_let_20040806_meeting-amicizia_en.html.

7 The only difference between "reproductive" and "therapeutic" cloning is the purpose for which each is undertaken. Of course, all cloning, for whatever purpose, is cloning; i.e., it produces a new member of the human species. That embryonic human being is killed with "therapeutic" cloning, but brought to birth with "reproductive" cloning. If anything, "therapeutic" cloning is the worse of the two.

8 "Is It Possible to Say When Human Life Begins?—Can Ethical, Legal, and Biological Conceptions of the Human Embryo Converge?" a conference held by the Center for Ethics in Science and Technology in collaboration with The Burnham Institute and the San Diego Science and Technology Council, July 14, 2004.

9 For a compilation of these studies, see Brad Hughes, "Stem Cell Treatments—Real Success, Real Patients," Family Research Council, October 2004.

10 "Panel Paves Way for Research Using Cloned Human Embryos," The Asahi Shimbun, July 15, 2004.

11 Reuters, "Japan Government Panel OKs Some Human Embryo Cloning," July 23, 2004.

12 Paul Nowak, "Singapore Allows Human Cloning for Embryonic Stem Cell Research," LifeNews.com, September 2, 2004.

13 Brad Spurgeon, "France Bans Reproductive and Therapeutic Cloning," BMJ 329.7458 (July 17, 2004): 130.

14 "Scientists Given Cloning Go-ahead," BBC News, August 11, 2004.

15 "Germans Call for European Ban on Embryo Cloning," Deutsche Welle, August 13, 2004.

16 Grit Kienzlen, "Germany Advised on Cloning: National Ethics Council Can't Agree on What to Do About Therapeutic Cloning," The Scientist, September 14, 2004.

17 "Ethics, Public Policy, and Law: The Stem Cell Debate in the United States of America and the Federal Republic of Germany," at the Catholic University of America on October 4– 5, 2004, http://law.cua.edu/news/conference/stemcells/.

18 William L. Saunders, "Washington Insider," National Catholic Bioethics Quarterly 4.2 (Summer 2004): 245–253.

19 Ibid.

20 Amy Fagan, "Abortion Ban Ruled Unconstitutional," The Washington Times, June 2, 2004.

21 Steven Ertelt, "Second Judge Declares Partial-Birth Abortion Ban Unconstitutional," LifeNews.com, August 26, 2004.

22 Kevin O'Hanlon, "Nebraska Judge Finds Partial-Birth Abortion Ban Act Unconstitutional," Associated Press, September 8, 2004.

23 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 Act applies to "federal crimes of violence." Federal crimes of violence include drug-related shootings, violence in an airport, assaulting a federal officer, and killing or assaulting federal witnesses.

24 Please see my previous column, "Washington Insider," National Catholic Bioethics Quarterly 4.2 (Summer 2004): 245–253, for a discussion of the meaning of this language as well as of the Supreme Court case which makes the effort to amend the Constitution necessary.

25 See for instance President Bush's radio address of July 10, 2004, in which he states: "The United States Senate this past week began an important discussion about the meaning of marriage. Senators are considering a constitutional amendment to protect the most fundamental institution of civilization, and to prevent it from being fundamentally redefined ... I urge members of the House and Senate to pass, and send to the states for ratification, an amendment that defines marriage in the United States as a union of a man and woman as husband and wife." Office of the Press Secretary, President's Radio Address, July 10, 2004, http://www.whitehouse.gov/news/releases/2004/07/20040710.html.

WASHINGTON INSIDER Winter 2004