Embryo Culture and the 'Culture of Life': Constitutional Issues in the Embryonic Stem Cell Debate

Abstract

The "culture of life" debate has been a powerful force in recent American law and politics, particularly in end of life and reproductive settings. It has also played a major role in limiting federal support of embryonic stem cell (ESC) research, one of the most promising scientific developments in recent years. If ESC research leads to safe and effective treatments for disease, "culture of life" forces are likely to continue to exert a powerful influence in stem cell policy. This article analyzes constitutional limits on laws that limit ESC research and ESC-derived treatments. It argues that "life" and "liberty" in the 5th and 14th Amendment due process clause protects a presumptive negative right to medical treatments that will save or prolong life, including ESC therapies. Neither health and safety, moral views of the embryo, or feared slippery slopes to reproductive cloning and genetic engineering are sufficient justifications for infringing that right. An important implication of a negative right to use medical treatments derived from embryos is that some right to engage in the research necessary to establish those treatments should also be protected, either as a necessary implication of that right or independently under the First Amendment. Once consent to research is obtained, policy objections to ESC research based on moral views of the embryo or slippery slope fears of cloning and genetic engineering will not suffice.

The overall conclusion is that our constitutional tradition supports both a constitutional negative right to medical treatment and to engage in the scientific research needed to develop treatment. As a result, the courts may play a more robust institutional role than they have previously in arbitrating societal disputes over the use of the earliest stages of human life in research and therapy. A reversal of Roe v. Wade would not necessarily undercut that role, because embryos at issue exist prior to the existence of a fetus or pregnancy.