Stem Cells and Constitutional Duty Commentary
Stem Cells and Constitutional Duty
Edited by: Jeremiah Lee

JURIST Guest Columnist Elizabeth Price Foley of Florida International University College of Law says that President Bush's veto of stem cell research legislation is an abuse of his constitutional authority antithetical to the rulings of the US Supreme Court…


For the first time in his presidency, President Bush last week exercised raw power to veto legislation, rejecting a bill that would have expanded federal funding for stem cell research cells from discarded embryos created by in vitro fertilization (IVF). He explained that a veto was necessary to prevent “the taking of innocent human life” because “each of these human embryos is a unique human life with inherent dignity and matchless value.” By exercising the veto in this manner, the President has abused his Executive Power and violated his Article II oath to “preserve, protect and defend the Constitution of the United States.”

The Constitution, as interpreted by the U.S. Supreme Court for the last thirty-three years, does not recognize pre-viable embryos as “human life.” Although there has been fierce continuing debate about when constitutionally cognizable life begins, the law has remained essentially unchanged since the 1973 decision in Roe v. Wade, when the Court declared that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” The Court further concluded that the government’s interest in protecting a “potential” life is not sufficiently compelling to justify infringing the fundamental liberty to choose parenthood until the point of viability, “because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” At the point of viability, in other words, there are two lives deserving of governmental consideration and protection; prior to that time, the liberty of the already born is paramount.

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The basic analytical framework of Roe has been reaffirmed numerous times by arguably much more conservative Supreme Courts, most notably in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey and again in the 2000 decision in Stenberg v. Carhart. These decisions make it clear that under the Constitution of the United States, parental liberty trumps any interest government might have in protecting pre-viable human embryos. And whether President Bush supports the Court’s constitutional interpretation or not, it is undeniably the law of the land.

What does all of this mean for stem cell research and President Bush’s veto? First, it means that those who donate sperm and eggs to create IVF embryos have a constitutional liberty, subject to contractual modification, to decide whether those embryos should be born — thus making them parents. They can choose to implant the embryos and attempt pregnancy, freeze them indefinitely, discard them, donate them to others for adoption, or even donate them for medical research (including stem cell research). Under the Constitution as interpreted by the Supreme Court, giving these choices to potential parents is necessary in order to honor the “liberty” protected by the Due Process Clauses. This word “liberty” is the source of our freedom to use contraceptives, avoid involuntary sterilization, and even employ IVF or other reproductive technologies in the first place. We have, in short, a constitutional right to decide whether we want to bear or beget children. And there is no such thing, constitutionally speaking, as a pre-viable “child.”

Second, it means that when President Bush justified the use of his veto power to prevent “the taking of human life,” he was using Executive power to effectuate a personal moral view that is fundamentally antithetical to the law as declared by the Constitution and interpreted by the U.S. Supreme Court. He was defeating a legislative act — thwarting the will of “We the People” — to pursue an agenda contrary to our declared Constitution.

I am not suggesting that the President abuses his power by holding intense moral beliefs and working for their enactment into law. Presidents may (and should) lobby for legitimate constitutional change when they believe it desirable, as well as appoint federal judges who embrace harmonious views regarding constitutional interpretation. These kinds of activities are legitimate because they reflect presidential acceptance of and respect for the rule of law and the obligation, as the Chief Executive, to faithfully execute those laws while they are in effect.

But when a President vetoes a law because he disagrees with the constitutional rights the law acknowledges, he violates his oath of office and assumes near dictatorial power over both the legislative and judicial branches. By vetoing the stem cell bill, President Bush was not preserving, protecting, and defending our Constitution: he was giving it the finger.

Elizabeth Price Foley is Professor of Law at Florida International University College of Law, where she teaches health care law and constitutional law. She was formerly a member of the National Academy of Science’s Committee on Stem Cell Guidelines.
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