Therapeutic Cloning: Why Congress Should Butt Out

Jonathan Rauch | December 15, 2001

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Congress would be wholly within its rights to restrict or bar the use of federal money for stem-cell research or cloning or both. It would also be wholly within its rights to ban interstate commerce in human embryos (probably a good idea, to forestall a national market in factory-farmed embryos). The Food and Drug Administration can and should ensure the safety and effectiveness of any medical products and techniques that emerge from therapeutic cloning or stem-cell research.

But the federal criminalization of therapeutic cloning would amount to nothing less than an aggressive power grab by Congress. "So far ... human research generally remains untouched by federal law," writes R. Alta Charo, a law professor at the University of Wisconsin (Madison) in The Chronicle of Higher Education. "Research supported by private funds that is not covered by [FDA and voluntary] regulations can be conducted without fear of federal penalty, although state laws and the rules of professional societies may restrict it."

Consider the ironies when a fervently pro-life and pro-states'-rights House majority demands a federal ban on therapeutic cloning, complete with 10-year prison sentences for cloners. These pro-lifers would criminalize a field of research whose life-saving potential may well turn out to be unique. To do so, they would trample on the prerogatives and consciences of the states.

In 1973, the Supreme Court ignited a bitter and pointless culture war when it imposed a national, one-size-fits-all abortion policy. Was it too much to expect that pro-life states' righters, of all people, might have learned a lesson? When a national moral consensus is unavailable, improbable, and most likely undesirable, a wise Congress butts out.