SECTION: CAPITOL HILL HEARING TESTIMONY

LENGTH: 4107 words

COMMITTEE: HOUSE JUDICIARY

SUBCOMMITTEE: CRIME

HEADLINE: HUMAN CLONING BAN

TESTIMONY-BY: GERALD V. BRADLEY, PROFESSOR AT LAW

AFFILIATION: UNIVERSITY OF NOTRE DAME

BODY:
June 19, 2001

U.S. House of Representatives Committee on the Judiciary, Subcommittee on Crime

Hearings on Human Cloning H.R. 1644, H.R. __(Greenwood)

Testimony of Gerard V. Bradley Professor of Law, University of Notre Dame

Mr. Chairman and members of the Subcommittee. I am grateful for this opportunity to evaluate the proposed anti-cloning bills, both from a constitutional viewpoint and from the viewpoint of criminal law and its enforcement. A copy of my entire C.V. is attached to the written testimony. I should like to note, however, that I have taught, and published widely, in the areas of constitutional law and criminal procedure throughout my eighteen years as a professor. Before that, I was a prosecutor in New York City, serving as an Assistant to Robert Morgenthau, District Attorney of New York County. I shall focus principally on H.R. 1644, and especially on its constitutionality. My judgment is that this bill is a proper exercise of Congress's power over interstate commerce, and that it is entirely consistent with relevant constitutional doctrines, particularly those protecting privacy and reproductive freedom. The Greenwood bill is also a legitimate exercise of Congress's interstate commerce power. But it raises serious constitutional questions which H.R. 1644 does not. Moreover, the Greenwood "prohibition" is unenforceable: practically speaking, the bill will not attain its stated objective of banning cloning intended to initiate a pregnancy. My judgment is this: the only effective way to prohibit human reproductive cloning is to prohibit all human cloning, as H.R.1644 does. And H.R. 1644 provides the route to that end free of constitutional difficulty.

The Constitutionality of H.R. 1644

The first question about H.R. 1644, as with every act of Congress, is whether a specific constitutional authorization supports the proposed exercise of Congressional power. This bill identifies the Commerce Clause as Congress's lawmaking authority. The controlling Commerce Clause precedents are summarized in U.S. v. Lopez, 514 U.S. 549 (1995). Lopez supplies the criteria for my analysis.

On one view of H.R. 1644, there cannot be any question concerning the Commerce Clause. The bill states that it "shall be unlawful for any person or entity, public or private, in or affecting interstate commerce" to engage in any of the prohibited acts. It is possible to read the jurisdictional (i.e., interstate commerce) language here as constituting an element of the offense. On this reading, a successful prosecution under the act would require proof either that the particular defendant's activities (in general) affected interstate commerce, or that the charged act(s) of cloning did. In other words, no one could be convicted under the proposed act without proof of the requisite effect upon interstate commerce. Where that proof failed, the prohibition could not attach. On this view of the bill, no facial attack on commerce clause grounds is possible.

I mention this reading not because I think it is the one intended by the bill's drafters. H.R. 1644 intends, it rather seems to me, a flat prohibition of human cloning, as an exercise of Congressional power over interstate commerce. I turn to the constitutionality of thatmomentarily. I mention this alternative reading to support the following caveat: if a court down the line, reviewing an enforcement action under the enacted bill, doubts the constitutionality of a flat prohibition, that court will not hold the bill unconstitutional. Instead, that doubting court will adopt the narrower, and safer, reading I just described. Again: there is almost no chance that this bill will be held unconstitutional on Commerce Clause grounds by any court. There is, however, some chance that a court will adopt the safer reading of the jurisdictional language.

Let us henceforth treat H.R. 1644 as a flat prohibition of human cloning. My judgment is that, even with the modest pruning of Congressional commerce authority in recent Supreme Court cases, the bill is constitutional.

First, there is no doubt that Congress may regulate interstate commerce for non-commercial purposes. Congress may go so far as to prohibit certain activities, in or affecting interstate commerce, solely because they are deemed immoral, injurious to human dignity, or violative of human rights. Many cases support this proposition. The most compelling may be those upholding the Civil Rights Act of 1964, specifically, its ban on racial discrimination in motels and restaurants serving (in even minuscule part) interstate travelers. See Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

H.R. 1644 prohibits human cloning for a number of reasons, recited in the "Findings" section. That most, or even all, may be non-commercial therefore raises no interesting constitutional question.

Does a flat prohibition on human cloning have the requisite connection to interstate commerce? The prevailing Supreme Court tests, as found in the Lopez majority opinion, recognize plenary Congressional power over the instrumentalities of interstate commerce, a protective power extending to intrastate activities which threaten the instrumentalities of interstate commerce. Most of the activity prohibited by H.R. 1644 -- "ship [ping]" or "receiv[ing]" products of human cloning, for example -- could be supported by these twin powers. Congress could, without constitutional question, flatly prohibit all use of the mail and wires in furtherance of human cloning, prohibit all entities receiving any federal funds from human cloning, and even utilize its special maritime and admiralty jurisdiction in aid of a total ban.

My judgment is, however, that these powers, either alone or in tandem, may not be sufficient to support all that is banned by the bill. My opinion is that some portion of the flat ban on human cloning must rely upon the third type of Congressional commerce power, that over intrastate activity affecting interstate commerce.

The Lopez court emphasized, over against some prior authority, that the test was whether the regulated activity "substantially" affects interstate commerce. H.R. 1644 does not use the modifier "substantial". But that alone does not affect the bill's constitutionality, so long as it can be shown, in a later judicial test, that a "substantial" effect exists. Does Congress have a reasonable basis for asserting that "substantial" effect? I surely believe so.

Here is the argument that Congress does. It is important at the outset to exactly identify the activity whose relation to interstate commerce is in question. That activity is not somatic cell nuclear transfer, the scientific act prohibited by H.R. 1644. For that prohibition is merely the means chosen by Congress to forestall a different, much more substantial economic activity: the whole prospective set of activities in connection with human reproductive cloning, and with cloning for more limited scientific, medical, academic purposes -- which would arise in due course absent H.R. 1644.

This projected web of activities would be high tech; it would be dependent upon the interstate transportation of raw materials, lab equipment, and products; and it would rely upon the national and international communication of needs, research results, and opportunities. Though precisely speaking not a commodity for sale, cloned human embryos could reasonably be projected to becomes articles of exchange, traded for "service" fees. In short, Congress could reasonably conclude that H.R. 1644 is a pre- emptive strike against a potentially enormous interstate traffic in connection with human cloning.

The central aim of H.R. 1644 is to forestall this projected commodification of the results of human cloning. Nothing in the Constitution or the case law requires Congress to wait and see how things play out before acting. That Congress is poised to act pre-emptively against an evil is neither unusual nor constitutionally troublesome. True, if the bill succeeds in its goals, we will never know in fine what the unregulated market in human cloning would have looked like. But that fact weighs in favor of constitutionality. For to strike down the bill as unconstitutional, a reviewing court would have to overrule, without any contrary facts in hand, Congress's informed judgment about the future.

In my professional opinion, there is little chance that a court, reviewing a factual basis like the one just described, will upset, as an unwarranted exercise of the interstate commerce power, Congress's judgment to prohibit human cloning,

The Privacy Cases

According to the Supreme Court, its privacy cases have established constitutional protection for the right: to marry; to have children; to direct the education and upbringing of one's children; to marital privacy; to use contraception; to bodily integrity; and to abortion. See Washington v. Glucksberg, 117 S.Ct. 2258, 2267 (1997) (citations omitted). Only two of these rights are in the neighborhood of cloning. For the proposition in favor of a right to "have children", the Court relied upon a 1942 decision against involuntary sterilization. For the right to "marital privacy" the Court cited Griswold, its 1965 decision in favor a right of married couples to use contraception. There is therefore no Supreme Court authority nearly in line against a ban on human cloning.

There is, generally, Supreme Court precedent in favor of a woman's right to decide, by herself, whether to "bear or beget" a child. But the cases giving rise to that right make clear that "begotten" is surely not made -- or cloned. And "bear" unequivocally refers to the abortion liberty. There is also authority for the proposition that, in no exact sense, one has a right not to be a become a parent against one's wishes. But that right is limited to pregnant women; a man either deceived or the victim of contraceptive failure has no constitutional traction whatsoever upon the decision of the woman to abort their child, or to carry their child to term. Besides, this woman's right is surely asymmetrical. A right not to be a parent does not imply or entail a right, simply, to be a parent.

No case, in any court, has ever held in favor of a constitutional right to reproduction by cloning. In fact, no case has ever held that anyone has a right to reproduce by in vitro fertilization (IVF).

To generate a "privacy" argument against H.R. 1644 one would have to go beyond all prior holdings of all the courts. The only way that I can think of to make that argument would detach a commodious phrase, such as the "right to have children", from its jurisprudential moorings, and then (somehow) maintain that the broad concept implies a right to reproduce by cloning. But no such argument could possibly succeed, as I understand the Supreme Court's stance towards all such novel claims of constitutional rights.

The Court has repeatedly emphasized two fundamental requirements for any "privacy" argument in favor of an unrecognized liberty interest. First, the asserted liberty must be, objectively speaking, "deeply rooted in this nation's history and tradition". See Glucksberg at 2268. Cloning clearly does not satisfy this requirement. Not only is it an entirely new technology. By reducing reproduction to asexual replication, it is radically unlike all rights sounding in "reproductive liberty" heretofore recognized. In other words, even argument by analogy will not work for cloning.

Second, the Supreme Court has cautioned, in very strong terms, against arguments relying upon spacious phrasing. The Court has insisted that the asserted liberty be described in specific, concrete terms. Vague, open-ended generalities will not do. For example, the Court has rejected characterizations of its Cruzan holding as favoring a "right to die". Instead, the Court, in its own description, held for a "constitutionally protected right to refuse lifesaving hydration and nutrition". Nor was Glucksberg itself, according to the Court, about a "right to die" or a "right to commit suicide". It was instead about "a right to commit suicide which itself includes a right to assistance in doing so." Id.

According to this second requirement, no general "right to reproduce", "to be a parent", or "to have a child" will be credited, either as a conclusion or as a premise, in any argument in the Supreme Court. The Court will insist that a claimant defend a right specifically to cloning. Given the high burden of persuasion imposed by the high Court upon such claimants, the chances of success in the are virtually nil.

The Supreme Court has said: "We must therefore 'exercise the utmost care whenever we are asked to break new ground in this field'...lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court". Id. This statement of judicial restraint implies that "policy" is the business of Congress, at least where the Court does not stake a claim to constitutional supervision. The Court has not and, in my judgment, will not, with regard to cloning.

Let me explain, in one more way, why members of Congress are constrained in this matter by their sworn duty to uphold the Constitution and to legislate for the common good, unconstrainedby judicial doctrine. It is true that cloning has some features in common with acts that are constitutionally protected. Cloning is, for example, a way to have a baby, and people (women especially) have a right to decide whether to have a baby. Also, let us say for argument sake, that individuals have a right to have babies outside of marriage. (They do, in the limited sense of being immune to penalties for doing so. But individuals do not actually have a constitutional right to unwed parenthood.) Again, you do not have to be married to have baby by cloning.

But, to observe that cloning is like protected acts in two respects is not saying much. It is not saying much because cloning posses several additional features, and it is precisely thoseadditional features which are the grounds of the proposed ban -- features included in the description of cloning as the asexual manufacture of genetic replicas. We may presume that members of Congress voting for this bill do not do so because they are opposed to people having babies, even outside of wedlock. So far considered, then, members do not adopt as a reason for action any adverse moral judgment upon any act (or feature of an act) declared by courts to be private, or none of Congress's business. Congress, in this thought experiment, regulates only for reasons entirely left open to their policy judgment by the courts. There is no good reason to anticipate authoritative judicial action which would block Congressional action upon those reasons. There is every good reason to conclude that none will be forthcoming.

A comparison might help to make this point clearer. There is no doubt now that movies are a constitutionally protected mode of speech. Individuals therefore may be said to have a right to make movies. And, so long as amenities are preserved, they have a right to make movies about children, using child actors. Francis Ford Coppola, for example, may be said to have a right to do a remake of "Heidi", using the Olson twins as stars. Should Congress attempt to suppress this project, so far described, Congress would be acted unconstitutionally.

But, does anyone think that if a particular director wished to make a porno version of "Heidi", using child actresses, he has a right to do so? That Congress would be acting unconstitutionallyby prohibiting child pornography?

Of course not, even though porno "Heidi" possesses, we may suppose, every feature of Coppola's "Heidi". And that is because porno "Heidi" possesses one additional feature - sexual exploitation of children - which is not constitutionally protected.

Cloning possesses many unprotected features.

A Note on IVF

As I noted above, no court in any American jurisdiction has held in favor of a federalconstitutional right to have a child by in vitro fertilization. It is nevertheless permitted in most, if not all, jurisdictions. At least one state court (Tennessee), construing its state constitution, may have implicitly recognized some right to use IVF. Does approval of IVF imply or suggest approval of cloning? Is a ban on cloning somehow inconsistent with approval of IVF? Would a projected court decision in favor of a constitutional right to IVF implicitly undermine the constitutionality of this bill?

The answer to all these questions is "No".

IVF and cloning are both methods of asexual human reproduction which rely upon scientific technique to bring an embryo into being. Both techniques require the implantation of the embryo into a woman's womb in order to bring forth a fully developed baby approximately nine months later. But, otherwise, cloning is radically discontinuous with IVF, and much more distant from human reproduction as traditionally morally approved, and as recognized in Due Process cases.

For: the principle of reproduction in IVF procedures is the human couple. The child born is the issue of two parents, who become mother and father of that child. That child is genetically unique, the unrepeatable combination (genetically speaking) of his/her mom and dad. None of the problems of individuality and identity created by cloning plague IVF. Though assisted by the lab technician, the embryo is created in IVF as it is within the woman's body in intercourse: by the spontaneous fusion of gametes -- egg and sperm. Most important, because of the unique and spontaneous genetic constitution of the IVF baby, there is scarcely a trace of the manufactured product status that would be characteristic of cloning.

By contrast, cloning is the impersonal, individualized undertaking to make a person to the specifications of a single (genetic) parent. It is replication, not true reproduction, and it is radically de-humanized. The way to think of IVF in relation to cloning is an aggravated form of the relation between the two Heidi movies.

May Congress Ban All Human Cloning?

My opinion so far has noticed only H.R. 1644, and that insofar as it bans all humanreproductive cloning. But H.R. 1644 goes further, and that further step is what most distinguishes it from H.R. __ (the Greenwood bill). H.R. 1644 would prohibit all human cloning, as the only practical way to make a ban on reproductive cloning effective. The Greenwood bill would instead ban cloning "with the intent to initiate a pregnancy". In my opinion, the comprehensive ban of H.R. 1644 raises no new or interesting constitutional questions. (1) Also, it is the only practical way to ban reproductive cloning. The Greenwood bill, by contrast, raises difficult constitutional questions, and would be wholly ineffective.

Let me explain.

The comprehensive ban will obviously curtail the activities of researchers who may have no direct interest in or connection to reproductive cloning. But the judgement that their activities would imperil the ban on reproductive cloning is entirely for Congress to make. Since research of the type involved here is a mixture of speech and act, it is not protected as pure speech is by the Constitution. Congress has the constitutional power to limit these speech acts in the public interest. H.R. 1644 does that.

What new constitutional questions does the Greenwood bill raise? First, by limiting the scope of its prohibition to some fraction of the comprehensive ban of H.R. 1644, Greenwoodnecessarily weakens the Commerce Clause argument in its favor. Recall that the basis for concluding that H.R. 1644 was on safe interstate commerce ground was the potentially huge interstate traffic in all types of cloning. By prohibiting one subset of cloning Greenwood mayhave to justify itself by reference to imagined traffic in just that subset. Also,Greenwood does not have the fall-back interpretation available to H.R. 1644. Nothing in Greenwood suggests that "affecting interstate commerce" may be an element of each prosecution under it.

By prohibiting only cloning "with the intent to initiate a pregnancy" Greenwood creates a plausible constitutional argument against itself. It requires, as a matter of federal law, the intentional destruction of human embryos, which many consider to be incipient human life. The requirement thus creates a constituency who will be both opposed to human cloning, and to the Greenwood bill (for its required destruction of embryos). This constituency will be motivated to locate plaintiffs with standing to save from destruction at least some of those embryos. A nuclear donor, especially a female nuclear donor asking for "her"embryos in order to have them implanted in her own womb, has a plausible constitutional argument in favor of a right to do so.

This female plaintiff will say that, notwithstanding any contractual agreement with researchers, the fact is that her very tiny child now exists, and that the courts have two choices. They may authorize the destruction of her tiny child, or they may restore that tiny child to its mother. She will rely upon the few decided cases involving frozen embryos, derived from IVF, cases usually arising out of conflicts engendered by divorce. Those courts have recognizedparental rights in embryos, frozen and in possession of laboratories. Some of these courts were even willing to put aside contractual agreements for the destruction of embryos, in light of parental claims to he embryos. In other words, parents may have the right to change their minds.

Simply put, allow the creation of embryos by anyone for any purpose, and you create parental rights. The only way to avoid creating parental rights is to avoid creating embryos.

The Greenwood ban is not only dubious as a matter of law. It is untenable and unworkable in practice. Sections 8 (a) and (b) of H.R. 1644 provide sound reasons for concluding that evasions of the Greenwood ban would be all but undetectable. I should like to add a different set of observations, not about evading Greenwood, but about the porous quality of its coverage. I shall speak about human reproductive cloning which is not unlawful under the Greenwood bill.

Greenwood does not ban the implantation of embryos obtained by cloning. It does not ban the possession of embryos created by cloning; only knowing "ship[ping]" and "transport[ing]" the "cellular product" of cloning are prohibited. Greenwood explicitly immunizes from its reach "other medical procedures to assist a woman in becoming or remaining pregnant". Simply getting pregnant with a cloned embryo is entirely outside the scope of this self-styled "prohibition against human cloning". In sum, the Greenwood "prohibition" would actually privilege the creation of an untold number of embryos suitable for implantation, and does not make any act in connection with implantation itself unlawful. And a human embryo created for research purposes is just as suitable for implantation as one created for that end, and vice- versa..

Now consider this very simple, eminently workable scenario.

The act's main prohibition attaches at the moment of cloning. A researcher must not clone "with the intent to initiate a pregnancy". A researcher who undergoes a change of heart could therefore lawfully tell another person, whom we shall call the "mule", to deliver a vial of embryos (which the researcher had created days ago in good faith) to an office across town. That deliverer would not be guilty of "knowingly" shipping or transporting cloning products. Across town, a doctor takes possession of the embryos, and implants them in a like number of women. Neither the doctor or the women are guilty of anything. None created embryos with the intent to cause pregnancy, and none shipped or transported them at all.

Conclusion

H.R. 1644 makes good moral sense, is free of constitutional infirmities, and it is practically enforceable. The Greenwood alternative is morally dubious, constitutionally questionable, and practically unenforceable.

1. This is probably the best place to note a shortcoming of draftsmanship in H.R. 1644. It omits all explicit mention of mens rea. This omission appears to make its provisions binding in strict liability. Since the ten-year sentence authorized strongly suggests that either knowing, or perhaps reckless, misconduct is the target of the bill, some mens rea should be made explicit.



LOAD-DATE: June 20, 2001