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 # 379  

 December 2001

A Ban on Embryonic Cloning: Would It Be Constitutional?

by Amy Ridenour


Question: which sentence more accurately describes cloning?

A) A medical procedure with the potential to save and create lives;

B) Medical experiments on budding human beings that may harm or end their lives.

A caller on Washington's WMAL radio November 25
1 called support for cloning a "no brainer." If you could help a sick six-year-old live another eighty years, he said, you would.

Put that simply, absolutely yes. But what about the 86 years the embryo could have enjoyed?

Cloning, whether for therapeutic or reproductive purposes, is not a simple issue.

Congress is likely to approve some kind of ban on human cloning. It's almost certain to ban reproductive cloning. It is less certain if it will ban creating embryos to use them for their parts.2

Would a ban be constitutional?

As the Constitution has been interpreted over the last century or so, the answer is likely to be yes.


The Commerce Clause

Theoretically authorized by the Constitution's Commerce Clause,3 our federal government, via the Food and Drug Administration, has regulated which drugs doctors can prescribe for the treatment of medical afflictions. As the courts have permitted the FDA to operate, they are unlikely to strike down a federal effort to regulate the creation and use of embryo cells for medical purposes.

It has been speculated that the current Supreme Court might not be willing to apply the Commerce Clause in this situation.4 In United States v. Lopez (1995),5 the Supreme Court signaled a desire to reduce the federal government's use of the Commerce Clause to justify its reach into state authority. A reading of Justice William Rehnquist's majority opinion, and Justice Clarence Thomas's opinion concurring with the majority, however, show no indication that either justice seeks a truly radical change in how the clause has been applied over the past century.

In Lopez, Rehnquist wrote: "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce."

Creating medical laboratories and/or fertility clinics, and treating patients is, however, an economic activity.

Some - indeed, many - advocates of limited government have long said that the U.S. Supreme Court has stretched the meaning of the Commerce Clause far beyond the intent of the framers. That argument is viewed with sympathy here, but a desire to have the Supreme Court overturn past precedents vis-à-vis the Commerce Clause should not lead one to overstate the likelihood that the Court will do so.

Justice Thomas, whose desire to restrain the reach of the government through the clause appears in Lopez the most ardent, nonetheless writes that he would not necessarily support "a wholesale abandonment of our more recent opinions [on the Commerce Clause]."

A rejection of past Commerce Clause precedent sufficient to overturn the federal regulation of medical clinics is unlikely to be supported by five members of the Court because of a reason unrelated to cloning: civil rights. In two cases, Heart of Atlanta Motel v. United States (1964)6 and Katzenbach v. McClung (1964),7 the Supreme Court upheld the federal government's authority to regulate the civil rights practices of an Atlanta motel serving interstate customers and a small restaurant serving a mostly intrastate clientele. In the latter case, that fact that the restaurant purchased food and supplies across state borders was seen as sufficient to trigger the Commerce Clause.8

Medical clinics utilizing cloning for any purpose are likely to have patients who cross state lines. They also are likely to purchase supplies and materials across state borders.

A change in the Court's view of the Commerce Clause significant enough to invalidate a carefully written federal ban on cloning thus would be a momentous event with significant repercussions on federal civil rights (and many other) laws. Given that three of the current members of the Court once famously opined that a significant change in direction by the Court could undermine the Court's legitimacy,9 it is unlikely that a total of five can be found who are willing to generate controversy by restricting the Commerce Clause to this degree - even if Constitutional purists are correct about the Commerce Clause.

It is thus unlikely that this Supreme Court will sharply restrict the federal government's reach under the Commerce Clause. Should it happen, however, any cloning bans enacted at the state level would be unaffected.


Reproductive Rights

The reach of the Commerce Clause is not the only issue. Some cloning proponents say the constitutional issue is reproductive choice. Creating a clone, even for medical purposes, is reproduction, they argue, and if someone wants to reproduce, the federal government has no right to stop him.

A version of this argument was used recently by a felon who wanted to have children but couldn't because imprisonment blocked him from interaction with his wife and from participation in medically-assisted reproductive procedures. He sued on the theory that he had a constitutional right to reproduce.10 The very liberal11 Ninth Circuit agreed that the inmate had the right to send sperm to his wife via overnight mail, but made this determination on the basis that the prison warden had no good reason to stop him. Had the warden had solid justification, even this liberal, pro-reproductive rights court concluded, the government did have constitutional right to curtail the inmate's ability to reproduce.

Thus it is established that the Constitution allows the government to limit the right to procreate, if the government's reason is justifiable.12

Inmates aren't the only ones positing an unlimited constitutional right to reproduce.

At a hearing before a subcommittee of the U.S. House Energy and Commerce Committee in March 2001, California attorney Mark Eibert opined that a Supreme Court decision banning the forced sterilization of prison inmates, Skinner v. Oklahoma (1942),13 asserts a constitutional right to "have offspring."14 The case, he says, "means that anyone who attempts to ban cloning will have to explain to the courts why infertile people should have less of a right to have children and families than convicted criminals do. For infertile people who can't have biological children any other way, anti-cloning laws are the practical equivalent of forced sterilization."

The law is more subtle than Eibert would have us believe. The Supreme Court has not ruled that all limits on reproduction are unconstitutional. Skinner was decided in part on the point that Oklahoma sterilized people for larceny, and not for embezzlement, although otherwise the two crimes were treated the same under the law. Thus, the Court ruled, disparate treatment of criminals based on minor distinctions triggered the Due Process clause of the Fourteenth Amendment.15

By Eibert's way of thinking, the Constitution does not permit the government to limit reproduction in any manner whatsoever, even if the government has a good reason, or if the impact on reproduction is a secondary effect of the law. Eibert even seems to imply that the government has a responsibility to make certain that those who wish to reproduce can do so, a proposition as dubious legally as it is medically.

Eibert's propositions are not enshrined in current practice. It is not unconstitutional, for example, for the government to separate spouses - such as it does when deploying soldiers overseas - when the couple is attempting to conceive a child. The government would in such an instance believe it had a good reason to separate the couple, but the effect on reproductive activities would be undeniable. Nor does the government supply free (i.e., taxpayer-supported) reproductive medical services to those couples who have difficulty conceiving or carrying a child to term.

In fact, the Supreme Court has been clear that some limits on reproductive activity are constitutional. In Justice William Brennan's majority opinion in Carey v. Population Services International (1977),16 a birth control case, he wrote: "Regulations imposing a burden on a decision as fundamental as whether to bear or beget a child may be justified only by compelling state interests, and must be narrowly drawn to express only those interests."

In other words, reproductive activities may be limited by the government if there is a compelling state interest for doing so.17

The door thus is open for a well-reasoned ban on reproductive cloning.

There are several broadly-supported public policy reasons to ban the cloning of human embryos - as one might suspect, given that, in a February 2001 poll, 90% of the public supported such a ban.18 Just a few include humanitarian concerns that cloned people would suffer from painful and/or restrictive defects (cloned animals have suffered from a high incidence of disabilities), and questions of potential public responsibility for the upbringing and support of severely malformed persons conceived through cloning. Congress also could reasonably conclude that cloning embryos and then destroying them to harvest their parts could lead to a socially-destructive devaluation of human life. It is already clear that some in Congress are taking into account medical research showing that non-embryonic stem cells carry a huge potential for medical advancement and that non-embryonic cells may provide the medical benefits of cloning without the humanitarian and moral issues associated with embryonic cloning itself.

It is key when considering the constitutionality of a cloning ban to remember that the public and/or affected parties need not agree with all the reasons Congress might put forth to justify a cloning ban for a court to consider such reasons "justifiable," and, thus, constitutional. Justifications need only be reasonable; they need not be unanimous.


Right to Life

The destruction of embryos in the cloning process is inevitable. The Fifth Amendment to the Constitution states "No person shall be... deprived of life, liberty, or property, without due process of law."

If proponents of reproductive cloning regard a clone to be a reproduced human, which they must to argue the pro-cloning "reproductive rights" position credibly, the Fifth Amendment, which applies to the federal government and, under the Fourteenth Amendment, to state governments, comes into play. In this context the Fifth Amendment puts forth a constitutional argument for a ban on any cloning that harms or destroys human embryos.

This is, of course, a fundamental pro-life argument. In abortion cases advocates of legal abortion reject the fundamental right to life of human embryos in favor of a "right to privacy," or a right to personal autonomy in sexual matters, that is said to be enjoyed by the embryo's parents. However, in cloning cases the privacy circumstances are very different from those in abortion cases. Cloning requires no sexual congress, and does not touch upon the "intimate relation between husband and wife" that Justice Douglas guarded so jealously when establishing the right to privacy in Griswold v. Connecticut (1965),19 which later led to the establishment of the abortion "right" in Roe v. Wade (1973).20



For scientific as well as constitutional reasons, any ban on the creation of human embryos for the purpose of either cell harvesting or for reproduction will need to be carefully written. If a ban is carefully written, however, it most likely will withstand constitutional challenges, at least for the foreseeable future.


1 Chris Core Show, WMAL Radio, Washington, D.C., November 25, 2001.

2 This is a consensus view among Congressional observers, to the extent that a consensus among the members of such a disparate group is ever possible. For an news article expressing this view, see Stephen Dinan, "Cloning Debate Stalled in Senate, Democrats Rebuff Kansan's Ban Bid," The Washington Times, November 28, 2001, p. A8.

3 The Commerce Clause of the U.S. Constitution gives Congress the power to regulate commerce among the states. It appears in Article I, Section 8, and reads "The Congress shall have power... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes..."

4 For an example, see Christine Hall, "Cloning Ban Raises Constitutional Issues,", June 28, 2001, as downloaded from the website of the American Center for Law and Justice on November 26, 2001 at http:// A relevant section: "'The Constitution itself authorizes Congress to pass criminal laws only in particular areas that are spelled out in the Constitution,' said David Mayer of Capital University Law School. 'Following what the Supreme Court has said in the Lopez case, [even though] it's a narrow 5-4 majority, I don't see any possible way a federal law could be justified under the Commerce Clause,' said Mayer, referring to the 1995 decision striking down a federal law that forbids possession of a firearm near schools."

5 United States v. Lopez (93-1260), 514 U.S. 549 (1995). In Lopez, the Supreme Court ruled that the U.S. Congress does not have the authority to regulate the possession of firearms near schools in the 50 states. The decision is significant because it signaled a partial reversal of the Court's acceptance, since the New Deal, of Congress's use of the Commerce Clause to regulate virtually every aspect of American life. For an examination of the history of the reach of the Commerce Clause, Chief Justice William Rehnquist's majority opinion in Lopez is instructive. It can be found online at Justice Clarence Thomas's opinion concurring with the majority also provides a useful historical review of the Commerce Clause and its powers. His opinion can be found at The text of Lopez, as well as all U.S. Supreme Court decisions since 1990 and selected significant others can be found online at


7 Katzenbach v. McClung, 379 U.S. 294 (1964).

8 Kermit L. Hall, editor, The Oxford Guide to United States Supreme Court Decisions, Oxford University Press, 1999, p. 126.

9 See the majority opinion in Planned Parenthood v. Casey, 505 U.S. 833 (1992) in which Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter wrote that overturning Roe v. Wade would divide the nation and cause the public to question the Supreme Court's legitimacy. It cannot be presumed that justices unwilling to overturn Roe because of worry over the Court's reputation would be willing to alter several decades of precedent and restrict the Commerce Clause to such a degree that it would render the Civil Rights Act unconstitutional. (Race relations is, after all, one of the few issues as politically-charged as abortion.) As each is an appointee of Republican Presidents, these are precisely the justices who otherwise would be most likely to be sympathetic to a narrow reading of the Commerce Clause, so their "loss" in this instance could be decisive.

10 Gerber v. Hickman (2001), United State Court of Appeals for the Ninth Circuit, available at A news article by Joanne Grossman, "Do Prisoners Have a Constitutional Right to Procreate Via Fedex?," summarizing the case, was as of November 28, 2001 available at

11 Joanne Grossman, in "Do Prisoners Have a Constitutional Right to Procreate Via Fedex?," FindLaw's Legal Commentary, writes: "The Ninth Circuit is sharply ideologically divided, with its liberal rulings often the most liberal in the country. Between 1996 and 2000, the Supreme Court reviewed 90 cases from the Ninth Circuit, and reversed 77 of them." As of November 28, 2001, the article was available online at

12 Even this limited freedom granted to the prisoner may well be overturned by the U.S. Supreme Court, as the prison warden is expected to appeal. As noted above, the U.S. Supreme Court overturned 85 percent of the Ninth Circuit's opinions between 1996-2000.

13 Skinner v. Oklahoma, 316 U.S. 535 (1942). The text of this case can be found among the historically-significant Supreme Court decisions archived online at

14 Testimony by Mark Donald Eibert, attorney from San Mateo, California, before the U.S. House of Representatives Committee on Energy and Commerce's Subcommittee on Oversight and Investigations's hearing on human cloning research, March 28, 2001. The relevant paragraph: "Other cases prohibit discriminatory laws that deny reproductive freedom to some people but not others. For example, Oklahoma once had a law that required the sterilization of convicted criminals, as part of a broader eugenics program designed to prevent the birth of seriously defective children. But the Supreme Court struck that law down, declaring that the right to 'have offspring' was a fundamental constitutional right. This case means that anyone who attempts to ban cloning will have to explain to the courts why infertile people should have less of a right to have children and families than convicted criminals do. For infertile people who can't have biological children any other way, anti-cloning laws are the practical equivalent of forced sterilization."

15 In his majority opinion for the Court in Skinner, Justice William O. Douglas opined, in part: "The guaranty of 'equal protection of the laws is a pledge of the protection of equal laws.' Yick Wo v. Hopkins, 118 U.S. 356, 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U.S. 337. Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is determined, as we have noted, 'with reference to the time when the fraudulent intent to convert the property to the taker's own use' arises. Riley v. State, supra, 64 Okla.Cr. at p. 189, 78 P.2d p. 715. We have not the slightest basis for inferring that that line has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment, the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn."

16 Carey v. Population Services International, 431 U.S. 678 (1977).

17 Even the First Amendment right to free speech, considered by many the granddaddy of all rights and one of the most worthy of protection, is limited. One may not, as it has been famously said, yell "fire" in a crowded theater - at least, one may not if there is no fire.

18 Opening statement of Rep. Lamar Smith, U.S. House of Representatives' Committee on the Judiciary's Subcommittee on Crime's hearing on cloning, June 7, 2001.

19 Griswold v. Connecticut, 381 U.S. 479 (1965). The text of this case can be found among the historically-significant Supreme Court decisions archived online at

20 Roe v. Wade, 410 U.S. 113 (1973). The text of this case can be found among the historically-significant Supreme Court decisions archived online at

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