| This election year, the debate over
cloning technology has become a circus -- and hardly anybody has noticed the
gorilla hiding in the tent. Even while President Bush has endorsed throwing
scientists in jail to stop '"reckless experiments", it's just possible the First
Amendment will protect researchers who want to perform cloning
research. Dr. Leon Kass, the chairman of the President's Council on Bioethics, would like to keep that a secret. "I don't want to encourage such thinking," he said. But the notion that the First Amendment creates a "right to research" has been around for a long time, and Kass knows it. In 1977, four eminent legal scholars -- Thomas Emerson, Jerome Barron, Walter Berns and Harold P. Green -- were asked to testify before the House Subcommittee on Science, Technology and Space. At the time, there was alarm in the country over recombinant DNA. Some people feared clones, designer babies, a plague of superbacteria. The committee wanted to know if the federal government should, or could, restrict the science. "Certainly the overwhelming tenor of the testimony was in favor of protecting it," Barron, who now teaches at George Washington University, recalls. Barns, a conservative political scientist, was forced to agree. He didn't like this conclusion, be- cause he feared the consequences of tinkering with nature, but even after consulting with Kass before his testimony, he told Congress that "the First Amendment protected this kind of research." Today, he believes it protects cloning experiments as well. Law-review articles written at the time supported Barns, and so would a report issued by Congress's Office of Technology Assessment (O. T. A. ). But the courts never got the chance to face the right-to-research issue squarely. An oversight body called the Recombinant DNA Advisory Committee, formed by the National Institutes of Health, essentially allowed science to police itself. So the discussion was submerged. Until now. Why legal scholars would defend the right to research is hardly mysterious. The founding fathers passionately defended scientific and academic freedom, and the Supreme Court has traditionally had a high regard for it. But why would the right to read, write and speak as you please extend to the tight to experiment in the lab? Neoconservatives like Kass have emphasized the need to maintain a fixed conception of human nature. But the O. T.A. directly addressed this in a 1981 report. "Even if the rationale.., were expanded to include situations where knowledge threatens fundamental cultural values about the nature of man, control of research for such a reason probably would not be constitutionally permissible," The government can restrict speech if it can prove a "compelling interest," like public safety or national security. But courts have set that bar very high. Unlike, say, an experiment that releases smallpox into the wind to study how it spreads, which could be banned, embryo research presents no readily apparent danger to public health or security. And if that's the case, scientists who wish to create stem cells by cloning might have a new source of succor: the U.S. Constitution. |