Legal Commentary

The Executive Order is here; the President's accompanying statement is here.

It is my well considered view that it is immoral to engage in (and I do not believe the government should fund) stem-cell research that involves the intentional destruction (or the creation-for-destruction) of human embryos.  Many people -- including, I assume, most Prawfsblawg readers -- disagree with me on this.  Fair enough.  The point of this post is not so much to spell out and defend my views regarding the implications for scientific research of a commitment to human dignity and human equality, but to return to a matter that Paul, and others, have talked about, namely, the alleged wrongness of allowing (as Pres. Bush is often said to have allowed) "religious" concerns to trump "science."

In his statement, the President says that "as a person of faith" he believes "we are called to care for each other and work to ease human suffering. I believe we have been given the capacity and will to pursue this research -- and the humanity and conscience to do so responsibly."  Of course, few would disagree with the statement that "we are called to care for each other and work to ease human suffering."  To say this is to say little. The question is, what does it mean to do so "responsibly"?  Where will the limiting criteria -- and again, according to the President, research *will* be limited by "moral values" -- come from?  "Science" does not supply them.

It seems that, in fact, we are not moving from a (bad) "politics and religion trumping science" regime to a (good) "responsible science" regime, and but from "science constrained by one set of moral commitments" to "science constrained by a different set of moral commitments."  It would be good, I think, if everyone admitted this.  We could then ask whether the moral commitments in the new regime are really the ones we hold, and really up to the job of preventing (what we profess to think are) horrible injustices.   

More from the statement:

We will support it only when it is both scientifically worthy and responsibly conducted. We will develop strict guidelines, which we will rigorously enforce, because we cannot ever tolerate misuse or abuse. And we will ensure that our government never opens the door to the use of cloning for human reproduction. It is dangerous, profoundly wrong, and has no place in our society, or any society.

I agree with the President that cloning for human reproduction is "profoundly wrong", but I am not sure how "science" supplies this moral judgment (as opposed to uncovering the facts to which a moral principle might be applied).  Why, exactly, is such cloning profoundly wrong? And is the judgment that such cloning is "profoundly wrong" and unworthy of "any society" more "scientific" than the claim that creating, exploiting, and destroying human embryos for research purposes is "profoundly wrong"? A researcher who regards reproductive cloning as a fascinating, and potentially welfare-increasing, research program might well wonder why she, but not her stem-cell-research colleagues, is being scolded in a statement that purports to aim at freeing science from politics so that it can "do its job."

Again, the point here is not to open a debate about whether embryo-destructive research are reproductive cloning are moral.  It is only to suggest that we not pretend that what we are seeing is the removal of morality from debates about such procedures, that "science" requires or deserves such a removal, or that we would ever want such a removal.