How The Missouri Cloning Initiative Will Nullify Certain Abortion Laws

James S. Cole, Esq.*

            The so-called Missouri Stem Cell Research and Cures Initiative would protect several types of wrongs, not just cloning.  Some of them may surprise people, because they are not advertised by the Initiative’s proponents. 

            The Initiative would create constitutional protection for abuses of the unborn that not even the Supreme Court has forced down citizens’ throats.  The Initiative would protect at least the following activities that Missouri law now forbids, if not more: (1) the use of tissue (stem cells) from aborted human embryos for transplantation when an abortion is procured for that purpose, which is now banned by sec. 188.036.2, RSMo.; (2) offering inducements to women for procuring abortions of their unborn for the medical, scientific, experimental, or therapeutic use of  tissue (stem cells) of the unborn, now banned by sec. 188.036.4, RSMo., and (3) using an unborn human who is aborted alive for research and experimental purposes, which is now banned by sec. 188.037, RSMo.  Here we are speaking of humans created by fertilization, not by cloning.  Treatment of clones is a separate subject.  “Spare” frozen embryos that have been created by in-vitro fertilization (IVF) are the most probable victims, if they are implanted into a woman to grow to a desired gestational age, then aborted.

The Initiative does not say these things in a straightforward way, of course.  Cloners, like abortionists, are becoming skilled in achieving what they want in the law by indirect language.  We begin by looking for a paramount rule, one that would trump most or all other rules.  In the Initiative, one paramount rule is found in Section 7(i), which would forbid any governmental action that would “prevent, restrict, obstruct, or discourage any stem cell research or stem cell therapies and cures,” unless the restriction is found in federal law or in the Initiative itself.  (The rule is also found in similar words in Section 2(7) of the Initiative.)  As a result of this primary rule, if the Initiative is adopted, then any time an activity could be called “stem cell research” or “stem cell therapies and cures,” no state law could be enforced that forbids, restricts, reduces, or even merely discourages it. 

Although the Initiative refers to federal laws governing stem cell research and therapies, there are none unless federal funds are sought.  As the President’s Council on Bioethics noted, “There is no federal regulation of research on in vitro embryos when such research is privately funded and supported.”  Reproduction and Responsibility: The Regulation of New Biotechnologies, Ch. 5, Conclusions (March 2004).  Only state law applies in the absence of federal funding. 

Accordingly, the only restrictions on creating embryos for “stem cell research” or “stem cell therapies” will be those that are found in the Initiative itself.

There are two provisions in the Initiative that the cloners might assert as restrictions on the abuse of embryos.  First, they might quote Section 2(3), which states in relevant part, “No stem cells may be taken from a human blastocyst more than fourteen days after cell division begins . . . “  Here, the trick is knowing what a “blastocyst” is.  Under the definition of the Initiative, a human is a “blastocyst” only until implantation.  Initiative, Section 6(1).  Once a blastocyst implants, it is longer a blastocyst, and at that point, Section 2(3) would no longer apply.  Thus, Section 2(3) would offer no protection for unborn babies after implantation.  Any type of stem cell-related experiment could be done on an aborted or soon-to-be-aborted baby.

Second, the cloners may quote Section 2(2) of the Initiative, which states in relevant part, “(2) No human blastocyst may be produced by fertilization solely for the purpose of stem cell research.”  Here, the trick lies in the difference between “stem cell research” and “stem cell therapies and cures,” as those phrases are used in the Initiative.  The phrases have particular meanings assigned by Sections 6(15) and 6(16), which read in relevant part: 

“(15) ‘Stem cell research’ means any scientific or medical research involving stem cells.

“(16) ‘Stem cell therapies and cures’ means any medical treatment that involves or otherwise derives from the use of stem cells .  .  .  “

The key point here is that “stem cell research” is a different thing from “stem cell therapies and cures.”  Thus, the language of Section 2(2), which prohibits the creation of human beings by fertilization solely for the purpose of “stem cell research,” does not create any restriction on the creation of human beings for “stem cell therapies and cures.”  If the Initiative is approved by the voters, then scientists can create humans by in vitro fertilization, implant them in cooperative women for the desired period, and then abort them for “stem cell therapies and cures.”  Existing Missouri laws that prohibit such a barbaric practice would be rendered unconstitutional and void.

Think of it.  A proposal is sold to the public as a way to save lives, but the proposal guarantees that human lives can be created by fertilization and then killed for stem cells, and further guarantees immunity for doing the killing and removal of such cells and tissues.  

It would be nothing but medical cannibalism to create and kill one person to take stem cells to implant into another person.  The Initiative would nullify the Missouri abortion laws that now protect against such a crime and would write medical cannibalism into the constitution of Missouri.

*James S. Cole, J.D. Harvard Law School, is a practicing attorney in St. Louis and serves as General Counsel for Missouri Right to Life.  The author gratefully acknowledges the suggestions of David C. Drury, Esq., president of Missouri Lawyers for Life, in regard to a draft of this article.