Why the Initiative’s Proponents Desire the Broadest Possible Constitutional Language

By Steven Rogers J.D.*

Question: With the obvious resources available to the proponents, including substantial legal talent, why would the effort draft such an overbroad amendment? Why not tailor it to the specific stated need?

Answer:  The answer is equally as obvious as the question. The goal of the proponents of the embryonic stem cell amendment is not to create a constitutional right. It is to create a pre-eminent constitutional right which is unlimited, unrestrained and above the rule of law. One needs only to look at the ongoing abortion battles in the federal courts to understand.

            Today, the focus of any and all litigation on the issue of the federally guaranteed constitutional right of an abortion is not on the right to obtain an abortion itself. The right of a pregnant woman – in her sole discretion -- to obtain an abortion during at least the first trimester of the child’s life is an established constitutionally guaranteed right.

            The present judicial battleground is on the regulation of such right. This is currently seen in: (i) the battles over state laws which require the abortionist to notify the pregnant minor woman/girl’s parents or guardians of the planned termination of the child; and, (ii) the battles over state laws which punish interstate abortion providers who violate the laws of the home-state of the pregnant minor woman/girl. Pending legislation, as well as recently enacted legislation – soon to be the subject of litigation in the federal courts – all revolve around the limitation of the right by regulating such right.

            Clearly, the right to an abortion – as is true with substantially all other constitutional rights – is not a pre-eminent right. Like the primary rights of free speech, the right of a free press, and the right to freely exercise one’s religious beliefs, the right is limited by reasonable regulation to further the health, safety and welfare of society as a whole. As you can not yell fire in a crowded theatre, nor defame someone by publishing false things about a private person in a newspaper, nor use hallucinogenic drugs in one’s public acts of worship, the right to an abortion is limited by reasonable restraints. These are understood as limitations as to who can perform an abortion, where it can be performed, the age of the child to be aborted, the notification of a minor’s parents, as well as a host of other municipal, county, and state rules and regulations.

            Understandably, by some these limitations are seen as a denial of the unrestrained right to an abortion. By others these are seen as necessary to assure the exercise of the right in a manner and by a means which does not unreasonably impose on the rights of others. In any such balancing, the courts are called upon to be the final arbiter or judge of the reasonableness of any law which might restrict the right. This, of course, is the time consuming an extremely costly process of litigation. The only thing both sides of the debate can agree upon is the burden this litigation imposes on both sides.

            So as to avoid the problem of litigating the various rules, regulations and laws which may restrain the to-be-created constitutional right of embryonic stem cell research, the proponents seek to create an amendment which acts above the rule of law. Any law or even any act of any elected official which may even “discourage” such right, much less regulate its operation, fails. Such law or act is simply void and even unlawful. No branch of government can regulate embryonic stem cell research. No branch of government may even do anything which would act to “discourage” it.

            While such may be cost-effective and expedient, it is not American in nature. The creation of any fundamental law – even a constitutional right – free from the checks and balances of the three constitutional branches of government, subject themselves to the electorate of the people, is simply not based on the American model of constitutional government. While it will definitely serve the interest of the several wealthy interests, who will benefit from the enormous revenues derived from this right to conduct embryonic stem cell research, this constitutional right – commercial in nature – will operate apart from any governmental control; above the very checks and balances which have guaranteed American ordered liberty – known as freedom – for 230 years.

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   *Steven Rogers holds a Doctorate of Jurisprudence from Baylor University. He is an alumnus of Conception Seminary College in Conception, Missouri, where he serves as a professor in the seminary and as Director of Development.