How the Missouri Cloning Initiative Excuses Cloners From Compliance With State Health and Safety Regulations

James S. Cole, Esq.*

            The so-called Missouri Stem Cell Research and Cures Initiative would provide immunity for cloners and their allied businesses from complying with state health and safety regulations.  This article will describe the scope of that immunity.

            Before describing the relevant language of the Initiative, it should be noted that one of the main tactics of the Initiative is to state a good general principle in one place, but then to take away the principle by means of exceptions that swallow the rule.  That is how they have described compliance with health and safety laws.  In section 2(7) of the Initiative, the cloners wrote a good general rule that they shall comply with state laws “concerning scientific and medical practices and patient safety and privacy .  .  .”  Ah, but the general rule is followed by exceptions.  Compliance will be required only—

to the extent that any such laws do not (i) prevent, restrict, obstruct, or discourage any stem cell research or stem cell therapies and cures that are permitted by the provisions of this section other than this subdivision (7) to be conducted or provided, or (ii) create disincentives for any person to engage in or otherwise associate with such research or therapies and cures.”

Initiative, section 2(7). 

            Just give that language a minute’s thought.  What will “discourage” stem cells research and stem cell therapies?  What will constitute “disincentives” to engage in or associate with such research and therapies?  An obvious answer is “any extra cost of doing business.”

Note how extreme the language of the Initiative is.   The Initiative does not say that governmental action must create a “substantial” disincentive, or a “serious” disincentive, or a “material” disincentive.  Any disincentive qualifies. 

It is not hard to imagine how this language will affect the ability of the State of Missouri to regulate the cloners.  Consider a few situations.  Could the State Department of Health require hoods and fans over lab tables, order special procedures to guarantee the purity of stem cell strains from adulteration, or mandate the ability to seal off stem cell labs from other parts of a lab building to minimize contamination from accidents?  If the Initiative is approved, its language becomes part of the state constitution, and the answer is “No.”  The cloners could sue, claiming that any such regulations are unconstitutional by increasing their costs and thus creating “disincentives” to their research.

            Under the Initiative, could the State Legislature enact laws to keep cloners from fusing human cell nuclei with animal egg cells, creating who-knows-what?  This is not fiction; such experiments have been done.  (For fusing with cow egg cells, see, e.g., M. Herper, “Cloning's High Cost,” Forbes on-line, 11/26/2001, http://www.forbes.com/2001/11/26/1126cloning.html; for fusing with rabbit egg cells, see “Rabbit Eggs Used to Grow Human Stem Cells,” USA Today, 9/22/2003, http://www.usatoday.com/tech/news/techinnovations/2003-09-22-chinese-stem-cell_x.htm.)  If the Initiative is approved, the cloners could file suit to declare a ban on human-animal fusions as unconstitutional, because such legislation would “restrict” or “discourage” stem cell research.

Under the Initiative, could the state government enact any laws to describe the minimum information that women must be given before they decide whether to donate their egg cells, especially information on the health risks that they will run?  (See the related article, “How the Missouri Cloning Initiative Would Cause Serious Risks to Women’s Health.”)  No, the State could not.  Such legislation would create both “disincentives” because of extra clerical work and other costs of compliance and would “discourage” stem cell research by discouraging women from donating eggs that the cloners desire.

Whether or not the citizens of Missouri desire cloning, it is unquestionable that they do not want to give the cloners a total “pass” so that they do not ever have to comply with necessary and reasonable health and safety regulations in the future.  The Initiative would do just that.

________________________

*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.