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THE UNLIMITED SCOPE OF THE CONSTITUTIONAL RIGHT CREATED BY THE MISSOURI STEM CELL RESEARCH AND CURES INITIATIVE
By Steven Rogers J.D.*
QUESTION: What does the proposed constitutional amendment actually do?
ANSWER: The proposed amendment creates a new constitutional right. This guarantees the right to conduct embryonic stem cell research. The right is to-be pre-eminent and, unlike other constitutional rights, may not be regulated in any manner by any of the three branches of government. It is designed to operate above the rule of law.
The relevant language of the proposed amendment states:
§2.(7) All stem cell research and all stem cell therapies and cures must be conducted and provided in accordance with state and local laws of general applicability, including but not limited to laws concerning scientific and medical practices and patient safety and privacy, 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. 1
§7. The provisions of this section and of all state and local laws, regulations, rules, charters, ordinances, and other governmental actions shall be construed in favor of the conduct of stem cell research and the provision of stem cell therapies and cures. No state or local law, regulation, rule, charter, ordinance, or other governmental action shall (i) prevent, restrict, obstruct, or discourage any stem cell research or stem cell therapies and cures that are permitted by this section 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.
Although innocent at first reading, the amendment’s language violates the basic notion of constitutional government. The amendment operates apart from the checks and balances derived from the separation of powers between the various branches of government. It is in itself pre-eminent. No law, rule or regulation may be passed or even enforced at any level of government which will even “discourage” embryonic stem cell research.
Even the sacrosanct rights of the 1st Amendment – the right of free speech, the right of a free press and the right to freely exercise one’s religious beliefs are subject to limitation. As one can not yell “fire” in a crowded theatre, nor publish false, defaming facts about a private person in a newspaper, nor ingest hallucinogenic drugs in their public worship, constitutional rights are limited by reasonable restraints on their exercise. This is done to protect the rights of others.
Unlike a normal law, subject to judicial review [construction, interpretation, application and potentially nullification by a court], the only control society will have over the right will be the lengthy and costly process of amending the constitution.2
Whether one agrees with embryonic stem cell research or not, the proposed constitutional amendment is an unprecedented usurpation and disruption of the existing rule of law.
The amendment creates an absolute, unrestrained right to stem cell research. Any law which may in any manner restrict such research or discourage it – if even for the most legitimate of reasons – fails. No elected legislature, no elected governor, and no judge [appointed by those elected and retained by election by the people] may at anytime pass any law, or do any act, which may have any negative – real or imagined – impact on this newly created right.
As proposed the right to stem cell research – by those few monied interests who derive the benefits therefrom – is beyond the rule of law. All other rights, liberty interests and freedom fail in its path. No third-world dictator could ever hope for more.
The proponents deceptively explain this language as follows:
It also makes it clear that state and local governments could not pass a law that would single out and unfairly or arbitrarily prevent stem cell research, therapies and cures that are allowed in our country and conducted in accordance with the requirements of the Initiative. This prevents government officials from passing a law or regulation that is really just a backdoor attempt to restrict or discourage lawful stem cell research, therapies or cures. For example, it prevents government officials from creating some special tax that only applied to ES cell research as a way of discouraging institutions from conducting such research.
Normally, a constitutional right is protected from unreasonable interference. That is, laws can not be passed which unreasonably impact the exercise of the right. However, some laws may be passed which as a whole protect society even if they impact the exercise of the right. For instance, a person may travel freely about the state. However, the legislature may restrict how the person exercises this right. These are traffic laws, vehicle registration laws, and other laws which protect the rest of society from harm. This is also explained as you have a right to swing your arm. But, such right stops at the nose of another person. The amendment, however, prohibits any restriction on the newly created constitutional right. In fact, no law, if even enacted for other legitimate purposes – may serve as a “disincentive” to the right, or “discourage” anyone from exercising the right. It is as if you could drive your car as fast as you wanted and swing your fist as wildly as possible.
1 The proponents deceptively explain this language as follows:
It also makes it clear that state and local governments could not pass a law that would single out and unfairly or arbitrarily prevent stem cell research, therapies and cures that are allowed in our country and conducted in accordance with the requirements of the Initiative. This prevents government officials from passing a law or regulation that is really just a backdoor attempt to restrict or discourage lawful stem cell research, therapies or cures. For example, it prevents government officials from creating some special tax that only applied to ES cell research as a way of discouraging institutions from conducting such research.
2 Normally, a constitutional right is protected from unreasonable interference. That is, laws can not be passed which unreasonably impact the exercise of the right. However, some laws may be passed which as a whole protect society even if they impact the exercise of the right. For instance, a person may travel freely about the state. However, the legislature may restrict how the person exercises this right. These are traffic laws, vehicle registration laws, and other laws which protect the rest of society from harm. This is also explained as you have a right to swing your arm. But, such right stops at the nose of another person. The amendment, however, prohibits any restriction on the newly created constitutional right. In fact, no law, if even enacted for other legitimate purposes – may serve as a “disincentive” to the right, or “discourage” anyone from exercising the right. It is as if you could drive your car as fast as you wanted and swing your fist as wildly as possible.
*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.