It would seem that President Bush’s exercise of the veto power has driven a portion of the legal academy bonkers (a technical term here meaning "feeling licensed to make outrageous and not fully considered arguments"). Rick Garnett points to the latest one. Here’s the core of the argument:
The Constitution, as interpreted by the U.S. Supreme Court for the last thirty-three years, does not recognize pre-viable embryos as “human life.” Although there has been fierce continuing debate about when constitutionally cognizable life begins, the law has remained essentially unchanged since the 1973 decision in Roe v. Wade, when the Court declared that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” The Court further concluded that the government’s interest in protecting a “potential” life is not sufficiently compelling to justify infringing the fundamental liberty to choose parenthood until the point of viability, “because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” At the point of viability, in other words, there are two lives deserving of governmental consideration and protection; prior to that time, the liberty of the already born is paramount.
What does all of this mean for stem cell research and President Bush’s veto? First, it means that those who donate sperm and eggs to create IVF embryos have a constitutional liberty, subject to contractual modification, to decide whether those embryos should be born – thus making them parents. They can choose to implant the embryos and attempt pregnancy, freeze them indefinitely, discard them, donate them to others for adoption, or even donate them for medical research (including stem cell research). Under the Constitution as interpreted by the Supreme Court, giving these choices to potential parents is necessary in order to honor the “liberty” protected by the Due Process Clauses. This word “liberty” is the source of our freedom to use contraceptives, avoid involuntary sterilization, and even employ IVF or other reproductive technologies in the first place. We have, in short, a constitutional right to decide whether we want to bear or beget children. And there is no such thing, constitutionally speaking, as a pre-viable “child.”
I have three immediate thoughts. First, the most sinister implication of this line of argument is that there’s a constitutional right to clone, not only for therapeutic, but also for reproductive, reasons. If I own my body and all its products (short of viability, however that may be determined by the Courts), then I can do with them what I please. If I can donate them for research, why can’t I sell them? If I can donate them for research, why don’t I have a right to use them in any form I wish for the sake of reproduction? Does Professor Foley really mean this? Is there any way of drawing a line on the basis of this argument before we reach this horrific result?
Second, the argument stretches the notion of parenthood, and the constitutional rights allegedly flowing from it, beyond all recognition (something of course already implicit and perhaps even explicit in the Court’s abortion jurisprudence).
Third, that fetuses are not "persons" in the terms of the Constitution can’t mean that legislatures aren’t permitted to define personhood and offer it some protection under law. Even if one concedes for the sake of argument that an explicit conflict between a woman’s wishes and the "interests" of her unborn child has to be resolved in favor of the woman (at least under certain circumstances), I don’t see how it follows that where the woman’s alleged rights aren’t directly implicated, a legislature can’t offer certain protections to the unborn child. Of course, with his veto, the President is part of the legislature for the purposes of his argument.
Perhaps we can dub this "Stem Cell Derangement Syndrome."