by Steven Rogers JD
July 18, 2006
LifeNews.com Note: Steven Rogers holds a Doctorate of Jurisprudence from Baylor University. He is a Professor of Religious Freedom at Conception Seminary College, Conception, MO.
QUESTION: What does the proposed embryonic stem cell research 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 preeminent 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.
§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 creates a right above the rule of law. 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” or act as a “disincentive” to the research.
Even our sacrosanct 1st Amendment rights – the right of free speech, the right of a free press and the right to freely exercise one’s religious beliefs — are subject to limitations. As one cannot yell “fire” in a crowded theater, nor publish false, defaming facts about a private person in a newspaper, nor fill a church with worshipers beyond the limit imposed by the fire marshal, constitutional rights are limited by reasonable restraints on their exercise. This is done to protect the rights of others.
By design judges, who normally decide cases fairly and without preconceived notions, are mandated to decide cases, if at all, in favor of the research so as not to “discourage” it. Likewise, no laws may be passed, or enforced against the researchers which might ‘discourage” them or create a “disincentive” for it.
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.
Simply put, the amendment creates an absolute, unrestrained right to embryonic stem cell research. 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 moneyed 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.