From the WSJ Opinion Archives
THINKING THINGS OVER

Stem Cell 'Compromise':
Let Congress Legislate
When does life begin? Answer the question democratically.

by ROBERT L. BARTLEY
Monday, July 9, 2001 12:01 A.M. EDT

Word emerged last week that the Bush administration might let states provide health insurance to unborn children who would not otherwise get prenatal care; liberals quickly opposed this extra spending and conservatives quickly supported it. That is, the battle lines immediately drew up around abortion; after 28 years, Roe v. Wade continues to roil our politics.

"Roe fanned into life an issue that has inflamed our national politics . . . ever since," Justice Antonin Scalia wrote in his remarkable dissent in the 1992 Casey decision. "By foreclosing all democratic outlets for the deep passions the issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight . . . the Court merely prolongs and intensifies the anguish."

Roe was "wrongly decided" not because of the social policy it promulgated, but because it was procedurally illegitimate. The court, with no constitutional text to support it, extended precedents leaning on "penumbras and emanations" of the Constitution. The antiabortion community was understandably upset, and the pro-abortion community became more strident to protect its tainted victory. If the issue had instead been decided in the democratic way, by political debates and political compromises in state legislatures, most states would have legalized abortion but provided tighter restrictions than we now have. We'd have arrived at the position favored by most Americans, and our politics would be much healthier.

This history comes to mind because of the stem cell decision facing the Bush administration. I happen to support research on cells derived from embryos left over from in vitro fertilization procedures; I do not think a fertilized egg at the blastocyst stage is a fully formed human. In religious terms, the soul has not entered the body. My June 11 column drew the reproach of my Catholic friends who believe destroying a blastocyst is murder.

Either you believe the blastocyst has a soul or you don't, despite leaks about a Bush "compromise." Instead of trying to forge an elusive compromise in the back rooms of the White House, the administration should be procedurally punctilious. That is, rather than leap to decide the way the Roe court did, it should return the issue to Congress. The legislative branch is the appropriate place to hold this debate and to forge any compromises.

Consider how the issue arrives on Mr. Bush's desk. Congress has annually attached a rider to medical research funding prohibiting "research in which a human embryo or embryos are destroyed, discarded, or knowingly subject to risk or injury." During the Clinton administration, however, the general counsel of the Department of Health and Human Services opened the way for funding by ruling that the congressional language did not prohibit experiments on the stem cells so long as the embryo that provided them was destroyed by someone else without federal funds. Research funding was about to proceed on this basis when the Bush administration called for a moratorium to review the matter.

Moral issues should not be decided by Clintonesque legal sleight-of-hand, whatever we think of the outcome. The Catholics and evangelicals who believe that the soul enters at conception deserve a chance to make their case in the full light of day. While I don't agree with them, I'm still glad they're around--a needed antidote to the secularism of our age, the pressures of commerce and the pretensions of science.

A broader debate, too, would force those of us in the "mushy middle" to sharpen our thinking and perhaps build a wider consensus. As shown in the testimony of theologians to the National Bioethics Advisory Commission, religious tradition offers no little support to the idea that the fertilized egg goes through some proto-human stage, before acquiring the moral status of a person.

Usually this is associated with the idea of quickening, when the mother can feel the fetus in the womb, about 40 days after fertilization. This is the common-law definition of a human being. In the Jewish tradition, embryos lost before quickening are "wasted human seed." The Koran describes a route to human personhood that leaves most scholars endorsing legitimate stem cell research. The Catholic Church itself once endorsed quickening as the moment of ensoulment, and a few theologians in the Catholic tradition have recently urged a return to that position. A Catholic's views on the early embryo, Kevin Wm. Wildes of Georgetown observed, "is often tied to one's view about authority within the church."

Forty days after fertilization, it pays to remember, is less than half of the first trimester. While a traditional quickening test would leave plenty of room for the blastocysts involved in stem cell research, it would not approve of many abortions sanctioned by Roe v. Wade.

It also pays to remember the rush of science. Nearly all legislators and many scientists would draw a line at human cloning for reproductive purposes. But Italian Professor Severino Antinori, whose in vitro fertilization work helped a 62-year-old woman to bear a child, promises to implant the first cloned human being perhaps this year. His point is that the wife of an infertile man could carry his genes rather than resort to a sperm donor. "My only aim is to give infertile couples the gift of happiness in the form of children," he told the Times of London. "Cloning is the next step, that's all."

In the HBAC testimony, my own view was represented by Ronald Cole-Turner of the Pittsburgh Theological Seminary. He cites a resolution by the United Church of Christ at its 1997 General Synod, approving serious research on "human pre-embryos through the 14th day of fetal development," but adding, "We believe that all such research should be subject to broad public comment and that it should only proceed within a context of public understanding and general public support." Mr. Cole-Turner stressed: "In fact--and let me be as clear as I can about this--all that I have said about our support for research in these areas depends on meeting the condition of advanced public discussion."

Serious public discussion has barely started. President Bush should say that he refuses to finance stem-cell research on the basis of the Clinton legalisms, but that he will sign legislation sanctioning such research. Let the debate begin. Let everyone have his say, and hers. Let any compromise be forged by the push and pull of politics. It may not be science, but it would be the democratic way.

Mr. Bartley is editor of The Wall Street Journal. His column appears Mondays in the Journal and on OpinionJournal.com.

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