The Not So Slippery Slope: Why the Regulation of Therapeutic Cloning Should be Left to the States
Jamie Rasmussen, 12 Mich. St. U. J. Med. & L. 387 (2008)
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After examining the current state of affairs in science and both state and federal legislation, this paper argues that a cloning ban at the federal level would be ineffective and that the regulation of cloning should be left to the states. The power to tax and spend is too weak to completely ban cloning. The narrowing of the Commerce Clause in United States v. Lopez allows an argument that a criminal ban of cloning at the federal level is unconstitutional–regardless of whether cloning is considered research or health care. Once therapeutic cloning becomes a viable medical treatment the analyses in Roe v. Wade and Planned Parenthood v. Casey support arguments based on fundamental rights that would prohibit criminalizing the use of somatic cell nuclear transfer (“SCNT”) in therapeutics. Supporting all three of these legal arguments are notions of federalism which argue strongly in favor of allowing states to continue to experiment in this area. Because we do not understand many of the repercussions, either scientific or social, relying on the laboratory of the states would enable the development of better policy in this rapidly evolving area. Therapeutic cloning, as a branch of the practice of medicine, also fits nicely in the states’ traditional police powers. Finally, allowing the science and law to develop together instead of permitting the law to control the science will ensure that Americans continue to have access to the most effective medical treatments
