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Monitoring Stem Cell Research


Table of Contents

The President's Council on Bioethics
Washington, D.C.
January 2004
www.bioethics.gov


(The following commissioned paper was prepared at the request of the President’s Council on Bioethics; the Council has not itself verified the accuracy of the information contained therein, nor does it necessarily endorse any of the author's conclusions or opinions. Additionally, the Council has not edited this paper either for style or content.)

Appendix F

The Meaning of Federal Funding

Peter Berkowitz, J.D., Ph.D.1


I. INTRODUCTION

How should the government approach the question of public funding of activities that are deemed controversial by the American people? Is it appropriate to make such decisions on moral grounds? Can moral grounds for such decisions be avoided? If they can't, whose moral views, and of which sort, should govern, and with what consequences for those in the minority?

Questions of this sort have been frequently discussed in the wake of President Bush's 2001 decision regarding federal funding of embryonic stem cell research. In that decision, the President permitted federal funds to be used, for the first time, to support research on embryonic stem cells, but only those already in existence. At the same time, he made it clear that there would be no federal support for any research that involved or depended on any future destruction of human embryos. In so doing, he was upholding both the letter and the spirit of a Congressional enactment, the 1996 Dickey Amendment, which prohibited the creation of embryos for use in experiments, or the use of embryos in research that led to their destruction.

President Bush's decision has generated a great deal of controversy. Most scientists and patient advocacy groups believe that he made the wrong decision, and that the Dickey Amendment is a terrible mistake. Among the objections one commonly hears to the President's policy are several that concern the meaning of federal funding:

(1) By withholding federal funding for research that involved the creation of new embryos or the future destruction of embryos in existence, the President has effectively banned embryonic stem cell research.

(2) The decision was wrong because the President allowed his personal moral views to govern federal policy. Or, along the same lines, the congressional ban is wrong because it represents the imposition of moral views-religiously based moral views at that-to frustrate sound and beneficial public policy.

(3) The decision is morally incoherent, for if an act is so immoral as to deserve the governmental disapproval implicit in withholding funding, it should be accompanied by efforts to prohibit the activity altogether.

Whatever the merits of the current law, or the President's 2001 stem cell decision, these objections, once closely examined, cannot pass muster. The first confuses a limitation on funding with the imposition of a ban or prohibition. The second wrongly supposes that legislating morals through federal budget decisions is always or generally wrong. And the third incorrectly assumes that government has an obligation to bring an end to all conduct it believes immoral.

Explaining these errors requires an exploration of the meaning of all government funding decisions.  Such an exploration can not decide the difficult question of the merits of the President's stem cell policy. It can, however, put to rest the objections built around the claim that the policy somehow violates the letter or the spirit of sound constitutional government.

II. Federal Funding

A. Basic Considerations

The common objections to the President's policy fail to come to grips with what government funding in a liberal democracy really means. Several fundamental features of our constitutional system need to be emphasized.

First, no one and no activity has a constitutional right to federal funding. There is no governmental obligation to fund most activities, not even the most worthy, save for such matters as the Constitution explicitly proclaims to be the responsibility of government, such as national defense, the maintenance of federal courts, the holding of elections, and so on. And even concerning these constitutional essentials, it is an open question, to be resolved by our elected representatives, of how government will choose to allocate taxpayer dollars.

Second, no individual or cause has a right to sit at the government trough. Resources are scarce, and insufficient to support all worthy activities.  People with different causes and interests compete to obtain them, and in order to succeed they are forced to bring their case to members of Congress.  Funds are distributed only through the political process, within limits set by the Constitution, as the result of deliberation, lobbying, deal-making, and the like.

Third, in a healthy democracy people will always have disagreements about what activities should receive government funding. Sometimes the disagreements will be intense, and sometimes not.  Sometimes the disagreements will include moral disagreements, and sometimes not. Sometimes the political process will generate a stable compromise on the issue, and sometimes one side or the other decisively prevails.

Fourth, while the Constitution prohibits the government from establishing religion, it does not interfere with the right of citizens to form moral judgments based on their deeply held religious beliefs, and to persuade a majority of their fellow citizens to enact legislation informed by those moral judgments, provided of course that the legislation does not interfere with other constitutionally guaranteed rights.

Fifth, those who fail in the democratic process to obtain federal funding will always feel that they did not get what they need or want, but in the absence of a clear legal entitlement to such funding, they cannot properly complain that the government has thereby denied their rights or interfered with their liberty to exercise them.

Sixth, those who lose have several alternatives built into the democratic process. They can try to persuade their representatives in Congress to reconsider, they can vote in others more sympathetic to their cause, they can seek to influence public opinion, or they can seek non-government funding for their activities.

All of this is straight-forward and uncontroversial. It suggests the legitimacy, indeed the routine character, of the President's policy.  It might be regarded as the end of the story.

B. Are There Special Cases?

Although the framework laid out above may correctly describe the situation for most or even all federal funding decisions, there are moral and political reasons why people might regard, for example, withholding of support for selected aspects of biomedical research as a special case, an exception that demands a different approach.

The nation strongly and overwhelmingly backs biomedical research. And we generally leave the mapping of research strategies to scientists and those who administer the institutions in which they work. The entire biomedical enterprise in the US, including also the training of the next generation of scientific researchers, has come to depend heavily on government support. The public generally favors this arrangement, and relies on government-funded research for the treatment and for the cure of all still untreatable diseases, such as cancer and Alzheimer's disease.

Consequently, the decision to withhold public funds from any particular piece of the biomedical research portfolio looks and feels, both to scientists and to the public, like an intrusion of government into a place where it does not belong, and it prompts harsh accusations that government is engaging in censorship or even outright prohibition of medically necessary scientific research. To be sure, the FDA regularly imposes restrictions on research, but mainly on grounds of safety. When, however, government's objection to research is moral in nature, it strikes scientists as a deprivation: a restriction of freedom to inquire, a thwarting of worthy community goals, an intrusion of morals into a sphere where they do not belong. At the same time, it appears to those members of the public who disagree with the decision as a failure by the government to abide by its putative moral obligation to use its resources to explore all fruitful areas of research in search of cures for dread diseases.

Moreover, there is reason to single out for special attention those decisions about federal funding where powerful moral principles are at loggerheads, and the nation is deeply and passionately divided. This is the case of stem cell research. It poses a confrontation between genuine and conflicting goods: on the one side, respect for nascent human life and, on the other side, commitment to unfettered scientific inquiry and to the fight against disabling and deadly disease. The clash between those who hold that the moral status of the embryo is no different from that of a fully developed human being, and those who believe that the embryo is a clump of cells, utterly devoid of moral worth is not resolved by appeal to shared moral premises. This is because what the debate over stem cell policy calls into question is how to apply our shared belief in the rights and dignity of the individual.

Despite the powerful presumption in favor of federal funding of biomedical research, and the moral stakes which both sides see as exceedingly high, the controversy over federal funding of stem cell research does not present a special case. In politics, though, how a policy appears is important.  For this reason, and despite the fact that the common arguments condemning the president's policy rest on false assumptions or unreasonable expectations, and though they may be mere rationalizations for the failure to win the policy battle, it is worth examining their flaws fully.

III. Morals, Federal Funding, and Legislation

A. Federal Funding

In the first place, federal funding is about resource distribution-who and what will get how much of the nation's scarce taxpayer dollars. It is usually not about restricting basic rights. For example, there is no constitutional right to the funding of biomedical research.

But often the question of whether government will or will not fund an activity is about more than mere distribution. It is about government shaping choices among various and competing goods or undertakings. It is a statement of approval and encouragement by government, a declaration by the nation that an activity or undertaking is meritorious and has priority. Or, in the decision to withhold funds, government policy can be a statement of disapproval and discouragement, a declaration by the nation that a permitted activity or undertaking lacks merit or has low priority.

Policy decisions about funding resemble policy decisions about taxing. Both sorts of decisions create incentives and disincentives by making activities more or less costly. The child tax credit, for example, reduces the financial cost of child rearing. In so doing, it strengthens families in two ways: it enables families to save money, and it conveys an important message about the political importance of the well-being of the family. Similarly, government funding of research into disease and its prevention and treatment increases the supply of these goods, and reflects our nation's considered judgment that the relief of physical suffering is a high national priority.

While all law either requires, forbids, or permits, the provision or withholding of funding and the use of tax incentives and disincentives allows government to express a range of attitudes toward that which it permits. In the United States, through such decisions government strongly endorses charity and higher education. It looks favorably on national service and the arts. It shows a preference for marriage to cohabitation. It frowns upon smoking. It is the distinction between permitting or tolerating an activity (which is the case with embryo research and destruction) and actively promoting it through governmental funding (which the president's policy on stem cells prohibits), that is crucial to understanding the president's stem cell research policy, but not only to the stem cell controversy.

The question of federal funding routinely implicates questions about the nation's moral priorities among permissible activities. And the question of moral priorities in politics is not so simple as a question of good or bad; rather it is a question of better or worse. One consequence of this is that in sorting out funding decisions it is not a matter of one side introducing moral considerations. Most of the time, both sides in disputes over policy are of necessity engaged in making moral arguments.

This is true, and to an extraordinary degree, in the stem cell controversy. Both sides-those who wish to defend the rights of nascent human life, and those who wish to defend unfettered scientific research directed at the relief of human suffering through the cure of deadly disease-defend moral principles. To make matters more difficult, both sides tend to defend those principles in their absolute form. While the president's position attempts to give weight to both sides' principles, both sides, because of the passion with which each holds its principle, are dissatisfied. However, insofar as the president's approach reflects that adopted by the Dickey Amendment, it follows a determination made by a majority of the people's representatives, and with that both sides should be satisfied. But they aren't.

But the dissatisfaction of both sides takes a recognizable form. In general, because moral principles are so frequently at stake in the fight for federal taxpayer dollars, funding decisions create bitterness. This truer still, as in the stem cell debate, when the moral principles are wielded in their absolute form, so that both sides can claim defeat. If funding is withheld, those who believe the activity is worthy can claim that their tax dollars, which they contribute in the hope that they will serve the good of the country, are being held back from what they deem a deserving or even overriding moral purpose. This is the position taken by many scientists and progressives with regard to the limitations imposed by the President's policy. If funding is provided, those who believe the activity is immoral can claim that their tax dollars are being used to advance a cause they believe is unworthy, or even abhorrent. This is the position taken my some social conservatives who believe that the limitations imposed by the President's policy did not go nearly far enough and pave the way, sooner rather than later to the routine creation and destruction of human embryos for biomedical research. Typically, both sides make moral claims, and one or the other-and in the really tough cases such as stem cell policy, both sides-will have to live with the fact that their moral principles are being rejected (if not assaulted) by the government, in their own name and with their own tax dollars.

Why should those who lose the political struggle put up with this? For the simple reason that living in a liberal democracy means sometimes being in the minority, even on questions of the utmost importance, but so long as the laws which one opposes are consistent with the Constitution and enacted according to legally appropriate procedures, one has an obligation to obey them.

B. Legislation

Is it really a legitimate aim of a liberal democracy to adopt laws and take actions to shape the moral beliefs of its citizens?  Perhaps federal funding is the exception, and to the extent possible the moral dimension should be eliminated from policy formation. Doesn't government in a liberal democracy have an obligation to remain neutral toward competing conceptions of a good life, and so refrain from enacting morals into law? Otherwise, doesn't it impermissibly infringe on people's right to choose how to live their lives.

According to a common and sound criticism of this common view of the liberal state, such neutrality is a chimera: it is impossible for any government to remain neutral about morality and the nature of a well-lived life, since the resolution of controversies over public policy-for what purposes is the state permitted to classify citizens by race? what is the meaning of marriage? to what extent may the public schools engage in civic education?- always draw upon, reinforce, or suppress a view about what is deserving, proper and good. It is possible, as a matter of policy, to tolerate a wide variety of choices and forms of life, but toleration itself is a moral principle based on a certain interpretation of how to secure human freedom and respect the dignity of the individual.

Some then object that because of its very foundational commitments, our liberal democracy privileges the autonomous or freely choosing life. And so in sense it does.  But it need not and should not do this unwittingly or surreptitiously. The mistake is to think that liberal state stands or falls with the commitment to neutrality. It doesn't. It stands or falls with the commitment to creating the conditions under which individuals can exercise political freedom.

Law and public policy in a liberal democracy properly seek to create conditions in which citizens can make informed and responsible choices. It does this in a variety of ways. The first and most taken for granted is through the establishment of public order. It also does this through establishing a system of public schools, promoting research in the arts and sciences, and enacting a wide variety of social and economic legislation, all with a view to forming a citizenry that is at home in, and capable of taking advantage of, freedom. Legislation designed to encourage biomedical research can be seen as creating circumstances in which we are better able to enjoy the blessings of freedom. The same can be said of laws designed to respect, and encourage respect, for nascent human life, which can reasonably be understood as contributing to the conditions under which individuals learn to respect humanity in others and in themselves.

To be sure, even within the limits provided by law, government's encouragement of informed and responsible choice can easily become a tool for the ill-conceived circumscribing of choice. Even well meaning government efforts to help prepare citizens for liberty and toleration can undermine both. Government funded education can be dogmatic and ideological; government funded research may be biased and unaccountable; government supported arts may disseminate tawdry or jingoistic sentiments and images; government funded programs directed at the family may fail to adapt to changing times. Of course, these familiar abuses are not arguments against government promoting the conditions that enable citizens to take advantage of freedom. Rather, they are reasons for proceeding with care, and with an appreciation of the complexities of contemporary moral and political life.

IV. American Dilemmas

The president's policy on stem cells is not the only funding decision in contemporary American politics that has generated controversy. Brief discussion of others sheds light on what is common to all and what is distinctive to the stem cell debate.

Consider first the battle over abortion, which involves a long standing struggle over the question of government funding for lawful conduct. Shortly after entering office, President Bush ordered the withholding of funding from international organizations that performed abortions, a decision that was neither required of him nor forbidden to him but within his discretion. The principle behind this policy is common to his position on stem cell research: government funds should not be used to destroy nascent human life.

At home, a line of Supreme Court decisions stretching from 1977 to 1991dealing with abortion and government funding established the principle that the constitution does not require government to fund activities that the Constitution protects. In Maher v. Roe 432 U.S.464 (1977), the Court held 6-3 that Connecticut could provide Medicaid benefits for childbirth while withholding benefits from women who wished to have non-medically necessary abortions. Justice Powell, writing for the majority, maintained that the right to abortion announced in Roe v. Wade, "protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds." Powell's analysis emphasized the "basic difference between state interference with a protected activity and state encouragement of an alternative." In dissent, Justice Brennan disagreed vociferously. He argued that the denial of funds unconstitutionally interfered with the right of women to choose an abortion. Also in dissent, Justice Marshall argued that by withholding funds for non-medically necessary abortions, Connecticut was seeking "to impose a moral viewpoint that no State may constitutionally enforce."

In Harris v. McRae 448 U.S. 297 (1980), by a 5-4 margin, the Court upheld the Hyde Amendment, which banned federal funding of medically necessary abortions. The majority's argument was much the same as in Maher: "although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation." The government, the majority reasoned, does not have an obligation to provide taxpayer dollars so that individuals can exercise their individual rights to the maximum. To this, Justice Brennan replied in dissent that Hyde Amendment actually left poor women in a worse off position. By refusing to provide poor women with funding for even medically necessary abortions while subsidizing childbirth, the government demonstrated profound disapproval for abortion and thereby burdened the exercise of the right to privacy declared in Roe.

In Rust v. Sullivan 500 U.S. 173 (1991), again by 5-4 margin, the Court upheld federal regulations that barred health care professionals who received federal funding from offering counseling about abortion. Chief Justice Rehnquist, writing for the majority, reiterated the Maher and Harris principle: "The Government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected." In dissent, Justice Blackmun, joined by Justices Stevens and Marshall, echoing the dissenters in Maher and Harris, insisted that by conditioning federal funding on the withholding of counseling about abortion, the government was actually placing "formidable obstacles" in the path of women's exercise of their privacy rights.

While these cases appear closely analogous to the stem cell controversy, they differ in a crucial respect. Although some of the same forces are politically engaged, and although the moral issue concerns the question of the inviolability of nascent human life, the abortion cases would have been unlikely to come to the Court for adjudication had the Court not declared in Roe v. Wade a constitutional right to an abortion. For the argument made by those who seek federally funded abortions is that by withholding funding, the government is seeking to frustrate the exercise of a constitutionally protected right. Absent such a right, there could be no plausible legal claim.  Indeed, absent an entitlement to government sponsored health care benefits, there is no valid legal claim that Medicare must pay for cosmetic surgery, sex-change operations, contraceptive benefits, heart transplants, or any other procedure one wants for oneself and can find a doctor to do. Only if there were a constitutionally protected right not to be poor, not to be without resources to fully take advantage of all the things that we are legally entitled to pursue, could such a claim prevail as a matter of law. While there is no such right, this is just the kind of claim that dissenters in the Court's cases concerning federal funding and abortion defend. In short, because the Constitution provides no special protection to biomedical research, the argument for legal entitlement to funding of stem cell research proceeds on dramatically weaker grounds than the rejected arguments in the abortion funding cases.

Title VI of the Civil Rights Act of 1964 furnishes another example of how government may withhold funds from practices it does not outlaw. It provides that, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." It is this provision that requires private universities to avoid those racial classification in admissions and hiring that would violate the prohibitions imposed on state action by the equal protection clause of the 14th Amendment. Title VI is far reaching, because most private universities rely heavily on government funding for the support of basic research. And it provides a way for the federal government to shape the moral contours of what is largely private conduct, and bring that conduct in line with fundamental constitutional principles. Of course private institutions are free to continue to practice activities that disqualify them for federal funding. All they have to do is refuse to take federal funds.

Close in form to federal policy on stem cell research are social security regulations regarding marriage and survivor benefits. For example, although cohabitation without matrimony is not illegal, indeed it is quite common, the federal government refuses to pay social security survivor benefits to all but legal spouses. This is a way for government to provide financial incentives for marriage. And for government to take sides on the value of marriage, proclaiming the union marked by it as good for individuals and good for the polity. This is a policy decision that does not engender bitterness or controversy. It must be acknowledged that the withholding of a reward could, under imaginable circumstances, stigmatize those who choose to live together as a loving couple but not to marry. But just as it can not plausibly be claimed today that the child tax credit confers social disapprobation on married couples without children, so too it cannot be plausibly claimed that unmarried couples suffer social disapprobation because of government policy that restricts the paying of social security survivor benefits to legal spouses.

Or, from a different angle, consider the question of elementary level and high school education.  In 1923, in a landmark decision, Meyer v. Nebraska 262 U.S. 390 (1923), the Supreme Court ruled that parents have a right to educate their children in a foreign language. In 1925, in a related case, Pierce v. Society of Sisters 268 U.S. 510 (1925), the Supreme Court ruled that parents have a right to educate their children in private schools. But nobody concludes that the rights that these cases protect prohibit states from policy decisions encouraging public education. And nobody claims that the right of parents to privately educate their children creates an entitlement to have that private education funded by the government.

As these examples illustrate, the controversy over stem cells should be seen as one among many political battles over the allocation of limited federal funds. It is distinguished not by the presence of moral principles, or the presence of moral principles on both sides, but by the particular moral principles at stake, the absoluteness with which they are wielded, and the intensity of the passions their defense provokes.

V. Conclusion

When the question of federal funding is placed in perspective, it can be seen that the common objections to the President's policy on stem cell research are misplaced.

First, by withholding federal funding for research that involved the creation of new embryos or the future destruction of embryos, the President did not effectively ban embryonic stem cell research.  His August 2001 decision for the first time provided federal funding for stem cell research, and it permitted private individuals and companies to pursue it.

Second, by basing his policy in part on moral considerations, the President did not violate an obligation to keep morals out of politics, because funding decisions, whichever way they go, typically and unavoidably contain a moral component. Indeed, the moral component often lies at the heart of the dispute and at the core of the decision.

Third, by refusing to seek a blanket prohibition on an activity from which he withheld funding on moral grounds, the President did not make an incoherent decision. The complexities of a free society frequently create situations in which it makes sense for government to express doubt, anxiety or disapproval for an activity it is unwilling or unable to outlaw.

None of this is to deny that the president's policy on stem cell research is open to criticism on the merits. It is only to claim that the policy reflects a perfectly appropriate exercise of governmental powers in a liberal democracy.

_________________

ENDNOTES

1. Peter Berkowitz teaches at George Mason University School of Law and is a research fellow at Stanford's Hoover Institution. He has served as a senior consultant to the President's Council on Bioethics.

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