Thursday, September 4, 2003
Session 1: The Meaning of Federal Funding
Peter Berkowitz, Associate Professor of Law, George
Mason University Law School; Research Fellow, the Hoover
Institution; and Senior Consultant, the President’s
Council on Bioethics
PROF. BERKOWITZ: I want to say that I come bearing good
news. This Council has taken upon itself the responsibility to
confront some of the most formidable and excruciating issues of
the day, the ethics of cloning, the meaning of enhancement, the
moral status of the embryo.
But breathe a sigh of relief. The meaning of federal funding
is not one of these excruciating issues. To be sure, the meaning
of federal funding is a subject that needs to be addressed as part
of the effort to understand the President's policy on stem cell
research, but the issues it raises by itself are relatively simple
and relatively straightforward.
What complicates matters, what excites passions is that the decision
to grant or withhold federal taxpayer dollars for some undertaking
or another is a primary means through which government in a free
society expresses enthusiasm, ambivalence, or disapproval, particularly
moral disapproval or approval.
It's silly to deny the government. I mean, a liberal democracy
makes moral judgments. It makes them all the time. In the decision
about how much money to spend on national security, in the decision
to condition federal funding to higher education on compliance with
strict standards of nondiscrimination, on the decision to fund or
not fund abortions abroad and at home, on the decision to fund or
not fund the arts and the humanities, in the decision to provide
benefits to married people that it denies to unmarried couples,
in the decision to provide young people with opportunities for public
service, to decisions about federal funding, government makes moral
judgments right and left.
Tocqueville famously said that all political questions in America
eventually become legal questions. One may add a corollary pertaining
to today's politics. When individuals do not like the moral
judgments embodied in government policy, they are prone to try and
constitutionalize their objections. But when you get right down
to it, the quarrel is usually not with the Constitution but with
the majority preferences permitted by the Constitution.
In our day, constitutional law has become politics or policy by
other means. The basic questions of federal funding are these,
how should the government approach the question of federal funding
of activities that are deemed controversial by the American people?
Is it appropriate to make such determinations on moral grounds?
Can moral grounds be avoided? Whose moral views? And which source
should govern, with what consequences for those in the majority?
Questions of this sort have been discussed frequently in the wake
of President Bush's controversial 2001 decision regarding federal
funding of embryonic stem cell research. In that decision, as you
all know, 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 the congressional enactment of the
Dickey amendment, which in 1996 prohibited the creation of embryos
for use in experiments or the use of embryos in research that led
to their destruction.
Most scientists and patient advocacy groups believe that President
Bush made the wrong decision and that the Dickey amendment was a
terrible mistake. Among the objections one commonly hears to the
President's policy are these three. First, by withholding federal
funding for research that involved the creation of new embryos,
the President has effectively banned embryonic stem cell research.
Second, the President's decision was wrong because he allowed
his personal moral views to govern federal policy or along the same
lines, the congressional ban was wrong because it represents the
imposition of moral reviews; even worse, religiously based moral
views to frustrate beneficial public policy.
Third, the President's policy is morally incoherent. If an
act is so moral as to deserve the government disapproval implicit
in withholding funding, it should be accompanied by efforts to prohibit
the activity altogether. But this President Bush has refrained
Whatever the merits of the President's policy, the objections,
once examined, these common objections cannot pass muster. The
first refuses a refusal to fund with an imposition of a ban or a
prohibition. The second wrongly supposes that legislating morals
through federal budget decisions is always or in principle wrong.
And the third incorrectly assumes that government has an obligation
to bring to an end all conduct that it believes immoral. Explaining
these errors requires an exploration, a more general exploration,
of the meaning of federal funding.
So, in quick order, several basic points. First, no one and no
activity has a constitutional right to federal funding. There's
no government obligation to fund most activities, not even the most
worthy, save perhaps for such matters as the Constitution explicitly
proclaims to be the responsibility of government, national defense,
maintenance of federal courts, the holding of elections, and so
on, but even here, considering these constitutional essentials,
it is an open question to be decided by the people's representatives
of how government will choose to allocate taxpayer dollars.
The second basic point, no individual or cause has a right to
sit at the government trough. Goods are many and varied. Resources
are scarce. And scarce resources are insufficient to support all
worthy goods, all worthy activities.
People with different causes and interests compete to obtain them.
And in order to succeed, they are forced to bring their cases to
members of Congress. Funds are distributed only through the political
process within limits set by the Constitution; as a result, this
all-familiar deliberation, lobbying, deal.making, log.rolling, and
Third basic point, in a democracy, people will always have disagreements,
in a healthy democracy, I should say, about what activities should
receive government funding. Sometimes the disagreements are intense,
sometimes not. Sometimes the disagreements include moral disagreements,
sometimes not. Sometimes the political process generates a compromise.
Sometimes one or the other side prevails decisively.
Fourth, people who lose in an effort 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.
Fifth, those who lose have several alternatives built into the
democratic process. They can try to persuade their representatives
to reconsider. They can vote in others more sympathetic to their
cause. They can seek to influence public opinion or they can seek
nongovernment private funding for their activities.
All of this, as I said, is straightforward and sensible. It suggests
the legitimacy, even the routine character of the President's
policy, might be regarded as the end of the story.
Yet, many regard the withholding of support for selected aspects
of biomedical research as a special case, an exception that demands
a different approach. It is, I want to emphasize, understandable,
why stem cell research seems to be a special case.
The most important reason that the President's policy looks
like a special case is that it involves the head.on collision of
genuine goods and competing policies. The nation strongly and overwhelmingly
backs biomedical research. It is one reflection, this devotion
to biomedical research, of our respect for human life. 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 United States, including
also the training of the next generation of scientific researchers,
has come to rely heavily on government support. The public generally
favors this arrangement, has come to rely on government.funded research
for the treatment and for the cure of all still-untreatable diseases,
such as cancer and Alzheimer's disease.
All of this creates a strong presumption in the public's eye
in favor of funding for biomedical research. Consequently, the
decision to withhold public funds from any particular piece of the
biomedical research portfolio looks 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 the government is engaging
in censorship or even outright prohibition of medically necessary
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 imposition of morals.
And it looks to those members of the public who disagree with
the decision as a failure by the government to abide by its moral
obligation, to use its resources to explore all fruitful areas of
research in search of cures for dreaded diseases.
However, those who generally make these objections forget that
their support of government funding of biomedical research is also
moral in nature — as I suggested. It springs from, it reflects
our commitment to the dignity of human life. And they forget as
well that those who oppose the destruction of embryos believe that
permitting it would involve government in a failure to abide by
another moral obligation; that is, the moral obligation to protect
In other words, stem cell research involves a decision about federal
funding where powerful moral principles are at loggerheads and the
nation is deeply and passionately divided. It poses a confrontation
between our commitment, our real, genuine, admirable commitment,
to unfettered scientific inquiry and to the fight against debilitating
and deadly disease and between our respect for human life, in this
case nascent human life.
Moreover, it presents a 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.
I want to emphasize this. The challenge here is formidable, not
merely because of the sociological fact of intense disagreement—this one cannot debate—but also for the philosophical reason
that genuine moral goods are at stake on both sides of the question.
There's genuine and intense debate in the country—that's
a sociological fact—and real moral goods and stake.
Nevertheless, controversy over federal funding of stem cell research
does not really present a special case, not in principle at least.
It looks like one because of the powerful presumption in favor of
federal funding in biomedical research, one; two, because both sides
to the debate view the moral stakes as exceedingly high; and, three,
because both sides are correct the moral stakes are high. But this
doesn't make it a special case in principle.
Typically the question of whether government will or will not
fund an activity is about more than mere distribution. It's
about shaping choices among various and competing goods or undertakings.
The child tax credit, for example, reduces the financial costs
of child-rearing. In so doing, it strengthens family in not one
but two ways. It enables families to save money. And it conveys
a judgment, a powerful judgment, about the political importance
of the well-being of the family.
All law requires, forbids, or permits, but as a reflection on
the meeting of funding suggests, government may adopt a range of
attitudes toward that which it permits.
It strongly endorses charity and higher education. It looks favorably
on national service in the arts. It prefers marriage to cohabitation,
frowns upon smoking. It is the distinction between permitting or
tolerating an activity and actively promoting it through governmental
funding that is crucial to understanding the debate over the President's
policy on stem cell research.
Here I do want to emphasize the distinction between permitting
or tolerating an activity and promoting it through federal funding
is crucial, 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 is not so simple as the questions
of good and bad. It is a question of better and worse.
This is true to an extraordinary degree in the stem cell controversy.
Both sides are defending moral principles. Both sides are defending
admirable moral principles. To make matters more difficult, both
sides are tending to defend these admirable principles in their
absolute form. Because moral principles are frequently at stake
in the fight for federal taxpayer dollars, decisions like the stem
cell debate can be bitter.
Truer still, when the moral principles are wielded in their absolute
form, both sides make moral claims. And one or another 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 taxpayer dollars.
Why should those who lose the political struggle put up with this,
what amounts to a rejection or at least the belittlement of their
moral principles? Well, the answer again here is simple, straightforward.
Living in a democracy means sometimes being in a minority, even
on questions of the utmost importance. And 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.
But is it really a legitimate aim of a liberal democracy to adopt
laws and take actions to shape the moral beliefs of its citizens?
Doesn't government in a liberal democracy have an obligation
to remain neutral toward competing conceptions of a good life?
And so we refrain from enacting morals into law.
Otherwise, doesn't it impermissibly infringe on the people's
right to choose how they ought to live? Well, to be blunt, the
answer is no. Neutrality is a chimera. It's impossible for
any government to remain neutral about morality in the nature of
a well-lived life since public policy for "What purpose is
the state permitted to classify citizens by race? What is the meaning
of marriage? What medical procedures and what biomedical research
should government fund?"; these always or almost always draw
upon, reinforce, or suppress a view about what is deserving, proper,
Of course, it's possible and desirable as a matter of public
policy in a liberal democracy 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 freedom and based on
a certain interpretation of the requirements of respecting the dignity
of the individual.
Law and public policy in a liberal democracy rightly seek to create
conditions in which citizens can make responsible and informed choices.
This is accomplished in a variety of ways. The first and most taken
for granted is through the securing of public order, also to establishing
a system of public schools, promoting research in the sciences and
humanities, supporting the arts, enacting a wide array of social
and economic legislation, and all of this, in part, with a view
toward forming a citizenry that is incapable of taking advantage
of enjoying the blessings of freedom.
Laws designed to respect and encourage respect for nascent human
life can reasonably be seen 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 or corrupting of choice.
Well-meaning government efforts to prepare citizens for liberty
and toleration can undermine both. Governmental funding of education
can be, government-funded education can be dogmatic and ideological.
Government-supported arts may disseminate tawdry or jingoistic sentiments
and images. Government-funded programs directed at the family may
fail to adapt or adapt slavishly to changing times.
These familiar abuses, though, are not arguments against government
promoting the conditions that enable citizens to take advantage
of the freedom. Rather, they are reasons for proceeding with care
and with an appreciation of the complexities of contemporary moral
and political life.
American politics furnishes many examples of funding decisions
that effectively inevitably take sides on divisive moral questions.
Here are a few. Consider first the battle over abortion, which
involves a longstanding struggle over the question of government
funding for lawful constitutionally protected conduct.
Shortly after entering office, President Bush ordered the withholding
of funding from international organizations that performed abortions.
The decision 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 1991 dealing with abortion and government funding established
the principle that the Constitution does not require government
to fund even those activities that the Constitution singles out
for special protection.
Another example. This comes from higher education. Title VI
of the Civil Rights Act of 1964 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 classifications in admissions
and hiring that would violate the prohibitions imposed on state
action by the equal protection clause of the Fourteenth Amendment.
Title VI is far-reaching because most private universities rely
heavily on government funding to support 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 private conduct
in line with fundamental constitutional principles. Of course, private
colleges and universities are free to continue to practice activities
to disqualify them from federal funding. Close in form to federal
policy on stem cell research are Social Security regulations regarding
marriage and survivor benefits. Although cohabitation without matrimony
is not illegal; indeed, it's 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 good of marriage,
proclaiming the union marked by it is good for individuals and good
for the polity or, from a different angle, consider the question
of elementary level and high school education.
In 1923 in a landmark decision, Mayer v. Nebraska, the
Supreme Court ruled that parents have a right to educate their children
in a foreign language. In 1925 in another famous case, a companion
case, Pierce v. Society of Sisters, the Supreme Court ruled
that parents have a right to educate their children in private schools.
But nobody or very few argue that these cases 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
To conclude, the controversy over stem cell should be seen as
one among many political battles over the allocation of limited
federal funds. The controversy is distinguished not by the presence
of moral principles or the presence of moral principles on both
sides but by the peculiar, by the particular, moral principles at
stake and the peculiar intensity of the compassions their defense
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 cells are misplaced. A failure to fund is not a
ban. Funding decisions typically involve a moral dimension. And
the complexities of a free society frequently create situations
in which it makes sense for government to express doubt, anxiety,
ambivalence, disapproval, or approval, and enthusiasm for a permitted
None of this, of course, 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 this policy reflects a perfectly appropriate
exercise of governmental powers.
But what if you still think that this conclusion is incorrect?
What if you think that the President's policy does represent
still a special case and an inappropriate exercise of governmental
powers? Then it seems to me it's incumbent upon you to craft
an argument that accomplishes the following.
First, you need to distinguish the President's policy in principle
from the other cases: abortion funding, federal funding in higher
education, arts funding, subsidies for marriage, refusal to subsidize
private education, and so on.
And, second, you must articulate a more satisfactory resolution
of the contest between competing goods or, alternatively, you must
be prepared to show why the controversy over stem cell research
is anomalous in the sense that unlike all of the other important
political controversies that we face, it does not involve competing
goods on the other side of the question.
I should stop there.
CHAIRMAN KASS: Peter, thank you very much. Your paper
and formal presentation are open to discussion. Professor Sandel
calls on Professor Meilaender—
CHAIRMAN KASS: —because he wants to go second. Would
you like to lead off?
PROF. MEILAENDER: Sure. It's a very clear and useful
paper, Peter, maybe too clear. That's the problem. And I don't
disagree with the basic thrust of it.
I wonder if you would say a word about what sort of word we should
use to describe this general tendency that you have characterized
in so many cases of the circumstances in which we permit but do
not necessarily promote and avoiding in a certain sense a substantive
decision on the matter, we handle it procedurally.
Is this the best way to deal with such questions, at least in
a liberal democracy, or is it a compromise, a kind of a second best,
or I just wonder what you think on that question? Is it desirable
and good that we find ourselves in circumstances like this regularly
or are we sort of stuck and, therefore, rightly fall back? It makes
a little difference, I think, how we describe it.
PROF. BERKOWITZ: Right. I think we should take some solace.
First, we should recognize that liberal democracy is itself a compromise.
If we knew somebody who knew all the answers to all the tough questions,
we could make him king or president for life and he or she could
decide matters for us.
So liberal democracy is, in part, a response to an appreciation;
in part, a response to an appreciation, that on the tough questions
we don't have access to all we need to know personally to make
the right decisions.
Second, I would say that in such a situation, the situation that
we find ourselves in as citizens in a liberal democracy, there is
a natural frustration when you feel strongly, believe strongly,
believe your arguments are compelling, and you can't get them,
you don't get them enacted into policy.
It's not surprising that when people fail to persuade a majority,
we look to other means to get our preferences and our principles
enacted. Recourse to the courts is one of the solutions both sides
adopt in different circumstances.
So I'm inclined to say that what we have here is one of the
frustrations that naturally arises in a complex free pluralistic
society. And what we have to do is learn to live with it better
and manage it better.
It is not a reflection of some kind of pathology in American liberal
democracy that an intense debate has arisen about stem cell research,
and people are bitterly divided.
I myself regard this as a sign of health in our liberal democracy.
CHAIRMAN KASS: Gil would like to follow.
PROF. MEILAENDER: Yes. You have to wait, Michael.
So it makes perfectly good sense, then, for someone to think that
according to his lights, the best solution would be some solution
other than just the permitting but not promoting and to continue
to try to argue for and press for that while, nevertheless, supporting
these sorts of decisions in all of the different areas that you
PROF. BERKOWITZ: Yes. And, of course, I don't mean
to suggest that every controversial issue, every issue that becomes
controversial for us either is deeply imbued with moral significance
or is subject to resolution through statesman-like compromise.
There are familiar examples when one has no choice but to man
the barricades. And there are other debates in which it is difficult
to get overly excited, even if there is a moral dimension to the
So I am suggesting it is my own opinion that the debate over stem
cell research is one which does not involve, at least certainly
not at this stage, a need to man the barricades. And it does involve
competing moral goods on both sides of the question.
I can well imagine a policy controversy where the moral question
is remote. And I can well imagine our history furnishes familiar
examples in which the time for debate runs out. But I don't
think either of those two extreme situations represents the situation
we now find ourselves in.
CHAIRMAN KASS: Michael Sandel?
PROF. SANDEL: Well, first of all, thank you, Peter, for,
really, a thoughtful and judicious and subtle paper. I want to
add that I think the Council is fortunate to have enlisted your
efforts in its work. This paper really is enormously helpful to
thinking about this question.
What I would like to do is to bring out what I take to be an assumption
implicit in your defense of President Bush's decision. Bringing
this assumption out may also help explain why my colleague Gil is
antsy in the questions that he was asking.
You deal with three familiar objections to the President's
policy. It seems to me that your answers to those objections are
entirely correct. The first one is that withholding funding is
not the same as banning. And that's an important point that
Secondly, there is nothing wrong with the President or public
officials embodying in federal policy moral judgments. We do that
all the time. I think that is certainly persuasive.
What I would like to focus on is the third. The third objection
is that the decision is morally incoherent for if an act is so immoral
as to deserve the federal disapproval implicit in withholding funding,
it should be accompanied by efforts to prohibit the activity altogether.
You show that this isn't the case. And the way you show that
this isn't the case is you point out there are degrees of moral
disapproval. Their government can express doubt or anxiety or ambivalence
or outright condemnation, in which case we man the barricades.
But not every moral judgment that federal policy expresses is of
that last kind, the manning the barricades outright condemnation
So there may be some acts that are so immoral that they should
be accompanied by efforts to prohibit the activity altogether, but
there may well be a range of other acts that while we may morally
disprove of them, we don't want to encourage them, they aren't
so immoral that we should man the barricades or ban them. And we
can register that lesser moral disapproval or ambivalence or doubt
in withholding federal funding.
Now, the question, of course, is whether embryonic stem cell research
falls into the first category or the second. You have given us
some examples of activities that fall into the category of things
that are morally questionable that we, nonetheless, don't ban,
like cohabitation without matrimony.
So we don't ban it because we don't think that the federal
government needs to condemn it outright. It's not that grave
a sin. On the other hand, neither do we want to encourage it.
And so we discriminate against those who cohabit in the case of
Social Security survivor benefits. And it's a legitimate discrimination
because it registers this moral disapproval or anxiety. We want
to encourage marriage, but we're not going to go out and ban
people who live together outside of marriage.
And then there are other cases. You mentioned our history. Slavery
would be one where it would seem odd to say, "Well, we're
going to deny federal funding or tax breaks to slave holders, but
we're not going to ban it" or, to take another hypothetical
example, if there were a practice of killing children to take their
organs for transplant, that would be like slavery, not like the
We wouldn't say we're going to deny funding for those
organ transplants because we want to register moral disapproval,
but we're not going to ban it. It would make no sense. That
would be morally incoherent to take that position in the case of
the practice of killing children for organ transplants.
So the implication of your analysis is that for the President's
position to avoid the charge of moral incoherence, it must be more
like cohabitation without marriage than like killing children for
So the President's position can be defended on a principled
basis as being morally coherent if it presupposes that the activity
in question is not morally comparable to killing children for organ
transplants but only if there is some doubt or anxiety about the
sacrifice of nascent human life.
Would you agree?
CHAIRMAN KASS: Your lawyers are ready to help you out,
PROF. BERKOWITZ: I understand. I would agree, yes, that
the more one adopts the extreme position or at least the—I should
say the absolute position that there is no fundamental moral distinction
between embryos, any stages, and a human being, fully developed,
grown human being.
The President's policy becomes less coherent in the way I
have described. So in other words, the presupposition of my analysis
exactly as you have identified it is that the President's policy
supposes that the moral status of an embryo is an open and difficult
In that vein, I want to remind everybody of what the President
said when he announced his decision. He said in his speech in August
of 2001, "On the first issue, are these embryos human life?
Well, one researcher told me that he believes that this five-day-old
cluster of cells is not an embryo, not yet an individual, but a
pre-embryo. He argued that it has the potential for life but it
is not a life because it cannot develop on its own. An ethicist
dismissed that as a callous attempt at rationalization. 'Make
no mistake,' he told me, 'that cluster of cells is the same
way you and I and all the rest of us started our lives. One goes
with a heavy heart if we use these,' he said, 'because we
are dealing with the seeds of the next generation.'"
So I mention this to say in theoretical point, I think you are
right. To the extent that one regards embryos as absolutely indistinguishable,
one cannot defend the President, the policy in the way I have, but
I also want to emphasize that is not the way the President defended
his policy. The President in announcing it emphasized the difficulty
of the question, what he found after consulting for a couple of
months, the intractability of the issue, the presence of good arguments
on both sides of the question and, therefore, the need for further
So while that approach may be foreclosed to some people, I think
it wasn't the presupposition, as a matter of fact, of the administration.
That is, the premise that you suggest would be inconsistent with
my third point.
CHAIRMAN KASS: There are people in the queue, but there
are also I think some who want to join on this particular question,
rather than letting it come back to it later. So if someone wants
to just on this last exchange between Michael Sandel and Peter—
PROF. GEORGE: Yes. Peter, my colleague Michael I think
assumed that the distinction that you were trying to draw or implicit
in what you were trying to draw was a distinction that turned on
the matter of degree of immorality, that it was the degree of immorality
of an act or judgments about the degree of immorality of an act
that determined where it was reasonable to come down as a matter
But there is another possibility, and it is consistent with everything
you say. Now, you can choose between them or there may be a way
to have some combination. It's certainly logically possible
and consistent with what you say to make the matter turn not on
degree of immorality but on something distinct, which is degree
of confidence in one's judgments of the immorality of the act.
One may think that a certain act may be very, very wicked indeed,
but one may have only limited confidence in one's judgment about
it. What you said a moment ago in responding to Michael was that
the President's own judgment seemed to be that this was an open
and difficult question, but one can believe that entirely consistent
with the belief that one's judgment to the extent that one has
confidence in it is a judgment that the act is indeed a very wicked
thing, in this case perhaps a judgment that the embryo is not of
lesser value, at least in respect to the right not to be killed,
than more developed human beings.
One might make the judgment from a statesman's point of view,
in part, based on one's view about the extent of reasonable
disagreement among people of good will. One thing that has to be
said I think by anybody on any side of this debate is it is a debate
on which we have very substantial disagreement among reasonable
people who are people of good will.
And there is no reason, again, in principle, why that shouldn't
factor into a statesman's judgment of the matter and, indeed,
into any particular individual and particularly a statesman's
judgment as to whether it is, in fact, an open and difficult question.
And it seems to me it ought to affect one's judgment about the
degree of confidence one can have given one's own knowledge
of one's own fallibility.
PROF. BERKOWITZ: I agree with Robby. And I take it as
a refinement of the exchange between Michael and me that one can
put at issue or what we have to take into consideration is not only
the content of the moral judgment but the degree of confidence we
have about that judgment and, moreover, the fact of how deep disagreement
is in the society. This is partly what I was gesturing at when
in the presentation I distinguished between the sociological fact
of deep disagreement in the country.
One can count up. One can count, measure, and weigh that. One
can look at the polls. People disagree strongly. That's a
fact about what is.
I distinguish that from the philosophical claim that there are
moral goods on both sides. And one might then refine that point
by saying the arguments that we have available to support our moral
judgments are less strong than we would like them to be.
And we think one day as we think through a puzzle, that could
not have presented itself to us before relatively recent developments
in science and biotechnology. As we think through it more carefully,
the arguments may become clearer to us.
CHAIRMAN KASS: Still on this point, Frank Fukuyama?
PROF. FUKUYAMA: I think there is a simpler defense, which is
just pragmatism. I mean, until the Battle of Gettysburg, Lincoln
was not willing to press for the abolition of slavery. And I believe
that he believed that it was a very serious moral wrong.
Prior to that, he was only willing to press for its banning, banning
it in its extension into the territories. And that was based on
a pragmatic judgment of what was politically possible at the time.
And so you can believe that something is a severe wrong but still
refrain from doing things you know will not work politically.
CHAIRMAN KASS: Still on this point, Gil?
PROF. MEILAENDER: I wasn't at all antsy. I liked what
I heard and wanted to draw it out a bit. It suggests to me that
commitment to this sort of resting place isn't commitment to
some final position, but, rather, it's precisely a way of allowing
an argument to continue.
And if we forget the stem cell research thing, just think about
another of Peter's examples, the abortion case, where we do
have that whole string of court decisions, making clear that a right
to something is not an entitlement to have it funded, people on
both sides of that issue don't have to regard that as the best
place for the argument finally to end.
You are entitled to argue that it would be a good thing that if
government were, in fact, to fund it. You're entitled to argue
that it would be better were we to prohibit more abortions. But
the argument continues in a way—and this is a way we find to permit
that to happen—in a way that shows a decent amount of respect
for the competing positions involved.
That seems to me to be a good thing. It simply doesn't mean
that you, as it were, adopted a new principle. You found an additional
principle that allows democratic argument to continue. That was
my thought anyway.
CHAIRMAN KASS: I have—
DR. KRAUTHAMMER: One more point on this still.
CHAIRMAN KASS: Yes, please, Charles?
DR. KRAUTHAMMER: I just want to add one other consideration
on Michael's question about how you can have moral compromise
or policy compromise on issues where you feel, then, a deep moral
wrong is being committed.
And that is, to follow up on Frank's point, which is he calls
it pragmatism, there's also a question of settle social practice.
I mean, some people may believe that the disruption of embryos at
IVF clinics is equivalent. It's a very, very great moral wrong.
I think you can make a reasonable argument that when you have
an already accepted social practice widely supported, you are required
to make a pragmatic political judgment about overturning that kind
I think that also enters into stem cells and into the compromise
that the President has arrived at. It's not just a question
of the valence, the moral valence, of the activity. I think it
has to do, as Rob indicated, with a question of the confidence one
has in one's judgment, which is related to the depth of the
opposition and the respect one would have for that opposition.
CHAIRMAN KASS: Michael?
PROF. SANDEL: First, I don't think that Peter was
defending this as a compromise, nor does the other discussion paper
defend this as a political compromise. So that might be a way of
defending the decision. I thought here we were discussing whether
this could be justified as a principal decision, not just as a political
compromise. And so I was taking seriously Peter's attempt to
As for Frank's example of pragmatism in the case of Lincoln's
position on slavery, that was in the face of Lincoln's fear
that to try to ban slavery where it already existed would bring
civil war. And he was right in his judgment that it would bring
I don't think that banning embryonic stem cell research would
run anything like that kind of risk. I mean, it's less, rather
than more contentious, than the abortion question. And so I don't
think that the stakes, the political stakes, are anything comparable.
I think that if a president really did believe that embryonic
stem cell research were morally equivalent to killing children for
organ transplantation, that that president could perfectly well
politically and morally call for a ban on the activity.
And the fact that the President doesn't support a ban on the
activity implies, it seems to me,—and following Peter's analysis
reinforces this—that he doesn't consider it morally equivalent
to killing children for organ transplant.
And as for Robby's suggestion that it's possible, there's
a difference. Of course, Robby's right that there's a difference
between how bad you think something is and how confident you are
that it's bad. But at a certain point, that distinction becomes
difficult to sustain.
I was tempted to ask Robby, can he give me an example of one thing
that he believes, really believes, is very, very wicked, in his
phrase, and, yet, he's not sure he's right about. I think
in the case of if we really did believe,—he can offer an example
later if he wants to; I won't put him on the spot—if a president
really believed that embryonic stem cell research were morally equivalent
to killing children for organ transplantation, it seems to me the
moral thing to do would be to ban it.
CHAIRMAN KASS: But, Michael, may I suggest to my learned
colleague that there is something in between something like cohabitation
and murder and that one might not have to regard this as the equivalent
of killing a two-year-old child for transplant, to think that it
is, nevertheless, of sufficient moral gravity, quite apart from
the confidence in one's own opinion?
PROF. SANDEL: Yes. I am agreeing with that. I am saying
that the President's position presupposes some version of what
we here have been calling the special respect view of nascent human
DR. KRAUTHAMMER: But, Michael, there's hardly a greater
social sin or offense than racial discrimination. We ban it in
just about every area that we can. But when it's practiced
in a purely private club like Augusta National, we don't say
the President, therefore, has an obligation to pass a law that bans
it in a purely private arena. We do have limits on what the state
does, even with great moral issues.
PROF. SANDEL: Even that doesn't involve murder.
CHAIRMAN KASS: Peter. Then I'm going to go to the
queue. I have Bill, Mary Ann, and I'm also there.
PROF. BERKOWITZ: I think we should avoid distinguishing
too sharply between sticking to principle and achieving a compromise.
Sometimes it's the best way to defend a principle to compromise
on its basis.
Moreover, I think we should distinguish the sense in which the
President's policy can be seen as principled and a sense in
which it can be seen as a compromise.
The principle is, as I understand it,—Yuval Levin will speak
more about this in the next session—that government money should
not be used in the creation and in the destruction of nascent human
life, but the goods in conflict have to do with the moral status
of the embryo as against scientific research.
It seems to me you can adhere to the principle which has a relationship
to these goods, the principle being no use of government, the principle
being no use of government, federal taxpayer dollars for the destruction
of human life. And the compromise, the balancing between these
goods, one's opinions about the moral status of the embryo,
and one's respect for free inquiry, and one's desire to
promote free inquiry.
And, again, just to pick up on something that Robby and Frank
said in different ways, every compromise is not a tarnishing of
principle. Some compromises are the best kind of defense in the
principle in the social and political circumstances.
CHAIRMAN KASS: Bill May?
DR. MAY: A comment about your last paragraph. None of
this is to deny that the President's and stem cell research
is open to criticism on the merits. It is only to claim that this
policy reflects a perfectly appropriate exercise of governmental
A word about your choice of phrase in the last sentence. To say
"perfectly appropriate" kind of moves in the direction
of having almost dealt with the merits of the case. Why not simply
"constitutionally permissible," leaving room for stating
there are other constitutionally permissible exercises of government
And you don't deal with the question of the merits of the
case. Maybe as a professor of law, you feel you are not obliged
to think about that. But do you have any comments to make about
the merits of the case, particularly since you have left that undiscussed,
the impacts of a practical surrender to the marketplace and the
whole question of regulation of the marketplace?
PROF. BERKOWITZ: First, I should say if you were my editor,
I would not man the barricades on the question of whether "perfectly"
should modify "appropriate." I would fight different
battles but not that one. "Perfect" can go.
But what I meant to emphasize, though, was appropriate in the
sense of its formality. What I wanted to say was from the merits.
DR. MAY: And, therefore, permissible.
PROF. BERKOWITZ: And, therefore, permissible. As far
as the policy, as far as the merits of it go,—and this harkens
a bit to what Michael Sandel was saying—surely on the merits of
the case, to the extent that in looking upon an embryo, you can
see nothing of moral worth. You will find the President's policy
extremely objectionable. I can understand that.
I myself am torn about the issue. And so I regard it as a salutary
compromise on the merits. But I am not an expert on matters. I
haven't come here to discuss that.
But it is I imagine implicit in my paper in the way I bring it
out that I actually do think this is an issue in which there are
serious and profound arguments on both sides of the question, as
the President said in August of 2001.
CHAIRMAN KASS: To this or do you want to get in the queue?
Okay. Mary Ann?
PROF. GLENDON: I want to join the chorus of people who
thought this was a wonderful paper and very helpful to us. If I
were your editor, on page 5, the last paragraph, I would want to
submit for your consideration where say, "our liberal democracy,"
the words "one version of liberal democracy."
I don't make that suggestion in a nitpicking way at all but,
rather, because it seems to me the goods in conflict that we are
discussing, the hard questions that you have identified do, in fact,
involve another hard question that your definition of liberal democracy
sort of glosses over.
And that is what kind of liberal democracy are we, a subject that
Michael Sandel has written about a great deal. Michael will say
whether I am right, but, Michael, I don't think you would agree
with the statement that our liberal democracy privileges the autonomous
or freely choosing life.
As I understand Michael Sandel's writings on this subject,
there is an ongoing tension in the United States between the version
of liberalism that does privilege autonomy and free choice of individual
understood in a certain way and another version of liberal democracy
that I think I understand you to favor that is more complex and
gets into questions that are intimately related with the stem cell
debate, such as what do we mean by an individual. Do we think of
an individual as really radically autonomous or do we think of an
individual as constituted, in part, by relations with others and
then the other range of questions about present and future?
So I would have expected—this really is maybe a question more
directed to my colleague Michael than to Peter. I would expect
Michael Sandel to support the President's policy on the basis
of Michael's understanding of a rich and complex liberalism
that has to attend to preserving the conditions for its own survival.
PROF. GEORGE: What should Michael say to that?
PROF. BERKOWITZ: Michael should say sort of. We both
should be so lucky to have you as an editor. I hope you will not
regard this as mealymouthed, but, just as I wanted to suggest we
shouldn't draw too sharp a distinction between decisions based
on principle and compromise, my own view is that we should not draw
too sharp a distinction between the liberal democracy that celebrates
or privileges the autonomous individual and the strands of our political
tradition that Michael has written at length about and educated
My own view is that one discovers in our country—and, by the
way, I take this to be consistent with Michael's view, although
I may not put it in a way that he finds congenial—I take it that
our country is, in large measure, constituted by this running debate
over the meaning of freedom. But freedom and individual freedom,
how much attention to put to the individual as self-reliant, how
much attention to give, how much weight to give to the individual
as he or she flourishes, grows up and flourishes in family, neighborhood,
house of worship, state, and the various communities that constitute
Again, what that is is a debate about the meaning of freedom.
It is not a debate about something else. So the larger point is,
once again, the thinking in terms of public policy's role in
securing the conditions for the enjoyment of freedom is not an alternative
to taking into account considerations of attachment, community,
to borrow one of Michael's phrases, duties we don't give
ourselves but are given to us and to which we are born. It is not
an alternative to that. That is part of the larger ambition and
larger public policy struggle.
What are the conditions that promote and enhance individual freedom?
CHAIRMAN KASS: Mary Ann, follow-up?
PROF. GLENDON: Yes. Well, I would just like to clarify
that what I was suggesting is that the President's decision
involved, among other things, a position in that ongoing debate
about what kind of society we are bringing into being.
CHAIRMAN KASS: Thank you.
I have myself next, Peter. The details of the President's
policy will be part of the discussion really more in the second
session. So let me try to formulate this in more general terms.
Actually, the staff working paper for the second session also
has some discussion of federal funding and its meaning. And it
makes an argument that you haven't made or at least if you have
made it, I haven't heard it. I heard it emphasized. And that
has something to do with the fact that a decision to fund is not
just a financial encouragement, but it is also an expression of
the seal of governmental approval and that one might say that the
existence of this intense debate as regarding the moral meaning
of embryonic destruction in the service of medical good is something
on which the very fact that the nation is divided might be an argument
for withholding official national approval.
And a person might, in fact, think that the embryo might not be
worth very much but, nevertheless, say, "I understand that
lots of my fellow citizens think otherwise." And it would
somehow be a mistake for a polity on a question so hotly contested
for my side to prevail if prevailing means the national approval.
I quote two sentences, "While embryo destruction may be something
that some Americans support and engage in, it is not something that
America as a nation has officially supported or engaged in. And
one has in the background the congressional legislation, which is,
in fact, the constraint here."
So the question, I guess, to generalize it, not to add to the
polity, couldn't one make an argument that because federal funding
is an expression of national approval, there might be grounds for
arguing that that approval should be withheld, even if you are on
the side that would benefit from the award of funds? That would
be question one.
Let me just add the second. I think I would add a kind of small
asterisk to the way you formulated the controversy. This is now
into the substance, where you say that you have got a genuine moral
goods at stake, powerful principles at loggerheads, and defended
in absolute terms.
Well, as a description of the way the debate has gone, I think
that is true, but there is a certain complication in that if this
is simply a matter of moral goods at stake, those sorts of things
tend to be handled by compromise.
But what do you do if the contest is between what might be called
right and good; in other words, where on one side, you have a principle
that something should never be done because it is a moral evil and,
on the other side, you have something that this is good to be preserved
but that it is not the same kind of moral imperative.
We had this discussion last time about what kind of an imperative
research is. In other words, does the fact that we are dealing
here with an issue that isn't like the usual funding questions,
where there are competing goods simply but where one side at least
claims to uphold some kind of absolute moral principle, which they're
not only defending in absolute terms but they regard as a moral
absolute; whereas, while others might defend it in absolute terms,
it's very hard to say that the case for doing medical research
has the same kind of moral absolute status.
PROF. BERKOWITZ: Difficult questions. First, on let's
call it the moral meaning of division in the country, here I do
want to go back to something I did say in the presentation. It
seems to me that in characterizing the division in the country,
one does have to distinguish the fact of division from the reasons
that people give in support of their opinions.
So in my view, it's very important in stem cell debate that
when I read the arguments that are put forward on both sides, I
find what I regard as serious moral arguments on both sides.
The fact of division in the country would have less weight if
one side were clearly right and one side were clearly wrong. It
could still have pragmatic weight. Law is still designed and crafted
and implemented and adjudicated for real people to live under.
You can't have laws under which people cannot live.
But these two features of the debate are very important, what
I call the sociological fact of it and the philosophical features
of it. There are good reasons on both sides.
Second, as far as your suggestion that there is a kind of asymmetry
in the debate, where there is a good on one side, a good we all
affirm, scientific research, free inquiry, and an absolute principle
on the other side, actually, I don't quite see it that way.
Again, referring to the President's August 2001, the principle
is actually, as I see it, embodied in the policy. It's not
an absolute principle. The principle, it may actually be something
the President holds, people on this Council hold, people in the
country hold, but one certainly could defend it in these terms.
The principle is that we don't use government taxpayer dollars
to destroy nascent human life.
One need not subscribe to that principle based upon the absolute,
inalterable, extraordinarily confident opinion that a two-week-old
embryo is of the same moral status and dignity as a fully developed
One may adhere to that principle because one is still uncertain.
One believes that the embryo is different from clumps, different
from collections of cells, but because it's a kind of new problem,
we didn't have access. We could not manipulate two-week-old
So there is a way at least of seeing the debate as not quite as
imbalanced as you put it, although I wouldn't deny that some
people do view it as you suggest.
CHAIRMAN KASS: I wasn't speaking about the President's
decision. I should make the more general point. What happens if
you've got a contest, not between things that people acknowledge
as competing goods simply but in which at least the key partisans
in the debate—and I am thinking more about Congress—regard this
as a contest between the right and the good, between something which
would be a right or a wrong in more absolute terms and an optional
good, however powerful optional good or is this just the sort of
thing that you see in the rough and tumble of politics and it gets
worked out in the usual way?
PROF. BERKOWITZ: Well, I wouldn't quite put it only
that way. I do not see a philosophy or a moral philosophy providing
us a formula or algorithm for figuring out what happens when a right
clashes with a good.
But I like the phrase "rough and tumble of politics."
And I would like to apply it also to moral and political philosophy.
The clash between the right and the good in this case involves the
rough and tumble of thinking, thinking rigorously about the problem
and figuring out the kinds of the moral weights we attach in this
case to the right and the good.
There's a rough and tumble of serious thought, too, but, again,
I haven't gotten and I don't believe there is an algorithm
or formula that tells you what to do when an important right clashes
with a good.
CHAIRMAN KASS: Thank you.
Rebecca, Rebecca Dresser?
PROF. DRESSER: A suggestion and a question. If you would
like to flesh this out more, you might want to follow up on the
fetal tissue transplant research history because there was a similar
acrimonious longstanding debate over federal funding. And then
eventually the Congress got into it and established a policy. And
then a new administration came in. So it might be a nice way to
illustrate some of the points you are making.
The question I had was, had you thought about—and maybe I am
just being a law professor and being procedural—principles for
responding to situations like this? How should we deliberate when
there is controversy over funding policy? How should the different
sides engage each other?
It seems to me that some of the animosity around stem cells, the
stem cell funding debate, is related to how the debate is being
conducted. And it's generating perhaps unnecessary animosity.
PROF. BERKOWITZ: Well, first, thank you for the suggestion,
and I'll have a look.
And, second, once again, just as I didn't have an algorithm
or formula, I am afraid I haven't gotten principles ready at
hand. But I can say this. Just as hard cases make bad law, I would
be reluctant to generalize overly much from this particular controversy,
again, not because I think that in formal structure, it represents
something anomalous but because I think in content, it represents
an issue that is very difficult, goods or right and the good, serious
ones on both sides of the question, excites high passions.
And the kind of problem that history and the history of moral
and political philosophy doesn't help us as much as it does
in other areas because the amazing advance of science has enabled
us to do something that we couldn't do before. Actually, we
have created a moral problem for ourselves.
So I am inclined to say that as far as my limited imagination
will take me, that this was not a bad idea to deal with. The Council
on Bioethics was not a bad idea to deal with this vexing moral question.
Congress passed a law. The President conferred.
His speech suggested that he had not come to a firm resolution.
It suggested that the reason that he had not come to a firm resolution
was because he was confronting extremely difficult issues on which
the country was divided and on which the country was divided for
And one response to that is to gather a diverse and distinguished
group of people to engage in both the rough and tumble of politics
and the rough and tumble of serious inquiry and conversation. I
fear that's not very satisfying, but I say without too much
fear that I think it is the best we can do.
CHAIRMAN KASS: Elizabeth? Elizabeth Blackburn?
PROF. BLACKBURN: Well, I wanted to address the issue of
the consequences of when federal funding is not granted. And you
say to go chapter and verse, page 8. Of course, private institutions
are free to continue to practice activities that disqualify them
from federal funding. All they have to do is refuse to take federal
I think what I didn't get from the chapter, which would have
been nice,—it was very clarifying in many ways—in different
contexts, the consequence of not granting funding is so very different
and, as somebody rightly pointed out, people can cohabitate and
refuse and they don't have federal funding and that doesn't
prevent a common practice, for example. But in the case of this
particular activity, because of its nature, not granting federal
funding is very effectively a ban.
And you could say, "Oh, wait a minute. This could be done
in the private sector." But I think that is to misunderstand
the nature of basic biomedical research at the stage before it is
really commercially viable in a realistic sort of fashion.
And so I think that because this, in effect, was a ban on such
research taking place in ways that are known to be the way that
scientific research can proceed best with the proper peer review
and proper open exchange of public information and publicly funded
information and all of those things that are held to be the right
way to do biomedical research, then it has a somewhat different
effect from what you rather lightheartedly talked about at the end
of this paragraph on page 8. Of course, they can just refuse to
PROF. BERKOWITZ: Right.
PROF. BLACKBURN: And I think that is a distinction we
should really face up to—
PROF. BERKOWITZ: Yes.
PROF. BLACKBURN: —because you are technically right,
of course, that, in effect, it didn't work out that way.
PROF. BERKOWITZ: There are others who are much more able
than I am to speak to the consequences. In fact, I understand that
the next session will be, in part, devoted to that issue. So I
both don't want to encroach and, even if I wanted to, couldn't
So I will just make one or two small points. Supposing you are
right. An effective ban is still different from an actual ban.
And, second,—and I don't mean for a moment to underestimate,
although I understand it is a subject also of intense debate and
controversy, what actually are the effects on scientific research
of the ban on creating embryos today or creating stem cell lines
from existing embryos. I understand that that, too, is a subject
There is—and this is the sense in which I address this question
in the presentation—a ready-at-hand expedient for scientists and
for those in the public who think that the President's policy
is wrong and should be changed. It's the democratic expedient.
It's to gather a majority of fellow citizens and persuade your
So in that sense, it's, once again, the sort of thing that
happens in a liberal democracy, our liberal democracy, which gives
fairly wide latitude, fairly wide latitude, to majorities. And
no doubt on some individuals, especially individuals whose livelihood
is devoted to such research, this policy falls with a special heaviness.
PROF. BLACKBURN: Nobody has devoted their life to this
research yet because—
PROF. BERKOWITZ: Those who wish to.
CHAIRMAN KASS: The record really should show, Elizabeth,
that this is not a ban. In fact, this was the first awarding of
PROF. BERKOWITZ: Yes.
CHAIRMAN KASS: I mean, let's be clear about that.
And we will this afternoon from Dr. Zerhouni about research that
goes forward now for the first time with federal support.
Whether it is sufficient encouragement for the field, to take
off is another matter, but it would be simply a mistake to let the
record say that—
PROF. BLACKBURN: Right. I think my point was that technically
this is all correct, but I think it is worth pointing out that how
it works is so very context-dependent, how not granting federal
funding is extremely context-dependent.
And in one case, there is a ready recourse to the private sector.
In other cases, there aren't.
PROF. BERKOWITZ: Even though I am aware that there is
a debate, even among scientists, about the promise of stem cell
research, nothing I said should be understood as suggesting that
the President's policy is not a significant obstacle to conducting
What I meant to say is that it struck me as both a constitutional
and reasonable obstacle.
CHAIRMAN KASS: We are near the break. Robby, are you
in the queue? You are?
PROF. GEORGE: Yes, but if there's anybody who hasn't
CHAIRMAN KASS: The only two I have left are you and Michael.
So if we can make it brief?
PROF. GEORGE: Michael, would you? Well, you might get
back to Michael quickly here.
Peter, I'm curious about your own view. Do you think that
we know enough based on what the President himself has said and
the content of the position that he adopted and put in place? Do
we know enough to be able to say whether the President's position
logically entails either of the two competing views of the moral
status of the embryo that are on the table here, either what Michael
calls the special respect view or what might be called the full
moral respect view?
PROF. BERKOWITZ: As it was put on the table in August
2001, I certainly don't think it entails the—how did you describe
the latter, the full—
PROF. GEORGE: The full moral respect.
PROF. BERKOWITZ: The full moral respect.
PROF. GEORGE: Well, I don't either.
PROF. BERKOWITZ: It certainly doesn't entail. It's
obviously not—well, I shouldn't say "obviously not."
I don't believe it's inconsistent with that view.
PROF. GEORGE: So it doesn't entail either. If it's
not inconsistent with the first view, then it can't entail—
PROF. BERKOWITZ: I'm sorry. I meant that it's
not inconsistent with the full moral respect view.
PROF. GEORGE: Right. But if you believe that, then you
also must believe that it doesn't logically entail the special
PROF. BERKOWITZ: I suppose it could still. It could have
flowed if we're speaking strictly logically here. It could
have flowed from a genuine uncertainty, confronting both arguments
and saying, you know, "Special moral respect, to what extent
and what quality, sounds like there's something to it. I'm
not sure. Scientific research should proceed, nevertheless. Not
sure. Let's inquire and let's for the time being adhere
to the principle that the federal government doesn't support
the destruction of nascent human life" because one could give
a perfectly respectful argument that it has to those of you who
spend your lives doing such things, it will have echoes of Kant.
But it's also essential to respecting your fellow human being
in a liberal society could believe that this principle, no federal
taxpayer dollars, is necessary to creating a society in which individuals
respect humanity in themselves and others.
CHAIRMAN KASS: Michael?
PROF. SANDEL: I just wanted to reiterate my agreement
with Peter's analysis and the way in which it highlights this
important implication, which is that the President's position
of denying funding but not banning can be saved from the charge
of moral incoherence but only if you assume that he is agnostic
or unsure about the moral status of the embryo or if he accepts
an intermediate view of the embryo, that it's not merely a clump
of cells but neither is it morally equivalent of a fully developed
human being because if a person held that view, if embryonic stem
cell research were a merger or infanticide for the sake of saving
other people, then there would be no good principled reason not
to ban it short of averting civil war if civil war were really the
But since the President didn't ban it, then either he must
be unsure about who is right in the debate about the embryo or he
must hold some version of the intermediate view.
PROF. BERKOWITZ: Well, I need to say there is one other
possibility, which is the President could have concluded that the
attempt to implement what Robby George calls the fuller view would
be impossible or have destructive consequences.
And so one morally could conclude, it seems to me, that it is
both saner and wiser to attempt to implement the principle and to
refrain from implementing the principle in its maximal and absolute
PROF. SANDEL: That would be like Frank's civil war
PROF. BERKOWITZ: Yes, that's right.
PROF. SANDEL: —Lincoln's Civil War. Something like
the civil war will loom if you try to ban the infanticide.
DR. FOSTER: Can I say one sentence?
CHAIRMAN KASS: Dan Foster, please?
DR. FOSTER: One sentence. If my memory has not failed
me, at the time the President met with this Council at its initiation,
he seemed to make clear his interest in finding out more about embryonic
stem cells with a clear conclusion on my part that he was in the
position that has been articulated here this morning of not being
certain about what to do.
Unless my memory completely fails me, that was a major thrust
of the meeting that day.
CHAIRMAN KASS: Yes. Very briefly, Bill, because we're
going to break. Briefly.
DR. HURLBUT: Michael, I just want to understand what you
are saying. When the President issued his statement in August,
he was speaking about federal funding. And he was upholding the
Dickey amendment, right, the Dickey clause, whatever you call that.
And so he wasn't even addressing the question of a total ban
on anything. He was addressing the issue of federal funding. Isn't
this right? So why would we conclude from that one way or another
about his larger position?
CHAIRMAN KASS: It would have been my question, too. I
mean, you misframed I think the situation. There is a law on the
books. The question is, is there a legal loophole against the spirit
of the law but within the letter?
And that was a loaded question. You can say you can fault them
for not at the very same time calling for a congressional ban on
all embryo research, but that was not the question at issue.
PROF. SANDEL: Why would you look for a legal loophole
in a law that banned infanticide if you really considered infanticide
CHAIRMAN KASS: I'm saying he wasn't looking for
a legal loophole. It was—
PROF. SANDEL: Sorry. I was just using the phrase that
CHAIRMAN KASS: I think this will come up in the next.
The way the question is formulated is I think terribly important.
Let's thank Peter very much for a very clear and lucid paper
and for discussion.
CHAIRMAN KASS: We are not very late, 15 minutes. We will
convene at ten minutes of the hour.
(Whereupon, the foregoing matter went off the record
at 10:38 a.m. and went back on the record at 10:57 a.m.)