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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 from doing.

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 the like.

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 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 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 human life.

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, and good.

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 government.

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 provokes.

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 activity.

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 have outlined?

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 debate.

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 you stress.

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 kind.

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 marital cohabitation.

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 organ transplantation.

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, too.

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 question.

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 debate.

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—  Robby?

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 of policy.

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.


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 of practice.

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.


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 do this.

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 civil war.

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 life.

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.


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 powers.

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 powers?

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 us about.

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 us.

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 human being.

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 cells.

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 good reasons.

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 funds.

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 do it.


PROF. BLACKBURN:  And I think that is a distinction we should really face up to—


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 very effectively.

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 of debate.

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 congressman.

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 federal funds.


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 scientific inquiry.

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 spoken yet—

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 respect.

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.


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 consequence.

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 form.

PROF. SANDEL:  That would be like Frank's civil war worked,—

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 an evil?

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 you had.

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.)


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