Peter Berkowitz, J.D., Ph.D.1
I. INTRODUCTION
How should the government approach the question of public
funding of activities that are deemed controversial by the
American people? Is it appropriate to make such decisions
on moral grounds? Can moral grounds for such decisions be
avoided? If they can't, whose moral views, and of which
sort, should govern, and with what consequences for those
in the minority?
Questions of this sort have been frequently discussed in
the wake of President Bush's 2001 decision regarding federal
funding of embryonic stem cell research. In that decision,
the President permitted federal funds to be used, for the
first time, to support research on embryonic stem cells,
but only those already in existence. At the same time, he
made it clear that there would be no federal support for
any research that involved or depended on any future destruction
of human embryos. In so doing, he was upholding both the
letter and the spirit of a Congressional enactment, the
1996 Dickey Amendment, which prohibited the creation of
embryos for use in experiments, or the use of embryos in
research that led to their destruction.
President Bush's decision has generated a great deal of
controversy. Most scientists and patient advocacy groups
believe that he made the wrong decision, and that the Dickey
Amendment is a terrible mistake. Among the objections one
commonly hears to the President's policy are several that
concern the meaning of federal funding:
(1) By withholding federal funding for research that involved
the creation of new embryos or the future destruction
of embryos in existence, the President has effectively banned
embryonic stem cell research.
(2) The decision was wrong because the President allowed
his personal moral views to govern federal policy. Or, along
the same lines, the congressional ban is wrong because it
represents the imposition of moral views-religiously based
moral views at that-to frustrate sound and beneficial public
policy.
(3) The decision is morally incoherent, for if an act is
so immoral as to deserve the governmental disapproval implicit
in withholding funding, it should be accompanied by efforts
to prohibit the activity altogether.
Whatever the merits of the current law, or the President's
2001 stem cell decision, these objections, once closely
examined, cannot pass muster. The first confuses a limitation
on funding with the imposition of a ban or prohibition.
The second wrongly supposes that legislating morals through
federal budget decisions is always or generally wrong. And
the third incorrectly assumes that government has an obligation
to bring an end to all conduct it believes immoral.
Explaining these errors requires an exploration of the
meaning of all government funding decisions. Such an exploration
can not decide the difficult question of the merits of the
President's stem cell policy. It can, however, put to rest
the objections built around the claim that the policy somehow
violates the letter or the spirit of sound constitutional
government.
II. Federal Funding
A. Basic Considerations
The common objections to the President's policy fail to
come to grips with what government funding in a liberal
democracy really means. Several fundamental features of
our constitutional system need to be emphasized.
First, no one and no activity has a constitutional right
to federal funding. There is no governmental obligation
to fund most activities, not even the most worthy, save
for such matters as the Constitution explicitly proclaims
to be the responsibility of government, such as national
defense, the maintenance of federal courts, the holding
of elections, and so on. And even concerning these constitutional
essentials, it is an open question, to be resolved by our
elected representatives, of how government will choose to
allocate taxpayer dollars.
Second, no individual or cause has a right to sit at the
government trough. Resources are scarce, and insufficient
to support all worthy activities. People with different
causes and interests compete to obtain them, and in order
to succeed they are forced to bring their case to members
of Congress. Funds are distributed only through the political
process, within limits set by the Constitution, as the result
of deliberation, lobbying, deal-making, and the like.
Third, in a healthy democracy people will always have disagreements
about what activities should receive government funding.
Sometimes the disagreements will be intense, and sometimes
not. Sometimes the disagreements will include moral disagreements,
and sometimes not. Sometimes the political process will
generate a stable compromise on the issue, and sometimes
one side or the other decisively prevails.
Fourth, while the Constitution prohibits the government
from establishing religion, it does not interfere with the
right of citizens to form moral judgments based on their
deeply held religious beliefs, and to persuade a majority
of their fellow citizens to enact legislation informed by
those moral judgments, provided of course that the legislation
does not interfere with other constitutionally guaranteed
rights.
Fifth, those who fail in the democratic process to obtain
federal funding will always feel that they did not get what
they need or want, but in the absence of a clear legal entitlement
to such funding, they cannot properly complain that the
government has thereby denied their rights or interfered
with their liberty to exercise them.
Sixth, those who lose have several alternatives built into
the democratic process. They can try to persuade their representatives
in Congress to reconsider, they can vote in others more
sympathetic to their cause, they can seek to influence public
opinion, or they can seek non-government funding for their
activities.
All of this is straight-forward and uncontroversial. It
suggests the legitimacy, indeed the routine character, of
the President's policy. It might be regarded as the end
of the story.
B. Are There Special Cases?
Although the framework laid out above may correctly describe
the situation for most or even all federal funding decisions,
there are moral and political reasons why people might regard,
for example, withholding of support for selected aspects
of biomedical research as a special case, an exception that
demands a different approach.
The nation strongly and overwhelmingly backs biomedical
research. And we generally leave the mapping of research
strategies to scientists and those who administer the institutions
in which they work. The entire biomedical enterprise in
the US, including also the training of the next generation
of scientific researchers, has come to depend heavily on
government support. The public generally favors this arrangement,
and relies on government-funded research for the treatment
and for the cure of all still untreatable diseases, such
as cancer and Alzheimer's disease.
Consequently, the decision to withhold public funds from
any particular piece of the biomedical research portfolio
looks and feels, both to scientists and to the public, like
an intrusion of government into a place where it does not
belong, and it prompts harsh accusations that government
is engaging in censorship or even outright prohibition of
medically necessary scientific research. To be sure, the
FDA regularly imposes restrictions on research, but mainly
on grounds of safety. When, however, government's objection
to research is moral in nature, it strikes scientists as
a deprivation: a restriction of freedom to inquire, a thwarting
of worthy community goals, an intrusion of morals into a
sphere where they do not belong. At the same time, it appears
to those members of the public who disagree with the decision
as a failure by the government to abide by its putative
moral obligation to use its resources to explore all
fruitful areas of research in search of cures for dread
diseases.
Moreover, there is reason to single out for special attention
those decisions about federal funding where powerful moral
principles are at loggerheads, and the nation is deeply
and passionately divided. This is the case of stem cell
research. It poses a confrontation between genuine and conflicting
goods: on the one side, respect for nascent human life and,
on the other side, commitment to unfettered scientific inquiry
and to the fight against disabling and deadly disease. The
clash between those who hold that the moral status of the
embryo is no different from that of a fully developed human
being, and those who believe that the embryo is a clump
of cells, utterly devoid of moral worth is not resolved
by appeal to shared moral premises. This is because what
the debate over stem cell policy calls into question is
how to apply our shared belief in the rights and
dignity of the individual.
Despite the powerful presumption in favor of federal funding
of biomedical research, and the moral stakes which both
sides see as exceedingly high, the controversy over federal
funding of stem cell research does not present a special
case. In politics, though, how a policy appears is important.
For this reason, and despite the fact that the common arguments
condemning the president's policy rest on false assumptions
or unreasonable expectations, and though they may be mere
rationalizations for the failure to win the policy battle,
it is worth examining their flaws fully.
III. Morals, Federal Funding, and Legislation
A. Federal Funding
In the first place, federal funding is about resource distribution-who
and what will get how much of the nation's scarce taxpayer
dollars. It is usually not about restricting basic rights.
For example, there is no constitutional right to the funding
of biomedical research.
But often the question of whether government will or will
not fund an activity is about more than mere distribution.
It is about government shaping choices among various and
competing goods or undertakings. It is a statement of approval
and encouragement by government, a declaration by the nation
that an activity or undertaking is meritorious and has priority.
Or, in the decision to withhold funds, government policy
can be a statement of disapproval and discouragement, a
declaration by the nation that a permitted activity or undertaking
lacks merit or has low priority.
Policy decisions about funding resemble policy decisions
about taxing. Both sorts of decisions create incentives
and disincentives by making activities more or less costly.
The child tax credit, for example, reduces the financial
cost of child rearing. In so doing, it strengthens families
in two ways: it enables families to save money, and it conveys
an important message about the political importance of the
well-being of the family. Similarly, government funding
of research into disease and its prevention and treatment
increases the supply of these goods, and reflects our nation's
considered judgment that the relief of physical suffering
is a high national priority.
While all law either requires, forbids, or permits, the
provision or withholding of funding and the use of tax incentives
and disincentives allows government to express a range of
attitudes toward that which it permits. In the United States,
through such decisions government strongly endorses charity
and higher education. It looks favorably on national service
and the arts. It shows a preference for marriage to cohabitation.
It frowns upon smoking. It is the distinction between permitting
or tolerating an activity (which is the case with embryo
research and destruction) and actively promoting it through
governmental funding (which the president's policy on stem
cells prohibits), that is crucial to understanding the president's
stem cell research policy, but not only to the stem cell
controversy.
The question of federal funding routinely implicates questions
about the nation's moral priorities among permissible
activities. And the question of moral priorities in politics
is not so simple as a question of good or bad; rather it
is a question of better or worse. One consequence of this
is that in sorting out funding decisions it is not a matter
of one side introducing moral considerations. Most of the
time, both sides in disputes over policy are of necessity
engaged in making moral arguments.
This is true, and to an extraordinary degree, in the stem
cell controversy. Both sides-those who wish to defend
the rights of nascent human life, and those who wish to
defend unfettered scientific research directed at the relief
of human suffering through the cure of deadly disease-defend
moral principles. To make matters more difficult, both
sides tend to defend those principles in their absolute
form. While the president's position attempts to give weight
to both sides' principles, both sides, because
of the passion with which each holds its principle, are
dissatisfied. However, insofar as the president's approach
reflects that adopted by the Dickey Amendment, it follows
a determination made by a majority of the people's representatives,
and with that both sides should be satisfied. But
they aren't.
But the dissatisfaction of both sides takes a recognizable
form. In general, because moral principles are so frequently
at stake in the fight for federal taxpayer dollars, funding
decisions create bitterness. This truer still, as in the
stem cell debate, when the moral principles are wielded
in their absolute form, so that both sides can claim
defeat. If funding is withheld, those who believe the activity
is worthy can claim that their tax dollars, which they contribute
in the hope that they will serve the good of the country,
are being held back from what they deem a deserving or even
overriding moral purpose. This is the position taken by
many scientists and progressives with regard to the limitations
imposed by the President's policy. If funding is provided,
those who believe the activity is immoral can claim that
their tax dollars are being used to advance a cause they
believe is unworthy, or even abhorrent. This is the position
taken my some social conservatives who believe that the
limitations imposed by the President's policy did not go
nearly far enough and pave the way, sooner rather than later
to the routine creation and destruction of human embryos
for biomedical research. Typically, both sides make moral
claims, and one or the other-and in the really tough cases
such as stem cell policy, both sides-will have to
live with the fact that their moral principles are being
rejected (if not assaulted) by the government, in their
own name and with their own tax dollars.
Why should those who lose the political struggle put up
with this? For the simple reason that living in a liberal
democracy means sometimes being in the minority, even on
questions of the utmost importance, but so long as the laws
which one opposes are consistent with the Constitution and
enacted according to legally appropriate procedures, one
has an obligation to obey them.
B. Legislation
Is it really a legitimate aim of a liberal democracy to
adopt laws and take actions to shape the moral beliefs of
its citizens? Perhaps federal funding is the exception,
and to the extent possible the moral dimension should be
eliminated from policy formation. Doesn't government in
a liberal democracy have an obligation to remain neutral
toward competing conceptions of a good life, and so refrain
from enacting morals into law? Otherwise, doesn't it impermissibly
infringe on people's right to choose how to live their lives.
According to a common and sound criticism of this common
view of the liberal state, such neutrality is a chimera:
it is impossible for any government to remain neutral about
morality and the nature of a well-lived life, since the
resolution of controversies over public policy-for what
purposes is the state permitted to classify citizens by
race? what is the meaning of marriage? to what extent may
the public schools engage in civic education?- always draw
upon, reinforce, or suppress a view about what is deserving,
proper and good. It is possible, as a matter of policy,
to tolerate a wide variety of choices and forms of life,
but toleration itself is a moral principle based on a certain
interpretation of how to secure human freedom and respect
the dignity of the individual.
Some then object that because of its very foundational
commitments, our liberal democracy privileges the autonomous
or freely choosing life. And so in sense it does. But it
need not and should not do this unwittingly or surreptitiously.
The mistake is to think that liberal state stands or falls
with the commitment to neutrality. It doesn't. It stands
or falls with the commitment to creating the conditions
under which individuals can exercise political freedom.
Law and public policy in a liberal democracy properly seek
to create conditions in which citizens can make informed
and responsible choices. It does this in a variety of ways.
The first and most taken for granted is through the establishment
of public order. It also does this through establishing
a system of public schools, promoting research in the arts
and sciences, and enacting a wide variety of social and
economic legislation, all with a view to forming a citizenry
that is at home in, and capable of taking advantage of,
freedom. Legislation designed to encourage biomedical research
can be seen as creating circumstances in which we are better
able to enjoy the blessings of freedom. The same can be
said of laws designed to respect, and encourage respect,
for nascent human life, which can reasonably be understood
as contributing to the conditions under which individuals
learn to respect humanity in others and in themselves.
To be sure, even within the limits provided by law, government's
encouragement of informed and responsible choice can easily
become a tool for the ill-conceived circumscribing of choice.
Even well meaning government efforts to help prepare citizens
for liberty and toleration can undermine both. Government
funded education can be dogmatic and ideological; government
funded research may be biased and unaccountable; government
supported arts may disseminate tawdry or jingoistic sentiments
and images; government funded programs directed at the family
may fail to adapt to changing times. Of course, these familiar
abuses are not arguments against government promoting the
conditions that enable citizens to take advantage of freedom.
Rather, they are reasons for proceeding with care, and with
an appreciation of the complexities of contemporary moral
and political life.
IV. American Dilemmas
The president's policy on stem cells is not the only funding
decision in contemporary American politics that has generated
controversy. Brief discussion of others sheds light on what
is common to all and what is distinctive to the stem cell
debate.
Consider first the battle over abortion, which involves
a long standing struggle over the question of government
funding for lawful conduct. Shortly after entering office,
President Bush ordered the withholding of funding from international
organizations that performed abortions, a decision that
was neither required of him nor forbidden to him but within
his discretion. The principle behind this policy is common
to his position on stem cell research: government funds
should not be used to destroy nascent human life.
At home, a line of Supreme Court decisions stretching from
1977 to 1991dealing with abortion and government funding
established the principle that the constitution does not
require government to fund activities that the Constitution
protects. In Maher v. Roe 432 U.S.464 (1977), the
Court held 6-3 that Connecticut could provide Medicaid benefits
for childbirth while withholding benefits from women who
wished to have non-medically necessary abortions. Justice
Powell, writing for the majority, maintained that the right
to abortion announced in Roe v. Wade, "protects the
woman from unduly burdensome interference with her freedom
to decide whether to terminate her pregnancy. It implies
no limitation on the authority of a State to make a value
judgment favoring childbirth over abortion, and to implement
that judgment by the allocation of public funds." Powell's
analysis emphasized the "basic difference between state
interference with a protected activity and state encouragement
of an alternative." In dissent, Justice Brennan disagreed
vociferously. He argued that the denial of funds unconstitutionally
interfered with the right of women to choose an abortion.
Also in dissent, Justice Marshall argued that by withholding
funds for non-medically necessary abortions, Connecticut
was seeking "to impose a moral viewpoint that no State may
constitutionally enforce."
In Harris v. McRae 448 U.S. 297 (1980), by a 5-4
margin, the Court upheld the Hyde Amendment, which banned
federal funding of medically necessary abortions. The majority's
argument was much the same as in Maher: "although
government may not place obstacles in the path of a woman's
exercise of her freedom of choice, it need not remove those
not of its own creation." The government, the majority reasoned,
does not have an obligation to provide taxpayer dollars
so that individuals can exercise their individual rights
to the maximum. To this, Justice Brennan replied in dissent
that Hyde Amendment actually left poor women in a worse
off position. By refusing to provide poor women with funding
for even medically necessary abortions while subsidizing
childbirth, the government demonstrated profound disapproval
for abortion and thereby burdened the exercise of the right
to privacy declared in Roe.
In Rust v. Sullivan 500 U.S. 173 (1991), again by
5-4 margin, the Court upheld federal regulations that barred
health care professionals who received federal funding from
offering counseling about abortion. Chief Justice Rehnquist,
writing for the majority, reiterated the Maher and
Harris principle: "The Government has no constitutional
duty to subsidize an activity merely because the activity
is constitutionally protected." In dissent, Justice Blackmun,
joined by Justices Stevens and Marshall, echoing
the dissenters in Maher and Harris, insisted
that by conditioning federal funding on the withholding
of counseling about abortion, the government was actually
placing "formidable obstacles" in the path of women's exercise
of their privacy rights.
While these cases appear closely analogous to the stem
cell controversy, they differ in a crucial respect. Although
some of the same forces are politically engaged, and although
the moral issue concerns the question of the inviolability
of nascent human life, the abortion cases would have been
unlikely to come to the Court for adjudication had the Court
not declared in Roe v. Wade a constitutional right
to an abortion. For the argument made by those who seek
federally funded abortions is that by withholding funding,
the government is seeking to frustrate the exercise of a
constitutionally protected right. Absent such a right, there
could be no plausible legal claim. Indeed, absent an entitlement
to government sponsored health care benefits, there is no
valid legal claim that Medicare must pay for cosmetic
surgery, sex-change operations, contraceptive benefits,
heart transplants, or any other procedure one wants for
oneself and can find a doctor to do. Only if there were
a constitutionally protected right not to be poor, not to
be without resources to fully take advantage of all the
things that we are legally entitled to pursue, could such
a claim prevail as a matter of law. While there is no such
right, this is just the kind of claim that dissenters in
the Court's cases concerning federal funding and abortion
defend. In short, because the Constitution provides no special
protection to biomedical research, the argument for legal
entitlement to funding of stem cell research proceeds on
dramatically weaker grounds than the rejected arguments
in the abortion funding cases.
Title VI of the Civil Rights Act of 1964 furnishes another
example of how government may withhold funds from practices
it does not outlaw. It provides that, "No person in the
United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance."
It is this provision that requires private universities
to avoid those racial classification in admissions and hiring
that would violate the prohibitions imposed on state
action by the equal protection clause of the 14th
Amendment. Title VI is far reaching, because most private
universities rely heavily on government funding for the
support of basic research. And it provides a way for the
federal government to shape the moral contours of what is
largely private conduct, and bring that conduct in line
with fundamental constitutional principles. Of course private
institutions are free to continue to practice activities
that disqualify them for federal funding. All they have
to do is refuse to take federal funds.
Close in form to federal policy on stem cell research are
social security regulations regarding marriage and survivor
benefits. For example, although cohabitation without matrimony
is not illegal, indeed it is quite common, the federal government
refuses to pay social security survivor benefits to all
but legal spouses. This is a way for government to provide
financial incentives for marriage. And for government to
take sides on the value of marriage, proclaiming the union
marked by it as good for individuals and good for the polity.
This is a policy decision that does not engender bitterness
or controversy. It must be acknowledged that the withholding
of a reward could, under imaginable circumstances, stigmatize
those who choose to live together as a loving couple but
not to marry. But just as it can not plausibly be claimed
today that the child tax credit confers social disapprobation
on married couples without children, so too it cannot be
plausibly claimed that unmarried couples suffer social disapprobation
because of government policy that restricts the paying of
social security survivor benefits to legal spouses.
Or, from a different angle, consider the question of elementary
level and high school education. In 1923, in a landmark
decision, Meyer v. Nebraska 262 U.S. 390 (1923),
the Supreme Court ruled that parents have a right to educate
their children in a foreign language. In 1925, in
a related case, Pierce v. Society of Sisters 268
U.S. 510 (1925), the Supreme Court ruled that parents have
a right to educate their children in private schools. But
nobody concludes that the rights that these cases protect
prohibit states from policy decisions encouraging
public education. And nobody claims that the right of parents
to privately educate their children creates an entitlement
to have that private education funded by the government.
As these examples illustrate, the controversy over stem
cells should be seen as one among many political battles
over the allocation of limited federal funds. It is distinguished
not by the presence of moral principles, or the presence
of moral principles on both sides, but by the particular
moral principles at stake, the absoluteness with which they
are wielded, and the intensity of the passions their defense
provokes.
V. Conclusion
When the question of federal funding is placed in perspective,
it can be seen that the common objections to the President's
policy on stem cell research are misplaced.
First, by withholding federal funding for research that
involved the creation of new embryos or the future destruction
of embryos, the President did not effectively ban
embryonic stem cell research. His August 2001 decision
for the first time provided federal funding for stem cell
research, and it permitted private individuals and companies
to pursue it.
Second, by basing his policy in part on moral considerations,
the President did not violate an obligation to keep morals
out of politics, because funding decisions, whichever way
they go, typically and unavoidably contain a moral component.
Indeed, the moral component often lies at the heart of the
dispute and at the core of the decision.
Third, by refusing to seek a blanket prohibition on an
activity from which he withheld funding on moral grounds,
the President did not make an incoherent decision. The complexities
of a free society frequently create situations in which
it makes sense for government to express doubt, anxiety
or disapproval for an activity it is unwilling or unable
to outlaw.
None of this is to deny that the president's policy on
stem cell research is open to criticism on the merits. It
is only to claim that the policy reflects a perfectly appropriate
exercise of governmental powers in a liberal democracy.
_________________
ENDNOTES
1.
Peter Berkowitz teaches at George Mason University School
of Law and is a research fellow at Stanford's Hoover Institution.
He has served as a senior consultant to the President's
Council on Bioethics.
