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Stem Cell Research
PRE-EMINENT RIGHT ISSUE
Steven Rogers JD
Conception Seminary College
Conception Abbey, MO
May 2006
Issue Stated: The Missouri Embryonic Stem Cell Research Initiative seeks to create a pre-eminent constitutional right. This right shall operate above and apart from the normal checks and balances of power. The right-to-be-created shall operate apart from any law, rule or regulation, court review or act by any law enforcement authority. That is, above the power of the legislature, the judiciary and the executive branch – at any level of state government.
Prefatory Note: To avoid any confusion, documents are quoted in black. The quoted language is as exactly written on the cited document. Editorial commentary and explanation of the cited documents are cited in blue ink. Excerpts are complete and accurate. All emphasis is added.
No court has addressed these issues. They were not raised in the prior litigation. For the reasons shown below, if the amendment passes, such matters will never be contestable. The proposed language, if enacted as a constitutional amendment, will deny any attack on the amendment but for a subsequent constitutional amendment.
Document 1: LANGUAGE FROM THE PROPOSED INITIATIVE:
§2.(7) All stem cell research and all stem cell therapies and cures must be conducted and provided in accordance with state and local laws of general applicability, including but not limited to laws concerning scientific and medical practices and patient safety and privacy, to the extent that any such laws do not (i) prevent, restrict, obstruct, or discourage any stem cell research or stem cell therapies and cures that are permitted by the provisions of this section other than this subdivision (7) to be conducted or provided, or (ii) create disincentives for any person to engage in or otherwise associate with such research or therapies and cures.
§7. The provisions of this section and of all state and local laws, regulations, rules, charters, ordinances, and other governmental actions shall be construed in favor of the conduct of stem cell research and the provision of stem cell therapies and cures. No state or local law, regulation, rule, charter, ordinance, or other governmental action shall (i) prevent, restrict, obstruct, or discourage any stem cell research or stem cell therapies and cures that are permitted by this section to be conducted or provided, or (ii) create disincentives for any person to engage in or otherwise associate with such research or therapies and cures.
Personal Commentary Document 1:
1. The language of the proposed amendment specifically provides laws which “prevent, restrict, obstruct, or discourage any stem cell research or stem cell therapies . . . or create disincentives for any person to engage in or otherwise associate with such research or therapies and cures” are not controlling.
2. The language of the proposed amendment further provides:
“No state or local law, regulation, rule, charter, ordinance, or other governmental action shall (i) prevent, restrict, obstruct, or discourage any stem cell research or stem cell therapies and cures that are permitted by this section to be conducted or provided, or (ii) create disincentives for any person to engage in or otherwise associate with such research or therapies and cures.”
3. Despite the glitzy promotional materials and brochures which provide the basis of most people’s understanding of the proposed amendment, the proposed scientific research will not be subject to limitation or regulation. This includes issues of typical state control: water quality, air quality, state taxation, health & safety, etc.
4. Arguably, and lawyers are forever creative if nothing else in representing their clients, traffic laws do not apply to deliverymen, scientists en route to work; city and state taxes may not be enforced; safety/health disposal laws are unenforceable; waste water ordinances are inoperable; fire marshal limitations, building and zoning codes and ordinances are all for naught. The mind is only limited by its imagination as to what state and local laws may act as a “disincentive” or so as to “discourage” such research.
5. And, as shown below, no court has jurisdiction over any matter which may “discourage” or act as a disincentive” to such research.
Document 2: Missouri Constitution
Article I
BILL OF RIGHTS
Section 14
Open courts--certain remedies--justice without sale, denial or delay.
Section 14. That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.
Source: Const. of 1875, Art. II § 10.
Personal Commentary Document 2:
1. This provision of the Missouri Constitution is called the Open-Courts provision. It is akin to almost every other state’s constitutional guarantees. It provides the basic truth the courts of the state are open to every person.
2. This provision echoes the basic construct of Missouri government. It is comprised of three branches, all co-equals in their assigned spheres of jurisdiction. The concept of the Missouri courts being open to its citizens dates at least 130 years. It is a cornerstone of a participatory democracy. That is, access to the instrumentality of effective justice – the courts of the state.
3. The Initiative seeks to amend this provision by deleting its affect on any claim or complaint arising against embryonic stem cell research [labeled SCNT by the Initiative]. This is made evident by that pasted immediately below.
Document 3: STEM CELL INITIATIVE PROPOSAL SUBMITTAL LANGUAGE:
NOTICE: You are advised that the proposed constitutional amendment may change, repeal, or modify by implication or may be construed by some persons to change, repeal or modify by implication, the following provisions of the Constitution of Missouri – Sections 2, 10, 14, and 32 of Article I; Section 1 of Article II; Sections 1, 21, 22, 23, 28, 36, 39, 40, 41, and 42 of Article III; Sections 1, 14, 36(a), 37, 37(a), 39, and 52 of Article IV; Sections 5, 14, 17, 18, and 23, and subsection 17 of Section 27 of Article V; Sections 18(b), 18(c), 18(d), 18(k), 18(m), 19(a), 20, 31, 32(a), and 32(b) of Article VI; Section 9(a) of Article IX; Sections 1, 6, 11(a), 11(d), and 11(f) of Article X; and Section 3 or Article XI.
Personal Commentary to Document 3:
1. When a proposed Initiative is filed with the Secretary of State it must expressly state what provisions of the exisiting Missouri Constitution are potentially impacted by the proposed change. See Missouri Revised Statutes 116.050. 2.(2)
2. Pasted above is the language filed by the proponents of the Initiative. This language is stated on the Petition filed by the proponents. As is clearly evident, it expressly lists Article I, Section 14 of the Missouri Constitution. This cited article and section is the Open Court’s provision of the Missouri Constitution. [See Document 2 above.]
Steven Rogers JD
Professor of Religious Freedom
Conception Seminary College
Conception Abbey MO
Steven Rogers holds a doctorate in jurisprudence from Baylor University. He is aÿvisiting professor of Religious Freedom at Conception Seminary College, as well as an Oblate of Conception Abbey.
Also see CONSTITUTIONAL CROSSROADS -- May 2006
© Steven Rogers JD/Conception Abbey [2006]
Reprinted with permission from Steven Rogers, JD.
Free and unrestricted license to use this article for any educational and journalistic use is permitted with a proper attribution of authorship.
Steven Rogers holds a doctorate in jurisprudence from Baylor University. He is aÿvisiting professor of Religious Freedom at Conception Seminary College, as well as an Oblate of Conception Abbey.
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