Now before anybody starts in with “haven’t you heard about Roe v. Wade” or “I wish it were so, but the Court would never go for it,” recall that the hated Roe v. Wade decision never declared there is no right to life.  It engrafted a cancerous right to abortion in our Constitutional jurisprudence, but that is easily read as limiting the right to life, not abolishing it. 

In fact, there is no abortion case law on the Supreme Court level that affirmatively denies the personhood of the human being.  In Doe v. Bolton, the right to destroy babies in utero was expanded by defining the “health” of the mother as anything down to a whim.

1.  The 14th Amendment to our Constitution is somewhat unusual compared to most of the other Amendments because it not only restricts government action, but it actively obligates government to take action to ensure equal application of the law at every level of government, on both the federal and state level.  This would include the right to life.  As a matter of preclusion, the federal government should not be allowed to fund the life destroying research under the Constitution.  As an affirmative matter, equal protection under the 14th Amendment should obligate states to disallow such life-destroying research. 

Embryonic stem cell research, (as well as in vitro fertilization and cloning) involve the destruction of human life without having abortion on the opposite side of the scale to counterbalance that.  With in vitro and cloning, there would be a somewhat stronger extension of the abortionists’ argument of right to control one’s body, but it would be an extension of the law.  With embryonic stem cell, however, we pit the right to life against a research, (an unproven research which is less effective than its counterpart in adult stem cell research).  The former (right to life) is a Constitutional right, and the latter (research) is not.

Perhaps most importantly, I believe such a claim would win 5-4 if taken to the Supreme Court.  Thomas, Scalia, Alito, Roberts, and Kennedy I believe would agree with me.  Kennedy let us down in Casey v. Planned Parenthood in 1992, but on the dubious basis of stare decisis, which gave extra Constitutional weight to Roe, despite being wrongly decided, because it had long been accepted by the Court, (let’s be thankful he wasn’t the swing vote on Brown v. Board of education in light of Dred Scot).  But, to Kennedy’s credit, he has ruled with the Right to Life movement on upholding the partial birth abortion ban where stare decisis was not an issue.  So unlike the 4 liberal justices on the court, he is not in the abortionists’ pocket.  Now I am not comparing the government banning partial birth abortions with Kennedy affirming government action as Constitutional versus Kennedy potentially finding embryonic stem cell unconstitutional.  I am just saying stare decisis is not an issue on embryonic stem cell.

2.  Some protection may also be found under the 13th Amendment, which declares slavery illegal.  If people cannot be treated as property, then it is a logical extension to suggest they cannot be used and destroyed for research.