Reframing Outka's Premise

Chuck Roth, of the Midwest Immigrant and Human Rights Center, weighs in on Professor Outka's stem cell argument:

It seems to me that the main problem with Prof. Outka's theory is that the option is not between useless death and useful death - it's between potentially useful death and continued suspended "potentiality" (to use Prof. Outka's phrase). This is not someone who is going to die in 5 minutes - this is someone who is going to continue in potentiality till 50,000 A.D. or a power failure, whichever comes first. Even operating under those moral assumptions, it's hard to say that the condition of potentiality is "permanent" when there's untold eons in which that fertilized egg might be implanted, nurtured, and born.

What struck me, though, was Prof. Outka's assumption that these zygotes / unborn children will be discarded in any event. Why should that be assumed? Setting aside the wishes of the couples involved, I see nothing in Roe or its progeny which requires the state to permit this result. Why would it be constitutionally problematic for the state to assume custody of fertilized ova, where couples have no further use for them? One could argue the takings clause - but in light of the recent SupCt decision in Brown v. Legal Foundation of Washington (2003) (the IOLTA case), we focus on what is lost by the owner, not what is gained. Since the net loss to a couple wishing to destroy the unborn zygote is zero, no compensation is owed where the state takes custody. To the extent that some fundamental right to procreate exists, this kind of requirement would not substantially burden that right (at least, not so long as government foots the bill).

Perhaps this is the disconnect in the stem cell issue that many people sense. Sure, experimentation sounds bad, but how can one advocate for just letting these unborn children die? Take away that assumption, and you force the state to make an active decision to kill (which will be more difficult) in order to experiment on the unborn. Moreover, you make a public point about when life begins.

As I think about it, this issue has the virtue of involving the definition of human life, without involving anything which would require a woman to procreate when she doesn't want to. As such, it could present a vehicle for undermining Roe, as it would bring home yet again that the Roe decision effectively defined human life, even where it claimed not to be doing so. Do you happen to know if anyone is thinking along these lines, as Congress and the President address these issues in the coming months (in the brave new world of a potentially pro-life senate)? If this idea hasn't been broached with the pro-life people in DC and elsewhere, perhaps it should be...