Nevada rules: Amendment 2 and Missouri's reputation

Amendment 2 proposes to strip the Missouri Legislature of most powers to regulate medical experimentation on cloned human embryos. Although Amendment 2 raises other issues, it raises a concern that has not yet been discussed enough: Missouri's reputation. Amendment 2 may make Missouri the Nevada of medical experimentation.

While our country's federal-state system has many advantages, one state can usually be expected to attract business by setting regulatory standards lower than any other's. Nevada is that state for prostitution, and until recently it was the only such state for gambling. Amendment 2 may make Missouri that state for cloning research.

If this analogy sounds strong, consider:

Amendment 2 leaves Missouri with even less power over medical experimentation than Nevada has over prostitution or gambling.

Take licensing. States routinely require businesses to get licenses to prove they comply with public health, safety, and fraud standards. Although Nevada has legalized prostitution and gambling, at least it licenses both. Amendment 2 would not let Missouri license cloning research. The amendment bars the legislature from regulating cloning research in any way not covered by seven narrow exceptions. None of those exceptions authorize licensing. One exception instructs stem-cell researchers to report to a research oversight committee, but such a committee is a far cry from an independent state licensing commission.

Next, Nevada's legislature may vary its gaming and prostitution regulations more than Amendment 2 would let Missouri vary embryonic research regulations.

Because Amendment 2 is a constitutional amendment, it locks in the state of Missouri permanently. Cloning research requires hundreds of cloned embryos. Abroad, one overzealous researcher exploited a female laboratory assistant to harvest her eggs and meet his egg quota. While Amendment 2 tries to protect women before they donate eggs, its informed-consent protections are vague and might not be adequate in practice. The amendment may also strip women egg donors of their right to bring personal-injury suits for such misconduct.

Nevada's legislature always has the power to change its regulations if casinos are exploiting customers. Missouri's legislature could not change policy if Missouri's voters decide later researchers are exploiting women donors.

Finally, Nevada's legislature keeps more responsibility to regulate prostitution and gambling than Amendment 2 would leave to Missouri. For any subject not covered by Amendment 2's exceptions, Amendment 2 requires Missouri to allow whatever federal law allows. This tactic is risky. The federal government sometimes responds to out-of-state groups that put their own interests over Missouri's. Over the last two decades the federal government has legalized Indian casinos in many states whose voters oppose gambling. Are Missourians sure that out-of-state biotechnology interests will respect Missourians' attitudes about cloning any more than Jack Abramoff treated state attitudes toward gambling?

When a state decides to profit in a moral gray area, it usually acquires a reputation as a great place to make money but no place to raise a family. Before they vote on Amendment 2, Missourians need to ask whether they want Missouri to become that kind of state.

Eric Claeys is an associate professor of law at St. Louis University and a former law clerk to William Rehnquist, former chief justice of the United States.