In November 2004, California voters approved Proposition 71, establishing a state constitutional right to conduct stem cell research. By guaranteeing scientists a right to conduct their research unfettered by government intervention, the state intends to attract an army of researchers who will ultimately boost the state's economy with lucrative stem cell applications. For scientists, the opportunity is especially appealing in light of the $3 billion in government funding that California has earmarked for stem cell research over the next ten years. Indeed, other states have scrambled to enact similar measures in the hopes of preventing an exodus of scientists to more research-friendly jurisdictions.

But no state has the power to provide a safe harbor for scientific research if Congress decides to make such research illegal. Rather, the researcher would need to attack the federal ban with an argument grounded in the U.S. Constitution and rely on judicial intervention to overrule Congress. Although due process and equal protection arguments for a scientific right to research have been suggested, the constitutional basis that has received the most attention is the Free Speech Clause of the First Amendment. Many commentators have painted the First Amendment as an obvious protection for cloning research, stem cell research, and even bioweapons research. In contrast, in its 1997 report, the National Bioethics Advisory Commission claimed that "society recognizes that the freedom of scientific inquiry is not an absolute right and scientists are expected to conduct their research according to widely held ethical principles." At least one scholar has implied that there is not even a threshold First Amendment problem with restrictions on scientific research. Unfortunately, however, no court has squarely addressed the issue...