On May 31, 2005 the Massachusetts Legislature passed the state's current stem cell law, by a two-thirds override of Governor Romney's veto. Romney's objections to the bill, which affirmatively authorizes research on embryonic stem cells — but under strict conditions, and subject to a state regulatory regime — were that it did not incorporate certain amendments that he proposed on May 12. One of those amendments would have added the following language to the law:
No person shall knowingly create an embryo by the method of fertilization with the sole intent of using the embryo for research.
The Senate rejected Romney's amendment on May 19, without a vote:
Mr. Brewer, for the committee on Bills in the Third Reading to whom was referred the Message of His Excellency the Governor (Senate, No. 2052) returning with recommended amendments the Senate Bill enhancing regenerative medicine in the commonwealth (see Senate, No. 2039, amended) reported recommending that the Senate consider the amendments in the following form:
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In said section 1, in subsection (b) of said section 8 of said proposed chapter 111L, by inserting after the first sentence the following sentence:- "No person shall knowingly create an embryo by the method of fertilization with the sole intent of using the embryo for research.";
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The bill was before the Senate subject to amendment and re-enactment.
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Mr. Lees further moved that the engrossed bill be amended in section 1, in subsection (b) of said section 8 of proposed chapter 111L of the General Laws by inserting the first sentence, the following sentence: "No person shall knowingly create an embryo by the method of fertilization with the sole intent of using the embryo for research."
The amendment was rejected.
That same day, the House rejected this proposed amendment on May 19, 2005, by a 107-48 margin:
The second amendment recommended by the Governor then was considered as follows:
In section 1, after the first sentence of section 8(b) in chapter 111L, inserting the following sentence: "No person shall knowingly create an embryo by the method of fertilization with the sole intent of using said embryo for research.".
After debate on the question on adoption of the amendment, the sense of the House was taken by yeas and nays, at the request of Mr. Peterson of Grafton; and on the roll call 48 members voted in the affirmative and 107 in the negative.
The votes to override Romney's veto of the bill were dramatic: 35-2 in the Senate and 112-42 in the House.
The limitation that Romney had proposed would have been a significant impediment to research of genetic diseases like ALS, Tay-Sachs disease, and sickle-cell anemia, as well as diseases like diabetes for which genetic predispositions have been established. The reason for this is that existing stem-cell lines will not support the research: investigators need to have the flexibility to create embryos with the disease gene, so they can harvest lines relevant to their inquiries. Barring developments with somatic cell nuclear transfer techniques (basically cloning, but for research purposes), the only way to derive these stem cell lines is to collect sperm and eggs from persons with appropriate genotypes and fertilize an embryo in vitro. Romney's amendment would have criminalized this practice.
But this was not the end of the story. The stem cell law authorized the Massachusetts Department of Public Health to draft appropriate regulations to advance the law's purposes. DPH was an executive agency under then-Governor Romney's thumb, and when the Department published its first set of regulations, sitting right there as Proposed 105 C.M.R. § 960.005(A) was a provision that was for all practical purposes identical to what the legislature had rejected:
No person shall knowingly create embryos or pre-implantation embryos by the method of fertilization with the sole intent of using the embryo for research.
So let's recap: Legislature writes law. Governor proposes Amendment X. Both houses of Legislature soundly reject Amendment X. Governor vetoes law. Legislature overrides veto. Governor writes Amendment X into a regulation. This is an absolute, unequivocal, not-close, flagrant, per se violation of the Commonwealth's constitutional separation of powers. A Romney can't make law unless the legislature authorizes him to do it. When it does, the Romney can only make law within the narrow parameters set down for him. You can't accomplish by regulation what you can't accomplish by veto.
This is elementary civics, and this Romney knew it. By the time these proposed regs were circulated in the fall of 2006, Romney had all but abandoned the Governor's office in favor of drumming up national interest: he knew he was running for the Presidency, and he could tell religious conservatives that he had fought tooth-and-nail against stem-cell research. He no doubt had plans to accuse justices of the Supreme Judicial Court of "judicial activism" when they invalidated the regulation, as they inevitably would.
Thanks to the 2006 statewide elections, however, Romney never had the chance to defend his actions — in a Massachusetts court or in the court of public opinion. Shortly after taking office in 2007, Attorney General Martha Coakley declared that the regulation was unconstitutional and practically begged someone — anyone — to challenge it in court. It never got to that point, as Governor Patrick took notice of the offensive regulation and withdrew it before it ever landed in the Code of Massachusetts Regulations.
All's well that ends well, I suppose, but what of a Presidential candidate who so willfully and casually acts outside his constitutional authority to score political points with another constituency? Massachusetts legislators wrote the stem cell law. As much as representative democracy can, the law reflected the "will of the people." Romney made much of the "will of the people" when the rights of same-sex couples were on the line. It's one thing, apparently, for a handful of justices to vindicate the rights of a political minority. That's undemocratic. But when one man unconstitutionally overrides the legislature — it's fair game.
But I'm running a bit afield of my thesis, which is that Romney evinced a staggering disrespect for constitutional government with his actions here. A certain amount of pushing and pulling is to be expected between legislators and executive officials grappling for a political edge. What happened here, though, is just startling. To be sure, it's not Jeb Bush sending a police squad to thwart the execution of a court order — Romney didn't use force to attempt a limited coup. He just overrode the rule of law. Whatever your views on stem-cell research, that should give you pause.
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