Stem Cells, Life, and the Law
A federal court steps into the debate.


Believing that stem-cell research would be a wedge issue in their favor, Democrats overhyped it in the 2004 campaign. Four years later, candidate Barack Obama cast himself as a guardian of science — and once inaugurated, he overturned the Bush policy on embryonic-stem-cell research. President Obama ordered the National Institutes of Health (NIH) to develop guidelines that would allow federal funding to flow to researchers working on stem-cell lines derived from the ongoing destruction (with the parents’ permission) of “spare” embryos frozen in IVF clinics — essentially implementing the 1999 Clinton policy.

Monday’s court decision involved the legality of the Obama policy and the NIH guidelines. Two scientists whose work involves non-embryonic stem cells asked the court to enjoin the use of federal funds for embryonic-stem-cell research on the grounds that it violates the Dickey-Wicker Amendment. Mirroring Clinton’s argument, the Department of Health and Human Services responded that while the amendment prohibits “research in which a human embryo or embryos are destroyed,” the Obama plan funds only the research that occurs after the point of destruction.

In his ruling Monday, Judge Royce Lamberth of the U.S. District Court rejected the government’s reasoning. Embryonic-stem-cell research “is clearly research in which an embryo is destroyed,” since by definition it requires the destruction of human embryos. It makes no sense, the judge wrote, to claim that the destructive act and the experimentation on the resulting stem-cell lines are “separate and distinct ‘pieces of research.’” The fact that embryonic-stem-cell research “involves multiple steps does not mean that each step is a separate ‘piece of research’ that may be federally funded, provided the step does not result in the destruction of an embryo.” The judge issued a preliminary injunction halting all federal funding of embryonic-stem-cell research.

Judge Lamberth’s interpretation of the Dickey-Wicker Amendment is certainly in line with the original intent of the authors of that amendment, and with the understanding of the members of Congress who originally voted for it in 1996, even if the Clinton administration’s interpretation (which was then adopted by both the Bush and Obama administrations) is arguably reasonable in light of the meaning of the term “in which.” When the decision is appealed, the Obama administration will no doubt challenge the judge’s assertion of the unity of all stages of embryonic-stem-cell research. Is the judge right to conclude that any experimentation on embryonic stem cells is, in the eyes of the law, inseparable from a broader research project that implicates the destruction of an embryo? On the one hand, it is true that all research on embryonic stem cells was preceded by and is made possible by the destruction of an embryo; the two acts are morally entangled. It is certainly clear, moreover, that by offering taxpayer dollars for the research regardless of when the embryo was destroyed, the Obama policy (unlike the Bush policy) incentivizes new acts of embryo destruction.

But on the other hand, imagine a young scientist just beginning his career, experimenting on stem cells derived from embryos destroyed years earlier, on the other side of the country, when he was still in junior high. Is he morally culpable for the act of embryo destruction? Is he engaging in what the law would consider “research in which a human embryo or embryos are destroyed”? If so, then the last nine years of federal stem-cell-research funding policy — under Bush as well as Obama — has indeed been in violation of a law passed by Congress in each of those years.

Whichever way the matter is finally resolved in the courts, it is certainly a great improvement to be asking this question — does the research being funded involve the destruction of human embryos? — and presuming that if the answer is yes, then the research should not be funded, rather than debating whether the destruction of developing human lives is of any consequence, and whether it should be supported by taxpayer funds. Putting the question this way, and presuming the incalculable moral significance of human life, was certainly the intent of the Dickey-Wicker Amendment, and should be the aim of any decent society.