Bad Advice on Stem Cells

by Adam Keiper

Reacting to this week’s federal court ruling about stem-cell research, two smart writers, Will Saletan and Jim Pinkerton, have offered confused moral and legal analysis, as well as unsound political advice.

As Yuval Levin and I explained over on the homepage yesterday, the court ruled on Monday that embryonic-stem-cell research cannot be supported with federal funding. Chief Judge Royce Lamberth decided that the research violates the Dickey-Wicker Amendment, the law of the land since 1996, which forbids federal funding for “research in which a human embryo or embryos are destroyed.” Since embryonic-stem-cell research by definition depends on the destruction of human embryos, the judge concluded that it cannot receive federal funds.

President Obama’s stem-cell policy, like President Bush’s, had relied on a Clinton-era determination that research on embryonic stem cells could be federally funded so long as the specific act of destroying the embryo did not get federal support. That determination was not unreasonable as an abstract policy consideration, but it was a form of hair-splitting that in Judge Lamberth’s view was prohibited by the Dickey-Wicker Amendment. By rejecting it, the judge put a halt to all federal funding for embryonic-stem-cell research — invalidating the Obama funding policy, and implicitly rejecting even the carefully crafted compromise policy that President Bush put forward in 2001.

Writing over at Slate, Will Saletan musters two weak arguments against the ruling from the “crazy” and “brain-dead” judge. First, he posits that Chief Judge Lamberth’s understanding of the term “research” is so broad that it “would jeopardize lots of other” medical research. Saletan mentions several kinds of research that rely on

prior experiments that were deemed illegal or unethical. Are scientists who work in these fields responsible for the sins of their predecessors? Should we declare their work “research in which” Jews, blacks, children, and others are victimized? Do we seriously think that Congress, in using the word “research,” intended such retroactive complicity?

Saletan implies that we can simply draw a bright line separating immoral or illegal acts from the research that subsequently builds on them. To see the hole in his reasoning here, imagine that the morally illicit acts didn’t take place years ago but happened just yesterday. Would we then pretend that that act of “victimization,” to use Saletan’s word, is morally distinct from the medical research that exploits it? If we embrace that research and support it with taxpayer dollars, aren’t we tacitly endorsing yesterday’s morally illicit acts, and even incentivizing people to undertake them? This is in fact what President Obama’s embryonic-stem-cell funding policy does: it incentivizes the destruction of human embryos. It is true that the passage of time changes the moral calculus (as Yuval and I suggested in our piece), but Saletan’s analysis ignores the fact that the stem-cell debate is not just about past acts but also future acts.

Which brings us to Saletan’s second weak argument. Over the past decade, both the executive and legislative branches (and both parties) have suggested that the Dickey-Wicker Amendment does not prohibit federal funding for embryonic-stem-cell research. “To conclude that in re-enacting this amendment they meant to forbid all federal funding of ESC research, you’d have to believe that they deliberately contradicted themselves” several times.

The political branches of government contradict themselves? Perish the thought! But this argument, at any rate, carries nowhere near the weight that Saletan wishes it to. The Dickey-Wicker Amendment is the law of the land. The fact that Congresses and presidents have interpreted that law one way does not mean that the courts must defer to that interpretation. The political branches’ interpretations of the law merit consideration, but there is nothing wrong with a judge disagreeing and applying his own interpretation of the amendment.

Saletan ends his post by calling on Congress to sort out what he calls the “Dickey-Wicker mess”; he believes that a stem-cell funding bill could “easily pass” Congress. But Jim Pinkerton, over on his blog Serious Medicine Strategy, goes much further. Pinkerton thinks that President Obama — his administration floundering, his popularity flagging — can rally his party by waving the banner of stem-cell politics. “Voters would react positively to some strong medical leadership from Washington,” Pinkerton writes. It’s a “great opportunity” for “any politician willing to take a pro-research stand.” By aggressively going on the offensive on stem cells, Pinkerton suggests that Obama can manage the kind of political comeback that Harry Truman pulled off in the summer and fall of 1948.

Pinkerton concedes that “there’s little chance” the president will do as he hopes. But he doesn’t quite seem to grasp how politically unrealistic his advice is. Most Democratic members of Congress, looking at their reelection prospects and watching the trends in the national polls, are unlikely to have the stomach for a fight over stem-cell research. And voters, frustrated with the economy and unhappy with the Democrats’ performance in power, would consider the big stem-cell push that Pinkerton recommends to be an obvious political distraction. Besides, Pinkerton’s analogy to Truman is fundamentally flawed. Truman sought to win back an electorate that was still broadly center-left; today, notwithstanding the election of 2008, the electorate remains broadly center-right.

Most striking about Pinkerton’s argument, however, is his plea that Congress act on stem cells with great haste. He points to the declaration of war after Pearl Harbor and the speedy passage of the Patriot Act as examples of suitably quick action. Although he never directly says it, the clear implication is that embryonic-stem-cell research warrants the same urgent congressional attention that those wartime emergencies received.

Let’s get this straight. Embryonic-stem-cell research has been proceeding for a decade. Researchers in this field have received billions of dollars from private sources, state governments, and the federal government. New techniques have recently been discovered that hold out promise that the hoped-for treatments can be developed without destroying human embryos. The state and private funding for this research continues to flow, even though a court has now turned off the federal spigot in response to a law grounded in deep moral concerns. And Jim Pinkerton thinks that this situation demands that Congress act with an urgency befitting a wartime crisis? This is political advice with no sense of perspective.

— Adam Keiper is the editor of The New Atlantis and a fellow at the Ethics and Public Policy Center.