It is not surprising that the Court of Appeals stayed Judge Lamberth’s decision barring federal funding of embryonic-stem-cell research because it violated the Dicker-Wickey Amendment. Dickey-Wicker prevents the Feds from funding research that destroys embryos. President Obama’s policy, based on the original Clinton approach, permits funding so long as the nascent humans are destroyed with private funds. Lamberth ruled that the law, which is passed annually as part of the appropriations process for HHS, could not be circumvented by breaking ESCR into “pieces” — that is, one part that destroys and a different part that researches. It is all one thing, and hence NIH cannot pay for it.
That is clearly right as to the spirit of Dickey-Wicker, but perhaps not the letter. (Bush sought to get around this problem by requiring the stem-cell lines in existence before his policy took effect so as to not provide an inducement to destroy embryos in anticipation of federal funding. Whether that approach could pass Lamberth muster is unclear.) In any event, the politics of this issue are so white hot that courts are generally going to tread very lightly, and thus the stay–which maintains the status quo–is not surprising and does not necessarily reflect what the ultimate outcome will be.
As I wrote in NRO last week, the real battle over Dickey-Wicker is human cloning — which Dickey-Wicker also bars because it would create embryos for use in research — and the ongoing drive to have the federal government fund that science. Those who want to prevent taxpayers from promoting the manufacturing of human life — a matter of great urgency in my view — will have to be very diligent that stealth legalization of cloning funding is not quietly enacted in the guise of banning cloning. This is what the the pending DeGette/Castle/Specter bills do.