The Court Fight over Embryonic-Stem-Cell Research Is Not Over Yet

by Wesley J. Smith

I note that Federal District Judge Royce Lamberth’s ruling stopping all federal funding of embryonic-stem-cell research as against federal law (the Dickey-Wicker Amendment) has been reversed in a 2–1 appeals-court verdict. Given the extreme political correctness of federal funding — and the courts’ general tendency to follow the views of the liberal establishment in these matters — it is both surprising and encouraging that the decision was split. Moreover, the case in chief was not decided by the court of appeals but will be returned to Lamberth for final adjudication — and then more appeals. It may ultimately reach the Supreme Court. No matter what, I find it highly unlikely the funding spigot — because it represents the status quo — will be turned off anytime soon.

For those who are interested, here’s the nub of the issue. Dickey-Wicker prevents federal funding for science that either creates embryos for, or destroys them in, research. That would seem to preclude ESCR, since obtaining the stem cells requires destruction of the embryo. President Clinton found a very Clintonesque way around the problem, signing an executive order requiring the actual destruction of the embryos to be paid for with private money, and then permitting federally funded research on the resulting stem-cell lines. That policy was changed by President Bush, who believed it was more consistent with the spirit of Dickey-Wicker to only permit federal funding of research on stem-cell lines in existence as of 8/9/01. That way, no embryos would be destroyed in anticipation of receiving funding for the resulting cell products. President Obama basically returned to the Clinton approach.

Judge Lamberth ruled that the purported distinction between the destruction and the actual ESCR was nonsense, writing:

Indeed, the Dickey-Wicker Amendment does not contain any language to support such a limited definition of research. Rather, the language of the statute reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed. This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way.

That was also the position of the dissenting appeals-court judge. On the other hand, Judge Ginsberg wrote for the majority that it was entirely “reasonable” for the NIH to distinguish between funding the actual destruction and funding research on cells thereby derived.

I think Lamberth is correct about the intent of Congress at the time the law was first enacted. But the language of Dickey-Wicker, which is passed annually as part of the budgetary process, preceded the emergence of embryonic-stem-cell research. Considering that Congress repeatedly overturned the Bush policy — but was unable to override presidential vetoes — I doubt that a law would be passed today explicitly following Judge Lamberth’s reasoning. But that should be irrelevant. The law should be construed as written. Unless the language is changed the next time Dickey-Wicker is passed — or isn’t passed at all, which would moot the case — I think Lamberth has the better side of the factual and legal argument. Of course, given the intensity of the politics swirling around the issue, fact, law, and $2 will buy you a cup of Starbucks Coffee.

Wesley J. Smith is a senior fellow in the Discovery Institute’s Center on Human Exceptionalism,