Today, in Sherley v. Sebelius, a three-judge panel reversed the preliminary injunction, issued by federal district Judge Royce Lamberth last August, against the enforcement of the Obama administration’s new NIH guidelines permitting the expenditure of federal funds on human embryonic stem cell (hESC) research. (The injunction was stayed almost immediately after its issuance.) Judge Douglas Ginsburg, joined by Judge Thomas Griffith, held that the scientists bringing suit against the guidelines (who compete for funds for their adult ESC research) were not likely to prevail on the merits. Although today’s ruling is only on the injunction, it bodes ill, for the judges bought the administration’s line that the 1996 federal law (known as the Dickey-Wicker amendment) barring federal funding of embryo destruction somehow is not implicated by the funding of research that is altogether dependent upon, and continuous with, embryo destruction. Judge Karen LeCraft, dissenting, has the goods on this “linguistic jujitsu,” as she calls it. “[T]he plain meaning of the Amendment is easily grasped,” she writes, and the NIH guidelines so manifestly introduce “ambiguity” that is not present in the law that the plaintiffs’ motion for an injunction should prevail.
Dickey-Wicker bans funding for “research in which a human embryo or embryos are destroyed.” Much of the debate centers on the tense of the verb and the question whether “research” is somehow continuous from the derivation of stem cells (and necessary destruction of the embryo to achieve it) to the lab, later in time and perhaps in another location, where the stem-cell projects are carried out. Henderson cuts through much of Ginsburg’s fog thus:
While the Amendment prohibits federal financing of the “creation of a human embryo . . . for research purposes,” it does not use parallel language in addressing the destruction of embryos. It bans federal funding of “research” rather than the “destruction of human embryos for research purposes.” Research, then, is the express target of the ban Congress imposed with respect to the destruction of a human embryo. This makes perfect sense because in 1996, according to the record, hESC research had barely begun. . . . The Congress, recognizing its scant knowledge about the feasibility/scope of hESC research, chose broad language with the plain intent to make the ban as complete as possible. [My emphasis.]
Here’s an analogy that might clarify things. Suppose there were a law forbidding the expenditure of NIH funds on “preparing any meal in which cattle are destroyed.” The NIH cafeteria then served its employees a free meal of porterhouse steaks, on the theory that the slaughterhouse is in Kansas City, and they had nothing to do with destroying the cattle when grilling steaks in Bethesda. Who would doubt that funding the meal of porterhouse steaks was forbidden by the statute? You don’t even have to have a theory of the continuity implied in the term “preparing any meal.” All you need is a sine qua non.
Just so with the federal ban on funding embryo-destructive research. Too bad two of the D.C. circuit’s best judges couldn’t see that.