The amazing thing about Judge Lamberth’s ruling is that it is so straightforward and seems on its face so obviously correct. There is no question that, in passing the Dickey Amendment, Congress meant to preserve the federal government’s longstanding position of neutrality regarding embryo-destructive research — that is, neither funding nor banning it. The strained Clinton HHS reading of the amendment, which was also accepted by presidents Bush and Obama, seems to be in deep tension with this purpose. Congressman Dickey wrote a letter to HHS Secretary Donna Shalala in 1999 in which he stated as much, but he was not successful in pressing this position. Judge Lamberth, by contrast, has acted as the faithful agent of Congress’s purpose as reflected in plain legislative language.
This sets up a fascinating political issue going forward. Will Congress pass a law (say, the Castle-Degette bill) to restore funding? Is there time before the November elections to do so? Do the handful of embattled pro-life Democrats want to debate this issue now? How might they vote? If the GOP retakes the House in November, Castle-Degette’s chances for passage are radically diminished.
As a final point: This situation underscores the strangeness of governance-by-appropriations-rider. Once it passed, Congress simply reauthorized Dickey every year without discussion or serious efforts to overturn it. It strikes me as an odd way to govern on such a divisive issue. In any event, look for a protracted and bitter struggle in the next HHS appropriations debate.
— Carter Snead is an associate professor of law at Notre Dame.