The Corner

Update on Stem-Cell Lawsuit

Lost amid all the coverage of the conventions a few weeks back was a bit of news about stem-cell politics: On August 24, the U.S. Court of Appeals for the D.C. Circuit ruled against the plaintiffs challenging the Obama administration’s policy for the funding of human embryonic-stem-cell research.

The lawsuit was brought by two researchers who work with adult stem cells. They argued that the Obama policy, by funding research on embryonic stem-cell lines, violates the Dickey-Wicker Amendment, a legislative provision on the books since 1995 that prohibits the federal government from funding “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero.”

The Obama policy provides funding through the National Institutes of Health (NIH) for research on embryonic stem-cell lines, but it does not directly fund the creation of new embryonic stem-cell lines. Federal lawyers defending the policy argued that the act of creating embryonic stem cells (which destroys human embryos and therefore would violate the Dickey-Wicker prohibition) is distinct from any research using embryonic stem-cell lines. Since the Obama policy only funds the latter, the lawyers argued, it does not violate Dickey-Wicker.

But how legitimate is this distinction between creating stem cells and using them for research? At an earlier stage in this lawsuit’s history, a federal judge derided it as“linguistic jujitsu.” And indeed, this same distinction had been rejected years earlier by President Clinton’s bioethics commission. Even though that commission supported federal funding of embryo-destructive research, it called the distinction between creating and using stem cells a “mistaken notion.”#more#

In its latest decision, the federal appeals court ruled that it was bound by the court’s prior preliminary analysis, which had concluded, in turn, that the Obama administration’s policy was a reasonable (and therefore lawful) interpretation of the “ambiguous” Dickey-Wicker Amendment. An attorney for the plaintiffs said they would consider appealing the decision to the U.S. Supreme Court.

Is stem-cell research still a hot-button political topic? Some commentators on the left have recently wondered what happened to the issue. Alex Seitz-Wald in Salon scratches his head about why Republicans aren’t talking about stem-cell research. Zack Beauchamp of ThinkProgress speculates, rather improbably, that stem cells may be the “sleeper issue” of the 2012 campaign. It has certainly gone quiet in comparison to the 2004 election, when it was exploited as a wedge issue by the Democrats; recall vice-presidential candidate John Edwards’s infamous claim that “If we can do the work that we can do in this country — the work we will do when John Kerry is president — people like Christopher Reeve are going to walk. Get up out of that wheelchair and walk again.”

Such exaggeration of the medical promise of embryonic stem-cell research may have peaked with former senator Arlen Specter’s 2007 claim that embryonic stem cells had “the potential to conquer . . . all the maladies we know.” Buthuman embryonic stem cells have not brought the kinds of miraculous cures that advocates and scientists predicted in the early 2000s, when the political controversy was at its height. There may be a growing realism about the difficulties of bringing complex new therapies from “bench to bedside,” as only a single human embryonic stem-cell therapy is now in even the earliest stages of clinical trials. (Contrary to fears that America was “falling behind” in stem-cell research during the Bush years, that single therapy was developed by an American company.) Meanwhile, scientists have made considerable progress in developing less morally problematic alternatives to embryonic stem cells, a subject explored in the inaugural report of the Witherspoon Council on Ethics and the Integrity of Science.

Generally speaking, issues relating to science have not had a major place in this campaign season, and it seems unlikely that stem cells will emerge as a prominent point of contention. The 2012 Republican platform does “oppose federal funding of embryonic stem cell research,” although Governor Romney’s official policy statement is less explicit: It stops short of committing to undo President Obama’s policy of using taxpayer dollars to fund embryo-destructive research. And in the midst of an impending fiscal crisis and other urgent political problems, it seems extremely unlikely that Congress will address this issue anytime soon.

Inaction on stem-cell policy in Washington is unfortunate, since the standing Obama rules encourage the destruction of embryos for research. Moreover, defenders of human life should consider whether the Dickey-Wicker Amendment has begun to creak with age. In an opinion concurring with the recent federal ruling, Judge Janice Rogers Brown criticized Dickey-Wicker:

Given the weighty interests at stake in this encounter between science and ethics, relying on an increasingly Delphic, decade-old single-paragraph rider on an appropriations bill hardly seems adequate.

Perhaps the time has come to replace the Dickey-Wicker Amendment with something that is clearer and goes further, explicitly addressing other areas of modern biotechnology. That debate won’t happen this year — but it’s a debate worth having.

— Adam Keiper is editor and Brendan Foht is assistant editor of The New Atlantis: A Journal of Technology and Society.

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