The law is clear Print
By Judge Royce Lamberth   
Thursday, 02 September 2010
Defendants’ argument is unavailing. Their entire argument assumes that the Dickey-Wicker Amendment is ambiguous and that, as a result, they are entitled to Chevron deference.As discussed above, defendants’ assumption is incorrect. The Dickey-Wicker Amendment unambiguously prohibits the use of federal funds for all research in which a human embryo is destroyed. It is not limited to prohibit federal funding of only the “piece of research” in which an embryo is destroyed. Thus, if ESC [embryonic stell cell] research is research in which an embryo is destroyed, the Guidelines, by funding ESC research, violate the Dickey-Wicker Amendment. ESC research is clearly research in which an embryo is destroyed. To conduct ESC research, ESCs must be derived from an embryo. The process of deriving ESCs from an embryo results in the destruction of the embryo. Thus, ESC research necessarily depends upon the destruction of a human embryo.
 
      Despite defendants’ attempt to separate the derivation of ESCs from research on the ESCs, the two cannot be separated. Derivation of ESCs from an embryo is an integral step in conducting ESC research. Indeed, it is just one of many steps in the “systematic investigation” of stem cell research. 45 C.F.R. § 46.102(d). Simply because ESC research involves multiple steps does not mean that each step is a separate “piece of research” that may be federally funded, provided the step does not result in the destruction of an embryo. If one step or “piece of research” of an ESC research project results in the destruction of an embryo, the entire project is precluded from receiving federal funding by the Dickey-Wicker Amendment. Because ESC research requires the derivation of ESCs, ESC research is research in which an embryo is destroyed. Accordingly, the Court concludes that, by allowing federal funding of ESC research, the Guidelines are in violation of the Dickey-Wicker Amendment.
 
     In sum, plaintiffs have demonstrated a strong likelihood of success on the merits. The Dickey-Wicker Amendment is unambiguous. It prohibits research in which a human embryo is destroyed, discarded, or knowingly subject to risk of injury or death greater than that allowed under applicable regulations. The Guidelines violate that prohibition by allowing federal funding of ESC research because ESC research depends up on the destruction of a human embryo.