Stem Cell Flare-up

One week ago, District of Columbia federal Judge Royce Lamberth shocked the world when he overturned President Barak Obama’s executive order providing federal funding for human embryonic stem cell research. This past Tuesday, the Obama administration appealed.

On August 23, Judge Lamberth issued a preliminary injunction against the President Obama’s executive order and the regulations promulgated there under. He ordered the National Institutes of Health (NIH) and Health & Human Services (HHS) Secretary, Kathleen Sebelius, to cease the federal funding. Why? Because he found that such funding violated federal law. Which law? An appropriations “rider” called the Dickey-Wicker Amendment.

Appropriations bills (authorizing spending of federal funds) are passed yearly. Under the one affecting HHS, a limitation (a “rider”) has been attached yearly since 1996. The “Dickey-Wicker Amendment” mandates that federal funds may not be used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death.”

Soon after he became President, Obama changed the rules that had governed stem cell research at NIH under President George W. Bush. Among other things, Obama’s order reversed Bush’s policy that federal funds would not go to embryonic stem cell research. Under Obama, federal funds could be used for that purpose.

At this point, the reader might cry, “Halt; isn’t it crystal clear that funding such research violates the Dickey-Wicker prohibition against funding research in which “a human embryo…[is] destroyed”? Not according to clever lawyers. Under a legal analysis first proposed by government attorneys under President Bill Clinton, there was no violation of Dickey-Wicker so long as the federal dollars were not literally used to destroy the embryo. If the embryo were destroyed using another source of funds and its cells extracted, research could proceed using those cells with federal funds. A clever sleight of hand by clever lawyers. The question for Judge Lamberth was whether it was too clever.

He held it was. In effect, he noted that stem cell “research” is a unitary whole – disaggregation of the embryo to get at the cells, which are then used to create lines of stem cells, which are used for on-going research. The purpose of destroying embryos is to get their cells.

In my view, he is plainly right, and will be upheld on appeal.

It is interesting that Obama’s end-run around Dickey-Wicker was not his innovation. As noted, it first occurred under President Clinton, whose HHS issued preliminary regulations, which were never overtaken by events (i.e., the 2000 Presidential elections) before they could be promulgated. Though President Bush limited federal funding to research involving embryos killed before the August 10, 2001, his administration essentially adopted the Clinton interpretation. And so did Obama, though he removed the Bush restrictions.

One should not be too quick, however, to criticize President Bush. In my view, his opposition to the general federal funding of embryonic stem cell research – which Clinton and Obama supported – led directly to the scientific discovery of “induced pluripotent stem cells” (“ipsc”), which by “de-differentiating” a mature cell to the embryonic state (an amazing thing that sounds like science fiction, but isn’t), pointed the way out of the “embryonic stem cell dilemma.” By the ipsc process, a researcher can obtain “embryonic stem cells” without killing embryos. This should make the controversial way of doing embryonic stem cell research obsolete. In effect, Bush kept the anti-life forces at bay so that ethical science could leapfrog them.

Even before ipsc research, however, there were ethical alternatives available. The most prominent is so-called “adult” or “alternative” stem cell research, which utilizes stem cells available in a “born” (or adult) person’s body, or in umbilical cord blood or placentas, none of which involve embryo destruction. Such research has helped tens of thousands of living human beings to get better, to recover from diseases and disabilities of all kinds, while embryonic stem cell research, hailed for its “promise,” has, to date, helped no one. This has not stopped members of the mainstream media from claiming that Judge Lamberth’s ruling threatens medical progress.

Two of these adult stem cell researchers were plaintiffs in the case, and it was very important that they were. An earlier decision in this litigation had resulted in the case being dismissed. Why? Because of an obscure but very sensible policy of the courts – one must have “standing” in order to sue. In order “qualify” as a plaintiff, one must have suffered (or have a real likelihood of suffering) an injury; one may not sue because of general belief that a policy is wrong or lawful. Upon review, the case was reinstated because adult stem cell researchers were plaintiffs. And the reason these plaintiffs had standing illustrates an important point lost to the media throughout the stem cell debate: there is not a bottomless pit of federal tax dollars to pay for all research, however promising. Choices must be made. The adult stem cell researcher plaintiffs complained that federal dollars that went to embryonic stem cell researchers was, in effect, denied to them (and violated Dickey-Wicker to boot).

I agree with the judge’s decision, but what is important about the case is probably not the actual outcome. What is important is that it reminds the American public – and the shocked national media – that the controversy about stem cell research is not “behind us.” The ethical (and legal) issues surrounding such research remain, and as citizens in a democracy, it is our job to solve them.

William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.