On Monday Federal District Judge Lamberth gave a surprising ruling in Sherley v Sebelius, handing down an injunction preventing new US health guidelines on human stem cell research, drawn up on President Obama’s instructions, from being given effect on the basis that they breach legislation that prohibits the use of federal funds for
research in which a human embryo or embryos are destroyed
This is the “Dicker-Wickey amendment” first passed by Congress in 1996, and on the basis of which the Clinton administration permitted funding for research on embryonic stem cells (but not the derivation of those cells from embryos, which involves the destruction of embryos) and which even the Bush administration, whose guidance President Obama has now relaxed, thought permitted funding of research on existing stem cell lines. Here’s the ruling.
The judge’s reasoning (which to me, frankly, seems poor) is that in the Dicker-Wickey amendment Congress has plainly “spoken to” this policy issue and that the amendment unambiguously prohibits the funding of all research in which an embryo is destroyed. In his view, had Congress wanted to draw a distinction between research that directly destroys an embryo on the one hand, and research on derived stem cells on the other, it would have done so. He also rejects an argument that research can be divided up into discrete bits like this at all.
What I think the judge doesn’t deal with is the actual issue of statutory interpretation here: whether it’s really clear that all research that depends on the prior destruction of embryos – in other words, that happens after the embryos have been destroyed – is research in which those embryos are destroyed. The legislation seems to me at least unclear on this point (and indeed was badly drafted if the intention really was to outlaw funding of research on the fruits of stem cell derivation in perpetuity), a literal approach tending to favour the government’s view. On the judge’s approach, research on donor organ suitability would be research “in which a person dies”; and even the research President Bush authorised on stem cell lines created in the past could not be funded. The judge has I think rather superficially purported to apply the statute literally without really engaging in close detail with its literal terms; and I doubt it’s sensible for any judge to say Congress has already clearly spoken on nuances of what’s happening here, when science has been developing since 1996.
This is a bad decision. I’m sure Health Secretary Sebelius will appeal, and I hope she succeeds. I also hope Republican pro-lifers can be stopped from making gains from this in the November Congressional elections and from beefing up Dickey-Wicker after that. I suppose President Obama might even veto any such legislation. But even if the worst happens across the pond, at least it’ll be an opportunity for British universities to lead research in this vital area.
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The NY Times editorial here http://www.nytimes.com/2010/08/25/opinion/25wed1.html?_r=1&hp is quite instructive.
It makes the point that the ruling disregards the previous interpretation of the D-W amendment by both congress and the federal government – which would appear to be an usual decision.
Thanks, Stuart. There’s also this news report that helps explain the background:
http://www.nytimes.com/2010/08/24/health/policy/24stem.html
You’re right, this ruling doesn’t just take things back to pre-Obama: its logic rules out President Bush’s executive orders and guidelines, too.
It is worth pointing out that this does not make it unlawful to carry out such research, it only prevents such research being paid for by federal funds.
If states want to fund it, fine. If commercial companies want to fund it, or if philanthropist billionaires want to fund it, it is not prohibited.
One might say that with an apparent slight majority of Americans against stem cell research at all, it is not unreasonable for the Federal Government to say that even if it isn’t banned, they shouldn’t have to compulsorily pay for it.
Contrast the situation in this country where the regulator decides what any researcher may do – our regulations don’t draw the line in the same places, but they are still very restrictive, and they apply regardless of who is paying.
You’re quite right, Ben, this law doesn’t ban the research of course. It’s still a serious worry because federal funding may be an important source of support (I don’t know).
And the federal government does want to fund it – even when George Bush was President, it did. What’s now stopping them, it seems to me, is a badly-drafted and vague amendment from Congress applied in an unduly expansive way by an activist judge.