Not what Congress intended

In the great
tradition of American litigation, will the fate of human embryonic stem cell
research be decided in the courts? Earlier this week, US District Judge Royce
Lamberth granted an injunction banning Federal funding for the research. This
overturns not only President Barack Obama’s relatively liberal guidelines for
research on embryonic stem cells, but also President George W. Bush’s more
restrictive ones.

The Department of
Justice has announced that it will appeal the decision.

The news has appalled
supporters. A New York Times editorial described the injunction as “a huge
overreach” of judicial power which would be “a serious blow to medical research”
if it succeeds. The head of the National Institutes of Health, Francis S.
Collins, said that it pours sand in the engine of medical progress.

His agency has
already declared that 50 pending requests for new funding will not be
considered. About a dozen other requests for US$15 million to $20 million which
were likely to be approved have been frozen. Another 22 grants of about $54
million which are due for renewal in September will be cut off.

The decision was criticised
as politically inspired. Jonathan Moreno, a University of Pennsylvania
bioethicist with close ties to the Obama Adminstration commented
disgustedly: “What the opposition to this legitimate and globalized
field has been unable to do through science and the ballot box they are trying
to do through the courts.” Slate columnist William Saletan was so disconsolate
that he moaned: “I never thought I’d say this, but I’m starting to miss George
W. Bush.”

The lawsuit was
brought by two researchers who work exclusively on adult stem cells, which do
not involve the destruction of embryos. James L. Sherley, a biological engineer
at Boston Biomedical Research Institute, and Theresa Deisher, of Ave Maria
Biotechnology Company contended that the Dickey-Wicker Amendment, which was
first passed in 1996 and has been renewed every year since as a rider to
appropriations bills for the Department of Health and Human Services, forbids funding
for hESC research.  

President Bush and
President Obama differed on their views on the destruction of human embryos for
research. But they did agree that destroying them and using the by-products were
two entirely different issues. All subsequent regulation has rested upon that
assumption. No Federal funding has ever been made available for the destruction
of embryos, but work on embryonic stem cells was supported by both presidents,
albeit in different ways.

But Judge Lamberth
firmly declared that this assumption is wrong.

“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… 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.”

True, two Presidents
and Federal agencies have been interpreting the Amendment differently for nearly
a decade, but Judge Lambert says that this is clearly mistaken: “as
demonstrated by the plain language of the statute, the unambiguous intent of
Congress is to prohibit the expenditure of federal funds on ‘research in which
a human embryo or embryos are destroyed’”.

What happens now?

If an appeal fails
in the courts, the whole embryonic stem cell debate will go back to Congress.
Whether the Obama Administration will have the stomach for leading the charge
in a new battle is anyone’s guess. With the Democrats facing stiff headwinds as
mid-term elections approach, they may decide to defer a highly polarizing stem
cell debate, leaving many biologists very down in the dumps.  

Embryonic stem cell
research will not grind to a halt – it is still being funded by private
investors, state governments, and universities — but it could slow to a very
slow walk.

There is a potential winner in this: California, which has hundred of
millions of dollars of funding to splurge on researchers based in the state.
The president of the California Institute of Regenerative Medicine, Alan
Trounson, declared
that the “deplorable” injunction was not altogether deplorable for California: “This
decision leaves CIRM as the most significant source of funding for human
embryonic stem cells in the US.”

Michael Cook
politicization of science
stem cells

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Michael Cook

Michael Cook edits BioEdge, a bioethics newsletter, and MercatorNet, an on-line magazine whose focus is human dignity. He writes from Sydney, Australia.

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