Here’s the opinion, which is mercifully short. In a nutshell: Every year as part of the budget, Congress passes something called the Dickey-Wicker amendment that blocks federal funds for research in which a human embryo is destroyed. When Obama took office, he lifted Bush’s famous executive order from 2001 limiting money for embryonic stem-cell research and told NIH to create new guidelines that would comply with Dickey-Wicker while also expanding funding. What NIH came up with were rules that said money can’t go to research in which embryos are destroyed but can go to research on stem-cell lines derived from killed embryos. In other words, no federal funding for step one in the process, the killing of the embryo, but federal funding for the rest of the process is okay. The question for the court: Does that policy violate Dickey-Wicker? If an embryo was destroyed some time ago and its stem-cell line is still being replicated, is it okay to give money to scientists researching that line or does that constitute “research in which a human embryo or embryos are destroyed”?

The answer: Yep, it violates Dickey-Wicker. When Congress banned funding for “research,” it didn’t mean step two is okay but not step one.

Federal law explicitly forbids use of taxpayer dollars to destroy a human embryo – and culling stem cells from an embryo does destroy the embryo. However, once created, these batches of stem cells, or lines, can reproduce indefinitely in lab dishes.

The Obama administration expanded the number of stem cell lines created with private money that federally funded scientists could research, up from the 21 that President George W. Bush had allowed to 75 so far. To qualify, the NIH insisted on evidence that the woman or couple who donated the original embryo did so voluntarily and were told of other options, such as donating to another infertile woman.

Lamberth concluded that those filing the lawsuit have demonstrated a strong likelihood of success in arguing that the new government guidelines violate the intent of the law about federal funding of embryo destruction.

The money bit from the opinion:

The language of the statute does not support defendants’ alternative definition of research as “a piece of research.” (Def.’s Opp’n [22] at 31 (citing RANDOM HOUSE DICT. (2009).) Indeed, the Dickey-Wicker Amendment does not contain any language to support such a limited definition of research. Rather, the language of the statute reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed. This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey- Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way. Congress, however, has not written the statute that way, and this Court is bound to apply the law as it is written. Accordingly, this Court must “give effect to the unambiguously expressed intent of Congress” to prohibit federal funding of research in which a human embryo is destroyed.

The result: It’s Congress’s move now. They can either clarify Dickey-Wicker to okay funding for research on stem-cell lines derived from killed embryos, or The One and NIH can put their heads together to try to draft more clever language that will comply with the statute. Given the likelihood of a much redder Congress next year, they’d better hurry up either way. One thing I don’t understand, though: It sounds like the court’s decision would have found even Bush’s policy in violation of Dickey-Wicker. Bush didn’t cut off all funding for ESC research, remember, just for research on embryonic stem cells created after the date of his executive order. Weren’t the stem-cell lines already in existence on that date also based on killed embryos and therefore in violation of the statute?

Tags: Barack Obama