Federal judge blocks funding for embryonic stem-cell research

posted at 7:40 pm on August 23, 2010 by Allahpundit

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?


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Commerce clause?

lorien1973 on August 23, 2010 at 7:42 PM

I support embryonic stem cell research but the decision was right. The law is the law.

amerpundit on August 23, 2010 at 7:44 PM

This is what “God laughing at you,” looks like.

trapeze on August 23, 2010 at 7:45 PM

The question is… will this actually benefit those who made this suit or will it actually hurt them in the end…

ninjapirate on August 23, 2010 at 7:45 PM

amerpundit on August 23, 2010 at 7:44 PM

Me too, but not with federal funds. Those who profit from the research should fund it.

lorien1973 on August 23, 2010 at 7:45 PM

Lefty socialists decrying the radical activism of this federal judge who not one week ago praised the “courage and conviction” of the Judge Walker who put millions of Californians on trial over the faulty and fallacious position on a man and a man or woman and woman coexisting as a legitimate institution in 3….2…1. boomstick

ted c on August 23, 2010 at 7:46 PM

c’mon crr6, where are you to square this legal circle for the rest of us reptilian thinkers on this issue?

ted c on August 23, 2010 at 7:47 PM

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.

Yes, that was my first thought as well. You’re correct. Bush’s policy was a compromise with the left, not a far-right position by any stretch. The judge ruled that the law is to the right of that compromise.

joe_doufu on August 23, 2010 at 7:47 PM

Weren’t the stem-cell lines already in existence on that date also based on killed embryos and therefore in violation of the statute?

Yup.

Tuning Spork on August 23, 2010 at 7:47 PM

The law…such a distraction for this poor President.

He’s really going to be grouchy when he no longer has Congress in a few months. It’s going to be a very interesting situation…especially considering how weak they are politically compared to Slick Willy in the same situation.

Asher on August 23, 2010 at 7:48 PM

And the fact that, to date, embryonic stem cell research has yielded nothing in the way of viable treatments or cures, makes me wonder why they bother with a clearly failed line of research. Stem cell wonders are being done with adult and umbilical cord stem cells and I think the funding should focus there.

englishqueen01 on August 23, 2010 at 7:49 PM

Stem cell wonders are being done with adult and umbilical cord stem cells and I think the funding should focus there.

englishqueen01 on August 23, 2010 at 7:49 PM

+2

agreed.

ted c on August 23, 2010 at 7:51 PM

And the fact that, to date, embryonic stem cell research has yielded nothing in the way of viable treatments or cures, makes me wonder why they bother with a clearly failed line of research. Stem cell wonders are being done with adult and umbilical cord stem cells and I think the funding should focus there.

englishqueen01 on August 23, 2010 at 7:49 PM

Exactly. Regardless of existing law, the fruitlessness of this “science”, combined with the moral and ethical concerns of destroying human life in the name of allegedly improving it, should be enough to end Federal funding.

Damian G. on August 23, 2010 at 7:53 PM

And the fact that, to date, embryonic stem cell research has yielded nothing in the way of viable treatments or cures, makes me wonder why they bother with a clearly failed line of research. Stem cell wonders are being done with adult and umbilical cord stem cells and I think the funding should focus there.

englishqueen01 on August 23, 2010 at 7:49 PM

It is no longer about whether a viable use for embryonic stem cells can be found. It’s about the extreme baby killers refusal to take ‘no’ for an answer.

darwin-t on August 23, 2010 at 7:53 PM

And the fact that, to date, embryonic stem cell research has yielded nothing in the way of viable treatments or cures, makes me wonder why they bother with a clearly failed line of research. Stem cell wonders are being done with adult and umbilical cord stem cells and I think the funding should focus there.

englishqueen01 on August 23, 2010 at 7:49 PM

You know why, englishqueen–because it furthers their Leftist agenda of pushing abortion and denigrating human life and the fact that life begins at conception.
Oh, the state as Big Brother/Nanny/Nurse in Chief.

God bless this judge!

Jenfidel on August 23, 2010 at 7:55 PM

Count it!!

carbon_footprint on August 23, 2010 at 7:57 PM

Another door-stop,put in Hopey’s way!!!

canopfor on August 23, 2010 at 7:57 PM

Me too, but not with federal funds. Those who profit from the research should fund it.

lorien1973 on August 23, 2010 at 7:45 PM

That’s the whole rub.

Didn’t California do some 3 billion dollar stem cell project awhile back???

How’s that working out for them???

BigWyo on August 23, 2010 at 7:57 PM

Stem cell wonders are being done with adult and umbilical cord stem cells and I think the funding should focus there.

englishqueen01 on August 23, 2010 at 7:49 PM

It’s less about the research and more about the lack of moral status of the human embryo. The lefties want the human embryo to have the status of a lab rat.

Any special legal protection of the unborn brings abortion into question.

Wethal on August 23, 2010 at 7:59 PM

Dickey-Wicker? Naw, he just slapped it around a little bit…

;-P

angrywonk on August 23, 2010 at 7:59 PM

Dickey-Wicker? Naw, he just slapped it around a little bit…

;-P

angrywonk on August 23, 2010 at 7:59 PM

heh-heh….. T-shirt.

ThePrez on August 23, 2010 at 8:05 PM

It’s less about the research and more about the lack of moral status of the human embryo. The lefties want the human embryo to have the status of a lab rat.

Any special legal protection of the unborn brings abortion into question.

Wethal on August 23, 2010 at 7:59 PM

The lefties and some pukes who visit here regularly that are on the right. Sickening.

CWforFreedom on August 23, 2010 at 8:12 PM

Clonebama hardest hit.

profitsbeard on August 23, 2010 at 8:24 PM

BOOOOSH!!!!

44Magnum on August 23, 2010 at 8:26 PM

Uh…
I stopped at Dickey-Wicker.

12thMonkey on August 23, 2010 at 8:28 PM

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?

PuffyHo ‘s headline :

” Court overturns Bush policy”

macncheez on August 23, 2010 at 8:29 PM

Adult stem cell research is far and away superior to embryonic stem cell research…if the true reason for the research is to heal genetic illness/injury, then what hell is the issue?

ladyingray on August 23, 2010 at 8:35 PM

or The One and NIH can put their heads together to try to draft more clever language that will comply with the statute.

…but …but didn’t The Won tell us that his pay-grade was too low to decide when life actually begins ?

macncheez on August 23, 2010 at 8:38 PM

No need to kill babies. Adult stem cells and those from umbilical cords are licit, plentiful, less hazardous and do not render the US public complicit to murder. Hooray for a sane decision (for a change).

Mason on August 23, 2010 at 8:38 PM

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?

I’m a little shaky on the time line here, but I believe Dickey-Wicker came after Bush’s executive order. So Bush compromised and drew a line to allow ESC lines that had already destroyed embryos, but said, basically, “No more. From here on out, no funding on ESC that destroys human embryos.” But Obama basically wanted to re-draw the line, and I think anyone can see that continually redrawing that line amounts to never drawing a line at all.

tom on August 23, 2010 at 8:40 PM

The “professor of constitutional law” seems to have a problem dealing with actual laws.

Maybe he needs a Mulligan.

SlaveDog on August 23, 2010 at 8:42 PM

Me too, but not with federal funds. Those who profit from the research should fund it.

lorien1973 on August 23, 2010 at 7:45 PM

If ESC research had any potential for profitability, the private sector would have invested their own funds.
Any record of government funding the R & D of those little blue pills ?
I thought so too

macncheez on August 23, 2010 at 8:43 PM

And the fact that, to date, embryonic stem cell research has yielded nothing in the way of viable treatments or cures, makes me wonder why they bother with a clearly failed line of research. Stem cell wonders are being done with adult and umbilical cord stem cells and I think the funding should focus there.

englishqueen01 on August 23, 2010 at 7:49 PM

Yup, which is why taxpayer funding is needed. No private concern would invest in such a dead end (no pun intended).

itsnotaboutme on August 23, 2010 at 8:50 PM

I’m a little shaky on the time line here, but I believe Dickey-Wicker came after Bush’s executive order.

tom on August 23, 2010 at 8:40 PM

Not according to the court’s opinion:

C. Regulatory Background
In 1996, Congress enacted the Balanced Budget Downpayment Act, Pub. L. No. 104-99,
§ 128, 110 Stat. 26, 34 (1996). The Balanced Budget Downpayment Act contained a rider,known as the Dickey-Wicker Amendment, which prohibited the use of federal funds for “(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human
embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death
greater than that allowed for research on fetuses in utero under” applicable federal regulations.

Bush’s policy statement establishing the restriction was issued in 2001, and formalized by executive order in 2007, again, according to the opinion.

Barnestormer on August 23, 2010 at 8:55 PM

I support embryonic stem cell research but the decision was right. The law is the law.

amerpundit on August 23, 2010 at 7:44 PM

A bit of clarification is in order here. Embryonic Stem Cell Research is completely legal in the U.S.

It’s totally lawful – you can kill as many babies as you want to in order to engage in the research.

But making Pro-Life Citizens PAY for it? That’s another issue – and that’s what this ruling is about – FEDERAL FUNDING.

I don’t care who you are – or what your position on when life begins is … you have to acknowledge that your opinion on life is no more valid than the next guy’s.

Even our President has said he doesn’t know when life begins.

Therefore – with so much confusion surrounding the issue – doesn’t it seem to be madness to force those who believe in embryonic life to pay for it’s destruction?

It’s the most distasteful form of tyrannical “proclamation” possible.

HondaV65 on August 23, 2010 at 8:56 PM

Stem cell wonders are being done with adult and umbilical cord stem cells and I think the funding should focus there.

englishqueen01 on August 23, 2010 at 7:49 PM

+2

agreed.

ted c on August 23, 2010 at 7:51 PM

Second the motion.

I havn’t seen or heard that particular fact getting any ink or airtime, though.

Probably just “over-looked”. They’ll get around to it . . .

listens2glenn on August 23, 2010 at 9:10 PM

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.

Can’t wait for the Orwellian rewrites.

Buy Danish on August 23, 2010 at 9:50 PM

So I guess we can expect another “Pout Out!” from The One. You know, the “Constitutional Law ‘Professor’”

GarandFan on August 23, 2010 at 9:51 PM

Aw Piffle! A lowly JUDGE says “No” to federal funding of ESCR????? Big whooping deal!
Those silly judges! What a bunch of cards! Ha ha, why, I remember once a federal judge told the gub’ment that the six month ban on drilling for oil in the Gulf was illegal! Why, that silly judge was so misguided, the Imam-in-Chief told him to pound sand, and just reinstituted the ban. Um, I think this happened a couple of times, so obviously, anything a judge says can just be trumped by BHO…
It is written.

Chewy the Lab on August 23, 2010 at 10:26 PM

Can’t wait for the Orwellian rewrites.

Buy Danish on August 23, 2010 at 9:50 PM

…or the Freudian ones.

Chewy the Lab on August 23, 2010 at 10:27 PM

The whole point is to kill a human being soon enough. Then you’re a liberal hero instead of a murderer.

Mojave Mark on August 23, 2010 at 11:38 PM

Like so many things with Obama this is such a misleading *choice* since the truly promising research seems to be happening with adult stem cells, not embryonic. I guess anything to destroy the babies.

lizzie beth on August 24, 2010 at 12:34 AM

Our children, the future of mankind and our legacy are not a commodity to be bought and sold.

Imagine the irony if the very human being destined to cure cancer or HIV ended up being a failed tissue development experiment on a Petri Disk in a lab somewhere.

hawkdriver on August 24, 2010 at 5:57 AM

Ah, Dickey-Wicker, another sticky wicket for the Prez.

Fallon on August 24, 2010 at 7:59 AM

Yet another activist judge….*sigh*

Constant Parrhesia on August 24, 2010 at 8:46 AM

There is nothing that stops researchers from using their own money to kill all the embryo’s they want.

If this research is so “valuable to mankind” as the left proclaims, put their money where their mouth is.

Instead, they keep their mouths too close to my wallet for my comfort.

barnone on August 24, 2010 at 9:11 AM

Bit of a correction, Bush’s original EO was the first time any Federals funds were authorized for ESC research. Bush didn’t restrict ESC funding, he expanded it. While the conditions in his EO were a very reasonable compromise, I think subsequent events demonstrate that it was a Bad Idea to have given ESC any federal funding at all.

Especially since, as several poster pointed out, Adult Stem Cell research is where all the progress has been made; ASC doesn’t have any of the moral issues that ESC entails; and several researchers have reported creating pluripotent stem cells from ASC, which eliminates even the theoretical argument for continuing ESC.

If should be notes that ASC has no problem with private funding, private investors have deserted ESC because it has failed to produce results.

LarryD on August 24, 2010 at 9:26 AM

It is so good to get a bit of good news for a change. Really good news.

pannw on August 24, 2010 at 1:36 PM

I don’t care who you are – or what your position on when life begins is … you have to acknowledge that your opinion on life is no more valid than the next guy’s.

Even our President has said he doesn’t know when life begins.

HondaV65 on August 23, 2010 at 8:56 PM

When a new life begins is not a matter of opinion, but of scientific fact. Impartial textbooks for medical students, including my 1987 copy of “The Developing Human: Clinically Oriented Embryology,” make it clear (e.g., the following is from TDH:COE, page one):

“Human development is a continuous process that begins when an ovum from a female is fertilized by a sperm from a male…A zygote is the beginning of a new human being.”

Again, that textbook was written for medical students, not seminary students.

Here’s a shorter way to put it: Anyone who has ever bought a condom knows when life begins.

Each of us began life as an embryo that looked just like the ones who are being killed. We had our own DNA and grew through the perfectly natural stages that all human beings go through. Once our parents’ egg and sperm met, all it took was time and nourishment to make us what we are today.

However, embryos don’t look like us; they can’t scream, fight back or run away — and so millions, perhaps billions of them are dying so that we and the descendants we want can perhaps live better lives (although all of the advances and treatments have come through non-embryonic stem cells). But it is unethical to kill one human being without his/her consent to benefit another.

“Hey, these Jews are just going to be gassed anyway, so let Dr. Mengele experiment on them.”

KyMouse on August 24, 2010 at 2:38 PM

Five years ago, there was no shortage of PRIVATE funding for stem-cell research. Has something changed?
http://reason.com/archives/2005/10/03/stem-cells-sell

Owen Glendower on August 25, 2010 at 2:21 PM