The Real Message of Monday’s Stem Cell Ruling

August 25th, 2010

By Dan Miller

It takes the Congress and the president to enact or to change laws; the president can’t do it alone and neither can an administrative agency.

*  *  *

The August 23, 2010, decision of Royce C. Lamberth, chief judge of U.S. District Court in Washington, D.C, in Sherley v. Sebelius has legal significance for one main reason: it reasserts the principle, occasionally lost sight of, that laws passed by the Congress and signed by the president — good, bad, or indifferent — trump both executive orders and the actions of administrative agencies. It is hardly a novel principle, and its application here was proper. Judge Lamberth issued a preliminary injunction. That was done based on a substantial likelihood that the plaintiffs would prevail at trial on the merits, that the harm done to them by not issuing a preliminary injunction would be substantial, and that no substantial harm would be done to the defendants.

As noted by Judge Lamberth, the Dickey-Wicker Amendment to the 1996 Balanced Budget Downpayment Act:

[P]rohibited 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.

Presumably, subparagraph (2) was included to prohibit federal funding for the stated type of research and not to meet some requirement that statutes must have more than a specified number of words. In the present case, the embryos being used were not created for research purposes; they were a byproduct of the in vitro fertilization process. They were, however, destroyed in the process of the subsequent research.

The Dickey-Wicker rider has been included in every appropriations bill for Health and Human Services since 1996. In 1999, the Department of Health and Human Services concluded (rather oddly) that human embryonic stem cells (“ESCs”) are not covered by the Dickey-Wicker rider. As Judge Lamberth’s decision notes:

On August 9, 2001, President Bush announced a policy statement on stem cell research that limited federal funding for research on ESCs. … Specifically, the President prohibited federal funding for research on ESCs that were created after the date of the policy statement. … Federal funding remained available, however, for research on ESCs that were created by private researchers prior to his policy statement. (Id.) The President formalized this policy statement in Executive Order No. 13,435, which provided federal funding for IPSC research and left the limitations on ESC research unchanged. (emphasis added.)

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3 Responses to “The Real Message of Monday’s Stem Cell Ruling”



  1. Dan Miller |

    Finally, the big “they” read the fifteen page decision; always a good idea.

    The White House and scientists said Monday’s court ruling was broader than first thought because it would prohibit even the more restricted stem cell research allowed for the past decade under President George W. Bush’s rules.


  2. Tom Carter |

    It’s an interesting contradiction that if these embryos were aborted under current law (Roe v. Wade, basically) they could be thrown in the garbage without any legal problems or even a whole lot of protest. They’re in the first trimester, by definition, and they’re not protected if the mother chooses to abort. But if they’re the by-product of in vitro fertilization and being discarded anyway, they then are supposed to have some sort of strict protection against being destroyed in order to harvest stem cells, as opposed to being destroyed some other way? What nonsense.

    I suppose I could understand the objection if embryos were being produced principally for the purpose of research, but that isn’t the case, and it’s highly unlikely that it ever would be.

    This is just another example of how irrational beliefs related to a sensitive subject — abortion, in this case — can complicate and even prohibit what is otherwise rational public policy.

    I understand that the Executive Branch can’t re-write or excessively interpret acts of Congress beyond their meaning and intent; that’s the way it should be. What should happen is Congress should preserve the first prohibition in Dickey-Wicker and strike the second. But they won’t.


  3. Dan Miller |

    Tom,

    I agree. These issues — as many others — are driven and complicated by religion, ideology and the resultant arguments; they have little to do with rationality.

    Whether the laws governing them make sense is another question. Fortunately, it is the job of judges to read the damn laws and apply them as written unless they are unconstitutional, sometimes a difficult question and one which judges prefer to avoid if possible. Beyond resolving questions of constitutionality, it’s none of their business whether laws are “good” or “bad,” socially useful or otherwise.

    I have a sense that the D.C. Circuit will uphold the current ruling on appeal, and that (maybe) the congress will think on what to do about human embryos. It may be too hot to handle. I guess we will find out, during the pending “lame duck” session or when the new congress convenes.


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