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Judge Lamberth's stem cell opinion is disappointingly bad

I was shocked last week when I learned that Judge Royce Lamberth had enjoined federal support for human embryonic stem cell (hESC) research.

This case is about the so-called Dickey-Wicker Amendment. This amendment was first added to the HHS appropriations bill in 1996. Appropriations bills are good for only one year, so every year from 1996 to the present, Congress has added essentially the same language to the relevant appropriations bill. The current version states:

(a) None of the funds made available in this Act may be used for- . . . .

(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death . . . .

For 11 years, the Clinton, Bush, and Obama administrations have agreed that this language allows funding of research using hESC lines as long as that funded research project does not itself destroy embryos. Judge Lamberth held that this language clearly and unambiguously prohibits government funding of any hESC research:

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.

In 1996, this interpretation might have been reasonable, though, I believe, still wrong. In 2010, the decision is clearly and unambiguously wrong, for at least three reasons.

First, the NIH does not say, "Here's a pool of $100 million for hESC research; come and get it." It says "Please write us a long and complicated application for a grant to do a specific piece of research and, if we accept your grant, we'll give you some money to do the work you said you would do." What the NIH funds are "pieces of research," as defined by grant applications.

Second, HHS has maintained its interpretation of Dickey-Wicker for 11 years, through three very different administrations. If his reading of the language is unambiguously right, why did three very different administrations reject it? And if the language is, in fact, unclear, then under governing administrative law, the judge has to defer to HHS's interpretation of the statute.

Third, the version of Dickey-Wicker that Judge Lamberth was supposed to apply was passed in 2009... by a Congress that had seen three administrations interpret the language permissively. If Congress had disagreed with that interpretation, it could have changed the wording of any year's Dickey-Wicker Amendment to make that disagreement clear. It did not. In fact, twice Congress passed new legislation to overturn President Bush's relatively restrictive policy on use of federal funding, only to see its bills vetoed. These facts make it very odd indeed to interpret the action of Congress in passing the 2009 version of this rider as clearly rejecting federal funding for any hESC research.

As a citizen, I support federal funding for hESC research as a matter of public policy. As a law professor, I teach and support sound, logical judicial decision-making. Judge Lamberth's opinion is disappointingly bad. I do not know Judge Lamberth and I do not know whether this decision is the result of bias or is just an example of the occasional bad opinion one must expect from even a good judge. Either way, I hope - and expect - that the District of Columbia Circuit will quickly first stay the order and then reverse the decision.

A much more detailed version of this discussion can be found here.

Hank Greely, JD, is a Stanford law professor and an expert on the legal, ethical, and social issues surrounding health law and the biosciences. He is director of the Center for Law and the Biosciences, and he chairs the steering committee of the Stanford Center for Biomedical Ethics.

Previously: Stem cell ruling throws Stanford researcher's project into limbo, A legal perspective on the human embryonic stem cell ruling, More concern over US judge's stem cell ruling and Stanford stem cell expert weighs in on district court ruling

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