In a major revision to public policy on embryonic stem cell research (ESCR), Federal district judge Royce C. Lamberth on August 23 blocked President Obama’s 2009 executive order that had expanded federal funding for human ESCR. The National Catholic Bioethics Center welcomes this decision.
The plaintiffs bringing the case against the government were Drs. James L. Sherley and Theresa Deisher, researchers whose work focuses on adult, not embryonic stem cell research. They sought an order declaring that the Guidelines for Human Stem Cell Research (which had been issued by the National Institutes of Health in response to President Obama’s executive order expanding stem cell research) are contrary to law, were promulgated without observing the procedures required by law, and constitute “arbitrary and capricious agency action.”
In rules announced last year, the Obama administration encouraged financing of research into any embryonic stem cell lines that either had been allowed by the Bush administration or had been created using embryos left over from fertility treatments and in which unpaid donors had provided written consent for the embryos to be used for research. The Guidelines had been drafted after a consultation process in which nearly 50,000 public comments were submitted to the NIH. Many of these comments raised moral objections to the research, and others noted that the expansion of funding appeared to violate the Dickey-Wicker amendment, a law passed every year by Congress since 1996 which precluded federal funding of embryo-destructive research.
Judge Lamberth ruled that the administration’s policy as contained in the Guidelines violated the clear language of the Dickey-Wicker Amendment, a law that bans federal financing for any “research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death.” The judge noted that the plain sense of the language of the statute demonstrates the unambiguous intent of Congress “to prohibit the expenditure of federal funds on ‘research in which a human embryo or embryos are destroyed.’” At the center of the judge’s decision was the recognition that:
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.
The effects of the judge’s decision are likely to be significant. Dr. Francis Collins, Agency Director of the NIH, noted in a news conference after the announcement of the federal district judge’s decision that 143 scientific grants worth $95 million, which are now up for annual renewal, will be frozen. In addition, 22 grants totaling $54 million, whose existing research is coming up for renewal in September, will also be frozen. Another 131 grants awarded this year already are out the door and will not be affected until they are up for renewal in a year.
Judge Lamberth’s decision is consonant not only with the plain sense of the Dickey-Wicker amendment, but also with the kind of moral reasoning that rejects a false “criterion of independence” or “radical separation of the act from its subsequent uses and applications.” Both the Bush and Obama administrations had supported a position where federal funding of human embryo destruction itself would not be permitted while research on cells derived from such destruction would be funded. The recent Vatican document Dignitas Personae had already emphasized the contradictory character implicit in such a stance:
In this regard, the criterion of independence as it has been formulated by some ethics committees is not sufficient. According to this criterion, the use of “biological material” of illicit origin would be ethically permissible provided there is a clear separation between those who, on the one hand, produce, freeze and cause the death of embryos and, on the other, the researchers involved in scientific experimentation. The criterion of independence is not sufficient to avoid a contradiction in the attitude of the person who says that he does not approve of the injustice perpetrated by others, but at the same time accepts for his own work the “biological material” which the others have obtained by means of that injustice. (n. 35)
The United States Conference of Catholic Bishops, in their response to the decision, observe how an important duty of good government “is to use its funding power to direct resources where they will best serve and respect human life, not to find new ways to evade this responsibility.” The National Catholic Bioethics Center hopes this important court decision will encourage the federal government and all of its health care agencies to renew and expand their commitment to ethically sound avenues of stem cell research.
Rev. Tadeusz Pacholczyk, Ph.D. is Director of Education of the National Catholic Bioethics Center.