Executive: In 2009, President Obama had issued an Executive Order overturning the limits President Bush had placed on government funding of destructive embryonic stem cell research (ESCR). Subsequently, the National Institutes of Health (NIH) published guidelines implementing the Obama directive.
Judicial: On August 23, 2010, Royce C. Lamberth, Chief Judge of the U.S. District Court for the District of Columbia, issued a preliminary injunction enjoining the federal government from implementing its ESCR guidelines. Sherley v. Sebelius (No. 1:09-cv-1575). Judge Lamberth argued that the NIH guidelines violate the Dickey-Wicker Amendment, which, first passed by Congress in 1996, prohibits the use of federal funds for research in which human embryos are destroyed, discarded, or put at an unacceptable level of risk. As the Judge noted, the amendment was meant “to prohibit the expenditure of federal funds on ‘research in which a human embryo or embryos are destroyed.’” The prohibition reaches to “all ‘research in which’ an embryo is destroyed,” not just, as the Administration claims, to “the ‘piece of research’ in which the embryo is destroyed.” The judge rejected the government’s distinction between funding the destruction of the embryo with private funds and funding subsequent research with federal funds. See: nchla.org/datasource/idocuments/2009cv1575-44ESCR.pdf.
Cardinal Daniel DiNardo, chairman of the Committee on Pro-Life Activities of the U.S. bishops’ conference, called the injunction “a welcome victory for common sense and sound medical ethics.” He also noted that it vindicates a reading of the Dickey-Wicker Amendment that the USCCB “has defended for more than a decade.” The Cardinal expressed the hope that the court decision “will encourage our government to renew and expand its commitment to ethically sound avenues of stem cell research.”
The government appealed the preliminary injunction. On September 7, 2010, Judge Lamberth rejected the motion to lift the injunction. The government then appealed to the U.S. Court of Appeals for the District of Columbia, where on September 9, 2010, a three judge panel lifted the injunction, noting that the purpose of their action was to give the court time for further consideration. On September 28, 2010, the Court of Appeals granted the government’s motion to stay the preliminary injunction while the appeals process on the injunction continued.
On April 29, 2011, the U.S. Court of Appeals for the District of Columbia, in a 2-1 ruling, vacated the preliminary injunction. Sherley v. Sebelius, No. 10-5287. Judge Douglas Ginsburg wrote the opinion for the Court. Judge Karen Henderson wrote a dissent. Judge Ginsburg argued that the plaintiffs (Sherley et al.) are unlikely to prevail because the Dickey-Wicker Amendment is ambiguous and the NIH interpretation of the amendment is reasonable. Judge Henderson argued that the majority opinion took “a straightforward case of statutory construction and produced a result that would make Rube Goldberg tip his hat.” The judge continued: “Breaking the simple noun ‘research’ into ‘temporal’ bits . . . narrowing the verb phrase ‘are destroyed’ to an unintended scope . . . dismissing the definition section of implementing regulations promulgated by the Department of Health and Human Services (HHS) (in case the plain meaning of ‘research’ were not plain enough) . . . my colleagues perform linguistic jujitsu.” See: nchla.org/datasource/idocuments/Sherley-v-Sebelius-USCourtAppealsDC.pdf. This was a ruling only on the preliminary injunction, with the case on its merits pending consideration in the District Court.
On July 27, 2011, Judge Lamberth in the District Court ruled against the plaintiffs and upheld the ESCR guidelines. He stated that the District Court was bound by the Circuit Court’s interpretation of “research” in the Dickey-Wicker Amendment, noting that “. . . [T]his Court has become a grudging partner in a bout of ‘linguistic jujitsu’. . . . ” It is not yet known if the decision will be appealed.
Legislation: According to a July 22, 2011 CQToday news story, Sen. Mark Kirk (R-IL) said that President Obama’s ESCR guidelines should be placed in permanent law, urging the passage of the Stem Cell Research Advancment Act (H.R. 2376) introduced by Rep. Diana DeGette (D-CO) on June 24, 2011. Calls by advocates of destructive ESCR for passage of the bill only increased after Judge Lamberth’s July 27 decision. H.R. 2376 had 23 co-sponsors and was referred to the Subcommittee on Health of the Committee on Energy and Commerce. At year’s end, the bill was pending in committee.
The Secretary of HHS is authorized to conduct and support research using human stem cells, include embryonic stem cells, which must be derived from human embryos donated by IVF clinics. The embryos must be in excess of those needed for treatment, be otherwise discarded, and be given with written informed consent of the donors. The Secretary, with the Director of NIH, is authorized to maintain, review and update guidelines for human stem cell research. The bill contains a prohibition against government funding of human cloning, but the term “human cloning” is defined to mean implantation of a human clone into a uterus. As a result, human clones not implanted in a uterus can be destroyed through government funded research.
Public Opinion Polling: A recent public opinion poll shows that 47% of Americans oppose federal funding of stem cell research that involves destroying human embryos, while only 38% support such funding. These findings are consistent with earlier polls in 2004, 2005, and 2006. Asked whether scientists should be allowed to clone human embryos to be destroyed in medical research, 12% responded “yes,” 76% responded “no.”