Embryonic Stem Cell Research Halted... AGAIN

Tuesday, August 24, 2010 at 1:03 AM Bookmark and Share
If you haven't heard, there's plenty in the news here, here and here.  I recommend reading judge Royce C. Lamberth's 15 page ruling for yourself, as it clarifies much of what the media are glossing over at the moment.

Below are my thoughts on the ruling.  I take issue with some of the judges arguments, and not because I have zero legal expertise - I think it's because he's gotten some things wrong.  I also think the judge didn't live up to his own standards, which I'll discuss in part two of this post which you can find here.

Part I: Does "Embryonic Stem Cell Research = Killing Embryos"?

The crucial legal language in this case is known as the Dickey-Wicker Amendment (also, see here). It's notable for (1) limiting how federal dollars are spent on embryonic stem cell (ESC) research, and (2) it includes an attempt at defining "human embryo." The definition seems overly broad in my opinion (e.g. if I culture some of my skin cells, they seem to fit this definition), but take a look and decide for yourself.

The language can be seen in H.R. 3010 (see pg 48 in this PDF) section 509(a)(2) which reads...
SEC. 509.
  1. None of the funds made available in this Act may be used 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 45 CFR 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).
  2. For purposes of this section, the term ‘‘human embryo or embryos’’ includes any organism, not protected as a human subject under 45 CFR 46 as of the date of the enactment of this Act, that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells.
Note I've emphasized a single word here "research" which the judge has defined as "a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge."  To me this seems unbelievably vague, but without much justification the judge finds it "unambiguous."  Again, I'm no legal expert so I might be missing something, but I suspect this will be a key issue in the appeal.

Crucial to the case (as recognized by the judge) is the established distinction between the acts of (1) deriving stem cells from embryos, and (2) doing research on cell lines previously derived from embryos. Mind you that both of these things are legal, it's just that federal funds can only be used to perform the latter under previous interpretations of the law above... until today.

Today, judge Lamberth decided that this separation is invalid. He asserts that...
...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.
He goes on to then argue that the Dicky-Wicker language actually prohibits the whole research process...
This prohibition encompasses all “research in which” an embryo is destroyed, not just the “pieceof 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.
He reiterates...
Having concluded that the Dickey-Wicker Amendment is unambiguous, the question before the Court is whether ESC research is research in which a human embryo is destroyed. The Court concludes that it is.
I think the judge is flat wrong, but hey - I'm not the judge, so we'll see what the legal analysts and the appeals court says about it.

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