Catching up on the news….

Last year (March 9, 20010) President Obama signed an Executive Order overturning President Bush’s stem cell policy that allowed federal funding for stem cell research on stem cell lines created prior to August 9, 2001, but not after.  President Obama wished to expand federal funding to include stem cell lines created after August 9, 2001.

Ironically, two days after issuing his EO, President Obama signed into law the annual appropriations bill which included the Dickey-Wicker amendment.  This amendment, which has appeared in every appropriations bill since 1996, specifically prohibits the use of federal funds for research that involves the destruction of human embryos.  The amendment reads:

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….

President Obama’s signature on the appropriations bill effectively nullified the force of his EO.  Nevertheless, President Obama had “instructed” the National Institutes of Health to create new guidelines for the federal funding of stem cell research that would allow federal funds to be used in embryonic stem cell research for stem cell lines created after August 9, 2001 so long as federal funds were not used to kill the embryos from which the stem cell lines were extracted.  The NIH complied, and new guidelines were issued on July 7, 2009.

A lawsuit was filed against Kathleen Sabellius, the Secretary of Health and Human Services who worked with the Director of the National Institutes of Health to issue the new guidelines, alleging that their guidelines were illegal.  Last week (8/23/10), Judge Royce Lambert of the District Court for D.C., ruled in favor of the plaintiffs, placing a preliminary injunction on the NIH’s new guidelines.  According to Judge Lamberth, the Dickey-Wicker amendment does not merely prohibit federal funds from being used to destroy embryos, but prohibits federal funds from being used in research involving the destruction of human embryos.  Because embryonic stem cells are derived from human embryos, and because those embryos had to be destroyed to obtain the stem cells, the use of federal funds for embryonic stem cell research would violate the law even if the funds are not being used specifically in the destruction process.  According to Judge XX, the two cannot be separated:

The Dickey-Wicker Amendment unambiguously prohibits the use of federal funds for all research in which a human embryo is destroyed. It is not limited to prohibit federal funding of only the “piece of research” in which an embryo is destroyed. Thus, if ESC research is research in which an embryo is destroyed, the Guidelines, by funding ESC research, violate the Dickey-Wicker Amendment. ESC research is clearly research in which an embryo is destroyed. To conduct ESC research, ESCs must be derived from an embryo. The process of deriving ESCs from an embryo results in the destruction of the embryo. Thus, ESC research necessarily depends upon the destruction of a human embryo. Despite defendants’ attempt to separate the derivation of ESCs from research on the ESCs, the two cannot be separated. Derivation of ESCs from an embryo is an integral step in conducting ESC research.

Simply because ESC research involves multiple steps does not mean that each step is a separate “piece of research” that may be federally funded, provided the step does not result in the destruction of an embryo. If one step or “piece of research” of an ESC research project results in the destruction of an embryo, the entire project is precluded from receiving federal funding by the Dickey-Wicker Amendment. Because ESC research requires the derivation of ESCs, ESC research is research in which an embryo is destroyed. Accordingly, the Court concludes that, by allowing federal funding of ESC research, the Guidelines are in violation of the Dickey-Wicker Amendment.

It’s nice to see a judge upholding the law as it is written, rather than as he thinks it should have been written!

Unless Judge Lambert’s decision is overturned by a higher court, the injunction will stand.  The only way for President Obama’s stem cell policy to succeed is for Congress to proactively remove the Dickey-Wicker amendment from the next appropriations bill, or for Obama to “force” them to remove it by threat of veto.  We’ll see what comes of this next year.  I’m sure this battle is not over yet.

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