A crazy judge throws out Obama's stem-cell policy—and Bush's.

Science, technology, and life.
Aug. 25 2010 7:54 AM

Dickey Waiver

A crazy judge throws out Obama's stem-cell policy—and Bush's.

George W. Bush.
George W. Bush speaks about embryonic stem cell research

I never thought I'd say this, but I'm starting to miss George W. Bush.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

"Compassionate conservatism" has been overtaken by the Tea Party. El sueño Americano has given way to anti-immigrant fever. The "war on terror" has degenerated into a backlash against American Muslims. Now, even Bush's stem-cell policy has been overturned as too permissive.

The stem-cell ruling, issued Monday by U.S. District Chief Judge Royce Lamberth, says that federal funding of research using cells derived from destroyed embryos violates federal law. Pro-lifers are ecstatic. "Court Strikes Down Obama Administration Stem Cell Policy," crows Americans United for Life. "A stinging rebuke to the Obama Administration," gloats the Family Research Council. A defeat for "the Obama administration's rabid and unscientific fixation" on embryo destruction, says the American Life League.

But this ruling goes way beyond Obama. It voids Bush's stem-cell policy, too. And it does so on flimsy grounds with sloppy reasoning.

The ruling relies on the Dickey-Wicker Amendment, a provision enacted by Congress every year during federal appropriations. The amendment, first adopted in 1996, bans federal funding of "research in which a human embryo or embryos are destroyed." Lamberth concludes:

[Embryonic stem cell] 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.

Accordingly, Lamberth blocks federal funding of all such research pending a full trial. He says this injunction will "simply preserve the status quo." But the status quo, under Bush, permitted federal funding of research on ESC lines derived by Aug. 9, 2001. There's no way that policy could survive Lamberth's ruling. The cell lines approved by Bush were just as dependent on embryo destruction as the cell lines approved by Obama.

In fact, Lamberth's definition of "research"—incorporating all prior steps on which present studies depend—would jeopardize lots of other work. Current research on hypothermia, asthma, schizophrenia, hepatitis, radiation exposure, gene therapy, and sexually transmitted diseases relies, to varying degrees, on prior experiments that were deemed illegal or unethical. Are scientists who work in these fields responsible for the sins of their predecessors?  Should we declare their work "research in which" Jews, blacks, children, and others are victimized? Do we seriously think that Congress, in using the word "research," intended such retroactive complicity?

Lamberth notes that Congress "has not altered" the Dickey Amendment since it was first enacted. But in 2005, the House, by a vote of 238-194, passed the Stem Cell Research Enhancement Act of 2005, which authorized HHS to "conduct and support research that utilizes human embryonic stem cells." A year later, the Senate passed the same bill, 63-37. Both houses again approved this language in the Stem Cell Research Enhancement Act of 2007, which passed the Senate 63-34 and the House 247-176.

Bush vetoed both bills. But each time, he affirmed that the ESC research he was already funding did not entail embryo destruction. In his 2007 veto message, he wrote:

Once again, the Congress has sent me legislation that would compel American taxpayers, for the first time in our history, to support the deliberate destruction of human embryos. In 2001 … I became the first President to make Federal funds available for embryonic stem cell research, and my policy did this in ways that would not encourage the destruction of embryos. Since then, my Administration has made more than $130 million available for research on stem cell lines derived from embryos that had already been destroyed.

So in two successive Congresses—the first controlled by Republicans, the second by Democrats—the president and a majority of each chamber agreed that ESC research should be funded. They did so even as they re-enacted the Dickey Amendment each year. To conclude that in re-enacting this amendment they meant to forbid all federal funding of ESC research, you'd have to believe that they deliberately contradicted themselves four times. To conclude, as Lamberth does, that they "unambiguously" meant to forbid all such funding, you'd have to be brain-dead. At a minimum, if their behavior is self-contradictory, the meaning of the amendment since 2005 has become ambiguous.

The Obama administration has already announced it will appeal Lamberth's ruling. But why wait for the courts to sort this out? That isn't their job. The Dickey-Wicker mess should end where it began: in Congress. A stem-cell funding bill approved by a Congress that was 46 percent Democratic should easily pass a Congress that's 58 percent Democratic. And this time, Bush won't be around to veto it.

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