Stem Cells, Life, and the Law

Published August 25, 2010

National Review Online

Monday's decision from the U.S. District Court for the District of Columbia halting all federal funding of embryonic stem-cell research is a surprising milestone in the decade-long debate over this morally fraught field — and another opportunity to make the case that medical research must proceed hand-in-hand with respect for life and human dignity.

First, a little background. Human embryonic stem cells, which many scientists hope will someday lead to new therapies for a range of diseases, can be obtained only through the destruction of human embryos. But the Dickey-Wicker Amendment, which has been passed into law consistently since 1996 as part of the annual budget legislation, forbids federal funding 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.

In 1999, the general counsel of the Clinton administration's Department of Health and Human Services argued that, consistent with the amendment, the government can fund research that uses stem cells derived from human embryos, so long as it does not fund the actual act of destroying those embryos. This way, the government technically does not fund research “in which” embryos are destroyed. President Clinton proposed to fund work that used lines of cells derived from the ongoing destruction of embryos, but to keep federal funds out of the specific process of destroying those embryos.

Whether or not it was a valid interpretation of the letter of the law, this proposal was certainly in violation of the spirit of the law. By essentially telling researchers, “if you destroy an embryo with your own money, then you will become eligible for federal funds,” Clinton's proposed policy would have incentivized the destruction of human embryos.

That policy never actually took effect — his administration ended before any funds flowed. When President Bush came to office, he decided that while it might be worthwhile to use some public funds to see where research on embryonic stem cells might go (and particularly to develop cells with the abilities of embryonic stem cells without destroying embryos), it was important not to use taxpayer dollars to encourage the destruction of developing human beings. Presuming the legal validity of the Clinton administration's interpretation of the Dickey-Wicker Amendment, the Bush administration looked for a way to help scientists see where the research might go while not creating incentives for further embryo destruction.

In August 2001, Bush announced a compromise policy: He would use federal dollars to fund research on lines of cells derived from embryos that had been destroyed before his announcement, but not on any lines created after the announcement. That way, the availability of federal dollars would not act as an encouragement to destroy embryos in the future. This, Bush believed, was in line with both the letter and the spirit of the Dickey-Wicker Amendment.

Almost immediately, the Left attacked that policy, claiming that it was deceitful (not so), that it caused American researchers to fall behind the rest of the world (demonstrably false), and that it was part of a larger Republican “war on science” (ludicrous). To be sure, pro-life critics could truthfully criticize the Bush administration for not going far enough to protect human embryos. And scientists could correctly criticize the Bush policy for slowing somewhat the pace of their research — moral restraints will have that effect. But imperfect though it was, the Bush policy was a reasonable compromise that promoted research without turning the destruction of human embryos into a national project.

Believing that stem-cell research would be a wedge issue in their favor, Democrats overhyped it in the 2004 campaign. Four years later, candidate Barack Obama cast himself as a guardian of science — and once inaugurated, he overturned the Bush policy on embryonic-stem-cell research. President Obama ordered the National Institutes of Health (NIH) to develop guidelines that would allow federal funding to flow to researchers working on stem-cell lines derived from the ongoing destruction (with the parents' permission) of “spare” embryos frozen in IVF clinics — essentially implementing the 1999 Clinton policy.

Monday's court decision involved the legality of the Obama policy and the NIH guidelines. Two scientists whose work involves non-embryonic stem cells asked the court to enjoin the use of federal funds for embryonic-stem-cell research on the grounds that it violates the Dickey-Wicker Amendment. Mirroring Clinton's argument, the Department of Health and Human Services responded that while the amendment prohibits “research in which a human embryo or embryos are destroyed,” the Obama plan funds only the research that occurs after the point of destruction.

In his ruling Monday, Judge Royce Lamberth of the U.S. District Court rejected the government's reasoning. Embryonic-stem-cell research “is clearly research in which an embryo is destroyed,” since by definition it requires the destruction of human embryos. It makes no sense, the judge wrote, to claim that the destructive act and the experimentation on the resulting stem-cell lines are “separate and distinct 'pieces of research.'” The fact that embryonic-stem-cell 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.” The judge issued a preliminary injunction halting all federal funding of embryonic-stem-cell research.

Judge Lamberth's interpretation of the Dickey-Wicker Amendment is certainly in line with the original intent of the authors of that amendment, and with the understanding of the members of Congress who originally voted for it in 1996, even if the Clinton administration's interpretation (which was then adopted by both the Bush and Obama administrations) is arguably reasonable in light of the meaning of the term “in which.” When the decision is appealed, the Obama administration will no doubt challenge the judge's assertion of the unity of all stages of embryonic-stem-cell research. Is the judge right to conclude that any experimentation on embryonic stem cells is, in the eyes of the law, inseparable from a broader research project that implicates the destruction of an embryo? On the one hand, it is true that all research on embryonic stem cells was preceded by and is made possible by the destruction of an embryo; the two acts are morally entangled. It is certainly clear, moreover, that by offering taxpayer dollars for the research regardless of when the embryo was destroyed, the Obama policy (unlike the Bush policy) incentivizes new acts of embryo destruction.

But on the other hand, imagine a young scientist just beginning his career, experimenting on stem cells derived from embryos destroyed years earlier, on the other side of the country, when he was still in junior high. Is he morally culpable for the act of embryo destruction? Is he engaging in what the law would consider “research in which a human embryo or embryos are destroyed”?
If so, then the last nine years of federal stem-cell-research funding policy — under Bush as well as Obama — has indeed been in violation of a law passed by Congress in each of those years.

Whichever way the matter is finally resolved in the courts, it is certainly a great improvement to be asking this question — does the research being funded involve the destruction of human embryos? — and presuming that if the answer is yes, then the research should not be funded, rather than debating whether the destruction of developing human lives is of any consequence, and whether it should be supported by taxpayer funds. Putting the question this way, and presuming the incalculable moral significance of human life, was certainly the intent of the Dickey-Wicker Amendment, and should be the aim of any decent society.

But of course, the Obama administration and other champions of embryo-destructive research do not actually share this aim, and have always used the Clinton administration's clever loophole as mere cover. They do in fact want to encourage the destruction of human embryos for research, and they know that the Obama policy (unlike the Bush policy) would do just that. Judge Lamberth has called their bluff.

If the political climate and schedule were different, we might expect Congress to step in — perhaps with Democrats trying, as they have many times before, to knock the Dickey-Wicker Amendment out of the budget, or with both chambers moving on proposed legislation to fund embryonic-stem-cell research. But given the congressional calendar and the looming election, it is hard to imagine that Congress is going to do either — or much of anything else — during the remainder of the year. For the time being, this issue is one for the courts to decide and so, thanks to the Dickey-Wicker Amendment, the question is not whether human life is worth protecting but whether the government is going to sufficient lengths to protect it. It is a very good question.

Adam Keiper and Yuval Levin are fellows at the Ethics and Public Policy Center. Keiper is the editor of The New Atlantis. Levin is the editor of National Affairs.

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