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Stem cell research: Court gives Obama a victory, but policy still on trial

The White House hails the ruling by a divided appeals court to permit federal funding for embryonic stem cell research. At issue still is whether Obama's policy violates a 1996 congressional ban.

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Each president has approached the issue differently.

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President Bush embraced a restrictive policy, permitting federal funding only for research that used 21 existing lines of cells that had been developed from embryos that had earlier been destroyed. Bush effectively drew a line, saying federal funds would not support any research that would make use of new lines of cells from embryos destroyed after his 2001 order.

In March 2009, President Obama fulfilled a campaign promise when he announced that his administration would no longer enforce the Bush restriction. Obama issued an executive order permitting – for the first time – government funding for research involving new lines of cells developed from embryos destroyed since 2001.

The move greatly expanded research opportunities. But the question was whether it complied with Congress’s 1996 ban on the use of federal funds for research in which a human embryo is destroyed.

Judge Lamberth concluded that the administration was violating the ban and ordered the funding to stop. The appeals court disagreed, and vacated his ruling.

The majority judges said Congress’s 1996 stem cell research mandate was ambiguous and did not decisively support either side in the litigation.

“That fact is the statute is not worded precisely enough to resolve the present definitional contest conclusively for one side or the other,” wrote Judge Douglas Ginsburg in an opinion joined by Judge Thomas Griffith.

'Linguistic jujitsu'

The court added that Congress had continued to reauthorize its ban each year with full knowledge that embryonic stem cell research has been receiving federal funding for the past decade.

In a dissent, Judge Karen Henderson accused the majority of committing “linguistic jujitsu” to parse the 1996 statute in way that rendered it ambiguous.

“The majority opinion has taken a straightforward case of statutory construction and produced a result that would make Rube Goldberg tip his hat,” she wrote.

Judge Henderson said the intent of the 1996 Congress was to prohibit all research that either results in or relies upon the destruction of a human embryo.

The majority judges disagreed. They said it was possible that Congress intended only to bar federal funding for specific research projects that will cause the future destruction of a human embryo, but not bar funding for research using existing cell lines derived from outside sources.

The 1996 statute, known as the Dickey-Wicker Amendment, prohibits the NIH from funding: “(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.”

Full trial in federal court

Although the injunction is lifted, the underlying challenge to existing stem cell policies will now move forward toward a full trial in federal court.

A key issue in the case is how broadly to define the word “research” in the statute. The Obama administration and the NIH embrace a narrow reading of the term, suggesting it means a particular research project rather than a general field of inquiry.

The two researchers who filed the lawsuit challenging the president’s expanded stem cell research policy argue that “research” includes not only work related to the resulting stem cell lines, but also the initial creation of those lines, which would have resulted in the destruction of a human embryo.


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