Difficult appeal

Science | But the Obama administration may seek other avenues to resume embryonic stem cell research
by Angela Lu Fulton
Posted 8/25/10, 12:17 am

The Obama administration will ask the U.S. Court of Appeals for the District of Columbia Circuit to lift the preliminary injunction issued Monday on federally funded embryonic stem cell research, the Justice Department announced late Tuesday.

Dr. David Stevens, chief executive of the Christian Medical & Dental Associations, believes the government will have a hard time winning in court because the judge who issued the injunction has already shown how the Obama administration "tried to do verbal engineering" around the 1996 Dickey-Wicker Amendment (see sidebar below) that prohibited federal funding for research on destroyed human embryos. Stevens was one of the original plaintiffs in the case that led to the injunction.

U.S. District Judge Royce Lamberth's ruling Monday suggested that the administrations of Presidents Clinton, Bush, and Obama all wrongly assumed that because taxpayer dollars never funded actual human embryo destruction (the destruction was done through private means) but rather funded research on the resulting stem cell lines, they were in technical compliance with the law. Bush's executive order allowed research on 21 lines created prior to 2001 but banned research on newly destroyed embryos. In his first two months in office, Obama lifted the restrictions altogether and has funded research on 75 lines so far.

Lamberth recognized that the destruction of embryos is an integral step of embryonic stem cell research. Anna Franzonello, an attorney for Americans United for Life, said that's a key issue for pro-lifers: Although the government does not fund directly the destruction of human embryos, it creates an obvious incentive for other parties to do so. Without the destruction, there are no stem cell lines for research.

It is also possible that the White House could ask Congress to revoke or rescind the Dickey-Wicker Amendment, which is attached to the Department of Health and Human Services budget and has been approved annually since 1996. Congress may wait until the budget comes up for approval again or take special action to override the amendment in a separate law.

Stevens believes the mainly Democratic supporters of embryonic stem cell research will not want to raise the issue before November's midterm elections and may not be able to pass any provisions after new lawmakers are sworn in next January, making it likely they will settle it during the lame-duck session between the election and the seating of a new Congress.

The White House has a third option: Rewrite the guidelines to fit the law. Stevens believes this is very difficult given the nature of embryonic stem cell research and the fact that even the Bush administration's stem cell policy could be in violation of the law.

The Associated Press contributed to this report.

Chronology: From Dickey-Wicker to Lamberth's ruling

  • June 21, 1995: The House Appropriations Committee approves a measure that would outlaw federal funding of research "in which . . . [human] embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero. . . ." It is added to the funding bill for the Department of Health and Human Services (HHS). Named for Rep. Jay Dickey, R-Ark., and Rep. Roger Wicker, R-Miss., the Dickey-Wicker Amendment first took effect when Congress gave final approval to HHS's funding for fiscal year 1996. (Wicker today represents Mississippi in the U.S. Senate; Dickey lost his congressional seat in 2000.)
  • June 26, 1996: Congress adds the Dickey-Wicker Amendment to the HHS appropriations bill, and has done so every year since without substantive alteration.
  • November 6, 1998: Dr. James Thompson of the University of Wisconsin is the first to extract stem cells from a human embryo to form human embryonic stem cell (ESC) lines. The discovery elicits controversy because the extraction procedure killed the human embryo.
  • January 15, 1999: In response to this discovery, National Institute of Health (NIH) general counsel Harriett Rubb interprets the destruction of human embryos as separate from ESC research and, therefore, not prohibited by the Dickey-Wicker Amendment.
  • January 20, 1999: NIH Director Harold Varmus announces NIH will allocate funds for ESC research.
  • August 25, 2000: NIH issues new guidelines for ESC research.
  • March 2001: Nightlight Christian Adoptions, the Christian Medical Association, and Dr. David A. Prentice are plaintiffs in a lawsuit against the HHS and NIH for violating the Dickey-Wicker Amendment.
  • April 2001: NIH postpones review of grant applications for human embryonic stem cell research as the Bush administration reviews the policies of HHS.
  • August 9, 2001: President Bush announces that federal funding of any research using embryonic stem cell lines derived after August 9, 2001, would be prohibited. Samuel Casey, lawyer for the plaintiffs, drops the lawsuit against the government.
  • June 20, 2007: President Bush issues an executive order calling upon the HHS secretary to support alternative sources of pluripotent stem cells (cells theoretically capable of transforming into any cell or tissue in the body). He requests that the Human Embryonic Stem Cell Registry be renamed the Human Pluripotent Stem Cell Registry.
  • March 9, 2009: President Obama issues an executive order to further embryonic stem cell research, calling for the NIH to issue new guidelines allowing federal funding for research "to the extent permitted by law."
  • July 7, 2009: NIH posts new guidelines that regulators say comply with the Dickey-Wicker Amendment on the basis of Rubb's 1999 interpretation of research as separate from the destruction of human embryos.
  • August 19, 2009: Drs. James Sherley and Theresa Deisher, Nightlight Christian Adoptions, and the Christian Medical Association file suit against HHS and NIH, alleging that the guidelines issued by NIH violate the Dickey-Wicker Amendment.
  • October 27, 2009: U.S. District Court Judge Royce Lamberth rules that the plaintiffs have no legal standing to make the complaint. The plaintiffs appeal.
  • April 9, 2010: President Barack Obama appoints members to his new bioethics commission.
  • August 19, 2010: A federal appeals court grants standing to Drs. Sherley and Deisher and sends the case back to Judge Lamberth.
  • August 23, 2010: Judge Lamberth issues a preliminary injunction on federal funding for embryonic stem cell research, ruling that guidelines issued by NIH in July violate the Dickey-Wicker Amendment.
  • August 24, 2010: The Obama administration announces it will appeal Judge Lamberth's preliminary injunction. -Brittany McComb
Angela Lu Fulton

Angela is a senior reporter for WORLD Magazine and a part-time editor for WORLD Digital. She is a graduate of the World Journalism Institute and Northwestern University's Medill School of Journalism. Angela resides in Taipei, Taiwan. Follow her on Twitter @angela818.


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