The Most Noble Ends

“I’ve noticed that everybody that is for abortion has already been born.”

                                                                                           Ronald Reagan, 1980

 

It is no secret that Ronald Reagan took positions that were strongly opposed to abortion, at least at the time of his Presidency.  After he won the 1980 election, the first thing he said at his first press conference was that he would “make abortion illegal,” and he maintained a strong anti-abortion stance during his years as President.  He consistently opposed not only efforts to maintain the legality of abortion procedures in the United States, but also implemented peripheral policies that sought to advance the objectives of the so-called “pro-life” movement:  school authorities were required to notify parents if their children sought contraceptives at school clinics and workers at family-planning clinics who received federal funds were forbidden to present abortion as a medical option to pregnant women.  And, of course, he was opposed to stem-cell research. 

It is thus a particular irony that since her husband’s death, the most poignant of Nancy Reagan’s few comments on policy have been to advocate support for stem-cell research.  It was in 2004, just months after Ronald Reagan’s death, that she publicly responded to President Bush’s decision to limit funding for such research, criticizing his decision and expressing her opinion that too much time had already been wasted discussing the issue.  In 2009, she publicly praised President Obama for his reversal of the Bush policy. 

But Obama’s decision to lift restrictions on federal funding for embryonic stem-cell research has not been without consequences.  I commented several months ago about the case of Sherley v. Sebelius here in which District Court Judge Royce Lamberth held that the Dickey-Wicker Amendment prohibited federal support of such research, a decision that would have had even more impact on the federal funding of stem-cell research than even the Bush restrictions.  In light of the report in Nature last week that induced pluripotent stem cells — which, unlike embryonic stem cells, can be created without the destruction of embryos — might be rejected by a patient’s own immune system, it seems valuable to review what has happened with Sherley since last August.  A copy of the Nature paper can be found here (subscription required). 

The Dickey-Wicker Amendment is one that no Congress or Administration —Democrat or Republican —can credibly criticize since it has been passed by all as part of the Labor, Health and Human Services, and Education appropriations acts every year since 1995.  It has been passed not only with the signature of Republican President Bush, but also with the signatures of Democrat Presidents Clinton and Obama, after being enacted by both Democrat- and Republican-controlled legislatures.  After the District Court found that funding of embryonic stem-cell research violated the Act and refused to issue a stay until the appellate court reviewed the decision, the Court of Appeals for the District of Columbia itself stayed the action pending its review.  On April 29, the appellate court issued its ruling, vacating the preliminary injunction and allowing federal funding of embryonic stem-cell research to continue. 

In my earlier post, I commented that as “much as I personally support investigations into the use of embryonic stem cells because of their tremendous potential in the treatment of disease, I have difficulty faulting the Court’s decision.”  I found the language of the Dickey-Wicker Amendment unambiguous and dismissed attempts to parse it differently as “contrived.”  Two of the three judges on the Court of Appeals disagreed. 

The Dickey-Wicker Amendment states that “[n]one of the funds made available in this Act may be used for … (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 ….”  The reasoning of the two-judge majority is one that had been rejected in the lower court, namely to parse what the statute means by “research.”  Essentially, investigations into embryonic stem cells require two phases:  a first phase in which embryos are destroyed and the stem cells are derived; and a second phase in which experiments are performed on the already derived stem cells.  The argument accepted by the appellate court is that federal funding of the first phase is prohibited but not federal funding of the second phase since only the first phase constitutes “research in which a human embryo [is] destroyed.” 

To reach this conclusion, the majority notes the use of the present tense in the statute (“are destroyed” instead of “were destroyed”) and consults some online dictionaries for definitions of the word “research.”  I am always wary of these kinds of analysis, which can give the impression of constructing a post-facto rationale for a decision improperly made for other reasons.  Such analysis is too much like relying on the exploitation of loopholes and technicalities instead of principled application of the law as it was written.  I therefore find myself sympathetic with the dissent’s criticism that the judges in the majority have performed “linguistic jujitsu” and “taken a straightforward case of statutory construction and produced a result that would make Rube Goldberg tip his hat.”  A copy of the full opinion and dissent can be read here

Researchers are generally pleased with the ruling, but in many ways that represents a short-sighted view.  The problem with the Dickey-Wicker Amendment is especially apparent when the procedural posture of Sherley as it now stands is considered.  So far, the only issue that has been resolved is whether experiments involving embryonic stem cells are “research in which a human embryo is destroyed.”  The case now returns to the District Court for consideration whether such experiments are “research in which a human embryo … is knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero,” a question that potentially raises a host of different arguments.  While it is possible to take other procedural actions at this point — request a rehearing en banc by the full Court of Appeals or petition the Supreme Court to hear the case — those other actions almost certainly represent too much risk to stem-cell researchers. 

As difficult as it may be to do politically, it strikes me as much easier to find a way to avoid the annual ritual of having the Dickey-Wicker Amendment added as a rider to funding bills.