Obama’s Illegal Stem-Cell Policy

A year and a half ago, when President Obama signed his executive order funding embryo-destructive stem-cell research, I argued in The Weekly Standard that he was perpetuating a needless stem-cell war, that his decision was “bad ethics, bad science, and bad politics.” Add “bad law” to the list. Earlier this week, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia ruled that Obama’s stem-cell policy runs afoul of federal law.

Obama’s policy is bad ethics because it creates further incentives for the destruction of human beings in their very earliest stage of life. When President Bush became the first president ever to fund embryonic stem-cell research, he set a clear moral line: the government would not be complicit in encouraging additional embryo destruction. His executive order allowed funding on embryonic stem-cell lines derived from embryos that had already been destroyed, but excluded funding of research using stem cells from embryos destroyed after August 9, 2001 (the date of his announced policy).

Some pro-lifers thought that even this policy fell short of full respect for human life, but Bush was attempting to make the best of a bad situation: for embryos that had already been destroyed, funds would be made available for research that tried to salvage some value out of their destruction. But Bush resolutely refused (twice exercising the veto) to incentivize future embryo destruction by funding it with tax dollars. His reasoning was clear: Science itself tells us that a human embryo is a whole living member of the species homo sapiens, a human being at the very beginning of life. And sound principles of political justice tell us that all human beings deserve the protection of the law. While political will was lacking for legal protections, Bush sought at least to keep the government—and tax-paying citizens—free from complicity in embryo killing. Obama’s policy is bad ethics precisely because it implicates the American taxpayer in an unjust practice.

Obama’s policy is bad science because embryo destruction is no longer necessary for the types of stem cells doctors seek. First, as the L.A. Times noted earlier this month, adult stem cells are already being used to treat patients suffering from seventy-three different ailments. The count for embryonic stem cells is zero. In fact, therapies from embryonic stem cells haven’t even cleared stage-one clinical trials. Second, and even more noteworthy, scientists can now create stem cells with all the same properties as those derived from embryos without killing—or even using—embryos at all. (When this scientific breakthrough was first announced in November 2007, I wrote an article for The Weekly Standard entitled “The End of the Stem-Cell Wars.” Alas, a better title would have been, “What Should Be the End of the Stem-Cell Wars.”) In some respects, these induced pluripotent stem cells (iPSCs) appear to be medically superior to embryonic stem cells: cheaper to produce, easier to work with, and, most importantly, patient-specific—a crucial factor for any future medicinal use.

As anyone familiar with organ transplants knows, immune rejection is a major hurdle to any form of regenerative medicine. Induced pluripotent stem cells clear this hurdle because they can be created from a patient’s own skin cells to have his exact DNA sequence. For the same to be true of embryonic stem cells, they would have to be created from an embryo produced by human cloning—an unethical, unsafe, and so far unsuccessful procedure. In creating economic incentives for research that shows little or no medical promise (especially compared to the ethical alternatives), Obama’s policy is bad science.

Obama’s policy is bad politics because it needlessly perpetuates a stem-cell war where an easy peace is available. While public opinion on stem cells is notoriously difficult to gauge, after the November 2007 breakthrough only the staunchest of ideologues were clamoring for public funding of embryo destruction. Certainly by 2009, the issue had lost most of its political salience, entirely dropping from the front pages of our newspapers. Once an ethically legitimate alternative to embryonic stem-cell research was developed, the public and the media lost interest.

If Obama really wanted to resolve one front of the culture wars and show respect for pro-lifers, as he claimed, he would have refused to make citizens complicit in embryo killing by simply continuing the Bush policies. Instead, beholden to the radical fringe of his party, he chose to make a show of repudiating the Bush years. Not only was this needlessly harmful to our political culture; it may also have harmed Obama’s political self-interest: he certainly didn’t gain himself new supporters by wasting tax dollars on unethical and unnecessary research. In both of these ways, Obama’s policy is bad politics.

Now comes news that Obama’s policy is bad law. Earlier this week Chief Judge Royce Lamberth ruled that the funding guidelines issued by the National Institutes of Health (NIH) pursuant to Obama’s executive order violate the Dickey-Wicker Amendment. This Amendment, in effect since 1996, prohibits the federal funding of “research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death.” Judge Lamberth’s ruling dismissed the so-called “use-derivation” distinction (by which some would defend Obama’s policies) as mere book-keeping:

This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way. Congress, however, has not written the statute that way, and this Court is bound to apply the law as it is written.

It shouldn’t be surprising that Judge Lamberth finds the “use-derivation” distinction unconvincing. President Clinton’s Bioethics Commission actually reached the same conclusion: “we believe that this [distinction] is a misrepresentation of the new field of human stem cell research.” Because the Commission supported embryo-destructive research, it urged that the Dickey-Wicker Amendment be overturned. But so long as the Amendment remains valid law, Judge Lamberth is obliged to rule according to its language. Unless Congress overturns the law, Obama’s stem-cell policy appears to be bad law.

Yet Clinton’s Bioethics Commission, if it still existed, might no longer support overturning Dickey-Wicker. As Joseph Bottum and I noted in an article in First Things, “Stem Cells: A Political History,” Congress first passed the Dickey-Wicker Amendment in 1996 to prevent Clinton from authorizing federal funds for embryo-destructive research related to fertility treatments. It wasn’t until 1999 that his Bioethics Commission concluded that embryonic stem-cell research was a legitimate reason for embryo destruction, and thus favored overturning Dickey-Wicker. But, the Commission concluded:

The derivation of stem cells from embryos remaining following infertility treatments is justifiable only if no less morally problematic alternatives are available for advancing the research. … The claim that there are alternatives to using stem cells derived from embryos is not, at the present time, supported scientifically. We recognize, however, that this is a matter that must be revisited continually as science advances.

Given the recent scientific advancements with induced pluripotent stem cells, could anyone plausibly suggest that “no less morally problematic” alternative exists? If Obama refuses to follow Bush’s prudent policy, at the very least he should follow that of Clinton’s Commission.

It is unclear whether Judge Lamberth’s decision, a temporary injunction, will be upheld upon full review and appeal. It is worth noting that his ruling suggests that Bush’s policy of embryonic stem-cell funding was illegal as well. While Clinton’s Bioethics Commission found the “use-derivation” to be morally irrelevant, the general counsel in Clinton’s Department of Health and Human Services found it to be legally valid. But Clinton left office before any funding was ever actually approved and thus left the decision to his successor. Bush sought to honor the spirit, if not, perhaps, the letter, of Dickey-Wicker by providing funding for embryonic stem-cell research without incentivizing further embryo destruction. Obama’s policy, clearly trying to skirt both the spirit and the letter of the law, provides fresh streams of funding for embryo-destructive research, so long as the destruction itself is privately funded. Judge Lamberth had no patience for this argument.

Nor should we.

Bad ethics, bad science, bad politics, and bad law. Normally it takes only three strikes to be out. But not even this fourth will mark the death knell for this deadly science: while the ruling temporarily halts the federal funding of embryo-destructive stem-cell research, it does nothing to prevent the destruction of human embryos in privately funded research. There is no law forbidding embryo killing, and there never has been. And despite what some excitable commentators have said, there has never been a ban on embryonic stem-cell research. Yet this injunction is a step toward restoring taxpayer-supported scientific research to its morally upright place.