Court paints with broad brush, upends U.S. stem cell policy

With a stroke of his pen, a federal judge roiled the stem cell research community. The recent court ruling that “if one step…of an embryonic stem cell research project results in the destruction of an embryo, the entire project is precluded from receiving federal funding by the Dickey-Wicker Amendment,” effectively shut down all federal funding for such research.

Shortly thereafter, the judge seemed to step back a little from his ruling and indicate his injunction does not prohibit research on the 21 existing lines, which were authorized for federal funding in 2001 by President George W. Bush. But the court’s reasoning that the Bush rules allow research only on “existing stem cell lines, foreclosing additional destruction of embryos,” is actually in tension with his initial ruling, because research even on the existing lines “results in the destruction of an embryo,” which is precisely what the court found objectionable. It certainly has created a state of confusion surrounding stem cell research.


To understand the breadth of the court’s decision, some background is in order. Every year since 1995, Congress has prohibited the Department of Health and Human Services from appropriating funds for “research in which a human embryo or embryos are destroyed.” This is Dickey-Wicker. Now there are many kinds of stem cells. Adults have them. Children have them. Even animals have them. None of these stem cells raises issues under Dickey-Wicker because neither their derivation, nor their use, involves destroying human embryos. But embryonic stem cell (ESC) research potentially runs afoul of this law because, outside a technique that is still experimental, the only way to create a colony of embryonic stem cells is to take them from a human embryo by a process that destroys the embryo.

In the late 1990s, scientists began to recognize the potential benefits of ESC research, and the Clinton administration began to consider the ramifications of such research. Clinton’s lawyers determined Dickey-Wicker might allow public funding for ESC research if the source embryos had been destroyed at private expense. In other words, no public money could be spent on the destruction of the embryos itself, but once ESC’s were culled, taxpayers were free to support research on them. President Bush eventually decided to permit funding for research on all stem cell lines then in existence, but not to authorize funding for research using any new ESC lines. This compromise authorized federal funding for ESC research for the very first time.

President Obama then decided to expand federal funding for ESC research. In March 2009, he issued an executive order that lifted the Bush limits and effectively repeated the Clinton administration’s position: So long as the embryo is destroyed using private funds, the resulting ESC line is eligible for taxpayer funding — whether it is an old line or new one.

Unsurprisingly, a lawsuit quickly followed. The legal issue presented was close: Does Dickey-Wicker prohibit federal support for research on new ESC lines when, by necessity, embryos must be destroyed to create those lines? On one hand, a court could approve the Obama policy by ruling that Dickey-Wicker relates only to the actual act of embryo destruction. On the other hand, it could strike down the policy by holding that it encourages further embryo destruction. 

The law on its face says nothing about research on pre-existing ESC lines. It only bars the government from funding the destruction of human embryos. Thus, the only way to find that such research violates the law is to reason that all ESC lines are fruit of the poisonous tree: Because they are derived from human embryos that must be destroyed in the process, any ensuing research also violates the law. That view might be consistent with the spirit that gave rise to Dickey-Wicker, but it’s not what the law actually says. 

And, more important, it isn’t consistent with what Congress has done since Dickey-Wicker was enacted. Congress not only has taken no steps to prohibit the ongoing federal funding of ESC research, but only two months after President Bush’s decision, Congress made clear that Dickey-Wicker “should not be construed to limit federal support for research involving human embryonic stem cells and carried out in accordance with policy outlined by the President.” In fact, after the most recent NIH Guidelines were issued, Congress seemed to ratify not only the Bush policy but the Obama expansion as well: “The Committee also welcomes the recent release of guidelines for the use of human embryonic stem cells with NIH funding.”

In short, whatever Congress’s original intention might have been, it seems evident that federal funding for ESC research now bears Congress’s approval. The court painted with too broad a brush here — one that might not withstand critical scrutiny. 

Jay Lefkowitz is a lawyer in New York City and adjunct professor at Columbia Law School. He was a domestic policy advisor to President Bush.