The three-judge panel of the D.C. Circuit Court of Appeals, in a 2-1 decision, lifted an injunction that had been placed by federal judge Royce Lamberth on federal funding. After Lamberth's ruling last August, the D.C. Circuit, with a different panel presiding, had allowed funding to go forward temporarily, but Friday's decision means it is not threatened while the case makes its way through the courts.
Lamberth will now consider the merits of the case and eventually issue a final ruling on the Obama policy.
At issue is something known as the Dickey-Wicker Amendment, which is renewed by Congress each year and which prohibits "research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death." It was first passed in the mid-1990s.
Opponents of embryonic stem cell research argue that the amendment prohibits all forms of federal funding of embryonic stem cell research. Supporters like President Obama, though, say the law merely prohibits federal funding of the actual destruction of the embryo while allowing funding for research on the stem cell lines. Embryonic stem cell research requires the destruction of the embryo, which pro-lifers say is immoral.
A majority of the appeals court panel agreed with the Obama interpretation, calling the language of Dickey-Wicker "ambiguous."
"Because the Congress wrote with particularity and in the present tense -- the statute says 'in which' and 'are' rather than 'for which' and 'were' -- it is entirely reasonable for the to understand Dickey-Wicker as permitting funding for research using cell lines derived without federal funding, even as it bars funding for the derivation of additional lines," Judge Douglas Ginsburg, a President Reagan nominee, wrote for the majority. He was joined by Thomas Griffith, a nominee of President George W. Bush.
The "use of the present tense in a statute strongly suggests it does not extend to past actions," Ginsburg asserted.
But Judge Karen Henderson, a nominee of President George H.W. Bush, disagreed, and in her dissent said the majority had performed "linguistic jujitsu."
"The majority opinion has taken a straightforward case of statutory construction and produced a result that would make Rube Goldberg tip his hat," Henderon wrote, referencing the 20th century cartoonist who drew humorous depictions of complex gadgets conducting simple tasks.
The Dickey-Wicker Amendment, Henderon said, is plainly worded.
"It bans federal funding of 'research' rather than the 'destruction of human embryos for research purposes.' Research, then, is the express target of the ban the Congress imposed with respect to the destruction of a human embryo. This makes perfect sense because in 1996, according to the record, hESC research had barely begun. The Congress, recognizing its scant knowledge about the feasibility/scope of hESC research, chose broad language with the plain intent to make the ban as complete as possible."
Embryonic stem cell research has received significant publicity but has yet to lead to any cures. It has also been plagued by tumors in lab animals. Research using two other types of stem cells -- adult stem cells and induced pluriponent stem cells -- has been more promising without the ethical concerns, pro-lifers argue.
Research with adult stem cells in human trials has produced therapies for 73 afflictions, including cancer, juvenile diabetes, multiple sclerosis, heart damage, Parkinson's, sickle cell anemia and spinal cord injuries according to Do No Harm, a coalition promoting ethics in research.
Experiments with induced pluripotent stem (iPS) cells have demonstrated promising results and generated a great deal of interest in recent years among scientists. Researchers have been able to reprogram adult skin cells into cells that have virtually the identical properties of embryonic ones, which have the ability to change into any cell or tissue in the body.
Southern Baptist ethicist Richard Land has criticized the Obama policy, saying that taxpayers "are being compelled to subsidize that which they find abhorrent, namely the killing" of the unborn "to harvest their stem cells."
"The tragedy is compounded by the fact that more and more scientists are turning from embryonic stem cell research to either research with adult stem cells or induced pluripotent stem cells, which require no child sacrifice," Land said.
Michael Foust is associate editor of Baptist Press.
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