Earlier today, a federal trial judge in D.C. suspended all federal funding of embryonic stem cell (ESC) research during ongoing litigation, claiming that such funding is illegal. According to Chief Judge Royce Lamberth, a Reagan appointee, such funding violates the Dickey-Wicker Amendment, which prohibits the use of federal funds for “research in which a human embryo or embryos are destroyed”:
ESC research is clearly research in which an embryo is destroyed. To conduct ESC research, ESCs must be derived from an embryo. The process of deriving ESCs from an embryo results in the destruction of the embryo. Thus, ESC research necessarily depends upon the destruction of a human embryo.
Despite defendants’ attempt to separate the derivation of ESCs from research on the ESCs, the two cannot be separated. Derivation of ESCs from an embryo is an integral step in conducting ESC research. Indeed, it is just one of many steps in the “systematic investigation” of stem cell research. Simply because ESC research involves multiple steps does not mean that each step is a separate “piece of research” that may be federally funded, provided the step does not result in the destruction of an embryo.
Essentially, Judge Lamberth claims that all ESC research cannot be funded because it requires scientists to build upon previous research that involved the destruction of an embryo, but it’s difficult to square this decision with Supreme Court precedent. Under Chevron v. NRDC, judges are normally supposed to defer to an agency’s reading of a federal law unless the agency’s interpretation is entirely implausible, and the Obama administration quite plausibly read the Dickey-Wicker Amendment to only prohibit federal funding of the actual destruction of an embryo — not federal funding of subsequent ESC research.
Indeed, Lamberth’s decision moves the law to a worse position than it was during the Bush administration. President George W. Bush allowed federal funding for research on existing embryonic stem cell lines, but would not allow new lines to be created. Today’s opinion even forbids such entirely uncontroversial research.