Embryonic-Stem-Cell Court Decision Reflects Our Government of Expediency

Original Article

Judge Royce Lamberth’s dismissal of the lawsuit against federal funding of embryonic-stem-cell research — after his earlier injunction against funding was reversed on appeal — was a predictable outcome of a governmental system that has slouched into embracing expediency over principle in order to obtain desired policy outcomes. Starting in 1996, and every year since — whether under Democratic or Republican administrations — Congress has passed and the president has signed into law the “Dickey/Wicker Amendment” as part of the budgetary process, Dickey clearly and unequivocally prohibits federal funding of embryo-destructive research. Embryonic-stem-cell research would not be possible without destroying embryos. That is a scientific fact, as Lamberth’s original decision clearly demonstrated.

Dickey/Wicker came to be seen as a significant impediment to research after embryonic stem cells were first derived in humans in 1998. Pres. Bill Clinton wanted to fund the nascent field, but understood that Dickey/Wicker was an obstacle. Rather than work in a principled way to prevent Dickey/Wicker from continuing as federal law, however, Clinton invoked a distinctly Clintonesque solution: Destroy the embryos with private money and then research on the cell products thereby derived with public. Pres. George W. Bush overturned this policy, allowing only stem-cell lines that were unequivocally created without anticipation of receiving federal funds — which at least kept the spirit of the Amendment, if, perhaps, not the letter. We all saw the brouhaha that developed thereafter, even though hundreds of millions were spent by the NIH on human ESCR, during the Bush years, with about $2 billion spent overall from all public and private sources.

Pres. Barack Obama returned to a Clintonesque approach, which received validation by a 2-1 Court of Appeals decision, claiming that separating embryo destruction done in anticipation of receiving federal funding thereafter is a “reasonable” interpretation of federal law. But it isn’t, not really. And therein lies the expediency. If the feds want to fund ESCR, Dickey/Wicker should either be amended to so permit or be allowed to expire. (Bush vetoed two attempts to do just that during his presidency.) Instead, even though the Democrats enjoyed supermajorities in both houses of Congress and had a pro-ESCR president in 2009, and had an overwhelming majority in the Senate in 2010, Dickey/Wicker was passed by Nancy Pelosi’s House and Harry Reid’s Senate, and signed by Obama — despite its potential to thwart funding of ESCR. But they knew it was a safe bet: On an issue as hyper-politicized as ESCR, expediency pays. Thus, even though Lamberth was factually correct when he said that the destruction and subsequent research constituted “one transaction,” clear definitions and vital distinctions don’t much matter anymore in our politics or law. What counts is outcome, no matter how the statutory language or original legislative intent has to be bent. Think about it: We now live in a society in which a president refuses to enforce federal law (DOMA) in courts, and who ran for election promising not to change federal law against state-legal medical marijuana, but not to enforce it either; and in which Jerry Brown, both now as California’s governor and earlier as its attorney general, has refused to defend a state constitutional amendment passed by the people (Proposition 8), because he thinks it is unconstitutional. And every day, presidents, legislators, and courts parse and distort language and clear meaning of legislative phrases and titles to obtain desired results. Indeed, we often see titles of bills claiming to do just the opposite of what is in the bill itself.

Thus, my major problem with this case isn’t about whether the feds will fund research, it is whether we any longer abide by the apparently archaic notion that wrong laws should be changed, not expediently ignored via redefinition or unenforced at all.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.