The most positive development in American
stem cell research in recent months may have occurred in a courtroom rather
than in a laboratory. Earlier this week, US District Judge Royce Lamberth
granted an injunction banning Federal funding for the research. He found that a
lawsuit brought by two researchers would probably succeed in the courts. This
overturns not only President Barack Obama’s guidelines for research on
embryonic stem cells, but also President George W. Bush’s more restrictive ones.

The Department of Justice has announced
that it will appeal the decision.

The news has appalled supporters. A New York Times
described the injunction as “a huge overreach” of judicial power
which would be “a serious blow to medical research” if it succeeds.

The head of the National Institutes of
Health, Francis S. Collins, said that it pours sand in the engine of medical
progress: “This decision has the potential to do serious harm to one of
the most promising areas of biomedical research”.

The NIH has already declared that 50 pending
requests for new funding will not be considered. About a dozen other requests
for US$15 million to $20 million which were likely to be approved have been
frozen, Collins said. Another 22 grants of about $54 million which are due for
renewal in September will be cut off.

The decision was politically inspired,
critics said. Jonathan Moreno, a University of Pennsylvania bioethicist with
close ties to the Obama Adminstration commented
that “What the opposition to this legitimate and
globalized field has been unable to do through science and the ballot box they
are trying to do through the courts.” And a founding member of the
International Society for Stem Cell Research, David J. Anderson, of Cal Tech, said
that “The cynicism of the religious right’s latest attack on science is
absolutely breathtaking.”

Slate columnist William Saletan was so disconsolate
that he moaned: “I never thought I’d say this, but I’m starting to miss George
W. Bush.”

In fact, the the lawsuit was not the
handiwork of a well-funded organisation but basically of two researchers who work
exclusively on adult stem cells, which do not involve the destruction of
embryos. James L. Sherley, a biological engineer at Boston Biomedical Research
Institute, and Theresa Deisher, of Ave Maria Biotechnology Company contend that
the Dickey-Wicker Amendment, which was first passed in 1996 and has been
renewed every year since as a rider to appropriations bills for the Department
of Health and Human Services, explicitly forbids funding for hESC research.  

President Bush and President Obama differed
on their views on the destruction of human embryos for research. But they did
agree that destroying them and using the by-products were two entirely
different issues. All subsequent regulation has rested upon that assumption. No
Federal funding has ever been made available for the destruction of embryos,
but work on embryonic stem cells was supported by both presidents, albeit to
different extents.

But Judge Lamberth
firmly declared
that this assumption is wrong.

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… If one step or “piece of research” of
an ESC research project results in the destruction of an embryo, the entire
project is precluded from receiving federal funding by the Dickey-Wicker Amendment.

True, Federal agencies and two Presidents
have been interpreting the Amendment differently for at least a decade, but
Judge Lamberth says that this is clearly mistaken: “as demonstrated by the
plain language of the statute, the unambiguous intent of Congress is to
prohibit the expenditure of federal funds on ‘research in which a human embryo
or embryos are destroyed’”.

Americans are more accustomed to
complaining about judicial creativity than about black letter conservativism. The
outcome of the last intervention of a judge in American social policy was the
legalisation of same-sex marriage in California. Judge Vaughn Walker rewrote
the state’s constitution to accommodate evolving social mores. But Judge
Lamberth is simply saying that Federal law should be applied as Congress wrote

This view also makes excellent moral sense.
A No to funding for dicing embryos into parts and a Yes to funding research on
the constituent parts is ethically schizophrenic. It’s like banning hunting for
whales and setting up agencies to regulate the sale of whale meat.

As the Vatican pointed out in 2008 in a
discerning document on reproductive technology, Dignitas
, scientists cannot build an ethical firewall between how material
is obtained and what they do with it. A “person who says that he does not
approve of the injustice perpetrated by others, but at the same time accepts
for his own work the ‘biological material’ which the others have obtained by
means of that injustice” contradicts himself.

What happens now?

If an appeal fails in the courts, the whole
embryonic stem cell debate will go back to Congress. Whether the Obama Administration
will have the stomach for leading the charge in a new battle is anyone’s guess.
With the Democrats facing stiff headwinds as mid-term elections approach, they
may want to defer a highly polarizing stem cell debate.

Embryonic stem cell research will not grind
to a halt – it is still being funded by private investors, state governments,
and universities — but it could slow to a very slow walk.

There is a potential winner in this: California,
which has hundred of millions of dollars of funding to splurge on researchers
based in the state. The president of the California Institute of Regenerative
Medicine (CIRM), Alan Trounson, declared somewhat smugly,
amidst expostulations of revulsion at the “deplorable” injunction, “This
decision leaves CIRM as the most significant source of funding for human
embryonic stem cells in the US.”  

However, a slow-down in hESC research is
unlikely to affect the pace of cures.

One reason why the CIRM has so much money
and so few research projects is that there have been almost no significant practical
advances using hESCs. Geron
has announced that it is on the brink of conducting human
trials on patients with spinal cord injury – but it has been poised to plunge
for several years. Maintaining this posture for so long without exciting the
scepticism of the New York Times and Slate is one of the few unambiguous miracles
that embryonic stem cell research has delivered.

In fact, Slate inopportunely published a
lengthy survey of “The Medical Revolution” the day after Judge Lambert
published his injunction. “Where are the cures promised by stem cells, gene
therapy, and the human genome?” asked Emily Yoffe. She pointed out that
embryonic stem cells can be very dangerous and cites the NIH’s Francis S.
Collins: “I’m very excited for the potential of stem cells” but
“We have to be very careful.”

Michael Cook is editor of MercatorNet and
the bioethics newsletter BioEdge.  

Michael Cook

Michael Cook is the editor of MercatorNet. He lives in Sydney, Australia.